From Betsy Combier:
New York City is like no other place. Most people would agree, especially those who have been here for even a visit, and experienced the theaters, events, and 24/7 open markets and stores.
But I mean something else. Here in New York City good teachers are being accused of horrible acts of misconduct and incompetency and are being terminated by arbitrators without anyone addressing the violations of due process - the LAW - that is secretly but maliciously undermining the last 11 years of 3020-a trials which are decided without any authority for the employing board or a vote, as required by Education Law 3020-a (2) (a).
As a paralegal working with private attorneys with Respondents at 3020-a, I and the attorneys I work with bring this up in motions to dismiss the hearings as without basis in law. So far, no arbitrator has wanted to admit that they cannot find probable cause without a vote of the employing board. But we are still working on this. NYSUT lawyers will not address this issue for any Respondent at 3020-a.
For now, I will post a couple of decisions of the New York State Court of Appeals, especially Pell v Board of Education of Union Free School District No. 1:
CITE
TITLE AS: Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of
Towns of Scarsdale & Mamaroneck, Westchester County
OPINION OF THE COURT
Stevens, J.
In separate article 78 proceedings each of the appellants seeks
review of actions taken by the respective Appellate Divisions in matters
affecting the discipline of public employees. In recent years there has been
inadequate understanding and undoubtedly some inconsistency in judicial review
of administrative disciplinary determinations. For that reason it may be useful
to restate some applicable principles.
The source of the jurisdiction of the Court of Appeals is the
Constitution of the State of New York (N. Y. Const., art. VI, §3), which with
certain exceptions limits the court's power to the review of questions of law.
For the purposes of any judicial review of administrative action, the statutes
also limit the scope of review in the Supreme Court or in this court to
questions of law and the extent of the sanction imposed (CPLR 7803).
In article 78 proceedings,
"the doctrine is well settled, that neither
the Appellate Division nor the Court of Appeals has power to upset the
determination of an administrative tribunal on a question of fact;
. . . 'the courts have no right to review the facts generally as to weight of
evidence, beyond seeing to it that there is "substantial evidence.""'
(Cohen and Karger, Powers of the New York Court of Appeals, § 108, p. 460; 1 N.
Y. Jur., Administrative Law, §§ 177, 185; see Matter of Halloran v. Kirwan, 28 NY2d 689, 690 [dissenting opn. of Breitel,
J.]).
"The approach is the same when the issue concerns the
exercise of discretion by the administrative tribunal: [*231] The courts cannot interfere unless there is no rational basis for
the exercise of discretion or the action complained of is 'arbitrary and
capricious."' (Cohen and Karger, Powers of the New York Court of Appeals,
pp. 460-461; see, also, 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7803.04 et seq.; 1 N. Y. Jur., Administrative Law, §§ 177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329).
The arbitrary or capricious test chiefly "relates
to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in
fact." (1 N. Y. Jur., Administrative Law, § 184, p. 609).
Arbitrary action is without sound basis in reason and is generally
taken without regard to the facts. In Matter of Colton v. Berman (supra, p. 329) this court (per Breitel, J.) said "the proper
test is whether there is a rational basis for the administrative orders, the review not being of determinations made
after quasi-judicial hearings required by statute or law." (Emphasis supplied.) Where, however,
a hearing is held, the determination must be supported by substantial evidence
(CPLR 7803, subd. 4); and where a determination is made and the person acting
has not acted in excess of his jurisdiction, in violation of lawful procedure,
arbitrarily, or in abuse of his discretionary power, including discretion as to
the penalty imposed, the courts have no alternative but to confirm his
determination (CPLR 7803, subd. 3; Matter of Procaccino v. Stewart, 25 NY2d 301; but see Matter of Picconi v. Lowery, 35 AD2d 693, affd. 28 NY2d 962). Rationality is what is reviewed
under both the substantial evidence rule and the arbitrary and capricious
standard. (Matter of 125 Bar Corp. v. State Liq. Auth., 24 NY2d 174,
178; 1 N. Y. Jur, Administrative Law, § 184.)
