Decision No. 12,853

(December 21, 1992)

Hon. O. Peter Sherwood, Esq., Corporation Counsel, Lawrence E. Becker, Esq.,

Special Assistant Corporation Counsel, attorneys for petitioner, Everett

N. Hughes, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, John H. Jurgens, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the penalty imposed by a hearing panel upon its finding that respondent was guilty of conduct unbecoming a teacher based on illegal possession of cocaine. The panel imposed a penalty of a letter of reprimand and six months suspension without pay. Petitioner requests that the penalty be set aside and seeks authorization to terminate respondent's services. The appeal must be sustained in part.

Respondent is a tenured science teacher in petitioner's school district. On June 16, 1988, respondent was arrested for possession of cocaine. On November 27, 1989, respondent pled guilty in court to a charge of attempted possession of cocaine in the third degree in violation of Penal Law ''110 and 220.16. Subsequently, on December 28, 1988, petitioner found probable cause to prefer a charge of conduct unbecoming a teacher against respondent. In particular, the charge alleged that on June 16, 1988, respondent was arrested and charged with criminal possession of controlled substance in the third degree (a Class B felony), a quantity of cocaine heaving been found in his possession, and criminal possession of a controlled substance in the seventh degree (a Class A felony), a quantity of cocaine having been found in his possession.

Respondent requested a hearing on the charges. The hearing was held on March 22, 1990 and January 25, 1991. In June 1991, the panel found respondent guilty and imposed a penalty of suspension for six months without pay and a letter of reprimand.

Petitioner appeals from the panel decision, alleging that the panel improperly imposed a double penalty and contending that the appropriate penalty is respondent's dismissal. Respondent does not challenge the panel's determination of guilt, but contends that the penalty of suspension was unwarranted, and that the only appropriate penalty is a letter of reprimand.

The parties are correct that the hearing panel erred by imposing a penalty of both a letter of reprimand and suspension without pay for six months. Education Law '3020-a authorizes a hearing panel to impose any one of several penalties, including suspension or a letter of reprimand. It does not, however, permit the imposition of more than one penalty (Matter of Adrian v Bd. of Ed., East Ramapo Central School District, 60 AD2d 840 [2d Dept. 1978]). Consequently, the dual penalty imposed by the hearing panel was improper.

The parties do not dispute respondent's guilt on the charges. The only issue before me, therefore, is the penalty to be imposed. Petitioner asserts that respondent's conduct renders him unfit to teach in the schools of this state and argues, therefore, that the only appropriate penalty is termination of respondent's services. Respondent contends that the panel properly considered his substance abuse problem as a mitigating factor in assessing a penalty, and that the issuance of a letter of reprimand is the only appropriate penalty. He argues that, as noted by the panel, drug and alcohol abuse is a disease for which he has undergone successful rehabilitation. In this regard, the Commissioner of Education has held that,

Further, in cases where the Commissioner considered the disease of substance abuse as a mitigating factor, there was explicit evidence in the record that the teacher had acknowledged the problem, was undergoing treatment and had demonstrated the capacity to carry out his or her duties (Matter of Barnwell, supra; Matter of Bd. of Ed., Harrison CSD, supra; Matter of Bd. of Ed., Bellmore-Merrick Central High School District, 22 Ed Dept Rep 658; Matter of Bd. of Ed., Canandaigua City School Dist., supra; Matter of the Bd. of Ed., Wappingers CSD, supra)(see, Matter of Bott v Bd. of Ed., 41 NY2d 265).

In seeking authority to terminate respondent's services, petitioner relies, in part, on my decision in Appeal of Barnwell, supra, and Matter of Bd. of Ed., Buffalo City School District v Rioforgiato (21 Ed Dept Rep 79). Notably, however, in Barnwell the hearing panel found no evidence that the teacher had a drug abuse problem or had undergone treatment or rehabilitation; while in Rioforgiato, there was no indication that the teacher had shown remorse or changed his attitude respecting his sale of a controlled substance. Unlike the case before me, in those cases there was no basis to conclude that the conduct underlying the charges had changed, or that the individual had undergone successful rehabilitation.

In this case, however, it is undisputed that the drug related arrest and conviction that formed the basis of the charge was a manifestation of respondent's substance abuse problem. The panel's findings, which are supported by the record, also indicate that respondent has acknowledged his problem, is undergoing successful treatment and demonstrates a capacity to carry out his duties due to his progress in the treatment program. The record includes credible testimony from the director/counselor of respondent's treatment program as to his success in the program and overall positive prognosis. In her testimony, she stated that Mr. Gillman is one of the program's most successful clients. In his own testimony, respondent not only acknowledges his drug problem, he describes at length the numerous steps he has taken to confront and control it. The record also indicates that respondent is actively and vigorously involved in the recovery process, is highly motivated and attends the rehabilitation program regularly. Although respondent is only required to attend one weekly meeting, the record indicates that he has visited the rehabilitation center up to four additional visits each week. He maintains daily contact with his program sponsor. The record also indicates that respondent participates in a community support group on a weekly basis. Furthermore, the record contains evidence of respondent's remorse. In this regard, colleagues in the administrative offices to which respondent has been reassigned have submitted letters attesting to the fact that respondent has expressed remorse and displayed eagerness to rectify his past mistake. They also attest to respondent's exemplary record in the performance of his job.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry on professional responsibilities (Matter of Bott v Bd. of Educ., 41 NY2d 265). After reviewing the entire record, I find that there is no basis to conclude that respondent is unfit to teach. Respondent has confronted his drug problem and has demonstrated success, thus far, in overcoming it. Moreover, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that I may substitute my judgment for that of the hearing panel (Shurgin v Ambach, 83 AD2d 665). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v Commissioner, et al., 82 AD2d 665, aff'd 56 NY2d 700; Shurgin v Ambach, supra). For the reasons set forth above, I conclude that dismissal is not warranted in this case. However, I do not agree with respondent's contention that a letter of reprimand is the appropriate penalty for the conduct proved. The six month suspension imposed by the panel will sufficiently impress upon respondent the gravity of the charges brought against him and that any repetition will jeopardize his future employment (see, Bd. of Ed., Harrison Central School District, 22 Ed Dept Rep 184). Therefore, I will not substitute my judgment for that of the hearing panel in imposing a penalty of suspension for six months without pay. For the reasons set forth above, however, the panel's additional imposition of a letter of reprimand is annulled.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that that part of the determination of the '3020-a hearing panel that imposed a letter of reprimand as a penalty must be, and hereby is, annulled.

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