Tucci v. NyquistTucci v. Nyquist
In this аrticle 78 proceeding the petitioner seeks an order annulling a determination of the Education Commissioner removing petitioner as a member of the School Board of Union Free School District No. 26, Island Trees, Town of Hempstead, New York and, conversely, restoring him to that position.
Formerly, the petitioner conсurrently held both the position of member of a Board of Education of a school district and the office of member of a board of trustees of a public library еstablished and supported by the school district. A taxpayers ’ proceeding was initiated before the Commissioner for a determination, pursuant to section 310 of thе Education Law, as to the compatibility of the two positions being simultaneously occupied by one individual. The Commissioner found a conflict of
The petitioner argues that section 306 of the Education Law is the sole statutory source of authority for removal and the authorization contained therein is limited to “ (a) a member of an organization listed as subversive * * * (b) one guilty of any wilful violation or neglect of duty and (c) * * * one guilty of wilfully disobeying any decision, order, rule or regulation of the regents or of the Commissioner”. None оf these particularized reasons for removal are chargeable against him, the petitioner argues, and, therefore, the Commissioner’s order was purely аrbitrary and without legal effect.
It must be accepted that if the subject matter of the within dispute is reviewable by the Commissioner, any decision, after hearing, is beyond legаl review and must be considered to be final (Board of Educ. v. Allen, 6 N Y 2d 127,138 ; Matter of Board of Educ. v. Allen, 14 A D 2d 429, affd. without opn. 12 N Y 2d 980). Each of these cases unequivocally states that decisions of the Education Commissioner are final and conclusive unless ‘ ‘ purely arbitrary ’ ’. Further, any decision of the Commissioner of Education is subject to markedly limited judicial review as compared with other administrative аgencies (Board of Educ. v. Nyquist,
Since the right of the Commissioner to inquire and to issue an оrder to effect any decision he may reach is unchallengeable, we need only look to the substance of the inquiry to determine if the Commissioner acted in a purely arbitrary manner. The
However, given the correctness of the Commissioner’s holding that there does exist incompatibility and conflict between the two subject offices, there is a further consideration that, in my. view, is determinativе of the issue before the court and, strangely, neither party to this proceding has mentioned. Which office, in point of time, was the petitioner last elected to and took the oath of office to uphold! It is a well settled principle of the common law that a public officer cannot hold two incompatible offices at the same time (Smith v. Dillon, supra). The rule is founded upon the plainest principles of public policy. It is embedded in the common law and has obtained from very early timеs (47 N. Y. Jur., § 54, p. 613). The Court of Appeals in 1874 in People ex rel. Ryan v. Green (
Consequently, in the case at bar, given the incompatibility of the two offices, the petitioner, if he accepted the second office, could not have been the incumbent of both offices at the time of the issuance of the Commissioner’s orders. He was, by operation of law, either a member of the school board or a member of the library board. He could not have been both. The Commissioner’s оrder is, therefore, a nullity if petitioner was elected to the library board and accepted the office while, he was an incumbent on the school board. If the reverse is true no incompatibility could exist since petitioner was only a member of the school board.
In my view, it is unnecessary under the unique facts of this case tо consider the timeliness of petitioner’s article 78 proceeding or the procedural aspect of whether he caused process to be served upon all the necessary parties. More importantly, since another individual has been appointed to replace the petitioner on the school board of Union Free School District No. 26 of the Town of Hempstead, Nassau County, a determination by court order should be made as to which office the pеtitioner is legally entitled to hold. For this purpose the court applies the provisions of
Aсcordingly, the order of the Commissioner of Education removing the petitioner from the office of member of the school board is declared to be null and void. Hоwever, the court retains jurisdiction of the matter for the purpose of receiving additional proof by affidavit as to which of the two offices petitioner was elected to and accepted last. If such additional proof is uncontested the court will sign an order settling the matter.
The matter is remanded.