Jerry v. Board of Ed. of City School Dist. of City of Syracuse

• Citation: 376 N.Y.S.2d 737,50 A.D.2d 149
• Parties: Application of William JERRY, Petitioner, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF SYRACUSE, Respondent, Hon. Louis J. Lefkowitz, Attorney General, Intervenor-Respondent.
• Decision Date: 12 December 1975
• Court: New York Supreme Court — Appellate Division

Page 737

376 N.Y.S.2d 737

50 A.D.2d 149

Application of William JERRY, Petitioner, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF SYRACUSE, Respondent, Hon. Louis J. Lefkowitz Attorney General, Intervenor-Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1975.

Bernard F. Ashe, Albany (Ira Paul Rubtchinsky, Albany, of counsel), for petitioner.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse (David W. Larrison, Syracuse, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen., Albany (Jesse J. Fine, New York City, of counsel), for intervenor-respondent.

Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and DEL VECCHIO, JJ.

OPINION

GOLDMAN, Justice:

In this CPLR article 78 proceeding petitioner William Jerry seeks judgment directing that respondent, Board of Education of the City School District of the City of Syracuse (Board), reinstate him to his position as a tenured teacher in the District. The proceeding was transferred here by order of Onondaga County Supreme Court, pursuant to CPLR 7804, subd. (g).

Petitioner commenced employment as a physical education teacher in the Syracuse City School District in 1961, achieving tenure in 1964. During the 1971--1972 and 1972--1973 school years, school officials received numerous complaints that petitioner had employed physical force on elementary school pupils and had used objectionable and profane language in class. By letter dated April 19, 1973 petitioner was officially informed that the complaints were under investigation. At an executive session on May 30, 1973 the Board determined that there was probable cause for charges against petitioner. Written notices dated May 31, 1973 informed petitioner that he was charged with: (1) subjecting 'certain pupils to unreasonable and excessive physical force and/or restraint' at various times during school years 1971--1972 and 1972--1973; (2) using 'inappropriate and profane language in the presence of pupils' at various times during these years, and (3) insubordination for 'failure to follow orders from superiors to cease and desist' the conduct charged above. These notices also apprised petitioner of his right to a hearing.

The district superintendent orally suspended petitioner on June 7, 1973 without pay and pending disposition of charges after another parent had complained that Mr. Jerry had pulled her second-grade daughter's hair around May 1, 1973 and that Jerry had used profanities while discussing the incident with her by phone. A letter dated June 7 confirmed the oral suspension. Additional formal notices of excessive force, insubordination and profanity charges based on these subsequent allegations were prepared on June 14.

On June 19, 1973 the Board confirmed the action of the Superintendent in suspending petitioner without pay. Petitioner demanded and received a bill of particulars, and also requested a hearing on the charges. ¹ In accordance with the procedures prescribed by Education Law, § 3020--a, a hearing was scheduled and a hearing officer and panel members were selected. Hearings, the record of which comprises over 2,500 pages, were held on sixteen separate dates spanning nearly a year. On July 17, 1974 the three-member panel concluded that:

'Insufficient evidence has been introduced to warrant dismissal of Mr. Jerry. Nevertheless, there is a preponderance of evidence to suggest that certain inappropriate behavior did occur and that such behavior deserves both reprimand and penalty and should cease during future service.'

The panel also made the following findings concerning the specific charges presented: (1) insubordination was not proved because 'clear written or oral instructions, understandable to Mr. Jerry, were not consistently communicated to him * * *'. Nevertheless, 'a generalized concern over Mr. Jerry's treatment of pupils was communicated to him, and he reasonably should have been aware of the administration's displeasure with his methods * * *'. (2) 'Mr. Jerry did on several occasions use physical discipline to control students but such discipline was not excessive to the point of causing physical injury. However, many of the incidents * * * could have been avoided or minimized if Mr. Jerry used better judgment * * *'. (3) '* * * Mr. Jerry did use inappropriate and profane language in front of students as stipulated in the charges'. (4) Mr. Jerry 'probably did use strong and inappropriate language' in a telephone conversation with a pupil's parent, but the incident was isolated and there were extenuating circumstances. The panel recommended that petitioner be reinstated, but that he be given a formal written reprimand and penalized by the loss of three months' pay and benefits.

