Decision No. 14,280

(December 21, 1999)

MILLS, Commissioner.--Petitioner Michael Rayfield appeals the decision of a hearing panel convened pursuant to Education Law "3020-a which found him guilty of certain charges brought against him by the Board of Education of the Port Washington Union Free School District ("respondent") and recommended his suspension without pay for two years. Respondent cross-appeals, seeking termination of petitioner’s services. Since both appeals relate to the same proceeding, they are consolidated for decision. Petitioner’s appeal is sustained in part and respondent’s cross-appeal is dismissed.

At the time these appeals were commenced, petitioner was a tenured physical education teacher who had been employed in respondent’s schools for 27 years. In January 1994, Superintendent William Hebrink authorized the hiring of Fanning Investigative Services to determine if petitioner’s absences from school were related to his private tax preparation business. Subsequently, whenever petitioner contacted the district's registry to request a substitute, Robert Bracken, the district’s Director of Personnel, contacted the Fanning agency. Either Joseph Fanning or one of his sons, Richard or Michael, would investigate petitioner's whereabouts.

Following this investigation, respondent found probable cause on June 21, 1994, to initiate disciplinary proceedings against petitioner pursuant to Education Law "3020-a. Charge I alleged conduct unbecoming a teacher and included 19 specifications concerning seven dates between February and May 1994. Charge II alleged neglect of duty, including seven specifications for the same dates. Essentially, the charges alleged that petitioner unlawfully absented himself, neglected his duties as a teacher and falsely represented the reasons for his absence on seven dates, thereby obtaining compensation from the district under false pretenses, in order to engage in his private tax preparation business.

A hearing was held over five days between November 1994 and January 1995. The three-member hearing panel issued a majority decision on August 8, 1995. Two of the panel members found petitioner guilty of virtually all charges (except for Charge I, specification 10), and imposed a two-year suspension without pay. On August 17, 1995, the employee-appointed panel member issued a dissenting opinion finding that petitioner was guilty only of poor judgment and recommending a $2,500 fine. Respondent adopted the majority’s findings on August 30, 1995. Petitioner’s appeal ensued on September 14, 1995.

On September 27, 1995, respondent commenced its own appeal, asserting that the two-year suspension without pay was unduly lenient and requesting that the Commissioner increase the penalty to termination.

Petitioner seeks dismissal of the charges, or in the alternative, a reduction of the penalty to a $2,500 fine. He asserts that the panel’s findings of guilt are contrary to the weight of the evidence, and that the panel majority found him guilty of abusing sick and personal leave without discussing or explaining the rejection of uncontradicted and exculpatory evidence. In addition, he contends that the panel improperly shifted the burden of proof to petitioner by concluding that his medical justification for some of the absences was insufficient to rebut the charges. Petitioner further asserts that the penalty is excessive, punitive and contrary to prior Commissioner’s decisions. Finally, petitioner asserts that respondent’s appeal and its third affirmative defense, both of which seek termination of his services, are untimely.

Respondent asserts that the record supports the panel majority’s findings and that the penalty is not excessive. Respondent argues that petitioner manipulated the system by creating false and pretextural reasons for his absences, and that his testimony about his "bad back" was not credible, especially since a medical examination of petitioner on June 22, 1994 revealed no back disability. Respondent also argues that petitioner’s failure to present the testimony of his wife, who was also his secretary at the tax office, allowed the panel to construe against him the evidence respondent produced regarding petitioner’s presence in the tax office. Respondent further contends that the penalty is unduly lenient because petitioner’s conduct was premeditated and designed to obtain his salary under false pretenses. Respondent seeks termination of petitioner’s services.

I will first address the procedural issues. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The 30-day period for appeals from "3020-a proceedings commences upon receipt of the panel’s decision (Appeal of Grihin, 38 Ed Dept Rep 399, Decision No. 14,064; Appeal of Bd. of Ed. of Longwood CSD, 36 id. 145, Decision No. 13,683). The record reveals that the panel issued its decision on August 8, 1995 and the parties received it on August 14. Petitioner served his appeal on September 14. However, respondent did not serve its appeal until September 27, 43 days after receipt. Respondent requests that I excuse its late filing because it was unaware that petitioner intended to challenge the panel’s decision until it received his petition. I find that this excuse does not constitute good cause. Accordingly, respondent’s appeal is dismissed as untimely.

