Decision No. 13,455

(July 17, 1995)

SHELDON, Acting Commissioner.--Petitioner, the Board of Education of the City School District of the City of New York, appeals the decision of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of the charges against him and recommended suspension without pay for one semester. The appeal must be dismissed.

Respondent is a tenured laboratory specialist employed by petitioner from 1971 until 1975 and again from 1977 until the present. While working at the Seward Park High School, respondent performed the duties of a classroom teacher for biology and general science. From 1981 until 1985, respondent was assigned as a laboratory specialist. In 1985, respondent was transferred to the Clara Barton High School and was assigned to the Seward Park High School Annex as a laboratory specialist. On October 30, 1985, petitioner found probable cause to prefer charges against respondent pursuant to Education Law '3020-a. The charges consist of four specifications with numerous particulars. They assert that respondent engaged in conduct constituting incompetence, inefficiency of service, neglect of duty, conduct prejudicial to the good order, efficiency and discipline of the service and conduct unbecoming a teacher. The particulars relate to respondent's alleged failure to fill requested orders, keep laboratories clean, organize laboratory squads, label materials properly and obtain necessary supplies.

A hearing was held pursuant to Education Law '3020-a on twenty-four dates between May 6, 1986 and April 18, 1990. The hearing panel issued its decision on July 29, 1994, finding respondent guilty of incompetent and inefficient service, neglect of duty and conduct prejudicial to the good order, efficiency and discipline of the service. These findings were based in part on respondent's alleged failure to remove and discard outdated printed material, to store models in cabinets designed for that purpose, to organize and properly label chemicals, to satisfy teacher requests for teaching aids and materials, to organize his laboratory preparation room and to organize a laboratory squad.

The panel further found insufficient cause to determine that respondent was unfit to properly perform the obligations of his service, and that he was not guilty of conduct unbecoming his position. The panel thus recommended respondent's suspension without pay for one-semester.

Petitioner does not dispute the panel's findings of guilt, but instead seeks to increase the penalty based upon respondent's alleged direct, deliberate and continuing insubordination. Respondent contends that the penalty may not be increased on the basis of insubordination, because petitioner did not charge him with insubordination and the panel did not find him guilty of insubordination.

In determining whether to substitute my judgment for a hearing panel's, the question is whether the discipline imposed is proportionate to the offense (Appeal of Bruno; 31 Ed Dept Rep 503; Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY 2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, aff'd 56 NY2d 687; Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700). Also pertinent is the teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of the Bd. of Educ., Pleasantville UFSD, 31 Ed Dept Rep 262). A penalty must be imposed which is sufficient to deter repetition of the improper conduct and impress upon respondent that the behavior in question is unacceptable (Appeal of the Bd. of Educ., Poughkeepsie City School District , 32 Ed Dept Rep 547; Appeal of the Bd. of Educ., City School District of the City of New York, 29 id. 228). The panel found that respondent was capable of performing his job and that the recommended penalty is severe enough to impress upon him the seriousness of his actions. The record reflects that, since commencing his employment with respondent in 1971, respondent has not been charged with other acts of misconduct. Additionally, this penalty puts respondent on firm notice that a failure to correct his conduct will not be tolerated. Accordingly, I uphold the hearing panel's recommendation to suspend respondent for one semester without pay.

Petitioner seeks to increase respondent's penalty to termination or, in the alternative, a two-year suspension without pay. The basis for petitioner's request is respondent's alleged continuing insubordination. However, respondent was not charged with nor found guilty of insubordination. A tenured teacher may not be found guilty of conduct for which he was not charged (Soucy v. Bd. of Educ., North Colonie Central School District, 41 AD2d 984; Matter of Murray v. Murphy, 24 NY2d 150). Doing so would constitute a deprivation of the individual's rights to a fair hearing and due process (Matter of Murray v. Murphy, supra).

THE APPEAL IS DISMISSED.

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