The Board of Education did not follow the panel's recommendation; they passed a resolution terminating petitioner's employment on August 23, 1974. The resolution recited that the Board's decision was based solely upon the hearing record and set forth the following conclusions:

'1. Mr. Jerry, despite warning by his superiors to cease, continued to use unreasonable and excessive physical force on certain of his pupils during the school years of 1971--1972 and 1972--1973 which fact is borne out by the testimony of both children directly involved in these incidents and by children who observed such incidents, as well as by the testimony of other witnesses.

2. Mr. Jerry, despite warnings by his superiors to cease, continued to use inappropriate and profane language in the presence of pupils at various times during the school years of 1971--1972 and 1972--1973 which fact is borne out by the testimony of children who not only heard but were able to repeat the aforementioned language, as well as by the testimony of other witnesses.'

The resolution stated that the decision to terminate petitioner was due 'especialls' to 'the seriousness of the charge of using unreasonable and excessive physical force * * *'.

Petitioner contends, inter alia, that the Board's determination was not supported by substantial evidence. In the leading case of Matter of Stork Restaurant, Inc. v. Boland, 282 N.Y. 256, 273--274, 26 N.E.2d 247, 255, the substantial evidence standard was defined in these terms: 'A mere scintilla of evidence sufficient to justify a suspicion is not sufficient to support a finding upon which legal rights and obligations are based. That requires 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' (citation omitted)'. On the other hand, this court may not simply substitute its view of the facts for that of the administrative agency. Once it is ascertained that substantial evidence supports the agency's resolution of a question of fact, our inquiry on that score is ended (Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 230, 356 N.Y.S.2d 833, 838, 313 N.E.2d 321, 325). Applying these rules to the instant case, we conclude that there was substantial evidence to support the conclusions of fact set forth in support of the Board's resolution terminating petitioner's employment.

We first address the question whether petitioner's superiors clearly communicated to him their directions regarding his use of physical force and profane language. After incidents allegedly occurred at Levy Junior High School during the 1966--1967 school year, ² Jerry received a memo from the Superintendent of Schools which summarized an oral conference between the two men as follows:

'Following a number of complaints and a rather expensive lawsuit, from the School District's standpoint, I am reconfirming (your principal's) request and my own understanding that you will follow a 'hands off' policy as far as pupils are concerned, and this includes pushing and shoving in some cases as reported in letters * * *. Our agreement, I believe was that you understood this request very clearly and that there would be no further use of corporal punishment or physical force in dealing with pupils * * * in your particular case * * *.'

Jerry's written response to the memo stated that he was on the same 'wave length' as the Superintendent.

In the spring of 1971, after a series of administrative reports and complaints (including a report that there was 'strong resentment' against Jerry by students because he 'allegedly uses physical restraint on students without cause'), Jerry had a conference with the Assistant Superintendent for Personnel, his principal, and the head of physical education, all of whom told him 'to keep his hands off the kids'. This occurred during a period of tense racial conflict at Levy School, and among the matters discussed at the conference were alleged 'incidents' involving Jerry and students. Thereafter, at the principal's request, Jerry was transferred from Levy to Cleveland and Clinton Elementary Schools for the 1971--1972 school year. The principal of Cleveland Elementary School testified that in school year 1971--1972 she received parental complaints concerning Jerry's gym classes, including a complaint that he had lifted a child up by the neck and carried him. She discussed the complaint with Jerry and instructed him that if it became necessary to remove physically a child from class, he should hold the child by the waist or belt and never by the neck or collar. Similar advice appeared in Jerry's 'Annual Teacher Performance Appraisal Report' for 1971--1972, which also mentioned Jerry's 'quick temper' in dealing with students and recommended closer contact with parents to prevent 'such serious complaints as developed this year'.

In academis year 1972--1973 Jerry taught at Nichols and Clinton Elementary Schools. Several parental complaints were received in December, 1972 and Jerry's physical education supervisor, Mr. Runyan, met with Jerry to discuss the complaints. According to Runyan, Jerry was then instructed that 'he was not to use any profanity in the classroom, and he was not to touch any students'. In February, 1973 Runyan,...