However, respondent also seeks petitioner’s termination in its answer to petitioner’s appeal. Previous cases have considered such "answers" as cross appeals and have not dismissed them as untimely, even though the answer was filed more than 30 days after receipt of the decision (see, e.g., Appeal of Bd. of Ed. of Beacon City SD, 34 Ed Dept Rep 190, Decision No. 13,278). Accordingly, while I have dismissed respondent’s appeal and will not consider any information submitted with it, I will address the issue of termination in the context of my examination of the appropriateness of the penalty, infra.

The Commissioner of Education is empowered to substitute his judgment for the findings and penalty recommendation of the hearing panel (Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of Levyn v. Ambach, 56 NY2d 912). The determination of the hearing panel must be supported by a preponderance of the credible evidence (Matter of Martin v. Ambach, 67 NY2d 975; Matter of Friedland v. Ambach, 135 AD2d 960, appeal dismissed 71 NY2d 992; Appeal of Cuoco, 31 Ed Dept Rep 95, Decision No. 12,582). Furthermore, complainant bears the burden of proving the misconduct charged (Martin v. Ambach, 67 NY2d 966; Appeal of Bd. of Ed. of the Greater Johnstown City SD, 30 Ed Dept Rep 89, Decision No. 12,399).

When reviewing a hearing panel’s determination, the Commissioner will not ordinarily substitute his judgment for that of the panel with respect to the credibility of witnesses (Appeal of Bd. of Ed. of Community School District #22, 30 Ed Dept Rep 238, Decision No. 12,448). To substitute his judgment for that of the panel, there must be clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts, or that the panel's decision is contrary to the weight of evidence and the panel has not adequately explained its rejection of otherwise convincing testimony (Appeal of Gibbs, 33 Ed Dept Rep 684, Decision 13,196; Appeal of the Bd. of Ed. of Community School District #2, 32 id. 391, Decision No. 12,864).

Discussion of the Charges

Mr. Bracken testified that the district’s leave policies are articulated in Article VIII of its collective bargaining agreement ("agreement") with the teachers’ union. The agreement authorizes sick leave for personal illness, family leave due to illness in the immediate family where the presence of the employee is required, and personal leave for various reasons including Workers’ Compensation hearings. The record reveals that such policies fail to articulate whether a teacher is required to return to school after the purpose for the requested leave is completed. In addition, Mr. Bracken admitted that there was no rule or requirement about returning to school, or precluding the teacher from engaging in activities other than the one for which he requested leave. Mr. Bracken also testified that verification of illness is only required when absences are consecutive. Respondent’s counsel stipulated that petitioner was never requested to verify his medical leave and never questioned about his absences.

Of the seven dates specified in the charges, petitioner took four days of sick leave, one day of personal leave for a Worker’s Compensation hearing, one day of family leave and one half-day of pre-approved personal leave. For purposes of discussion, I will address each date separately.

February 10, 1994 (Worker’s Compensation Hearing)

The record is clear that on February 10, 1994, petitioner attended a Workers’ Compensation hearing in the morning. Although personal leave is authorized for such hearings pursuant to the agreement, petitioner wrote down "medical" as his reason for leave. Petitioner admitted that the hearing ended before noon and he then went to his business. He testified that he could not recall if he had called his office to inform his secretary when he would be coming in.

Investigator Richard Fanning testified that when he called petitioner’s office at approximately 10:15 a.m., the secretary informed him that petitioner was expected between 11:00 and 11:30 a.m. Respondent argued that the secretary’s expectation demonstrates that petitioner knew he would not be at the hearing all day, and thus he should not have requested a full day’s leave. However, petitioner testified that he did not know in advance how long the hearing would take. He also testified that prior to these charges, he had never been advised that it was improper to conduct personal business after a hearing was concluded. The past president of the teachers’ union and Mr. Bracken testified that there was no rule or policy about whether a teacher should request a full or half-day in such circumstances. Mr. Bracken testified further that there was, likewise, no rule against conducting some other personal business during the remainder of a school day after the activity for which leave was requested was completed.

The panel found petitioner guilty of all charges relating to February 10 (Charge I – Conduct Unbecoming a Teacher, Specifications 1-3; and Charge II – Neglect of Duty, Specification 1). The panel found that petitioner knew he would be out of the hearing by 11:00 or 11:30, and "elected to devote the rest of the day to his private business." The decision continues: "there is a policy against such conduct, universally recognized, even if not officially so framed by [the district]."

