Decision No. 13,772

(June 5, 1997)

Anne Reynolds Copps, Esq., attorney for petitioner

Rains & Pogrebin, P.C., attorneys for respondent, Ernest R. Stolzer, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from a determination of a hearing panel convened pursuant to Education Law '3020-a to hear charges preferred against her by the Board of Education of the Hoosic Valley Central School District ("respondent"). Petitioner requests that I annul the panel's findings and the penalty of dismissal it imposed. The appeal must be dismissed.

Petitioner is a tenured teacher of elementary grades in respondent's district. On October 19, 1993 respondent preferred a charge of incompetence against petitioner pursuant to Education Law '3020-a. The charge brought against petitioner was based on the following specification:

Petitioner requested a hearing on the charge which took place over nine dates, ending December 9, 1994. Respondent's witnesses consisted of a psychiatrist and two clinical psychologists. Petitioner presented a number of witnesses including one psychologist. In its decision the panel found petitioner guilty of the charge and authorized respondent to terminate petitioner's employment. This appeal ensued.

Petitioner alleges that the panel's decision is not supported by the evidence produced at the hearing. She also asserts that the penalty of dismissal constitutes an impermissible double penalty for a prior finding of incompetence in 1988 for which petitioner had been suspended for one year (see, Appeal of the Board of Education of the Hoosick Valley Central School District, 28 Ed Dept Rep 429). Respondent contends that the panel's findings are fully supported by the record and that dismissal is warranted.

To fully comprehend the significance of the expert testimony presented at the hearing by a psychiatrist and several psychologists, it is necessary to examine the history of this case. In 1988, respondent preferred charges of incompetence and misconduct against petitioner based on her use of inappropriate methods of controlling her pupils in class. The hearing panel that was convened to hear those charges found her guilty of the charges and imposed a penalty of suspension without pay for one semester. On appeal, former Commissioner Sobol upheld the findings of guilt and increased the penalty to suspension without pay for one year (Appeal of the Board of Education of the Hoosick Valley CSD, 28 Ed Dept Rep 429). In that decision Commissioner Sobol held:

Upon completion of the one year suspension, petitioner returned to employment. She was assigned to non-teaching duties and had been serving in that assignment until the current charge was preferred. As noted previously, the current charge of incompetence is based on petitioner's submission to psychiatric examination and psychological testing which resulted in respondent's psychologists' determination that petitioner is "schizotypal with strong paranoid features" and should not be allowed to return to classroom teaching.

On review of a 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, aff'd 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; Appeal of Stoessel, 33 Ed Dept Rep 668; Appeal of the Board of Education of the City School District of the City of New York, 24 id. 284). After careful review of the extensive record before me, I find no basis for substituting my judgment for that of the hearing panel.

In finding petitioner unfit to return to the classroom, the panel weighed the testimony and reports of respondent's experts, Dr. Kronick and two psychologists, Dr. Silver and Dr. Thibodeau, against the testimony of petitioner's expert, Dr. Robert Wishnoff, and petitioner's own testimony. The panel assigned greater weight to the testimony of Drs. Kronick, Silver and Thibodeau over that of Dr. Wishnoff.

Dr. Steven D. Kronick is a board certified psychologist who teaches at Albany Medical School. Dr. Kronick testified based on a clinical interview and review of psychological tests, that petitioner is "schizotypal with strong paranoid features." According to Dr. Kronick, schizotypal personalities with paranoid features tend to blame others for their problems and do not accept responsibility for their actions. They see the world much differently and react as if people are out to get them. Dr. Kronick opined that, where this type of person is interacting with children, these traits can be very dangerous. Dr. Kronick further opined that there was an exceedingly high likelihood that the same behaviors for which petitioner had been previously suspended would recur. According to Dr. Kronick, there was a judgment call to be made whether the risk should be taken that the children petitioner would teach if returned to the classroom would be traumatized again. Dr. Kronick's recommendation was that such a risk should not be taken.

