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Saturday, December 15, 2012

Condon v Sabater: Judge Huff Rules Against SCI Chief Richard Condon



**2] In the Matter of RICHARD J. CONDON, in his official capacity as Special Commissioner of Investigation for the New York City School District, Petitioner,

-against -

PATRICIA SABATER, Respondent. Index No. 401175/12

401175/12

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2012 N.Y. Misc. LEXIS 5503; 2012 NY Slip Op 32889U

November 30, 2012, Decided

JUDGES: [*1] CAROL E. HUFF, J.S.C.
Richard Condon

Motions with sequence numbers 001 and 002 are consolidated for disposition.

In this special proceeding made pursuant to CPLR 2308(b) (Disobedience of subpoena -- non-judicial), petitioner, as Special Commissioner of Investigation for the New York City School District ("SCI"), moves to compel respondent to comply with a subpoena ad testificandum issued by SCI (sequence 001). Non-party New York State United Teachers ("NYSUT") moves for leave to file an amicus curiae brief (002).

The motion by NYSUT for leave to file an amicus curiae brief, which is not opposed, is granted. Respondent Patricia Sabater is an assistant principal and tenured teacher at an elementary school in Brooklyn. SCI is charged, pursuant to Mayoral Executive Order No. 11 of 1990, with the authority to investigate alleged misconduct within the New York City Department of [**3] Education. SCI seeks Sabater's sworn testimony in connection with an investigation into allegations of the failure to report sexual harassment and unlawful touching committed by students upon students at the school. The investigation seeks to determine whether respondent failed to act on and report complaints [*2] made by two female students, in violation of Chancellor's Regulation A-831.

Sabater's attorney initially informed SCI that she would appear voluntarily to be interviewed under oath. The attorney then informed SCI that she would not appear. SCI issued a subpoena ad testificandum dated April 24, 2012, directing Sabater's appearance to testify, and it was agreed that she would appear on May 3, 2012. On May 3, Sabater appeared with counsel and was placed under oath. She answered background questions relating to her address, phone number and Department of Education file number, but refused to answer any additional questions, citing her rights under the holding in Board of Educ. of the City School Dist. of the City of New York v Mills, 250 AD2d 122, 680 N.Y.S.2d 683 (3d Dept Page 11998), lv. denied 93 NY2d 803, 711 N.E.2d 201, 689 N.Y.S.2d 16 (1999).

In Mills the Third Department affirmed the finding of the Commissioner of Education of the State of New York that the respondent teacher was entitled not to submit to sworn questions during a prehearing investigation, citing Education Law § 3020-a(3)(c)(I), which provides that an "employee shall not be required to testify" during his or her hearing. The Mills court found:

Significantly, petitioner does [*3] not dispute that any information gathered during the prehearing investigation would be admissible at the disciplinary hearing. Therefore, even if an employee chose not to testify at the hearing, his or her prehearing statements to the SCI would be admissible as admissions against interest. Clearly this contravenes Education Law § 3020-a which provides a significant protection, that of shielding employees against testifying against themselves in a proceeding in which their job rights are in jeopardy.

250 AD2d at 126.

[**4] SCI argues that Mills was wrongly decided and that this Court should rule differently and compel the prehearing, sworn testimony of Sabater. He argues that the Education Law was amended to include the "employee shall not be required to testify" language after the charges were filed in the Mills case. That does not, however, affect the Appellate Division's interpretation of the statute. He further argues that General City Law § 20.21 should be given at least equal weight to Education Law § 3020-a, However, § 20.21 only provides generally that cities have power to subpoena witnesses in connection with investigations, while Education Law § 3020-a specifically excludes a class [*4] of persons from testifying against themselves. SCI also attempts to distinguish Sabater from the respondent in Mills because Sabater is an assistant principal. Education Law § 3020-a applies, however, to any "person enjoying the benefits of tenure," which Sabater does.

In People v Shakur, 215 AD2d 184, 185, 627 N.Y.S.2d 341 (1st Dept 1995), the First Department stated: "Trial courts within this Department must follow the determination of the Appellate Division in another Department until such time as this Court or the Court of Appeals passes on the question." Since neither the First Department nor the Court of Appeals has issued a ruling contrary to Mills, and petitioner has not sufficiently demonstrated the error of the Mills holding, the petition is denied.

Accordingly, it is

ORDERED that the motion (002) of NYSUT for leave to submit an amicus curiae brief is granted; and it is further

[**5] ADJUDGED that the petition (001) is denied and the proceeding is dismissed.

Dated: NOV 30 2012

/s/ Carol E. Huff

J.S.C


In the Matter of Board of Education of the City School District of the City of New York, Appellant, v. Richard P. Mills, as Commissioner of Education of the State of New York, et al., Respondents. (And Another Related Proceeding.)