I find the panel’s conclusions contrary to the weight of the evidence. There is no evidence of, nor am I aware of, a "universally recognized" policy prohibiting petitioner’s conduct. Moreover, in the absence of a written district policy or testimony that petitioner was required to return to school once his hearing ended, I find the evidence insufficient to sustain respondent’s burden of proof. It is undisputed that attendance at a Worker’s Compensation hearing is an allowable reason for personal leave. Thus, Specifications 1 and 3 of Charge I and Specification 1 of Charge II, that petitioner unlawfully absented himself from his required teaching duties in order to engage in his tax business and absented himself without lawful or legitimate reason, are unfounded. Accordingly, I reverse the panel’s finding of guilt on these charges.

The remaining specification regarding February 10 (Charge I, specification 2) charged petitioner with falsely representing to the district that he was absent because of personal illness. As stated above, personal leave is authorized for attendance at Worker’s Compensation hearings, and the record shows that as of February 10, petitioner still had his full allotment of three personal days. However, respondent’s evidence shows that petitioner wrote "medical" instead of "personal" as his reason for absence. Although there is no evidence that petitioner purposely intended to mislead the district, the charge does not require evidence of intent. Petitioner also did not request prior approval for personal leave, which is required whenever possible under the agreement. Accordingly, I am constrained to uphold the panel’s finding on Charge I, Specification 2.

March 2, 1994 (Sick Leave)

On March 2, 1994, petitioner took sick leave for back pain, a nosebleed and swollen feet that he thought might be related to hypertension. The record reveals that he saw his doctor at 1:30 p.m., and although the doctor’s nurse testified that the doctor’s office hours that day were 1:00-6:00 p.m., she could not ascertain from her records whether the appointment had been made that day, the night before or as much as a week in advance. Investigator Richard Fanning phoned petitioner’s tax office at 9:30 that morning and was informed that petitioner was with a client. Investigator Joseph Fanning observed petitioner converse with a client and carry what appeared to be a full bag of garbage out of his office. Mr. Fanning also observed petitioner exit his car to exchange information with another driver after a minor car accident.

The panel determined that the health problems described by petitioner did not interfere with his business responsibilities and physical activities as observed by Mr. Fanning on the morning of March 2, and that his testimony about feeling ill was not credible. Thus, the panel found petitioner guilty of the charges relating to that date (Charge I, Specifications 4-6; Charge II, Specification 2).

While the record shows that petitioner visited the doctor on March 2, it is also clear that he was well enough to attend to business at his tax office. I will not ordinarily substitute my judgment for that of the panel with respect to the credibility of witnesses. Here, the panel majority’s determination that petitioner’s testimony about feeling ill was not credible is consistent with the evidence that petitioner saw business clients that day at his office. The panel’s determination of petitioner’s guilt on Charge I, specification 4-6 and Charge II, specification 2, is upheld.

March 14, 1994 (Pre-approved Personal Leave)

Petitioner took a pre-approved half-day of personal leave for an automobile insurance claim appointment at 2:30 p.m. relating to the car accident on March 2. He left school at 11:20 a.m. Investigator Joseph Fanning observed him at his private office at 12:45 p.m. and leaving the office at 2:20 p.m. Respondent argued that since petitioner had no last period class at 2:30, he could have merely asked to have been excused from his last period assignment, and could have avoided taking leave. The Panel thus found petitioner guilty of the charges relating to that date (Charge I, Specifications 7 and 8; and Charge II, Specification 3).

However, Mr. Bracken testified that an insurance claim appointment that cannot be accomplished during non-school hours is an allowable reason for taking personal leave, and petitioner’s exhibits demonstrate that the insurance appointment was legitimate in that he received an insurance estimate on March 14. Under the agreement, petitioner had three days of paid personal leave available to him. Respondent did not demonstrate that petitioner was required to avoid taking leave if he could do so by arranging coverage for his last class. Moreover, petitioner received pre-approval for his request, despite the fact that he was unknowingly under investigation. Thus, I find the Panel’s decision contrary to the weight of the evidence and reverse the panel’s findings on these charges.

