McFadden v. Board of Education of Nanuet Union Free School District , 153 A.D.2d 742 ( 1989 )

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Nanuet Union Free School District, dated March 18, 1987, which, after a hearing, found the petitioner guilty of conduct unbecoming a teacher and imposed a penalty of suspension from his position as a school teacher, without pay, from April 1, 1987, to December 31, 1987.

Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the penalty imposed is annulled; the determination is otherwise confirmed, the proceeding is otherwise dismissed, without costs or disbursements, and the matter is remitted to the respondent for the imposition of a new penalty not to exceed suspension, without pay, for a period of six months, and to determine the amount of back pay to which petitioner is entitled.

The record contains substantial evidence to support the respondent’s determination, adopting the factual findings of the majority of the hearing panel, that the petitioner was guilty of 4 of the 7 charges of conduct unbecoming a teacher (see, Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979). None of the sustained charges involved illegal conduct or an act of moral turpitude. Rather the conduct unbecoming a teacher pertained to the petitioner’s choice of language directed to various students. In light of all circumstances of this case, particularly the petitioner’s unblemished, 17-year teaching record in the school district, a sanction of suspension without pay for a period in excess of six months is so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222, 233). Accordingly, we have modified the determination by annulling the penalty of suspension, without pay, for a period of nine months; and the matter is remitted to the respondent for the imposition of a new penalty not to exceed suspension, without pay, for a period of six months. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.