Decision No. 13,190

(May 23, 1994)

Charles A. Termini, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Thomas J. Shoener, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel pursuant to Education Law '3020-a finding him guilty of insubordination, conduct unbecoming his position and conduct prejudicial to the good order, efficiency, and discipline of the service, and authorizing his suspension without pay for six (6) months. Respondent cross-appeals an evidentiary ruling and the penalty. Both the appeal and cross-appeal must be dismissed.

Petitioner is a tenured mathematics teacher. At the time of the incident giving rise to this proceeding, he was employed by respondent, the City School District of the City of New York ("the district"), and had taught for 29 years at Junior High School 231 in Queens ("School 231"). On November 7, 1991, respondent found probable cause to prefer charges against petitioner pursuant to Education Law '3020-a. In four specifications based on a single incident, respondent charged petitioner with misconduct constituting insubordination; conduct unbecoming his position and conduct prejudicial to the good order, efficiency, and discipline of the service; and substantial cause that renders him unfit to perform properly his obligations to the service.

The charges were based on an incident that took place on June 26, 1991, the teachers' last day of the 1990-91 school year. On that day, teachers were required to perform "school year close out duties", such as securing classrooms and returning keys and undistributed materials. As these duties were completed, the appropriate administrator signed each teacher's close-out form. Teachers then lined up in the main office to submit their completed forms to an assistant principal for final review. Once the form was approved, the teacher entered the adjoining principal's office to receive his or her June and summer paychecks.

On June 26, 1991, petitioner was cleaning his classroom, as part of his close-out duties, when he was approached by Arnold Zeiger, a teacher on leave who returned to pick up his paychecks. Mr. Zeiger requested petitioner's assistance in obtaining his paychecks. Petitioner, who was the acting union chapter chair, agreed to assist Mr. Zeiger, even though Zeiger's close-out form had not been approved because of a dispute over missing keys. Petitioner, on two prior occasions, had advocated on Zeiger's behalf to have his paychecks released. When petitioner collected his own paychecks, he told the principal that withholding Mr. Zeiger's checks was illegal. According to petitioner, the principal told him that Mr. Zeiger would have to come back the next day to resolve the matter.

Petitioner then telephoned the superintendent's office and was told through his secretary that the superintendent considered it a matter to be handled by the principal. After a second unsuccessful attempt to persuade the principal to release the checks in which he explained that Mr. Zeiger could not return the next day, petitioner called the union district representative. The union representative put him on hold while she tried to contact the superintendent. While on hold, petitioner was approached again by Mr. Zeiger who said he could wait no longer. Petitioner testified that he then put down the telephone and went back to the principal's office because he realized that "there was no other method I could employ". The principal, two assistant principals and a teacher were in the office when petitioner entered and saw Mr. Zeiger's checks on the table. Petitioner walked over to the table, picked up a number of checks, turned and walked toward the door to leave the office. Meanwhile, Ms. Laub, an assistant principal, closed the door and stood in front of it to impede petitioner's exit. What happened next, as petitioner exited the office, is in dispute. The principal and two assistant principals including Ms. Laub, testified that petitioner pushed and shoved her until she stumbled out of the way. Petitioner denies pushing or shoving Ms. Laub, and testified that "I put my hand on the doorknob and, as I did that, she put her shoulder into my chest and started to push against me and I just continued to open the door and went through." Petitioner then handed Mr. Zeiger his checks, put the other teachers' paychecks back on the table, and resumed his telephone conversation with the union representative. Petitioner subsequently left the building.

As a result of the incident, respondent served petitioner with the earlier described '3020-a charges for entering the office of the principal at School 231, and without authorization, grabbing all undistributed personnel checks from a desk, shoving or pushing the assistant principal who was blocking his exit and leaving the office with the checks.

A hearing was conducted on three days between January 8, 1992, and February 13, 1992. Four witnesses testified for respondent. Petitioner testified on his own behalf and called Arnold Zeiger as a witness, who testified that he had requested petitioner's assistance, as his union representative, to obtain his paychecks from the district. In a decision dated April 8, 1992, the panel found petitioner guilty of all charges and recommended a penalty six-months suspension without pay.