March 17, 1994 (Sick Leave)

On March 17, 1994, petitioner called in sick because he was experiencing lower back pain. Dr. Harry Benisatto, a licensed chiropractor who had been treating petitioner since May 1991, testified that he had instructed petitioner not to stand for prolonged periods of time, to refrain from excess physical activity and to generally "take it easy" when he experienced lower back pain. The Physical Education Chairperson, Francine Clark, testified that petitioner was not required to participate in the activity being taught to perform his duties. However, petitioner testified that the two activities scheduled for the day were floor hockey and team handball, both of which might have required him to play goalie and/or move up and down the court to officiate. He also testified that a year earlier, when he had reported to work although experiencing back pain, the principal had criticized him in writing for failing to perform his job. He therefore decided to call in sick that day, consistent with the chiropractor’s instructions. Petitioner contends that his condition and Dr. Benisatto’s instructions did not prevent him from driving and performing office related tasks. He also stated that Dr. Benisatto did not have office hours on Thursday, so he could not see him for treatment.

The panel determined that petitioner was guilty of Charge I, Specifications 9 and 11, and Charge II, Specification 4 relating to March 17. (The panel dismissed Charge I, Specification 10, as being "a mish mosh beyond repair.") The panel made no specific determination regarding the credibility of either petitioner’s or Dr. Benisatto’s testimony but based its finding on Richard Fanning’s observation of petitioner in his tax office at 11:27 a.m., 12:51 p.m., and 2:45 p.m.

I find, as with the charges relating to March 2, that the fact that petitioner was able to conduct business at his private office undermines his credibility and his self-assessment of the degree of back pain he was experiencing. Accordingly, I uphold the panel’s determination regarding Charge I, Specifications 9 and 11 and Charge II, Specification 4.

March 25, 1994 (Sick Leave)

Petitioner testified that the activities scheduled for his gym class on March 25 were team handball and weight training, and that he would have had to move 40 to 110 pound weights 10 to 40 feet and demonstrate the use of a universal weight-training machine. Because of recurring back pain, he called in sick. Richard Fanning testified that petitioner went to a hair salon in the morning and exhibited no difficulty getting in or out of the car. Mr. Fanning did not observe petitioner at his tax office, but a woman in the office answered the telephone and replied that he was expected later in the day. Although petitioner visited Dr. Benisatto for treatment, neither the doctor nor petitioner could specify the time of petitioner’s appointment or when the appointment was made.

The panel found petitioner guilty of Charge I, Specifications 12 and 13 and Charge II, Specification 5 relating to this date. The panel cited a court decision, which stated that "it’s not unheard of for treating physicians to make assessments that are at the very least, colored in favor of the patient." The panel apparently rejected Dr. Benisatto’s testimony because it determined that petitioner’s testimony, "coupled with that of his chiropractor, does not establish [petitioner’s] inability to perform duties at [the school] on the date in question."

However, petitioner does not need to prove his inability to perform his duties. Rather, respondent needs to prove that petitioner falsely represented his reason for absence and that he was absent without legitimate reason. The record shows that petitioner went to the doctor this day, but is not clear whether he went to his tax office. Thus, in contrast to the findings for March 2 and March 17, the panel’s determination is not supported by evidence that petitioner was well enough to conduct business. The fact that petitioner got a haircut in the morning is not dispositive where there is no district policy in the record delineating what a teacher may or may not do on a sick day prior to or following a medical appointment. While I ordinarily will not substitute my judgment for that of the panel on a credibility issue, I find the panel’s determination speculative and unsupported by evidence in the record. Accordingly, I reverse the panel’s findings of guilt of these charges.

April 11, 1994 (Sick Leave)

Petitioner again called in sick because of lower back pain and visited Dr. Benisatto. Petitioner’s gym activities that day were lacrosse and softball. Petitioner and another gym teacher testified that during softball, petitioner always pitched and during lacrosse, he had to demonstrate and officiate, both of which involved running and movement. Richard Fanning testified that he observed petitioner exit his car and enter his tax office carrying a large bundle and a small plastic bag. The panel concluded, having "observed [petitioner] in the course of his testimony" that "his self-determinations of inability to perform certain duties at certain times are improvised, self serving, and not sustainable." The panel found petitioner guilty of Charge I, Specifications 14, 15 and 16 and Charge II, Specification 6.

