Brida v. Ambach

• Decision Date: 18 April 1972
• Docket Number: No. 7,7
• Citation: 331 N.Y.S.2d 467,69 Misc.2d 900
• Parties: Application of Frances BRIDA, Petitioner, For an Order Pursuant to Article 78, CPLR, v. Gordon M. AMBACH, Acting Commissioner of the State of New York, and Board of Education of Central School District, of the Town of Islip, Suffolk County, Respondents.
• Court: New York Supreme Court

Page 467

331 N.Y.S.2d 467

69 Misc.2d 900

Application of Frances BRIDA, Petitioner, For an Order Pursuant to Article 78, CPLR, v. Gordon M. AMBACH, Acting Commissioner of the State of New York, and Board of Education of Central School District No. 7, of the Town of Islip Suffolk County, Respondents.

Supreme Court, Albany County.

April 18, 1972.

Lester B. Lipkind, Babylon, for petitioner.

Robert D. Stone, Albany, for respondent Ambach (John P. Jehu, and Lawrence W. Reich, Albany, of counsel).

Rains, Pogrebin & Scher, Mineola, for respondent Bd. of Ed.

A. FRANKLIN MAHONEY, Justice.

The petitioner was appointed to a three-year probationary period, effective September 1, 1967, by the Board of Education of Central School District No. 7 of the Town of Islip, Suffolk County. She served as an elementary school teacher until the Spring of 1970 when she was granted a maternity leave of absence. Petitioner returned to her duties in September, 1970 and would have been eligible for tenure at the end of January, 1971.

In December, 1970, three months after she returned to her teaching duties and almost two months before the expiration of her probationary period, she was orally advised by the School Principal that he was dissatisfied with her services and would not recommend her for tenure. To avoid embarrassment of being formally denied tenure by the school board, petitioner tendered her resignation in writing on December 7, 1970. However, before the board acted upon her resignation she formally withdrew it by letter dated December 14, 1970. On January 12, 1971 the school board accepted petitioner's resignation and she was advised of the board's action by a letter from the Superintendent of Schools, dated January 13, 1971.

The petitioner appealed the board's action to the Respondent Acting Commissioner of Education who, by decision dated September 20, 1971, dismissed the appeal.

Petitioner now seeks to annul that determination by Article 78 review.

While it is true that judicial review of decisions of the Commissioner of Education is far narrower than the review of other administrative agencies not vested with the quasi-judicial authority of the Education Commissioner (Board of Education v. Allen, 6 N.Y.2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60; Matter of Vetere v. Allen, 15 N.Y.2d 259, 258 N.Y.S.2d 77, 206 N.E.2d 174; § 310 Education Law), the narrowness, nevertheless, permits judicial intervention when the challenged decision is 'purely arbitrary' (6 N.Y.2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60, supra) and such a decision may be tainted with reversible arbitrariness where the Commissioner affirms an ultra vires or illegal act of the school board below (Ross v. Wilson, 308 N.Y. 605, 617, 127 N.E.2d 697, 703). The issue then is whether the local school board acted within its authority in accepting a withdrawn resignation.

The Acting Commissioner conceded in his decision affirming the act of the school board that 'it is well established that a resignation may be withdrawn up to the time that it is formally accepted by a board of education . . . (Zarada v. Board of Education, 42 Misc.2d 509, 248 N.Y.S.2d 619). Consequently, respondent could not legally refuse petitioner to withdraw her resignation, notwithstanding the fact that respondent might be unable to comply with the time provision contained in section 3012 as a result of such action.' From this concession it follows that there was no viable resignation that the school board could have accepted at its meeting of January 12, 1971. Does this fact in conjunction with the admission that no written notice, within 60 days of the meeting, was given to petitioner by the superintendent of schools advising her that he wasn't recommending tenure, as required by section 3012 of the Education Law, so taint the meeting of January 12 as to make it ineffectual and, thus, reviewable in an Article 78 proceeding?

In my view, it does not.

The procedure is governed by subdivision 2 of section 3012 of the Education Law which in pertinent part states: 'At the expiration of the probationary term (emphasis supplied) . . . the superintendent of schools shall make a written report to the board of education Recommending for...