In Matter of Weber v. Town
of Cheektowaga (284 N. Y. 377, 380),
this court, in reversing the order of the Appellate Division and reinstating
the determination of the Town Board, dismissing petitioner for intoxication
after an administrative disciplinary proceeding, said that "the
determination upon the facts is for the Town Board, and such determination will
not be set aside by the courts unless it is unsupported by proof sufficient to
satisfy a reasonable man, of all the facts necessary to be proved in order to
authorize the determination". (See, also, Matter of Barsky v. Board of Regents, 305 N. Y. 89, affd. [*232] 347 U. S. 442; CPLR 7803, subd. 4.) "It is well settled that
a court may not substitute its judgment for that of the board or body it
reviews unless the decision under review is arbitrary and
unreasonable and constitutes an abuse of discretion [citations omitted]."
(Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1
NY2d 508, 520.)
The scope of CPLR 7803 in providing for judicial review of
administrative sanctions was unclear initially. The question arose as to
whether it called for a review as broad as that which the Appellate Division would
have conducted of a determination at Special Term, or limited review to such
abuses of discretion as were tantamount to a true question of law. The courts,
however, laid the doubts to rest and interpreted the statute so as to limit
judicial review to such abuses of discretion (Matter of Stolz v. Board of
Regents, 4 AD2d 361; Matter of Russell v.
Stewart, 30 AD2d 749, 750).
The statutes could have granted a broader or narrower power of
review to the Supreme Court, including the Appellate Division. With respect to
this court, however, the limitation is constitutional and the power of review
limited to questions of law. As the statutes have been construed, however, the
scope of review in this court and the Appellate Division would seem to be the
same (Matter of Bovino v. Scott, 22 NY2d 214, 216).
Generally speaking, discretionary issues are not issues of law,
but even in such cases it may be urged that the bounds of discretion were
exceeded. "[T]he inquiry is always pertinent whether in any particular
case, discretion was abused, just as inquiry is always pertinent whether there
is any evidence to sustain a finding of fact." (Cohen and Karger, Powers
of the New York Court of Appeals, § 159, p. 619).
"Prior to the adoption of subdivision 5-a of section 1296 of
the Civil Practice Act (L. 1955, ch. 661), the courts had no power to review
the penalty, punishment or measure of discipline imposed by an administrative
agency (Matter of Barsky v. Board of Regents, 305 N. Y. 89, affd. 374 U.
S. 442)." (Matter of Stolz v. Board of Regents, 4 AD2d 361, 363,
supra.) Section 5-a permits the courts to review the measure of discipline
imposed by administrative agencies, but, as noted by Mr. Justice Halpern,
"this grant of power must be reasonably construed in the light of the
settled principles governing the relationship [*233] between the courts and administrative agencies.
. . . . We believe that, reasonably construed, the statute
authorizes us to set aside a determination by an administrative agency, only if
the measure of punishment or discipline 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 Stolz v. Board of Regents, supra, p.
364; see, also, Public Papers of Governor Harriman, Memorandum dated April 25,
1955, filed with Assembly Bill, Introductory No. 2834; N. Y. State Bar Assn.
Memorandum No. 2834 in support of Bill 2834, N. Y. State Legis. Annual [1955],
p. 32; Matter of Mitthauer v.
Patterson, 8 NY2d 37.) The view
expressed above still controls. (Matter of Tannenholz v. Waterfront Comm. of
N. Y. Harbor, 36 AD2d 930, affd. 30 NY2d 668 [Jasen and Breitel, JJ.,
dissenting in opn. by Jasen, J.].) In Matter of Donohue v. New York State Police (19 NY2d 954) we held the sanction of dismissal
of petitioner excessive as a matter of law and remanded the proceeding.
"CPLR 7803(3) reenacts subdivision 5-a of Civil Practice Act section 1296,
authorizing courts to review the measure of discipline imposed by the
respondent agency or officer." (8 Weinstein-Korn- Miller, N. Y. Civ.
