109 Misc. 2d 821 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
Where an article 78 proceeding is commenced by a tenured teacher seeking review of a determination made by a hearing panel convened pursuant to section 3020-a of the Education Law, is the court authorized to stay or dismiss the proceeding for the purpose of permitting the
THE FACTS
By decision dated March 26, 1981 a statutory three-member panel found petitioner guilty on charges of neglect of duty, inefficiency, incompetency and conduct unbecoming a teacher and “recommended” a one-year suspension without pay commencing on April 15,1981. It appears that a copy of the panel’s findings and determination was received in the office of the New York State United Teachers, which represents petitioner, on April 3, 1981, although that organization’s counsel asserts in her memorandum that she received the copies on April 6, 1981. Counsel for the Board asserts that he too received copies on April 6, 1981. On April 7, 1981 petitioner commenced this article 78 proceeding, alleging among other things that there is not substantial evidence in the record of the hearing to support the panel’s findings and that the penalty is excessive. The board of education met in a special workshop session on the evening of April 6, 1981 and authorized its counsel to prepare an appeal from the panel’s determination to the Commissioner of Education alleging that the record does not support a penalty limited to a one-year suspension and urging the commissioner to direct that the petitioner be dismissed. The following day, counsel prepared the petition and on April 8, 1981 he secured the requisite verification and served the petitioner. By letter dated April 10, 1981 petitioner’s counsel advised the commissioner of the pendency of this article 78 proceeding and requested that he decline jurisdiction of the Board’s appeal. The commissioner responded that objections could only be raised in an answer to the petition and accordingly petitioner served an answer “for the limited purpose of challenging the jurisdiction of the Commissioner of Education to hear and determine this appeal.”
THE ISSUES
The dispute is generated by the invitation to “forum shopping” contained in subdivision 5 of section 3020-a of the Education Law, as amended (L 1977, ch 82), which provides as follows: “5. Appeal. Either the employee or the employing board may review the findings of the hearing panel either by appeal to the commissioner of education as provided for by article seven of this chapter, or by a special proceeding under article seventy-eight of the civil practice law and rules. The hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.”
The Board’s thesis is that teachers will generally seek court review of panel determinations on punishment because the court’s power of review of the measure of punishment imposed is limited to the question of whether the sanction is so disproportionate to the offense as to “shock the conscience of the court”, whereas the commissioner is statutorily empowered to substitute his judgment for that of the hearing panel and to fix an appropriate penalty if he concludes that employee conduct is detrimental and injurious to the school system. “It is unlikely,” the Board concludes, “that a Board of Education could ever outrace the individual teacher since the speed by which a municipal body can act can never match the speed of a single individual” and thus, unless the courts are willing to stay or dismiss article 78 proceedings commenced by teachers, the Commissioner of Education will be precluded “from hereafter sitting in review of any 3020-a appeals,” an opportunity the commissioner, “having special expertise and experience in matters of teacher discipline, should have”.
THE STATUTORY RIGHT TO SELECT THE FORUM
Prior to 1977, subdivision 4 of section 3020-a of the Education Law did not mandate that the recommendations of the hearing panel be accepted by the board of education; instead, the Board was empowered to fix the penalty or punishment by majority vote within 30 days of receipt of the hearing report. In 1977 the section was amended to provide that the Board “shall implement the [hearing panel’s] recommendations” (L 1977, ch 82). Subdivision 5, which had authorized appeals only by the aggrieved employee, was also amended to give the Board the same right. According to the legislative memorandum of Senator Edison, the bill’s sponsor, the purpose of the amendments “is to provide uniform, impartial hearing procedures for the handling of disciplinary matters for teachers who have acquired tenure” (see Bill Jacket, L 1977, ch 82). The senator noted that because the “current weakness of the hearing panel function allows many boards to make a charade out of the entire procedure”, the amendment makes the hearing panel’s recommendations binding. “To ensure due process to both parties,” the memorandum concludes, “both the board and the employee are provided the right to appeal the hearing panel’s determination, either to the Commissioner of Education or through an Article 78 proceeding.” Perusal of the legislative history of the amendment discloses no recognition of the fact that providing both parties with a choice of forum could engen
THE APPELLATE POWER OF THE FORUMS.
Pursuant to CPLR 7803 (subd 3), review of the question of whether there has been an “abuse of discretion as to the measure or mode of penalty or discipline imposed” involves a two-tiered test. The court must first determine whether there is substantial evidence to support a finding of guilt and, if so, the test is whether the punishment imposed is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). The latter determination is made as a matter of law on the basis of arbitrariness rather than substantial evidence (Matter of Pauling v Smith, 46 AD2d 759).
CPLR 7803 (subd 3) was first enacted in 1955 (as Civ Prac Act, § 1296, subd 5-a [see L 1955, ch 661]) in response to prior judicial rulings to the effect that the courts lacked jurisdiction to review the measure of punish
With respect to the appellate power of the commissioner, the reference in subdivision 5 of section 3020-a to article 7 of the Education Law invokes section 310 of the Education Law pursuant to which the commissioner is “authorized and required to examine and decide” appeals brought by any party conceiving himself aggrieved.
