Jerry v. Board of Ed. of City School Dist. of City of Syracuse, s. 10

• Decision Date: 11 April 1974
• Docket Number: 77,Nos. 10,s. 10
• Citation: 354 N.Y.S.2d 745,44 A.D.2d 198
• Parties: Application of William JERRY, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF SYRACUSE, New York, et al., Respondents. Application of Bobbie Lee SODA, Appellant, v. Kenneth W. CHRISTNER, Superintendent of the Eden Central School District #1, and the Board of Education of the Eden Central School District #1, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 745

354 N.Y.S.2d 745

44 A.D.2d 198

Application of William JERRY, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY

OF SYRACUSE, New York, et al., Respondents.

Application of Bobbie Lee SODA, Appellant, v. Kenneth W. CHRISTNER, Superintendent of the Eden Central

School District #1, and the Board of Education of

the Eden Central School District #1, Respondents.

Nos. 10, 77.

Supreme Court, Appellate Division, Fourth Department.

April 11, 1974.

Bernard F. Ashe, Albany, for appellants (Ira Paul Rubtchinsky, Albany, of counsel)

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for respondents Bd. of Ed. of Syracuse et al. (David W. Larrison, Syracuse, of counsel).

Penney, Maier & Mandel, Buffalo, for respondents Kenneth W. Christner et al. (Robert E. Maier, Buffalo, of counsel).

Before MARSH, P.J., and WITMER, MAHONEY, GOLDMAN and DEL VECCHIO, JJ., in No. 10.

Before MARSH, P.J., and WITMER, SIMONS, MAHONEY and GOLDMAN, JJ., in No. 77.

OPINION

GOLDMAN, Justice:

These appeals are from two judgments which dismissed appellants' petitions and directed the parties to proceed to hearings in accordance with section 3020--a of the New York State Education Law. Both appellants are tenured teachers in public school systems and were suspended from their teaching positions pending the hearing of charges against them.

Petitioner-appellant Jerry has been continuously employed as a physical education teacher in the Syracuse City School District since 1961. He received tenure status as of September 1, 1964. He taught physical education in both elementary and secondary schools which were governed by the respondent Board of Education in the Syracuse District. In December, 1972 and February, 1973 appellant Jerry was informed by the respondent by a letter from the Assistant Supervisor that numerous complaints had been received regarding appellant's use of physical restraint and punishment on children in the Nichols Elementary School. The letter of April 19, 1973 informed Jerry that the complaints were under investigation and directed him 'not to touch any student for any reason'. After completion of the investigation the respondent Superintendent of Schools pressed charges against appellant at an executive session of the respondent Board on May 30, 1973. The Board found that probable cause existed for five charges and served notice upon appellant of the charges on May 31, 1973. The 'probable cause' notice charged that:

'1. At various times during the 1971--72 school year while employed at the Cleveland School, you subjected certain pupils to unreasonable and excessive physical force and/or restraint, including, but not limited to, bodily lifting pupils off their feet by the neck, shoving pupils in such a manner as to cause them to fall to the ground, and the striking of pupils.'

Jerry continued to teach after the filing of the charges. On June 7, 1973 an affidavit was made by a parent alleging that Jerry had abused her child by pulling her hair. It further stated that Jerry had used profanity in a telephone conversation with the parent. The Superintendent of Schools showed the affidavit to Jerry on June 7, 1973 and suspended him from his teaching position without pay pending the disposition of all the charges against him. On June 13, 1973 the Board of Education confirmed the suspension and found probable cause for three additional charges against appellant. All of the charges were consolidated by the New York State Commissioner of Education for one hearing and a hearing was commenced July 18, 1973 before respondent Dettor, Hearing Officer. At the hearing objection was made by Jerry to the insufficiency of the charges and of a bill of particulars which had been furnished upon the appellant's demand. Appellant also entered other objections to the testimony produced by the Board. Before the hearing was completed, and in his brief, petitioner estimates that the total hearing will require three weeks to complete. Jerry commenced a proceeding pursuant to CPLR Article 78 in which he sought judgment annulling on constitutional grounds the Board's action in suspending him without pay and in prosecuting a tenure hearing proceeding. The petition sought Jerry's reinstatement with full back pay.