Dr. Kronick emphasized that, it is characteristic of a person who is "schizotypal with paranoid features" to reject responsibility for her actions. The record indicates that during the clinical interview by Dr. Kronick petitioner stated that the prior disciplinary charges were "taken out of context" there was "not much to it." She expressed to him that the prior charges were "essentially irrelevant or not of great significance," and that in her view she did not do anything wrong that was injurious to students. According to Dr. Kronick, petitioner had little insight into her problematic behavior and was quite refractory to personal change. There was, according to Dr. Kronick, no change in her personality features that might allow her to admit she was responsible for her behavior and therefore do things differently. Consequently, according to him, the "potential harm to the children is quite great."

Dr. Reuben J. Silver also testified at length on behalf of respondent. He had examined petitioner in 1988. Essentially Dr. Silver testified that petitioner's condition had worsened since 1988.

Respondent also submitted a psychological evaluation by Dr. John Thibodeau that supports the conclusions of respondents' other experts. Dr. Thibodeau found evidence of peculiar and disturbed thinking by petitioner. He opined that petitioner would not likely benefit from "most kinds of psychotherapeutic treatments" and that she was not likely to change.

Both Dr. Kronick and Dr. Silver found it very significant that petitioner felt she was blameless with regard to the prior incidents in 1988. Dr. Kronick testified that petitioner minimized her actions and felt the charge was blown out of proportion. Petitioner's own testimony in this record confirms that she made those statements to them. Petitioner's expert witness, Dr. Robert Wishnoff, testified that petitioner did express regret for her prior actions to him. However, it is significant that petitioner met with Dr. Wishnoff in October 1994 and expressed such regret only after respondent's witnesses had testified as to the importance of that factor with respect to their diagnosis and recommendations. Consequently, I do not find the panel erred in discounting petitioner's expression of remorse to her own psychologist at that late date.

The record indicates that Dr. Wishnoff agreed that petitioner had problems. He disagreed with respondent's experts regarding the nature of petitioner's problems and believed they could be addressed. However, Dr. Wishnoff testified that it was critical to him that petitioner recognized she was wrong in her conduct that resulted in the prior charges and felt bad or apologetic about the incidents. In view of petitioner's lack of credibility regarding her expression of remorse to Dr. Wishnoff, I find that the panel did not err in ascribing less weight to Dr. Wishnoff's opinion.

The record indicates that the hearing panel carefully considered all the expert testimony and evidence before it, as well as petitioner's own testimony. The panel adequately explained its reason for assigning more or less weight to the expert testimony and for its findings of credibility. Consequently, I find no basis for substituting my judgment for that of the hearing panel and find petitioner guilty of incompetence.

Petitioner's argument that she cannot be found incompetent absent evidence of poor classroom teaching is unpersuasive. Petitioner offers no legal authority requiring a board of education to place a teacher in a classroom to gather performance data when that teacher has been diagnosed with a condition that expert testimony has established is likely to place children at risk. To the contrary, in Fitzpatrick v. Board of Education of Mamaroneck UFSD, 96 AD2d 557, a tenured teacher was dismissed from his teaching position after a '3020-a hearing in part because the panel found that he suffered from a serious personality disorder. The panel's finding was based upon the testimony of a psychiatrist and clinical psychologist as well as other submitted medical reports. In that case, the court reviewed the medical evidence submitted by both the district and respondent teacher, and upheld the panel's reliance upon the testimony of the board of education's medical expert. The Fitzpatrick court noted:

Consequently, I agree with the panel's determination that petitioner's dismissal is warranted.

Finally, petitioner misconstrues the significance of the references to petitioner's prior conduct with respect to the current charge in arguing that this proceeding constitutes a double penalty for charges originally brought in 1988. The prior conduct is relevant to the current diagnosis only because petitioner's lack of remorse for such conduct was a factor in the expert witnesses' arriving at their current diagnosis. Petitioner is being dismissed for incompetence on the basis of her current condition, as diagnosed by respondent's psychiatrist and psychologists, and not for prior incidents.

THE APPEAL IS DISMISSED.

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