81362

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

250 A.D.2d 122; 680 N.Y.S.2d 683; 1998 N.Y. App. Div. LEXIS 11900


November 12, 1998, Decided 
November 12, 1998, Entered

PRIOR HISTORY:  [***1]  Appeal from a judgment of the Supreme Court (Vincent G. Bradley, J.), entered May 22, 1997 in Albany County, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Education denying petitioner's request to terminate a tenured teacher for misconduct. 

DISPOSITION: The judgment is affirmed, without costs.


CASE SUMMARY

PROCEDURAL POSTURE: Petitioner city board of education challenged a judgment of the Supreme Court in Albany County (New York), which dismissed its application to review a determination of respondent education commissioner denying the board's request to terminate a tenured teacher for misconduct.

OVERVIEW: The board by resolution created the Special Commissioner of Investigation, which investigated a high school teacher for having an inappropriate relationship with a student. The teacher refused to answer questions about his relationship with the student and the board sought his termination under .N.Y. Educ. Law § 3020-a The hearing panel found misconduct and imposed a penalty but did not find insubordination. The commissioner upheld the ruling but imposed a harsher penalty. On appeal, the court held (1) the commissioner had the power under N.Y. Educ. Law § 305(1) and (2) to interpret statutes and his interpretation must be upheld unless it was unreasonable, (2) the board's resolution requiring employees to answer questions during investigations or to be subject to dismissal for insubordination conflicted with N.Y. Educ. Law § 3020-a(3)(c)(i), which shielded employees from testifying against themselves in a proceeding involving their job rights, (3) the state law was controlling under the home rule provision of the N.Y. Const., (4) the commissioner' s interpretation was reasonable, and (5) the commissioner did not commit error with respect to the penalty imposed.

OUTCOME: The court affirmed the judgment.


CORE TERMS: answer questions, teacher, penalty imposed, insubordination, inappropriate, prehearing, disciplinary hearing, romantic relationship, required to testify, abuse of discretion, sense of fairness, use immunity, school district employees, misconduct, suspension, home rule, disciplinary proceeding, physical education, committed misconduct, subject to dismissal, educational system, grossly disproportionate, failure to cooperate, school system, disciplined, conscience, admissible, engaging, jeopardy, female

LexisNexis® Headnotes


Education Law > Administration & Operation > Boards of Elementary & Secondary Schools > Authority
Education Law > Faculty & Staff > Discipline & Dismissal > Causes
Governments > Local Governments > Duties & Powers

On June 1990 the position of Special Commissioner of Investigation ( SCI) is created by a resolution of the Board of Education of the City School District of the City of New York pursuant to Executive Order No. 11 of the Mayor of the City of New York (Executive Order), the City Charter, and N.Y. Educ. Law § 2554. The SCI is given responsibility and authority to investigate unethical conduct and other misconduct in the New York City school system. Both the resolution and the Executive Order mandate full cooperation by all school district employees with the SCI during all investigations. They provide that if an employee refuses to answer questions during an SCI investigation, the employee must be advised that any answer given and any information or evidence derived shall not be used against the employee in a criminal proceeding except in a perjury or contempt prosecution. After being so advised, refusal of the employee to answer questions constitutes failure to cooperate with the investigation and is sufficient cause for dismissal.


The Commissioner of Education of the State of New York (Commissioner) has the power to interpret statutes and provide guidelines with regard to their construction. N.Y. Educ. Law § 305(1), (2). It is a cardinal principle of construction that, in case of doubt, or ambiguity, in the law it is a well-known rule that the practical construction given to a law by those charged with the duty of enforcing it takes on almost the force of judicial interpretation. Upon review, the court's function is limited because it is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld. Thus, the standard of review is whether the Commissioner's determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.



Although local governments have the power to enact laws or regulations, such regulations must be consistent with both the N.Y. Const. and the general laws enacted by the legislature. N.Y. Const. art. IX, § 2(c). No local legislative body is empowered to enact laws or regulations which supersede state statutes, particularly with regard to the maintenance, support, or administration of the educational system. N.Y. Mun. Home Rule Law § 11(1)(c).


N.Y. Educ. Law § 3020-a(3)(c)(i) is construed to be in conflict with a resolution of the Board of Education of the City School District of the City of New York requiring that employees answer questions during prehearing investigations or be subject to dismissal for insubordination.



N.Y. Educ. Law § 3020-a provides a significant protection, that of shielding employees against testifying against themselves in a proceeding in which their job rights are in jeopardy.



An administrative penalty is not to be set aside unless it is so clearly disproportionate to the offense and completely inequitable in light of the surrounding circumstances.

