Decision No. 13,376

(March 22, 1995)

Whiteman, Osterman & Hanna, Esqs., attorneys for petitioner, Melvin H. Osterman, Esq.,

of counsel

Judge & Duffy, Esqs., attorneys for respondent, H. Wayne Judge, Esq., of counsel

SOBOL, Commissioner.--Petitioner, Kent F. Cauley, appeals the decision of the Board of Education of the Willsboro Central School District ("respondent") terminating his employment as superintendent. The appeal must be sustained in part.

On July 14, 1992, respondent preferred 44 written charges against petitioner, alleging that he had breached his employment contract. Respondent appointed an independent hearing officer who, on May 20, 1993, found petitioner guilty of some of the charges and not guilty of others. The hearing officer concluded that petitioner's conduct did not amount to a breach of his employment contract and recommended that these "small and moderate instances" of misconduct warranted only a suspension without pay for three months.

On July 15, 1993, respondent overruled the hearing officer's decision on seven misconduct charges and found that petitioner had materially breached his employment contract. Respondent also charged petitioner with one further instance of alleged misconduct. After conducting its own hearing, respondent found petitioner guilty of that charge as well. Respondent also determined that petitioner's conduct in the second charge breached his employment contract and voted to terminate his employment.

Petitioner appealed respondent's determination to the Commissioner of Education alleging that it lacked detailed findings of fact. The appeal was sustained, and respondent was directed to make a proper determination incorporating detailed findings of fact (Appeal of Cauley, 33 Ed Dept Rep 502). In response to that decision, respondent met on April 25, 1994, adopted findings of fact and supplied reasons for terminating petitioner's employment. This appeal ensued.

Prior to reaching the merits of this case, I must address a procedural issue. Respondent contends that the petition was improperly served and should be dismissed. This is apparently the result of the notice of petition becoming detached from the petition prior to service. There seems to be no doubt that respondent received the petition in a timely manner and that respondent was aware of all the information contained in the notice of petition. Accordingly, no prejudice has resulted and I dismiss respondent's claim that the papers were improperly served.

With respect to the merits, petitioner contends that the evidence fails to support respondent's findings of fact and penalty determination. Petitioner also contends that respondent prejudged both petitioner's guilt and the penalty imposed prior to hearing the facts underlying petitioner's alleged misconduct. In support of that contention, petitioner submits documentary evidence intended to establish respondent's bias in this matter. In addition to several statements of board members suggesting bias, petitioner submits a July 1992 Willsboro Central School Newsletter which contains the following press release issued by respondent:

The newsletter was published prior to any determination by respondent regarding petitioner's conduct and the degree of penalty required. It should also be noted that the board of education as it was comprised on the date of the newsletter contained four of the five members present on the panel which assigned guilt and penalty.

Thus, the record verifies petitioner's contention that respondent's conduct in this matter demonstrates a strong appearance of bias and impropriety. Specifically, after issuing a statement calling for "all legal procedures necessary to terminate Mr. Cauley's employment ...", respondent acted as fact finder and hearing officer on its own charges against petitioner. In doing so, respondent adopted most of the findings of fact issued by the original impartial hearing officer, but, nonetheless, overruled the hearing officer's determination, suspended petitioner without pay, filed a new charge, conducted its own hearing on that charge, found petitioner guilty and dismissed him. The apparent bias in this proceeding requires that I reassess both sets of changes.

The charges considered by the initial hearing officer ranged from lack of custodial supervision to approving repairs without the authorization of respondent. On some issues, the original impartial hearing officer apportioned blame between petitioner and respondent. Additionally, one of the charges reflects conduct that represents a lack of strict compliance with administrative requirements such as issuing coaches' payments early, authorizing personal leave without adequate reason and allowing students to use school facilities at unauthorized times.

On this record, I find the determination of the initial hearing officer credible and fair. I agree with the hearing officer's conclusion that petitioner's misconduct in connection with these charges was minor. Based upon the level of misconduct in the record, I concur with the hearing officer's original determination that three-months' suspension without pay was the appropriate penalty for the original set of charges.

The second charge concerns remarks purportedly made by petitioner to a female teacher. The remarks were made at a party which occurred on the afternoon of the last day of school at a staff member's home. Petitioner was suspended at that time, but had been invited to the party. Respondent claims that petitioner, while leaning over and pumping air into a beer keg, asked a female teacher "Is this the way (your husband) did it to you on your wedding night?" Respondent further contends that petitioner continued to mumble a statement which contained the phrases, "putting it in" and "virgin" with other inaudible words.

Respondent's decision and fact finding statement on this issue states:

The record indicates that both Cauley and the teacher were crouched over a beer keg and looking down when the encounter between them occurred. One witness testified that she heard petitioner mumble quietly and heard the word "Dan" (the teacher's husband's name), but heard no more. Petitioner contends that the conversation was about the closing of a local airforce base which affected the teacher's husband. Petitioner supplied witnesses which, although sitting somewhat near the beer keg, denied hearing any sexual conversation. This charge rests upon the credibility of two opposing witnesses and respondent's decision is not supported by other evidence. As a result, respondent's ability to assess credibility without bias is essential.

"(A) determination based not on a dispassionate review of facts but on a body's prejudgment or biased evaluation must be set aside" (Warder v Board of Regents, 53 NY2d 186). Furthermore, when it cannot be determined what influence the bias had, the appropriate remedy is to grant a new hearing (Matter of Syquia v Board of Education, 80 NY2d 531). In this instance I cannot independently evaluate the evidence in any meaningful way which would overcome the appearance of impropriety created by respondent. I have no way of independently assessing the credibility of the two opposing witnesses.

Accordingly, I remand the misconduct charge based on petitioner's alleged sexual harassment to respondent board of education with direction to afford petitioner a new hearing before an impartial hearing officer on this charge. By placing the determination of credibility before an impartial hearing officer, this issue can be fairly resolved.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of respondent's decision which dismissed petitioner from employment be and the same herein is annulled.

IT IS FURTHER ORDERED that respondent is authorized to suspend petitioner without pay for a period of three months, to include the period of suspension which petitioner may have already served.

IT IS FURTHER ORDERED that respondent is authorized to appoint an impartial hearing officer to conduct a hearing relating to the second charge directed at petitioner.

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