Komyathy v. Board of Ed. of Wappinger Central School Dist. No. 1

• Decision Date: 20 June 1973
• Parties: Joseph C. KOMYATHY, Plaintiff, v. BOARD OF EDUCATION OF WAPPINGER CENTRAL SCHOOL DISTRICT NO. 1, Defendant.
• Court: New York Supreme Court

Page 28

348 N.Y.S.2d 28

75 Misc.2d 859

Joseph C. KOMYATHY, Plaintiff, v. BOARD OF EDUCATION OF WAPPINGER CENTRAL SCHOOL DISTRICT NO 1, Defendant.

Supreme Court, Dutchess County.

June 20, 1973.

Glenn & Bergan, Albany, for plaintiff.

Raymond G. Kuntz & Associates, Poughkeepsie, for defendant.

JOSEPH F. GAGLIARDI, Justice.

By way of order to show cause plaintiff commenced this action for a permanent injunction. Plaintiff is an elected member of the defendant Board of Education (sometimes hereinafter referred to as the 'board') of Wappinger Central School District No. 1. Plaintiff and the six other individuals which comprise the defendant school board are public officers within the meaning of section 2 of the Public Officers Law (Matter of Van Allen v. McCleary, 27 Misc.2d 81, 92, 211 N.Y.S.2d 501, 512; 1971 Op.Atty.Gen. 7; see Metzger v. Swift, 258 N.Y. 440, 180 N.E. 112). Individual board members are school officers and trustees (Education Law §§ 2(13), 2101(2)) and the defendant board being in a union free district is a body corporate (Education Law § 1701).

The order to show cause stayed an administrative hearing to remove plaintiff for official misconduct. Plaintiff moves for a temporary injunction. Notice of said motion was not required to be given to the Attorney General since state officers are not involved in this proceeding (CPLR 6311(2)).

Pursuant to a resolution adopted by defendant on April 23, 1973 counsel for the district was instructed to prepare charges of official misconduct against plaintiff. Eight charges were prepared and submitted to the board at an executive session on May 2, 1973. The board found probable cause on three charges. On May 3, 1973 an official notice of charges was served on plaintiff. The notice charges plaintiff with the following acts of misconduct:

(1) on October 30, 1972 plaintiff assaulted fellow board member Gerard Carney;

(2) on April 28, 1973 plaintiff released confidential information to the news media in violation of section 3(B) of the board's Code of Ethics;

(3) on August 22, 1973 plaintiff released confidential information to the news media in violation of the above ethics provision.

The notice further advises plaintiff that one Russell Aldrich has been appointed as prosecuting officer and that a hearing on the charges will be held on May 16, 1973. Plaintiff's attorney received similar notice on May 9, 1973. The defendant refused to adjourn the hearing date despite the apparent short notice which plaintiff's counsel deemed inadequate for preparation of a defense. Plaintiff appealed to the Commissioner of Education (sometimes hereinafter referred to as the 'Commissioner') for an adjournment which was granted and the matter set down for May 31, 1973. ¹ In the interim Gerard Carney appealed to the Commissioner for an order entertaining the removal proceedings at least as to the assault charge. The Acting Commissioner of Education denied the request by order dated May 31, 1973. On the same day I signed the order to show cause which stayed the hearing pending a determination on the motion for a preliminary injunction. The parties requested time to serve additional papers and the matter was submitted on June 11, 1972. On the latter date, the Court was informed that Dr. Zucker, a member of the board, would present a resolution at a board meeting that evening to withdraw some or all of the charges against respondent. The meeting took place but the resolution was not reached. It is possible that Dr. Zucker's resolution might be acted upon at any meeting conducted by the board but the Court believes that it would be inappropriate to withhold a determination herein pending possible board action which might never occur. Consequently, it is necessary to review the facts and the law applicable to administrative proceedings of this nature where the agency is both accuser and judge.

In his moving papers plaintiff contends that the charges do not constitute grounds for official misconduct and that the board is biased and should be permanently barred from hearing this case. Defendant argues that the stay was improperly granted and that it is qualified to sit in judgment of a fellow member.

The factual situation herein is unfortunate. It appears that plaintiff and Mr. Carney have had physical and verbal altercations in the past. Indeed, on July 12, 1971 the Acting Commissioner denied Mr. Carney's request for removal of plaintiff although plaintiff admittedly assaulted Mr. Carney sometime prior to the decision date (Mtr. of Komyathy, 11 Educ.Dept.Rep. 14). The papers further reveal that plaintiff has been a member of the board since sometime in 1970 and has been in a minority position on many matters involving board business. Plaintiff has earned the reputation of being a gadfly and his views have been reported in local newspapers on numerous occasions. Insofar as the subject charges are concerned it is clear that fellow members Carney and Pendell will be witnesses at the hearing regarding the first charge. Furthermore, Mr. Carney has instituted a civil action against plaintiff for damages for the alleged assault. Additionally, Mr. Carney was the only board member to vote for probable cause on all eight charges.

