Gustin v. Joiner

• Decision Date: 13 July 1978
• Docket Number: No. 1,1
• Citation: 95 Misc.2d 277,407 N.Y.S.2d 138
• Parties: Robert GUSTIN, Petitioner, v. George JOINER, Nan Banks, Charles Boyton, Mildred Shannon and Edward Smith, as members of the Board of Education of Union Free School Districtof the Town of Ossining, and the Board of Education of Union Free School Districtof the Town of Ossining, Respondents.
• Court: New York Supreme Court

Page 138

407 N.Y.S.2d 138

95 Misc.2d 277

Robert GUSTIN, Petitioner, v. George JOINER, Nan Banks, Charles Boyton, Mildred Shannon and Edward Smith, as members of the Board of Education of Union Free School District No. 1 of the Town of Ossining and the Board of Education of Union Free School District No 1 of the Town of Ossining, Respondents.

Supreme Court, Westchester County.

July 13, 1978.

Palmison & Fiore, Pleasantville, for petitioner.

Bacharach, Green & Bass, P. C., White Plains, for respondents.

GEORGE BEISHEIM, Jr., Justice.

Petitioner, Robert Gustin, a member of the Board of Education of Union Free School District No. 1 of the Town of Ossining, has instituted this Article 78 proceeding against five of the six other members of said Board of Education for an order in the form of mandamus to compel the respondents to make available to petitioner all payroll records of Union Free School District No. 1 of the Town of Ossining.

The differences between petitioner and respondents have been the subject already of considerable litigation. Prior to January 8, 1978, petitioner made an application to the District Superintendent, Thomas H. Shaheen, to examine payroll records of the school district, which request was denied. Thereafter, petitioner brought an Article 78 proceeding before Hon. Fred A. Dickinson, a Justice of this court, to compel the District Superintendent to make the payroll records available to him, and Judge Dickinson rendered a decision under date of December 5, 1977, directing the Superintendent to provide petitioner with the information which he sought. Respondents' motion for leave to intervene in that proceeding was denied. Thereafter, Judge Dickinson, by order dated December 29, 1977, withdrew his first decision on the ground that he had overlooked a stipulation entered into between the parties that the court would first decide the procedural question raised by the respondent Superintendent's cross-motion to dismiss, and then, should said cross-motion be denied, respondent would be given an opportunity to serve an answer and to have the case fully submitted on the merits. Judge Dickinson let stand that part of his decision dismissing the cross-motion to dismiss but permitted the respondent thereafter to serve an answer to the petition.

Before Judge Dickinson decided on the merits the issue between Mr. Gustin and the Superintendent, the Commissioner of Education of the State of New York adopted a regulation, known as Part 84, which became effective January 9, 1978. This regulation, under the title, "ACCESS TO SCHOOL EMPLOYEE PERSONNEL RECORDS", reads as follows:

"Section 84.1 Right of access by school board members. A board of education shall have right of access to personnel records of employees of the district, subject to the procedures hereinafter set forth.

"Section 84.2 Procedures to obtain access. Examination of school employee personnel records by the board of education shall be conducted only at executive sessions of the board. Any board member may request the chief school officer to bring the personnel records of the designated employee or employees to an open meeting of the board. The board shall then determine whether to conduct an executive session for the purpose of examining such records. The chief school officer shall present such records to the board at the executive session. Such records shall, in their entirety, be returned to the custody of the chief school officer at the conclusion of the executive session of the board.

"Section 84.3 Purposes and use. Information obtained from employee personnel records by members of the board of education shall be used only for the purpose of aiding the members of the board to fulfill their legal responsibilities in making decisions in such employee personnel matters as appointments, assignments, promotions, demotions, remuneration, discipline or dismissal, or to aid in the development and implementation of personnel policies, or such other uses as are necessary to enable the board to carry out legal responsibilities."

