Lehman v. Board of Ed. of City School Dist. of City of New York

• Decision Date: 08 June 1981
• Citation: 82 A.D.2d 832,439 N.Y.S.2d 670
• Parties: In the Matter of Betty LEHMAN, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 670

439 N.Y.S.2d 670

82 A.D.2d 832

In the Matter of Betty LEHMAN, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY

OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 8, 1981.

James R. Sandner, New York City (Janis Levart Barquist, New York City, of counsel), for appellant.

Allen G. Schwartz, Corp. Counsel, New York City (David Drueding, Carolyn E. Demarest and Leonard Koerner, New York City, of counsel), for respondents.

Before HOPKINS, J. P., and TITONE, LAZER and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to (1) compel the respondents to reinstate petitioner as a special education teacher, and (2) expunge an "unsatisfactory" rating from her employment record, petitioner appeals from a judgment of the Supreme Court, Kings County, dated April 11, 1980, which granted the respondents' cross motion to dismiss the petition.

Judgment modified, by deleting therefrom everything after the word "dismissed" and substituting therefor the following: "only as to the request that an unsatisfactory rating be expunged from the petitioner's employment record and respondents' cross motion is granted to that extent. It is determined that the petitioner still holds a valid teaching license." As so modified, judgment affirmed, without costs or disbursements, and matter remanded to the respondents for a new determination in accordance herewith.

Petitioner, a licensed probationary special education teacher in the employ of the respondent Board of Education, became eligible for tenure on February 1, 1978. Prior to the completion of her probationary term, her principal prepared a report of her probationary service and recommended that her employment be discontinued. This report was forwarded to the Community Superintendent, who approved the recommendation. Thereafter, by letter dated January 25, 1978, the petitioner was informed by the Director of the Bronx Regional Office for Special Education that her employment was being discontinued. After a review proceeding conducted pursuant to the respondent board's by-laws, the respondent Chancellor notified the petitioner that he concurred with the recommendation that her services be discontinued. This proceeding then ensued.

At the outset we note that the Chancellor is empowered to promulgate such rules and regulations as he may determine are necessary or convenient (see Education Law, § 2590-h, subd. 16; Bylaws of the Board of Education of the City of New York, § 1.8). Pursuant to that grant of authority, the Chancellor promulgated Special Circular No. 65 on March 31, 1976, which provided that its purpose was to "clarify the administrative and supervisory roles of both district and bureau personnel". Section 3.3 of the circular provides:

"3.3 Probation and Tenure

"Teachers of special education classes are appointed to schools/community school district with the notation 'Division of Special Education and Pupil Personnel Services' imprinted on the appointment notice. The final recommendation on whether or not a probationary teacher will be continued in service or granted tenure shall be made by the Executive Director of DSEPPS and is subject to automatic review under Section 105a of the By-laws. When a teacher is assigned full time to a school, the principal shall prepare the 'Report on Probationary Service' (OP-11) in consultation with the appropriate bureau and forward his recommendation to the Community Superintendent who shall forward the recommendation to the Executive Director of DSEPPS. Where the Bureau Director is the rating officer, the Director will prepare the OP-11. When a teacher of special education classes satisfactorily completes the probationary period he/she shall be granted tenure in DSEPPS."

At bar, it is alleged that the final recommendation on whether or not petitioner's probationary services would be continued was not made by the executive director of the Division of Special Education and Pupil Personnel Services (DSEPPS).

We reject the respondents' argument that Special Circular No. 65 was simply a "housekeeping measure clarifying the general lines of supervisory authority over special education teachers". Although the term "rule or regulation" has not been the subject of precise definition (see, generally, 2 Davis, Administrative Law Treatise §§ 7:1, 7:4), it has been said that the term embraces "any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future" (People v. Cull, 10 N.Y.2d 123, 126, 218 N.Y.S.2d 38, 176 N.E.2d 495). Applying this definition to the circular promulgated by the Chancellor, it becomes apparent that it falls within the ambit of the term "rule or regulation". The circular appears to be a quasi-legislative prescription which establishes a course of conduct for the future, viz., the manner in which a decision is to be made with regard to either the retention or termination of service of...