Although petitioner had an appointment with Dr. Benisatto, he was again observed at his tax office, thus undermining his claims of back pain. As with the charges pertaining to March 2 and 17, I defer to the panel’s determination of credibility regarding petitioner’s testimony. Accordingly, I uphold the panel’s findings of guilt on these charges.

May 9, 1994 (Family Leave)

On May 9, petitioner took family leave to visit his brother in the hospital. Petitioner admitted that he went to his tax office in the morning before going to the hospital. The panel found that "the record is clear that the brother was discharged on Monday, May 9, 1994." It thus determined that petitioner’s testimony regarding his visit to the hospital was not credible, and found petitioner guilty of the charges relating to this date (Charge I, Specifications 17, 18 and 19; Charge II, Specification 7).

The panel’s decision quoted extensively from the transcript and petitioner’s testimony regarding his hospital visit, which was vague and somewhat contradictory. However, despite the vagueness of petitioner’s testimony, the record indicates that his brother was ill during that time period and petitioner visited his brother on the day in question. Respondent presented no documentation from the hospital or otherwise that petitioner’s brother had been discharged from the hospital prior to petitioner’s visit. Nor does the agreement require that a family member be hospitalized in order for an employee to use family leave. Thus, the panel’s determination of guilt on these findings must be reversed.

Penalty

The Commissioner of Education is authorized to impose a proper penalty and is not bound by the decision of the hearing panel (Shurgin v. Ambach, supra; Matter of McNamara v. Commissioner, 80 AD 2d 660). In determining whether to substitute my judgment for that of a hearing panel, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 603; Appeal of the Bd. of Ed., Wellsville CSD, 35 Ed Dept Rep 523, Decision No. 13,620; Appeal of the Bd. of Ed., City SD of the City of New York, 35 id. 35, Decision No. 13,455). Also pertinent is the person's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of the Bd. of Ed., Wellsville CSD, supra; Appeal of the Bd. of Ed., City SD of the City of New York, supra). 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 Ed., City SD of the City of New York, supra; Appeal of the Bd. of Ed., Poughkeepsie City SD, 32 Ed Dept Rep 547, Decision No. 12,910). An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of the Bd. of Educ., Greenburgh CSD, 34 Ed Dept Rep 506, Decision No. 13,397). A teacher’s record is also relevant to the issue of penalty (Id.).

The panel initially concluded that petitioner’s conduct justified dismissal, finding that the "reasons introduced by [petitioner] for the seven (7) instances of absence from duty, are contrived and not sustainable. The conclusion is inescapable that [petitioner] absented himself from his school responsibilities in order to perform the functions of his private tax preparation business, on school time." However, in light of petitioner’s 27 years of service without prior discipline, the panel recommended the two-year suspension without pay.

I find that the panel’s conclusions are not "inescapable" in all instances. As discussed with specificity above, I have overturned the panel’s findings relating to March 14, March 25, and May 9, and in part for February 10. In light of my determination, I find that the penalty imposed by the panel, suspension without pay for two years, is unduly harsh and disproportionate to the offense. Petitioner was not charged with or found guilty of neglect of duty for excessive absences (see, e.g., Appeal of Bd. of Ed. of Beacon City SD, 34 Ed Dept Rep 190, Decision No. 13,278; Appeal of Cuoco, 31 id. 95, Decision No. 15,582;) or extended absences without authorization (see, e.g., Appeal of Bd. of Ed. of Broadalbin CSD, 24 id. 51, Decision No. 11,312).

Furthermore, respondent admits that petitioner was never asked for verification of his leave. Nor is there evidence in the record that he was otherwise abusing his leave. The record shows that for the 1993-1994 school year, petitioner had 182 remaining days of sick leave, 1" remaining days of personal leave, and 7 remaining days of family leave. I also note that there was no criticism of petitioner’s classroom performance.

However, there is sufficient evidence to support the conclusion that petitioner was disingenuous about his health on several work days and engaged in a pattern of sick leave abuse. Therefore, I find that suspension without pay for six months is an appropriate penalty for the specifications that I have upheld.

PETITIONER’S APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

RESPONDENT’S APPEAL IS DISMISSED.

IT IS HEREBY ORDERED that respondent repay to petitioner the amount of the two years’ salary and benefits withheld, less the amount of six months without pay, in conjunction with this decision.

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