Decision No. 12,840

(November 25, 1992)

Shaw & Silveira, Esqs., attorneys for petitioner, Garrett L. Silveira, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Kevin H. Harren, Esq., of counsel

SOBOL, Commissioner.--Petitioner Board of Education of the Poughkeepsie City School District ("petitioner"), appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a to review disciplinary charges preferred against Peter Cappell, a tenured teacher employed by petitioner. Petitioner requests that I substitute my judgment for that of the hearing panel with respect to the panel's determination on three charges and find respondent guilty. Petitioner also asks that I increase the penalty imposed and authorize the teacher's dismissal. The appeal must be dismissed.

Respondent has taught in petitioner's district for the past 25 years. At the time of the incident which led to these charges, he was teaching seventh grade English. On May 2, 1990, petitioner found probable cause to prefer charges against respondent. On May 7, 1990, petitioner issued respondent a notice of determination of probable cause on charges of misconduct and/or conduct unbecoming a teacher; neglect of duty; and insubordination. The charges relate to a single incident which occurred on March 21, 1990, when respondent allegedly caused a student to fall by intentionally blocking her as she ran down the hall, and left the scene without checking the student's condition or taking steps to ensure her safety.

A hearing was held on December 11, 1990, January 15 and May 19, 1991. The hearing panel issued its decision on August 12, 1991, finding respondent guilty on one charge of misconduct and neglect of duty for leaving the student without taking steps to ensure her safety. The panel found the teacher not guilty on three additional charges involving misconduct and/or conduct unbecoming a teacher and insubordination involving allegations that respondent caused the student to fall by intentionally colliding into her in disregard of a prior warning and board policy prohibiting corporal punishment. The panel recommended a penalty of suspension without pay for three months.

Petitioner contends that the panel erred when it found respondent not guilty of the three charges on the ground that petitioner failed to establish by a preponderance of the evidence that respondent intended the incident to occur. In particular, petitioner refers to the testimony of two student witnesses that they observed respondent moving into the student's path as he watched her approaching and did nothing to prevent the collision, and that he did not fall himself but caused the student to hit her head against lockers and fall to the floor. Petitioner also contends that the panel's determination dismissing two charges for lack of evidence proving insubordination was in error in view of the uncontroverted evidence that respondent had been directed by his former superintendent to refrain from unauthorized physical contact with students and that his actions violated the district's policy on corporal punishment. Petitioner further contends that the panel's failure to find respondent guilty of the three charges resulted in a disproportionately lenient penalty. Petitioner, therefore, requests that I substitute my judgment and find respondent guilty of all four charges and authorize respondent's dismissal. Alternatively, petitioner urges that, even if I uphold the panel's decision dismissing the three charges, I find the penalty disproportionately lenient and authorize dismissal.

Respondent contends that the hearing panel's decision dismissing the three charges was proper. Respondent also counterclaims that the three-month suspension without pay is disproportionately harsh, in view of the panel's finding that respondent delayed in reporting the incident because he was teaching a class. Respondent also raises two procedural defenses which I will address before the merits.

Respondent contends that the appeal should be dismissed as untimely because it was not instituted within 30 days from the decision of the hearing panel. Section 275.16 of the Regulations of the Commissioner provides that an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of, except when excused for good cause which must be alleged in the petition (emphasis added). The hearing panel's decision was rendered on August 12, 1991 and received by petitioner on August 15, 1991. The petition, however, was not served until September 16, 1991, more than thirty days later. Although the regulations require that good cause for delay be alleged in the petition, petitioner failed to include any explanation for the delay in its petition. Letters received by my Office of Counsel regarding petitioner's attempts to serve respondent were not made part of the petition and were submitted for the first time in its reply along with allegations that the delay was due to several unsuccessful attempts to serve respondent prior to September 16. Since the rule requires that the cause for delay be alleged in the petition and the petition is silent on the matter of the delay, the appeal must be dismissed as untimely.

Respondent also contends that the appeal should be dismissed for failure to serve properly the petition. Respondent acknowledges that petitioner's counsel gave respondent's attorney a courtesy copy of the petition, but claims that he was never served. The record reflects that petitioner unsuccessfully attempted to serve respondent at an address believed to be his residence. However, petitioner apparently never attempted to serve respondent at a more recent address that respondent argues he made available to the district on the SED form 3020-a. Commissioner's regulations require that a petition be personally served or, in the event respondent cannot be found, allow it to be left with a person of suitable age and discretion at the respondent's residence or served in another manner "as directed by the Commissioner." The record indicates that the respondent was neither personally served with the petition nor was it served upon a person at respondent's residence. In its reply, petitioner asks that service be accepted since it followed my Office of Counsel's instructions even though respondent apparently was not actually served. Although my Office of Counsel did provide petitioner's counsel an alternative means to serve respondent by certified mail, petitioner never mailed the petition to respondent's residence. Since the regulations are clear, I cannot excuse defective service when petitioner used an incorrect mailing address.

Even if the appeal were timely and the petition properly served, it would nevertheless be dismissed on the merits. In a proceeding pursuant to '3020-a of the Education Law, the complainant must establish the charges by a preponderance of the evidence (Matter of Martin v Ambach, 67 NY2d 975; Appeal of the Bd. of Ed. of Windham-Ashland-Jewett Central School District, 26 Ed Dept Rep 141). The panel found insufficient evidence to establish that respondent intentionally collided with the student as punishment for running in the hallway, a necessary element in the three charges dismissed by the panel. In reaching its conclusion, the panel considered respondent's own statement when he described the collision as inadvertent and the statements of two students, including the one who collided with respondent, that the teacher walked into the student's path and braced himself by lowering his shoulder before the collision. The student who collided with the teacher also testified that respondent told her after she fell that she shouldn't have been running. The third student, who was chasing the student involved in the collision, testified that he stopped running when he saw respondent walk into the hallway from his classroom doorway but that the student involved in the collision looked back and kept running until she hit the teacher. In addition, a teacher assigned to a classroom across the hall from respondent also testified that while she did not see the collision, she heard respondent say "stop" and saw a student get up from the floor and walk into his classroom. Based on inconsistencies in the testimony regarding respondent's location and direction in the hallway and whether the student could have avoided the collision, the panel dismissed the three charges for lack of evidence of "intent." In reaching its decision dismissing the charge alleging violations of the board's policy on corporal punishment, the panel also gave weight to the fact that the superintendent failed to include the incident in his "Semi-annual Report on Complaints or Incidents of Use of Corporal Punishment" submitted to the State Education Department.

On review of the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner may substitute his judgment for that of the hearing panel with regard to findings of fact or make new findings (Matter of Shurgin v Ambach, 83 AD2d 655; aff'd 56 NY2d 700, 451 NYS2d 722; Matter of McNamara v Comm'r, 80 AD2d 660, 436 NYS2d 406). However, on the record before me, I find the decision of the panel is supported by the weight of the evidence and there is no basis to set it aside.

With respect to the penalty, the panel recommended a three-month suspension without pay based on its finding that the teacher was guilty of conduct unbecoming a teacher and neglect of duty when he left the scene where the incident occurred without either inquiring whether the student had been injured or taking steps to ensure her health and safety. Respondent testified that he did not report the incident earlier because he believed the student to be uninjured. Whether the student was seriously injured or not does not relieve respondent of his responsibility to take appropriate action to ensure her safety. I find that a three-month suspension without pay is sufficient to impress upon petitioner the seriousness of his offense.

THE APPEAL IS DISMISSED.

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