Opinion
January 24, 1977
Proceeding pursuant to CPLR article 78 to review respondent's determination, dated July 15, 1974 and made after a hearing, which found petitioner guilty of certain charges and dismissed him from his employment as a tenured teacher. Petition granted to the extent that the determination is modified, on the law, to the extent that the respondent is directed to pay petitioner his salary for the period of his suspension (Sept. 1, 1973-July 15, 1974), less the amount of compensation earned in any other employment or occupation and any unemployment benefits he may have received during such period. As so modified, determination confirmed, and petition otherwise dismissed on the merits, without costs or disbursements. We hold that the determination of petitioner's guilt was based upon substantial evidence and that the punishment of dismissal was not "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (see Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233). The mere fact that the panel recommended a lesser penalty is not binding upon the board (see Matter of Caravello v Board of Educ., 48 A.D.2d 967). However, petitioner is entitled to back pay for the time from his suspension until the determination of the charges preferred against him (see Matter of Jerry v Board of Educ., 35 N.Y.2d 534), and the board is permitted to credit against the teacher's back salary all earnings which he may have had from other employment during the period of suspension (see Matter of Lezette v Board of Educ., 35 N.Y.2d 272; Matter of Jerry v Board of Educ., supra). Hopkins, Acting P.J., Martuscello, Latham and Damiani, JJ., concur.