Prac., par. 7803.15; Matter of Walker v.
Murphy, 15 NY2d 650, 651.)
Of course, as discussed earlier, whether there is evidence, in an
administrative proceeding, to support a finding of guilt is a question of law
which this court may review. But, where the finding of guilt is confirmed and
punishment has been imposed, the test is whether such punishment 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 McDermott v.
Murphy, 15 AD2d 479, affd. 12 NY2d 780; Matter of Stolz v. Board of Regents, 4 AD2d 361, supra).
Finally, in Matter of Bovino v.
Scott (22 NY2d 214, 216,
supra), this court (per Bergan, J. with Scileppi, Breitel and Jasen, JJ.,
dissenting in opn. by Jasen, J.) flatly declared: "Both the Appellate
Division and this court are vested with power, pursuant to CPLR 7803 (subd. 3),
to deal as a matter of law with the measure of discipline imposed on a
subordinate civil service employee [citations omitted]" (emphasis
supplied).
In light of the history of the statutes and the afore-mentioned
holdings, the sanctions to be imposed may be considered to be [*234] either a legal matter or a discretionary matter, the latter
subject to review only as a matter of law regarding the propriety of the
discretion exercised. When an administrative abuse of discretion is determined
to have occurred, it may be appropriate more often to remand the matter for the
fixing of the sanction by the agency initially exercising the power unless in
the circumstances peculiar to a particular case we deem the record sufficient
to permit the reviewing court to assess the permissible measure of punishment
warranted. (Cf. Matter of Dillard v. New
York City Tr. Auth., 34 AD2d 995, where the
record was found insufficient to permit a determination on the question of the
review of the Authority's dismissal of petitioner for health reasons and the
proceeding remanded. After a rehearing, the determination was confirmed, the
Appellate Division concluding that the decision to dismiss "was not
arbitrary and capricious and was based upon substantial evidence" Matter of Dillard v. New York City Tr. Auth., 39 AD2d 759, 760.)
Of course, terminology like "shocking to one's sense of
fairness" reflects a purely subjective response to the situation presented
and is hardly satisfactory. Yet its usage has persisted for many years and
through many cases. Obviously, such language reflects difficulty in
articulating an objective standard. But this is not unusual in the common-law
process until, by the impact of sufficient instances, a more analytical and
articulated standard evolves. The process must in any event be evolutionary. At
this time, it may be ventured that a result is shocking to one's sense of
fairness if the sanction imposed is so grave in its impact on the individual
subjected to it that it is disproportionate to the misconduct, incompetence,
failure or turpitude of the individual, or to the harm or risk of harm to the
agency or institution, or to the public generally visited or threatened by the
derelictions of the individuals. Additional factors would be the prospect of
deterrence of the individual or of others in like situations, and therefore a
reasonable prospect of recurrence of derelictions by the individual or persons
similarly employed. There is also the element that the sanctions reflect the
standards of society to be applied to the offense involved. Thus, for a single
illustrative contrast, habitual lateness or carelessness, resulting in
substantial monetary [*235] loss, by a lesser employee, will not be as
seriously treated as an offense as morally grave as larceny, bribery, sabotage,
and the like, although only small sums of money may be involved.
There is no doubt that the reason for the enactment of the statute
(CPLR 7803) was to make it possible, where warranted, to ameliorate harsh
impositions of sanctions by administrative agencies. That purpose should be
fulfilled by the courts not only as a matter of legislative intention, but also
in order to accomplish what a sense of justice would dictate. Consideration of
the length of employment of the employee, the probability that a dismissal may
leave the employee without any alternative livelihood, his loss of retirement
benefits, and the effect upon his innocent family, all play a role, but only in
cases where there is absent grave moral turpitude and grave injury to the
agency involved or to the public weal. But deliberate, planned, unmitigated
larceny, or bribe taking, or demonstrated lack of qualification for the
assigned job is not of that kind. Paramount too, in cases of sanctions for
agencies like the police, is the principle that it is the agency and not the
courts which, before the public, must justify the integrity and efficiency of
their operations.