Petitioner-appellant Mrs. Soda is a tenured kindergarten teacher employed by the Board of Education of the Eden Central School District #1. She had worked for the Board for about eleven years and prior to May, 1973 no formal charge was ever brought against her. Her petition alleges that during October, 1972 she was informed that she would be granted a paid leave of absence effective October 16, 1972 for a two-months period. Petitioner had not requested the leave and she asserts that she took the leave because she felt that she had no choice but to accept it. The leave was extended January 26, 1973 which corresponded with the end of the first academic semester. During January, 1973 Mrs. Soda received two letters from the Superintendent's office informing her that the Board requested a medical evaluation of her fitness to perform duties and that 'as a condition of your reinstatement after the extended leave, that it (the Board) must be sure beyond a reasonable doubt that you are free from any physical or mental illness which would impair your professional performance as a teacher'. Mrs. Soda was further informed by letter not to report for duty until she received further authorization. This direction not to return to work was reaffirmed by a new Superintendent by letter of March 5, 1973. The petitioner received her normal salary until January, 1973 and she also continued to receive a periodic pay check from January to March, 1973, but during this period the Board made systematic deductions from her accrued sick leave. This was done, Mrs. Soda asserts, without her knowledge or consent. In March, 1973, after Mrs. Soda's accrued sick leave was depleted, the Board ceased to make further payments to her. On May 4, 1973 the Board found 'probable cause' for a charge of incompetency against Mrs. Soda and by a formal document notified her that she 'has a mental disability within the meaning of Section 3012(2) of the Education Law. Such disability is of a nature as to render her unable to cope with her responsibilities within the classroom, and by reason of which, both she and the children with whom she has daily contact would suffer as a result of her resumption of teaching responsibilities'. Attached to this notice was a copy of the rights of tenured employees under section 3020--a of the Education Law. On the same date, in a separate letter, the Board informed Mrs. Soda that it 'has voted to suspend you from the teaching staff of Eden Central School pending disposition of the charge against you. This suspension is to take effect immediately'.

Before any hearing was held Mrs. Soda, by petition verified May 31, 1973, commenced her Article 78 proceeding whereby she sought judgment annulling the action of the Board in imposing a leave of absence without pay and in prosecuting a tenure hearing. The petition also sought reinstatement with full back pay and the declaration that certain sections of the Education Law were unconstitutional.

These two appeals are considered in one opinion because there are common questions of law which are determinative of both of them. The principal issues asserted by both petitioners are that as tenured teachers they have 'a liberty and property right which is protected by the due process guarantees of the United States Constitution' and that they have been denied 'procedural and substantive dur process with respect to the suspension imposed' upon them and that pending a final determination they are entitled to their full back pay.

In Jerry, Special Term held that:

'Article 78 is not available for interlocutory relief; it cannot be addressed to a determination that is not final or which can be reviewed by appeal to a court or by review of some other body or officer (CPLR 7801). Final determination will be made in this matter, not by the hearing panel, but by the respondent board (Education Law, § 3020--a, para. 4). If the petitioner is aggrieved thereby he may appeal to the Commissioner of Education, or, then, by Article 78 to the court (Education Law, § 3020--a, para. 5). The latter is available to the petitioner if there is a constitutional question not resolvable by the Commissioner. This review is able to look to rulings on the evidence whether it is by the Commissioner (see Matter of Eva Gaby, 11 Dept.Rep. 184) or by the court (see Marcato v. Board of Education, 40 A.D.2d 978 (338 N.Y.S.2d 209)). (See also Matter of Kolanda v. Brunner, 27 A.D.2d 886 (278 N.Y.S.2d 22), denying an interlocutory objection to a bill of particulars.)' (75 Misc.2d at 461, 464, 347 N.Y.S.2d at 921).

We agree that an Article 78 proceeding is not appropriate for interlocutory relief. The entire proceeding is subject to review after the hearing has been completed. Any error may be corrected at that time by appropriate proceedings (see, Matter of Greater New York Corporation of Seventh Day Adventists v. Comm. on Human Rights of City of New York, 27 N.Y.2d 898, 317 N.Y.S.2d 368, 265 N.E.2d 777; Walston & Co. v. Comm. on Human Rights, 41 A.D.2d 238, 342 N.Y.S.2d 459; Sardino v. Finch, 35 A.D.2d 686, 314 N.Y.S.2d 690).

Both petitions raise the question of whether an Article 78 proceeding may be used to test constitutionality. '(A)rticle 78 proceedings continue to be inappropriate vehicles to test the constitutionality of legislative enactments and respondent's remedy is an action for a declaratory judgment. Although it is true that CPLR 103 (subd. (c)) gives the courts the power to treat an article 78 proceeding as an action for a declaratory judgment, this power is conditioned on jurisdiction over the parties' (Mtr. of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 703, 271 N.E.2d 537,...