Decision No. 12,952

(June 28, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for

petitioner, Claudia V. Grinberg and Everett N. Hughes,

Esqs., of counsel

Neal H. Rosenberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a, which dismissed a charge preferred against respondent. The appeal must be sustained in part.

By notice dated June 22, 1990, petitioner preferred charges against respondent, a tenured special education teacher. The notice contained the following charges:

SPECIFICATION I

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During the 1989-90 school year, respondent engaged in conduct unbecoming his position.

In Particular

1. On or about June 7, 1989, between approximately 9:00-10:00 a.m., at the Bureau of Attendance, Working Papers Clinic in Livingston High School, respondent approached student J.S. twice and asked her out for a date.

* * *

SPECIFICATION II

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In September, 1989, respondent, the subject of an investigation, failed to cooperate with the Office of the Inspector General in that he gave false information.

In Particular:

A. On or about September 11, 1989, while respondent was being questioned under oath by Investigator Brian Carey from the Inspector General's Office regarding the incident referred to in Specification "IA", respondent denied being present at the Working Papers Clinic at P.S. 8, the Livingston High School in Manhattan, on June 7, 1989 between 9:00 a.m. and 10:00 a.m. Respondent stated that he met a girl outside the school at 7:30 a.m.

A hearing was conducted over ten sessions commencing on November 20, 1990 and ending on March 26, 1991. During the course of the hearing, specification II was dismissed and that determination is not contested in this appeal. In an undated decision, the panel found that the allegations contained in specification I-1 had been proven "by more than a preponderance of the evidence." In discussing the evidence concerning this charge, the panel found the testimony of student J.A. credible and corroborated by the testimony of others. In contrast, the panel rejected the testimony given by respondent, finding it "incredible and unworthy of belief."

Despite the hearing panel's detailed analysis of the evidence and unanimous finding of guilt, the panel nonetheless dismissed the charge as not being specific, based upon a discrepancy between the school year mentioned in the introductory paragraph of the charge (1989-90) and the exact date of the alleged misconduct (June 7, 1989). This appeal ensued.

Petitioner contends that the charge was improperly dismissed based upon a discrepancy which, at best, was a typographical error and confused no one at the hearing. Respondent maintains that because of the penal nature of a teacher disciplinary proceeding, a charge against a teacher must be strictly construed. Because June 7, 1989 (the date of the incident in question) did not occur during the 1989-90 school year but during the 1988-89 school year, respondent contends that the panel properly dismissed the charge.

Respondent's contention is without merit. The panel was incorrect in its conclusions concerning the degree of specificity in charges which is required in a proceeding pursuant to Education Law '3020-a. While the charges must be specific enough to enable respondent to defend against them (Adrian v Bd. of Ed., 60 AD2d 840), they need not be as specific as charges in a criminal proceeding and should not be dismissed too readily (Matter of Greenberg, 23 Ed Dept Rep 48; Matter of Bd. of Ed., Sewanhaka CHSD, 22 id. 440). As stated in Matter of Bott v Bd. of Ed., 41 NY2d 265, 268:

In the instant matter, the charge clearly refers to an incident that occurred on June 7, 1989. A review of the record indicates that neither the parties nor the witnesses were confused as to the date of the incident. In fact, no one at the hearing mentioned the discrepancy between the more general time period of the school year and the exact date of the incident. Accordingly, any error in the charge was insignificant and did not prejudice respondent. Therefore, the panel determination dismissing the charge is annulled.

As noted above, the panel found respondent guilty of specification I-1, based upon its assessment of witness credibility. Respondent contends that the panel's determination as to credibility is inconsistent with the evidence presented at the hearing. Where the credibility of witnesses is the primary basis of the hearing panel's decision, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel determination of credibility is inconsistent with the facts (Appeal of Community School Board No. 24, 32 Ed Dept Rep 282; Matter of LePore, 28 id. 425). I have carefully reviewed the record in this proceeding and considered respondent's arguments. I find no basis to overturn the panel's determination that respondent is guilty of specification I-1.

Turning to the question of penalty, the Commissioner of Education is authorized to impose a proper penalty and is not bound by the actions of the hearing panel (Shurgin v Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of McNamara v Commissioner, 80 AD2d 660). 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 974; Shurgin v Ambach, supra). Petitioner contends that respondent's actions require that his employment be terminated. The record indicates that during a 15 minute period respondent approached a student and twice asked her out for a date. The student was not a student at the school where respondent taught. Respondent maintains that at the time he did not know she was a student and assumed she was approximately 21 years old. The panel found respondent's testimony on this issue not credible. While the actions for which respondent has been found guilty are serious, I conclude that dismissal is not warranted in this case. In light of the fact that respondent's prior service indicates that he is an effective teacher who has never been the subject of prior disciplinary action, I find that a fine of $1,000.00 is a sufficient penalty to impress upon him the severity of his conduct and to serve as a warning against such conduct in the future.

I have reviewed petitioner's other contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing panel decision is reversed to the extent that I find that the charge contained in specification I-1 to be sufficiently specific, and

IT IS FURTHER ORDERED that the hearing panel decision is affirmed to the extent that I find respondent guilty of the actions set forth in specification I-1, and

IT IS FURTHER ORDERED that petitioner is hereby authorized to impose a fine of $1,000.00 against respondent.

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