Attention is now directed to the separate proceedings listed
above.
Matter of Pell v. Board of Education.
Charges were preferred against Pell that on seven occasions he
absented himself from his teaching duties without permission, and thereafter
falsely certified in writing that he was ill on such occasions and requested
payment therefor. Earlier, Pell had requested and been refused permission to
absent himself three days each month (November through May inclusive) in order
to attend the New York University Senate of which he was a member.
After a full hearing, Pell was found guilty of: (1)
insubordination: (2) conduct unbecoming a teacher; and (3) neglect of duty. He
was dismissed from his position as a tenured teacher.
The Appellate Division, two Justices dissenting, modified the
determination to strike the penalty of dismissal and provide in lieu thereof
suspension without pay to the date of the order. The dissenting Justices voted
to affirm the dismissal. Both [*236] parties appealed. We are unanimous in our view
that the cross appeal of Pell should be dismissed since he is not a party
aggrieved by the modification of the Appellate Division.
The only question remaining is whether the modification with
respect to punishment is warranted in light of the principles earlier
discussed. It is concluded that the order of the Appellate Division should be
reversed and the determination of the board reinstated.
Pell had been granted a year's leave with full pay during the
1969-1970 school year which immediately preceded his requests here. Upon denial
of his application for a total of 21 days' leave, he had a right of appeal
which he elected not to exercise. In disregard of his professional obligations
and of his superior's decision, he absented himself from his teaching duties,
thereby requiring replacements, falsely certified to being ill on those
occasions, and was paid therefor. Such irresponsibility makes it impossible to
conclude that the discipline imposed is shockingly disproportionate to the
offense.
The judgment of the Appellate Division should be reversed and the
determination of the board reinstated, without costs.
Matter of Muldoon v. Mayor of Syracuse.
Following the preferral of charges, and after a full hearing,
petitioner-respondent (petitioner) was found guilty of firing his revolver from
a window of the Public Safety Building while on duty; of refusing a request to
submit to blood analysis (such refusal creating a presumption of intoxication
under the applicable police department rules and regulations); of conduct
unbecoming an officer; and, of failure to file a written report, as required of
any officer who discharges a firearm in the performance of duty. The acts for
which petitioner was found guilty violated specific sections of the Rules and
Regulations of the Police Department. Although petitioner testified that he had
no recollection of the firing of his revolver, that fact was proven by other
testimony. There was substantial evidence in the record to support the
findings, the hearing officer recommended dismissal, and thereafter, petitioner
was discharged by respondent Chief of Police. The Appellate Division modified
to reduce the penalty to suspension until the date of entry of its order. [*237]
At first blush, the punishment imposed might seem excessive or
unduly harsh; however, policemen hold a sensitive position in a community and
have an obligation to aid in safeguarding and protecting the community which
they serve. Armed as they are with dangerous or deadly weapons, the use of such
a weapon without conscious recollection of such use, could pose a serious
future threat of possible harm to civilians and others.
The Chief of Police as the person ultimately responsible for
effective discipline must seek to protect both the community and the police
force from dangers reasonably foreseen and risks which might become serious
liabilities, or have grave consequences. If, in the exercise of his considered
judgment, he imposes punishment, the exercise of his reasonable discretion
should not be disturbed unless the punishment is so disproportionate to the
offense as to be shocking to one's sense of fairness (Matter of McDermott v.
Murphy, 15 AD2d 479, affd. 12 NY2d 780, supra).
It cannot be said as a matter of law that the Chief of Police
abused his discretion by the action taken. The discretionary power exercised by
the Appellate Division in modifying the penalty is not warranted by the record.
The judgment of the Appellate Division should be reversed and the
determination of respondent Chief of Police reinstated, without costs. (See Matter of Bernardini v. Port of N. Y. Auth., 34 NY2d 750.)