As was noted earlier, defendant argues that under CPLR 6313(a) the Court is not authorized to issue an Ex parte restraining order against a board of education. Defendant's reliance upon the cited section and Mtr. of Donnelly v. Roosevelt (In re Walker) 144 Misc. 687, 259 N.Y.S. 355, is misplaced. CPLR 6313(a) prohibits the issuance of a temporary restraining order 'against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties'. Assuming that defendant falls within one of the protected classes it is clear that the Court has inherent power to stay such bodies on a temporary basis where it appears that they will act illegally, i.e. not within the performance of statutory duties (110 Manno Realty v. Tn. of Huntington, 61 Misc.2d 702, 306 N.Y.S.2d 746). The moving papers established Prima facie that defendant might be acting illegally in conducting the hearing and, consequently, the Court properly issued the restraining order.

To place the remaining issues in their proper prospective it is necessary to briefly review pertinent statutory provisions. Under section 306(1) of the Education Law the Commissioner is empowered to remove a member of a board of education for 'wilful violation or neglect of duty'. Under sections 1706 and 2559 of the Education Law the Commissioner is given similar authority 'for cause shown'. Subdivision (18) of section 1709 of the statute gives a school board power to remove a member for 'official misconduct'. From these provisions it is clear that both the Commissioner and board have concurrent jurisdiction in removal proceedings against a board member. Nonetheless, since the Commissioner can remove a member 'for cause' it appears that his power in this regard is broader than the board's (cf. Matter of Gross v. Board of Education, 46 Misc.2d 987, 261 N.Y.S.2d 577) and that his jurisdiction is regarded as primary (Matter of O'Donnell v. Morrissey, 151 Misc. 315, 272 N.Y.S. 451).

The scope of judicial review from orders of the Commissioner is statutorily limited (Education Law § 310), especially since he possesses judicial functions (Education law § 207). Nonetheless, the Law § 207). Nonetheless, the under the arbitrary and capricious test (Mtr. of Ocean Hill-Brownsville Gov. Bd., 23 N.Y.2d 483, 297 N.Y.S.2d 568, 245 N.E.2d 219; Mtr. Vetere v. Allen, 15 N.Y.2d 259, 258 N.Y.S.2d 77, 206 N.E.2d 174; Mtr. of Bd. of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60). In removal proceedings the Commissioner exercises judicial functions which are reviewable under the aforesaid test (Mtr. of McGraw v. Wilson, 286 App.Div. 930, 142 N.Y.S.2d 909, mot. for lv. to app. den.,309 N.Y. 1033, 130 N.E.2d 750; see, Hardy v. Commissioner of Education,66 Misc.2d 984, 322 N.Y.S.2d 918).

The prime issue raised herein is whether defendant can hear the charges of misconduct. Plaintiff contends that the entire board is contaminated and should be disqualified from trying the charges. Subdivision 18 of Section 1709 of the Education Law expressly authorizes a board of education to remove a member thereof for official misconduct. The cited section provides that the board of education has the power and duty:

'To remove any member of their board for official misconduct. But a written copy of all charges made of such misconduct shall be served upon him at least ten days before the time appointed for a hearing of the same; and he shall be allowed a full and fair opportunity to refute such charges before removal'.

Thus, the Legislature has determined that a school board may remove a fellow member after a fair hearing. Nevertheless, it is significant that membership in a school board is neither a property right nor other vested right within the meaning of the due process clause of the federal or state constitutions and a hearing for removal is not constitutionally mandated (Mtr. of Ocean Hill-Brownsville Gov. Bd., 23 N.Y.2d 483, 297 N.Y.S.2d 568; Lanza v. Wagner, 11 N.Y.2d 317, 324, 229 N.Y.S.2d 380, 385, 183 N.E.2d 670, 673, app. dism., 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163; see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548). Neither the Legislature nor the Commissioner have set forth guidelines on removal of school board members by their board (cf. 8 NYCRR, Part. 277). Defendant has decided to utilize the statutory procedure used in removing teachers with the significant exception of appointing a three member panel of nonresidents as hearing officers (Education Law § 3020--a). Consequently, the situation boils down to this: the defendant has initiated removal proceedings, appointed a prosecutor, will conduct the hearing and issue a determination. Plai...