Section 310 has been construed as conferring upon the commissioner “a wide sweep of power” (Board of Educ. v Allen, 6 NY2d 127), including, with respect to disciplinary matters, the power to substitute his judgment for that of a board of education (see Matter of Vetere v Allen, 15 NY2d 259; Board of Educ. v Allen, supra) or for that of the hearing panel (Matter of Mockler v Ambach, 100 Misc 2d 717, affd 79 AD2d 745, supra). Specifically, he may fix a greater penalty than that imposed by the panel upon a finding that “employee conduct is detrimental and injurious to the school system” (Matter of Mockler v Ambach, 79 AD2d 745, 746, supra). The commissioner’s determinations are reviewable by the courts pursuant to the usual standard of review, i.e., the arbitrary and capricious test (Matter of Ward v Nyquist, 43 NY2d 57) which is to say whether the punishment or penalty imposed by the commissioner or affirmed by him “is ‘so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Mockler v Allen, supra, p 746).
Ultimately, the only difference in the appellate review available in the two forums may be simply that the courts are reluctant to exercise the full sweep of their appellate powers in disciplinary matters (see, e.g., Matter of Chilson v Board of Educ., 41 AD2d 739), whereas the commissioner is less hesitant, a difference which may, however, be significant since the legislative intent in amending subdivision 5 of section 3020-a was to insure due process to boards of education and since due process demands that litigants be afforded redress by some effective procedure (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 80 AD2d 187). However, it is too soon to predict whether this asserted judicial reluctance will abate in the face of the provisions in section 3020-a which deprive boards of education of discretion in such matters ab initio. Judicial hesitancy has traditionally been justified on the ground that the employing agency’s exercise of discretion should not be interfered with (People ex rel. Morrissey v Waldo,
Section 3020-a as amended has not only rendered such considerations moot but the legislative intent underlying subdivision 5 — which makes no distinctions between the appellate forums — appears to be that each is empowered to grant the relief sought by either party in equal measure. It thus appears that it would be premature at this juncture to dismiss or stay the article 78 proceeding upon the ground that the court may hesitate to exercise its appellate power since such a procedure would perforce be based on mere speculation — unless there are other less speculative grounds. The Board urges one such ground when it requests a stay on the ground that the commissioner is the more appropriate forum because of his greater expertise.
THE EFFECT OF THE COMMISSIONER’S EXPERTISE
The Board’s request for a stay upon the ground that the commissioner is better qualified to rule on disciplinary matters is in effect an invocation of the doctrine of primary jurisdiction. The doctrine represents an “attempt to resolve both the procedural and substantive conflicts inevitably created when there is carved out for an agency an area of original jurisdiction which impinges on the congeries of original jurisdiction of the courts” (Jaffe, Judicial Control of Administrative Action [1965], p 121). The doctrine was first promulgated in a rate-making case upon the rationale that an administrative ruling was required in the interest of uniformity (Texas & Pacific Ry. v Abilene Cotton Oil Co., 204 US 426) and has since been expanded to include those situations requiring the special expertise of a specialized agency (see, e.g., Holt Mar. Term. v United States Lines, 472 F Supp 487; Itzcovitz v Selective Serv. Local Bd., No. 6, N. Y., 301 F Supp 168, app dsmd 422 F2d 828).
To the extent that the doctrine has been applied in New York to matters involving the schools, it has been said that the courts will assume jurisdiction in the first instance where personal, constitutionally guaranteed rights are involved but will defer to the commissioner where “orderly,
Since appellate review of the measure of punishment imposed upon tenured teachers has been delegated impartially to both the court and the commissioner (Education Law, § 3020-a, subd 5), since the courts are empowered to make their determinations on such a review as a matter of law on the basis of arbitrariness rather than upon the substantiality of the evidence (Matter of Pauling v Smith, 46 AD2d 759, supra), and since any necessity for exercise of the expertise of educational authorities in disciplinary matters has been legislatively refuted by the provision in section 3020-a depriving boards of education of the power to determine the measure of punishment in the first instance, the conclusion is impelled that the doctrine of primary jurisdiction is inapplicable to matters involving discipline of tenured teachers.
The Board’s motion must be denied in all respects. There is no merit to the contention that the court lacks jurisdiction of the article 78 proceeding; dismissal of the proceeding would not only violate the legislative scheme but is unavailable under CPLR 3211 (subd [a], par 4) since the pending “action” is not an action but an appeal to an administrative agency and in any event was not the first commenced (see, e.g., Campagna v Dune Alpin Farm Assoc., 81 AD2d 633); and a stay pursuant to CPLR 2201 is not warranted since it has not been shown that the entire matter cannot be adequately reviewed in this forum or that exercise of the expertise of the other forum is required (see, e.g., Research Corp. v Singer-General Precision, 36 AD2d 987).
The Board is directed to serve its answer within five days after service of the order to be entered hereon.