Matter of Chilson v. Board of Education.
The order of the Appellate Division which reversed a judgment of
the Supreme Court and reinstated the determination of respondents should be
affirmed, with costs.
Petitioner, a Senior Construction Inspector with the Board of
Education, was indicted, charged with grand larceny in the first degree, bribe
receiving and receiving unlawful gratuities. On May 5, 1969, petitioner was
suspended for conduct unbecoming his position and "prejudicial to the good
order, efficiency and discipline of the service." The original
specifications of misconduct served upon petitioner were taken from the
indictment and at petitioner's request, the disciplinary proceeding was
adjourned pending disposition of the criminal prosecution. On January 18, 1971,
petitioner pleaded guilty [*238] to the misdemeanor of receiving unlawful
gratuities and on February 9, 1971, at sentence, he was placed on probation.
The specifications were amended, without objection, to reflect the plea and
disposition.
At the hearing respondent's counsel placed in evidence a certified
copy of the indictment and a certified copy of the clerk's minutes of the plea
and disposition. Petitioner did not testify.
The plea of guilty and the sentence provide substantial evidence
for the dismissal. Indeed, petitioner only contends that the penalty of
dismissal constitutes excessive punishment.
Petitioner argues that with a record of 21 years of unblemished
service, dismissal with its resultant loss of pension and retirement rights, is
too drastic a penalty in light of the crime for which he stands convicted.
Petitioner, a public servant, was guilty of a breach of trust and
a failure to faithfully and honestly perform the duties of his position. His
position was a sensitive one and the misconduct serious. The question is not
whether we might have imposed another or different penalty, but whether the
agency charged with disciplinary responsibility reasonably acted within the
scope of its powers. The answer must be in the affirmative (see Matter of Walker v. Murphy, 15 NY2d 650; Matter of Boris v. Murphy, 19 NY2d 873). Pensions are not only
compensation for services rendered, but they serve also as a reward for
faithfulness to duty and honesty of performance.
Matter of Best v. Ronan
This is an appeal by respondent from a judgment of the Appellate
Division which modified the determination of respondent by substituting for
dismissal of the petitioner a suspension without pay for a period from the date
of dismissal to six months from the date of the entry of the order of
modification, roughly three and one-half years as of this appeal.
The charge of "nickeling", or the mishandling of funds
belonging to the New York City Transit Authority (Authority), was established
by the evidence, and the finding of guilt confirmed by the Appellate Division.
Involved is a sum which by estimate of the Authority amounts to $1.26,
allegedly appropriated over a period of 18 days by the use of coins given in
change to passengers which, when deposited in the coin box, [*239] registered a lesser sum than the actual value, thereby permitting
petitioner to appropriate the difference.
The single question is whether dismissal was reasonable and proper
under the circumstances. Or, phrased differently, was the discretionary power
of review of the Appellate Division properly exercised as a matter of law? In
our view it was not.
The ingenuity of the scheme used indicates a carefully thought out
plan which, reasonably, could well have been operative beyond the period of
direct observation and detection. While the penalty and the resulting
forfeiture of pension undoubtedly will result in hardship, it cannot be said as
a matter of law that the sanction imposed by the Authority for theft was so
harsh and excessive, so disproportionate to the offense as to be shocking to
one's conscience. Here there was a violation of a trust and a breach of duty which,
if condoned and imitated, could wreak havoc with the entire system.
While heretofore the courts have, in some instances, considered
prior good records of service and revoked a sentence of dismissal, substituting
therefor a lesser penalty (see Matter of Mitthauer v.
Patterson, 8 NY2d 37, supra), it
is becoming increasingly clear that the nature of the misconduct charge when
weighed with the action taken, where such action is reasonably within the
permissible scope of the disciplining agency, must be accorded greater weight
or recognition.
The judgment appealed from should be reversed and the
determination of respondent Authority reinstated, without costs.