Upon the basis of Part 84, Judge Dickinson dismissed the petition against the Superintendent of Schools, with leave to petitioner to follow the procedure set forth in what Judge Dickinson termed "Rule No. 84".

At a regular meeting of the Board of Education held on April 19, 1978, petitioner moved that the Board adjourn the meeting and go into private executive session for the purpose of reviewing the payroll printouts that petitioner had requested, which motion was seconded by Mr. Hugh Quinn. This motion was denied by the Board by a 5 to 2 vote, petitioner and Mr. Quinn voting in favor of the motion and the 5 respondent members of the Board of Education voting against it.

Thereafter, on or about May 25, 1978, petitioner instituted the present Article 78 proceeding against the 5 respondent members of the Board of Education.

In paragraph "TWELFTH" of the petition, it is alleged that the Superintendent of Education had publicly stated that it had long been the practice of the district to hire people without first obtaining Board approval, although said practice is not permitted by law. This allegation is denied in the answer of the respondents.

Petitioner alleges his reason for desiring to inspect the payroll vouchers is that no material is available to him to determine whether the payroll is accurate, whether the persons being paid the sums required are being properly paid, and that petitioner desires to make sure that the payroll records are in proper form in order to carry out his legal responsibility as an elected member of the Board of Education.

Respondents in their answer raise the affirmative defense that the petition fails to state a proper cause of action and a second affirmative defense that the petitioner has not exhausted his administrative remedies in that he should appeal the adverse ruling of the majority of the Board of Education to the Commissioner of Education rather than directly to this court.

Both petitioner and respondents rely upon the decision of the Court of Appeals in Board of Education, Great Neck Union Free School District v. Areman, etc., 41 N.Y.2d 527, 394 N.Y.S.2d 143, 362 N.E.2d 943, to support their respective positions. In the Areman case, the Court of Appeals held that a provision in a collective bargaining agreement which restricted access to teacher personnel files to certain school administrative officials could not limit access by the Board of Education to such files in light of existing statutes and public policy. In that case, the collective bargaining agreement between the teachers' association and the Board of Education provided that each faculty member's file should be available for inspection only to the Superintendent and four other specifically designated members of the school administration, which did not include members of the Board of Education. The teachers' association sought arbitration of its charge that the Board had violated certain sections of the collective bargaining agreement by the examination by the Board of Education members of teachers' personnel files. An application to stay arbitration was made by the Board of Education and granted by Special Term (80 Misc.2d 659, 363 N.Y.S.2d 437). The Appellate Division, Second Department, reversed Special Term (52 A.D.2d 573, 382 N.Y.S.2d 515) and the Court of Appeals reversed the order of the Appellate Division and reinstated the order of Special Term which had permanently stayed arbitration. The court, citing with approval Matter of Susquehanna Val. Cent. School Dist. (Susquehanna Valley Teachers Association), 37 N.Y.2d 614, 376 N.Y.S.2d 427, 339 N.E.2d 132, stated (p. 531, 394 N.Y.S.2d p. 146, 362 N.E.2d p. 946):

" * * * The court explained: 'Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may also restrict the freedom to arbitrate' (37 N.Y.2d, at pp. 616-617, 376 N.Y.S.2d at p. 429, 389 N.E.2d at p. 133) * * * (Emphasis added)

"Different from private matters where freedom to contract is virtually unlimited, public school matters are, from time to time, subject to restrictive policies which reflect governmental interests and public concerns (Matter of Susquehanna Val. Cent. School Dist. at Conklin (Susquehanna Val. Teachers' Assn.), 37 N.Y.2d 614, 616, 376 N.Y.S.2d 427, 428, 339 N.E.2d 132, 133, supra ). Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. This said, we must now examine the nature of a board of education's right to inspect teacher personnel files as reflected in the light of existing statutes and public policy, the latter as expressed within or without such statutes."

Respondents argue that the Areman case and Part 84 of the Commissioner of Education's regulations limits the right of a member of the Board of Education to examine school employee personnel records unless a majority of the ...