Forte v. Mills

• Decision Date: 07 May 1998
• Citation: 672 N.Y.S.2d 497,250 A.D.2d 882
• Parties: , 126 Ed. Law Rep. 362, 1998 N.Y. Slip Op. 4403 In the Matter of Garry FORTE, Petitioner, v. Richard P. MILLS, as Commissioner of Education of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 497

672 N.Y.S.2d 497

250 A.D.2d 882, 126 Ed. Law Rep. 362,

1998 N.Y. Slip Op. 4403

In the Matter of Garry FORTE, Petitioner, v. Richard P. MILLS, as Commissioner of Education of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 7, 1998.

Garry Forte, Spotsylvania, VA, in person.

Dennis C. Vacco, Attorney-General (Frank K. Walsh, of counsel), Albany, for Richard P. Mills, respondent.

Rains & Pogrebin (Sharon N. Berlin, of counsel), Mineola, for Manhasset Union Free School District, respondent.

Before MIKOLL, J.P., and MERCURE, YESAWICH and PETERS, JJ.

PETERS, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Education which found petitioner guilty of misconduct and terminated his employment.

Petitioner, a tenured physical education teacher in the Manhasset Union Free School District (hereinafter the District) in Nassau County, was charged with conduct unbecoming a teacher and insubordination. These charges were predicated on, inter alia, numerous instances in which petitioner, after being repeatedly warned against engaging in any physical contact with students, was alleged to have nudged or poked fourth and fifth grade female students in the back and/or snapped their bra straps during physical education class.

A disciplinary proceeding was held pursuant to Education Law § 3020-a (3) before a Hearing Panel. Extensive testimony was proffered, resulting in a lengthy opinion wherein, after fully reviewing all the evidence, petitioner was found guilty of conduct unbecoming a teacher and insubordination. The opinion thereafter recommended his dismissal. Petitioner unsuccessfully appealed this determination to respondent Commissioner of Education who refused to substitute his judgment for that of the Hearing Panel absent clear and convincing evidence that such determination was inconsistent with the facts. He further agreed with the Hearing Panel's reasoning supporting petitioner's dismissal, thus prompting this CPLR article 78 proceeding. ¹

Upon finding that a question of substantial evidence was presented, Supreme Court transferred this proceeding pursuant to CPLR 7804(g). With a review limited to whether the underlying determination was arbitrary or capricious, affected by an error of law or lacking a rational basis ² (Matter of Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 91 N.Y.2d 133, 667 N.Y.S.2d 671, 690 N.E.2d 480; Matter of Stedronsky v. Sobol, 175 A.D.2d 373, 374 n. 1, 572 N.Y.S.2d 445, lv. denied 78 N.Y.2d 864, 578 N.Y.S.2d 878, 586 N.E.2d 61), we decline to disturb the determination rendered. Testimony of the principal at petitioner's school, Richard Koebele, revealed that prior to the charged conduct, petitioner was warned by him on four separate occasions not to touch students. A written warning, dated June 8, 1989, specified that he was "to refrain from touching any child in the school for any reason. As you know, there have been complaints that you have touched children inappropriately." Although petitioner denied receipt of such document and testified that he was not aware of its contents until the rendering of charges, petitioner admitted that Koebele orally cautioned him against touching students and that subsequent thereto he continued to do so as part of his motivational and instructional technique. Considering both Koebele's...