Matter of Abbott v. Phillips.
Abbott became employed as a police officer September 1, 1968. He
was dismissed September 15, 1971, after having been found guilty of dereliction
of his duties as a police officer.
On August 13, 1971, Abbott sustained certain injuries in an
off-duty accident and remained on "sick leave" until September 4,
1971, when he returned to work. Upon his return, Abbott was charged with a
violation of the rules and regulations of the department in that, while on sick
leave, he, on two different dates, engaged in other employment as a delivery
man for a private firm. Abbott received his pay as an officer for the time he
was on sick leave. At times other than those specified in [*240] the charges, Abbott while on sick leave, was not at home during
the workday as required by departmental regulations.
After a finding of guilt on the charges, the Village Board of
Trustees (appellants herein) were free to consider Abbott's prior record in
determining the punishment to be imposed. In June, 1969, he had pleaded guilty
to misconduct charges in that he wrongfully discharged his revolver in a public
place, while not in the line of duty, and failed to report the incident as
required. However, the board, upon petitioner's objection, erroneously excluded
proof of the prior violation and discharged Abbott solely on the basis of the
charges for which he was on trial. Both sides now agree this was error. The
question is whether, in considering this offense alone, the board acted
properly in the discharge of its responsibility, or whether the matter should
be remanded to the board in order that they might consider such prior violation
with respect to the present punishment.
This article 78 proceeding was originally commenced in Supreme
Court and transferred to the Appellate Division, which modified on the law the
determination of the board by reducing the penalty to suspension for 20 days
without pay.
In Matter of Mitthauer v.
Patterson (8 NY2d 37, 42, supra)
this court affirmed a modification by the Appellate Division, reducing a
penalty of dismissal to a six-month suspension. In so doing, the majority observed
that "this woman had over 20 years of service with a good record and would
lose many valuable rights if dismissed." Assuming that was the basis for
the affirmance, the factual picture in this case presents no such redeeming
feature. In the cited case, the majority held that the court, in the course of
its judicial inquiry as to the abuse of discretion, had complete power over the
subject. (But see Little v. New York City
Tr. Auth., 28 NY2d 719, where on
a similar factual pattern, a totally different result was reached.)
A reduction of the penalty here, the determination of guilt having
been confirmed, is not warranted. As a matter of law, the modification is not
justified since it does not appear from the record that the board abused its
discretion in fixing the punishment. Unless an irrationality appears or the
punishment shocks one's conscience, sanctions imposed by an administrative
agency should be upheld. [*241]
The judgment should be reversed and the determination of the board
reinstated, without costs to either party. (See Matter of Bernardini v. Port of N. Y. Auth., 34 NY2d 750, supra.)
It may be noted that the foregoing cases fall into one general
classification as to the nature of the problems posed. However, it must always
be kept in mind that the discussion above involved only disciplinary sanctions
imposed internally in various administrative agencies and does not cover
discipline imposed upon regulated persons or entities outside an administrative
agency. That is not to say that the discussion may not be relevant to the
issues raised in cases of the latter kind. Moreover, in every case there must
be sensitive distinction among agencies based upon their responsibilities to
the public. Thus, compare a police agency with a municipal electric utility.
And, of course, always there must be a persisting discretion exercised to avoid
unnecessary hardship to erring human beings not compelled by a supervening
public interest. The determinations in these cases attempt to express that
sensitivity.
In Matter of Pell: On respondent's appeal: Judgment reversed,
without costs, and determination of Board of Education reinstated.
On petitioner's appeal: Appeal dismissed, without costs.
In Matter of Muldoon: Judgment reversed, without costs, and
determination of respondents-appellants reinstated.
In Matter of Chilson: Order affirmed, with costs.
In Matter of Best: Judgment reversed, without costs, and
determination of respondent-appellant reinstated.
In Matter of Abbott: Judgment reversed, without costs, and determination
of respondents-appellants reinstated.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler
and Rabin concur.
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