In its decision, the panel found no dispute that petitioner engaged in the actions described in all but one of the specifications, as proven by the testimony of petitioner, the principal and two assistant principals, and all eyewitnesses to the June 26, 1991 incident. In fact, petitioner only denied the fourth specification which alleged that he repeatedly shoved or pushed Ms. Laub away from the door of the principal's office, eventually causing her to stumble, and then ran away from the office with the checks. While considering petitioner's testimony and evidence, the panel found this charge to be amply supported by the testimony of the principal and two assistant principals who observed the incident. The panel also found petitioner's version of the encounter, that Ms. Laub "put her shoulder onto my chest and started to push against me", not credible.

Petitioner contends that the district failed to prove the charges at the hearing. He also contends that the panel's decision is not supported by substantial evidence since it ignored the testimony of Mr. Zeiger, as well as evidence that withholding Mr. Zeiger's paychecks violated board policy and federal law. Petitioner further contends that the penalty is disproportionately excessive. Respondent cross appeals, claiming that the panel erred by not permitting introduction into evidence of a document authorized by petitioner which led to a disproportionately lenient penalty.

On review of the hearing panel's determination rendered pursuant to Education Law '3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel with regard to findings of fact and to make new findings (Matter of Shurgin v Ambach, 83 AD2d 665, affd 56 NY2d 700; Matter of McNamara v Commissioner, 80 AD2d 660). However, the Commissioner will not ordinarily substitute his judgment for that of a hearing panel unless the panel decision is contrary to the weight of the evidence and the panel has not adequately examined its rejection of otherwise convincing testimony (Shurgin v Ambach, supra; Matter of Bd. Education of the City School District of the City of New York, 24 Ed Dept Rep 284; Matter of Bd. of Educ., Sewanhaka Central High School Dist., 23 id. 463). On the present record, I find no basis for substituting my judgment for that of the hearing panel on the finding of guilt.

The record supports the panel's finding that, despite being informed by the principal that Mr. Zeiger's paychecks were being withheld until he complied with the mandatory close-out procedures, petitioner disregarded the procedures, grabbed all the checks on a table in the principal's office, delivered those checks issued to Mr. Zeiger, and later returned the other checks. Contrary to petitioner's contentions, the panel's decision includes a discussion of Mr. Zeiger's testimony, as well as petitioner's claim that the district improperly withheld Mr. Zeiger's paychecks. Not only are the panel's findings amply supported by the record, they are based largely upon its assessment of witness credibility. I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts (Appeal of the Bd. of Educ. of the City School Dist. of the City of New York, 32 Ed Dept Rep 666; Appeal of Community School Bd. No. 24, 32 id. 282; Appeal of LePore, 28 id. 425). I have reviewed the record in this proceeding and find no basis to overturn the panel's determination that petitioner is guilty of the charges. Therefore, petitioner's request to annul the panel's findings of guilt is denied.

As for respondent's claim regarding the ruling to deny its offer to place a document into evidence, I find no basis to substitute my judgment for the panel chair, who fairly considered arguments regarding the relevance and prejudicial nature of the document. While Education Law '3020-a(3)(c) provides that the hearing need not comport with technical rules of evidence, nothing in the record in this instance justifies the reversal of the panel's ruling. I likewise find petitioner's contention regarding the ruling without merit.

As for the penalty, petitioner contends that six months without pay is excessive and disproportionate to the offense in view of the totality of the circumstances. Contending that suspension for six months is instead a disproportionately lenient penalty, respondent cross-claims seeking authority to terminate petitioner's employment. The Commissioner of Education may substitute his judgment for that of a hearing panel regarding the penalty imposed against a tenured employee (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, affd 56 NY2d 687; Matter of Shurgin v Ambach, supra). However, I decline to do so on the record before me. As the panel found, even if respondent's withholding of Mr. Zeiger's paychecks was in violation of board policy or federal law, it would not justify petitioner taking matters into his own hands in disregard of the contractual grievance procedure to "obey first and grieve later." Although circumstances do not excuse petitioner's actions, the incident, nevertheless, represents a single, isolated occurrence of poor judgment and misconduct in a 29 year career of successful teaching. And, while petitioner's conduct cannot be condoned, there is no basis to conclude that he is unfit to ever teach again. I, therefore, deny respondent's request to terminate petitioner.

THE APPEAL AND CROSS APPEAL ARE DISMISSED.

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