HEADNOTES
Schools - Teachers - Disciplinary Proceedings - Refusal to Answer Questions during Misconduct Investigation
The State Commissioner of Education properly determined after a teacher disciplinary hearing that Education Law § 3020-a was the sole means through which a teacher could be disciplined and that while respondent, a tenured physical education teacher in the New York City school system, committed misconduct warranting his suspension by engaging in a romantic relationship with one of his students, he could not be terminated for insubordination merely for having refused to answer questions about this relationship during an investigation conducted by petitioner's Special Commissioner of Investigation. Education Law § 3020-a (3) (c) (i), which provides that school district employees cannot be required to testify against themselves in a disciplinary proceeding in which their job rights are in jeopardy, was properly construed to be in conflict with petitioner's resolution created pursuant to an Executive Order of the Mayor of the City of New York requiring that employees answer questions during prehearing investigations or be subject to dismissal for insubordination. In such instances, State law is controlling under principles of home rule (see, NY Const, art IX, § 2 [c]; § 3 [a] [1]), particularly where the "maintenance, support or administration of the educational system" is involved (see, Municipal Home Rule Law § 11 [1] [c]). Furthermore, the penalty of a three years' suspension without pay imposed by the Commissioner is reasonable and not an abuse of discretion. In light of the circumstances of this case as presented in the record, including the observations of the Hearing Panel and the Commissioner and the limited nature of the inappropriate relationship allegation as set forth in the charge, the penalty imposed was not so grossly disproportionate to the offense as to shock one's conscience and sense of fairness.


COUNSEL: Michael D. Hess, Corporation Counsel of New York City (Steven J. Rappaport of counsel), for appellant. 

Dennis C. Vacco, Attorney-General, Albany (Patrick Barnett-Mulligan and Robert A. Siegried of counsel), for Richard P. Mills, respondent. 

Malvina Nathanson, New York City, for Andrew Cadet, respondent. 

O'Hara & O'Connell, Syracuse (Dennis G. O'Hara of counsel), for New York State Council of School Superintendents, amicus curiae. 

James D. Bilik, Albany, for New York State United Teachers, amicus curiae. 

JUDGES: Mercure, J. P., White, Peters and Graffeo, JJ., concur. 

