Decision No. 13,171

(May 5, 1994)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Tuxedo Union Free School District, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of misconduct, conduct unbecoming a teacher, neglect of duty and insubordination, and authorized his suspension without pay for four months. Petitioner seeks to terminate respondent's services. The appeal must be sustained in part.

Respondent is a tenured high school science teacher in the Tuxedo district. On February 13, 1992, petitioner found probable cause to prefer charges against respondent:

A hearing was conducted on May 28, 1992 at which the parties

stipulated as follows:

In a decision dated July 21, 1992, the panel found respondent guilty of misconduct, conduct unbecoming a teacher and neglect of duty in connection with Charge I; and guilty of misconduct, conduct becoming a teacher, neglect of duty and insubordination with respect to Charge II. The panel then scheduled another hearing to determine the appropriate penalty.

On September 1, 1992, the panel reconvened to hear argument regarding penalty. Petitioner presented for the panel's consideration the March 11, 1991 determination of a panel in a prior disciplinary proceeding against respondent. That prior determination indicated that respondent had been found guilty of one charge of insubordination, conduct unbecoming a teacher and incompetency by failing to adhere to a directive that he not take high school Physics students on a small aircraft to conduct a zero gravity experiment. The prior panel imposed a fine of $1,250. In a decision dated October 26, 1992, the current panel took into account the prior finding of guilt against respondent and imposed a suspension without pay for four months. This appeal ensued.

Before addressing the merits of this appeal, I must address two procedural issues. In the memoranda of law submitted by both petitioner and respondent, the parties seek to introduce evidence that was not before the panel and was not set forth in any pleading. A memorandum of law may not be used to belatedly add assertions or exhibits which are not part of the record (Appeal of Albert, et al., 32 Ed Dept Rep 615; Appeal of Johnson, 26 id. 42; Matter of Bd. of Ed., Broadalbin CSD, 24 id. 51). Accordingly, such new exhibits will not be considered in this appeal. Respondent has also recently submitted two documents relating to a separate action between the parties in federal court. Since that federal action does not involve the issues in this case, I will not consider those submissions in my review of this matter.

Neither party to this appeal challenges the panel's findings of guilt. Accordingly, the sole issue for review is whether the penalty recommended by the panel is appropriate. Petitioner contends that it is too lenient, while respondent contends it is appropriate. As Commissioner, I may substitute my judgment for that of the hearing panel regarding the penalty imposed (Matter of Mockler v. Ambach, et al., 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, affd 56 NY2d 687; Matter of Shurgin v. Ambach, 83 AD2d 665, affd 56 NY2d 700). In determining whether to substitute my judgment for that of the panel, I must review the measure of discipline imposed and determine whether it is proportionate to the offense.

Based on the record before me, I find that the penalty recommended by the panel is too lenient. Respondent argues that his action of twice holding a cigarette lighter in an open position and pumping a short spray from a breath spray container was not dangerous conduct. However, that argument ignores the fact that such action occurred outside of the context of legitimate class instruction and was performed before impressionable elementary school children. Respondent's conduct could easily have resulted in a young child attempting to copy respondent's act, with potentially serious consequences. This act, coupled with his prior action of taking students on an unauthorized airplane ride, indicates a pattern of irresponsible conduct with students.

Moreover, the instant matter and the incident regarding the airplane ride both involve actions taken by respondent after he had been specifically directed by district supervisors not to take such actions. The record of this appeal, therefore, also indicates a pattern of insubordination by petitioner. Repeated insubordination is "likely to undermine the discipline necessary for the operation of a sound school system" (Matter of Bd. of Ed., Duanesburg CSD, 18 Ed Dept Rep 387; Matter of Mockler v. Ambach, et al., supra; Appeal of Bd. of Ed., Uniondale UFSD, 26 id. 498).

While I find respondent's conduct irresponsible and insubordinate and am not satisfied that respondent has acknowledged that his conduct in this and the prior matter was unjustified, termination of his employment is not warranted. Rather, a penalty must be imposed which is sufficient to impress upon respondent that his irresponsible and insubordinate behavior is unacceptable and must not continue. Accordingly, I find that the appropriate penalty is a one-year suspension without pay. In calculating the period of suspension, petitioner must take into account any period of suspension without pay already served by respondent.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that such portion of the decision of the hearing panel which recommended that respondent be suspended without pay for four months be, and the same hereby is, annulled.

IT IS FURTHER ORDERED that petitioner be, and hereby is, authorized to suspend respondent without pay for a period of one year, to include the period of suspension which respondent may have already served pursuant to the hearing panel's decision.

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