OPINION BY: Spain 

OPINION
 [*123]   [**684]  Spain, J.
In June 1990 the position of Special Commissioner of Investigation (hereinafter [***2]  SCI) was created by a resolution of petitioner pursuant to Executive Order No. 11 of the Mayor of the City of New York (hereinafter the Executive Order), the City Charter and Education Law § 2554. The SCI was given the responsibility and authority to investigate "unethical conduct and other misconduct" within the New York City school system. Both the resolution which established the SCI and the Executive Order mandate full cooperation by all school district employees with the SCI during all investigations; they further provide that if an employee refuses to answer questions during an SCI investigation, the employee must be advised that any answer given and any information or evidence derived therefrom shall not be used against the employee in a criminal proceeding except in a prosecution for perjury or contempt. After being so advised, refusal by a school district employee to answer questions constitutes failure to cooperate with the investigation and is sufficient cause for dismissal.
 [*124]  In April 1991 the SCI received an anonymous letter alleging that respondent Andre  [**685]  Cadet, a physical education teacher at Julia Richman High School,  [***3]  was having an inappropriate relationship with a female student. An initial investigation revealed that Cadet had, in fact, formed a romantic relationship with the student. During the course of the investigation Cadet refused to be interviewed by a confidential investigator for the SCI. In June 1991 Cadet was subpoenaed to appear at the office of the SCI to give testimony during a prehearing inquiry concerning his relationship with the student. Cadet appeared with his attorney and, prior to being questioned, was informed that he had an obligation to cooperate with the investigation, that he was being granted use immunity and that if he failed to answer questions at this stage of the proceeding, his refusal would be construed as a failure to cooperate and would subject him to dismissal. In spite of having been granted use immunity, Cadet answered only pedigree and background questions, refusing to answer any questions regarding his relationship with the student.
Thereafter, petitioner found probable cause to prefer disciplinary charges against Cadet pursuant to Education Law § 3020-a, seeking his termination. Cadet was charged with inappropriate contact [***4]  with a female student by having a romantic relationship with her and with uncooperative, disobedient and insubordinate behavior by refusing to answer questions regarding the performance of his official duties during a sworn examination by the office of the SCI.
A disciplinary hearing pursuant to Education Law § 3020-a was held at which a number of witnesses testified. The Hearing Panel determined that Cadet had committed misconduct by engaging in a romantic relationship with one of his students. However, the Hearing Panel also determined that, although Cadet did not respond to the SCI's questions after being given use immunity, such conduct did not constitute insubordination. The Hearing Panel noted that Education Law § 3020-a, which provides that an employee shall not be required to testify at his or her disciplinary hearing, conflicted with the Executive Order and petitioner's resolution and, under the principles of home rule, Education Law § 3020-a was controlling; therefore, Cadet could not be required to testify at the hearing or during the investigation leading up to such a proceeding. The Hearing [***5]  Panel concluded that, despite its determination of misconduct with respect to Cadet's behavior with the student, he remained fit for continued service; it further concluded that Cadet should  [*125]  be suspended for a period of one half of the regular teaching year without pay.
Both petitioner and Cadet appealed the determination to respondent Commissioner of Education. The Commissioner concluded that Education Law § 3020-a was the sole means through which a teacher could be disciplined and agreed with the Hearing Panel that this provision was in conflict with both the Executive Order and petitioner's resolution. Finding that State law was controlling in such an instance due to the home rule provisions of the State Constitution, the Commissioner upheld the Hearing Panel's negative determination with regard to the charge of insubordination. The Commissioner also upheld the Hearing Panel's determination regarding Cadet's inappropriate relationship with the student; however, the Commissioner determined that the penalty imposed by the Hearing Panel was too lenient and substituted a penalty of a three years' suspension without pay.
Petitioner and Cadet [***6]  then commenced separate CPLR article 78 proceedings to challenge the determination of the Commissioner. Supreme Court dismissed both petitions, agreeing with the Commissioner that Education Law § 3020-a is in conflict with the Executive Order and petitioner's resolution and that the State law is controlling in such instances, particularly when read with Municipal Home Rule Law § 11 (1) (c) and NY Constitution, article IX, § 3 (a) (1). Supreme Court also concluded that the penalty imposed by the Commissioner was reasonable and not an abuse of discretion. Petitioner and Cadet both appealed; Cadet has now withdrawn his appeal.
We affirm. The Commissioner has the power to interpret statutes and provide guidelines with regard to their construction (see, Education Law § 305 [1], [2]). Notably, "[i]t is a cardinal principle of construction  [**686]  that, '[i]n case of doubt, or ambiguity, in the law it is a well-known rule that the practical construction that has been given to a law by those charged with the duty of enforcing it … takes on almost the force of judicial [***7]  interpretation' " ( Matter of Lezette v Board of Educ., 35 NY2d 272, 281, quoting Town of Amherst v County of Erie, 236 App Div 58, 61, affd 260 NY 361, 369-370). As such, upon review, the court's function is limited because "[i]t is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld" ( Matter of Howard v Wyman, 28 NY2d 434, 438; accord, Matter of Lezette v Board of Educ., supra, at 281-282; cf., Matter of Johnson v Joy, 48 NY2d  [*126]  689, 691). Thus, the standard of review "is whether [the Commissioner's] determination 'was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion' " ( Matter of Conley v Ambach, 61 NY2d 685, 687, quoting CPLR 7803 [3]; see, Matter of Cargill v Sobol, 165 AD2d 131, 133, lv denied 78 NY2d 854). Although local governments have the power to enact laws or regulations, such regulations [***8]  must be consistent with both the NY Constitution and the general laws enacted by the Legislature (see, NY Const, art IX, § 2 [c]); no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the "maintenance, support or administration of the educational system" (Municipal Home Rule Law § 11 [1] [c]).
Education Law § 3020-a (3) (c) (i) was properly construed to be in conflict with petitioner's resolution requiring that employees answer questions during prehearing investigations or be subject to dismissal for insubordination. Significantly, petitioner does not dispute that any information gathered during the prehearing investigation would be admissible at the disciplinary hearing. Therefore, even if an employee chose not to testify at the hearing, his or her prehearing statements to the SCI would be admissible as admissions against interest. Clearly, this contravenes Education Law § 3020-a which provides a significant protection, that of shielding employees against testifying against themselves in a proceeding in which their job rights are in jeopardy.  [***9]  In our view, the Commissioner's interpretation of the laws was rational and reasonable and should not be disturbed.
Finally, we find no error on the part of the Commissioner with respect to the penalty imposed. "It is now well settled that an administrative penalty is not to be set aside … unless it is so 'clearly disproportionate to the offense and completely inequitable in light of the surrounding circumstances' ( Kostika v Cuomo, 41 NY2d 673, 676) as to be 'shocking to one's sense of fairness' ( Matter of Pell v Board of Educ., 34 NY2d 222, 233)" ( Matter of Nino v Yonkers City School Dist., 43 NY2d 865, 866; see, Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285). In light of the circumstances of this case as presented in the record, including the observations of the Hearing Panel and the Commissioner and the limited nature of the inappropriate relationship allegation as set forth in the charge (see, Matter of Caravello v Board of Educ., 48 AD2d 967, 969), we reject petitioner's contention  [*127]  that the penalty imposed upon Cadet was so grossly disproportionate to [***10]  the offense as to shock one's conscience and sense of fairness.
Mercure, J. P., White, Peters and Graffeo, JJ., concur.
Ordered that the judgment is affirmed, without costs.