Syquia v. Board of Educ. of Harpursville Cent. School Dist.
| Decision Date | 23 January 1991 |
| Citation | 149 Misc.2d 463,568 N.Y.S.2d 263 |
| Parties | , 66 Ed. Law Rep. 1216 In the Matter of Susan R. SYQUIA, Petitioner, v. BOARD OF EDUCATION OF the HARPURSVILLE CENTRAL SCHOOL DISTRICT, Harpursville, New York, Thomas Sobol, as Commissioner of Education of the New York State Education Department, William A. Babiskin, Richard McLean and Henry Stafford, as Constituting a Tenure Hearing Panel Pursuant to Education Law section 3020-a., Respondents, For a Judgment Pursuant to CPLR Article 78. |
| Court | New York Supreme Court |
Robert Abrams, Atty. Gen., Albany (Helena Heath, Asst. Atty. Gen. of counsel), for respondent Thomas Sobol.
Ball, McDonough & Johnson, P.C., Binghamton, for respondent Bd. of Educ. of the Harpursville Cent. School Dist.
William A. Babiskin, pro se.
Richard P. McLean, pro se.
Henry K. Stafford, pro se.
On February 21, 1985, respondent Board of Education of the Harpursville Central School District (hereinafter referred to as the "Board") preferred disciplinary charges of incompetence and insubordination, with diverse specifications thereunder, 1 against petitioner, a tenured teacher who had been employed as a secondary school teacher in the Harpursville Central School District for 25 years. 2
At the request of petitioner, a three-member hearing panel was convened by the respondent Commissioner of Education, pursuant to Education Law, section 3020-a (), and 8 N.Y.C.R.R., Part 82, to hear and determine said disciplinary charges.
Education Law, section 3020-a, provides for a three-member panel to hear disciplinary charges against tenured teachers. Two of the panel members are chosen respectively by the Board of Education preferring charges and by the teacher, from a list maintained by the Commissioner of Education as provided by diverse educational, management and teacher organizations throughout the state; the other panel member, denoted the Chairman, is selected by agreement between the panel members selected by the involved Board of Education and the teacher from a list of arbiters supplied to the Commissioner of Education by the American Arbitration Association, and in the event that these two panel members fail to agree upon a chairman, by the Commissioner of Education. The panel chairman receives as compensation the normal and customary fee paid for the services of an arbiter under the auspices of the American Arbitration Association; the other two panel members receive a per diem limited to the sum of fifty dollars ($50.00) for each day of actual service. The aforedescribed compensation of the panel members is not paid by either of the parties to the proceeding, but from a fund established and maintained by the Commissioner of Education.
Five years quickly sped by, during which 48 days (the last of which was May 23, 1988) were consumed in the taking of testimony, and during which five-year period the petitioner was suspended with pay.
On May 22, 1990, the tenure panel's majority and dissenting opinions were released, revealing unanimity that petitioner was not incompetent in the sense that she was fully capable of being a good teacher if she so desired, but splitting 2-1 on the diverse specifications of neglect of duty and insubordination, the majority--consisting of the Chairman and the panel member selected by the Board--finding her "guilty" and recommending termination, and the third panel member--selected by the petitioner--finding her "not guilty" of the major specifications and guilty only of minor infractions, and recommending only that a letter of reprimand and caution be served on petitioner and placed in her personnel file. On May 29, 1990, the Board adopted the tenure panel's majority decision and terminated petitioner's employment.
In the meantime, by letter dated May 25, 1990, respondent Stafford, the panel member selected by petitioner, revealed to petitioner's attorney that he had discovered that respondent McLean, the panel member selected by the Board, had received from the Board, all during the pendency of the 3020-a hearing, an additional per diem payment of $100.00 per day, over and above the $50.00 a day prescribed by law and payable from a fund maintained by the Commissioner of Education. Panel member Stafford also informed petitioner's attorney that panel member McLean had informed him that he, McLean, had ex parte communications respecting the case during its pendency. Neither the names of the person or persons with whom Stafford alleged McLean had had ex parte conversations, nor the content of same, are set forth by petitioner.
Respondent Board and respondent McLean admit that respondent McLean had in fact requested the payment to him by the Board of an additional per diem stipend of $100.00 as a condition of his serving as a panel member, in addition to and over and above the $50.00 prescribed by law, and that the respondent Board did in fact make such payments, amounting overall to the sum of $5,700.00 over and above that to which McLean was entitled under Education Law, section 3020-a. Respondent Board and respondent McLean deny any ex parte communications during the pendency of the case. This latter issue was never developed by the petitioner in any papers before the Court and is accordingly not ripe for resolution. Although a hearing could be directed to develop the issue, in light of the Court's view on the overpayment issue, and the allegations of bias and failure of due process deriving therefrom, the Court deems it unnecessary to address the issue of ex parte communications, and accordingly does not.
The issue of this case is not whether the record of the hearing contains substantial evidence in support of the majority findings of the panel--in which event the case would have to be transferred to the Appellate Division--but whether or not an intrusion into required procedural due process occurred, sufficient to taint the result, regardless of the quantum of evidence produced on the substantive issues of the case, in which event the issue is whether or not the majority findings and recommendation of the 3020-a panel, and the resultant action by the respondent Board of Education, are thereby rendered arbitrary and capricious, a question initially for a court at nisi prius. (See: CPLR, section 7803[3].
Venue in Albany County is dependent upon whether or not, under the circumstances of this case, the Commissioner of Education is a proper party respondent. Here there is no determination of the Commissioner sought to be reviewed, nor any allegation that he failed to fulfill any of his statutory responsibilities. However, it is the Commissioner of Education who convenes 3020-a hearings and has supervisory power over same. It has been held that where a judicial decision contains a line of conduct to be carried out by the Commissioner of Education, he is a proper party to be joined as a party respondent. (Sandor v. Nyquist, 45 A.D.2d 122, 356 N.Y.S.2d 703 [3rd Dept.1974]. Such is the case here. Accordingly, the motion to remove the Commissioner as a party respondent is
denied, and venue in Albany County is proper. 3
Respondent Board and respondent McLean, while admitting that Board--selected panel member McLean requested and received from the Board additional compensation over and above that prescribed by law, contend that bias cannot be presumed from such facts, and that in order to prevail, petitioner must show actual bias. The Court disagrees!
Petitioner contends that the action of respondent McLean in requesting additional compensation not authorized by law, and the action of the respondent Board in paying same, constitutes bias per se, or presumed bias, undermines the impartiality of the hearing panel, is destructive of the due process of law and a fair and impartial hearing to which petitioner was entitled, and that actual bias need not be shown. The Court agrees!
Were this case in the context of a criminal jury trial, and a "well-meaning" prosecuting attorney sought to supplement the income of a financially needy juror, "with no strings attached", there is no doubt that a conviction would have to be set aside, even without a showing of actual bias. Neither is there doubt here!
Initially, the Court dispels the misapprehension in educational circles, if such in fact exists, but has nevertheless been set forth in the argument of counsel for respondents, that a 3020-a hearing is, and is intended to be, something other than a fully impartial fact-finding hearing, and that the panel members selected respectively by the Board of Education and by the teacher are advocates for the party respectively selecting them, with only the Chairman intended to be impartial.
Even though the panel selection process gives both the Board and the teacher the opportunity to select a panel member generally receptive to their respective perspectives, the process is not the equivalent of the anointment of a Champion. A 3020-a hearing is a fact-finding hearing, not a joust. Nothing contained in Education Law, section 3020-a, argues to the contrary. Education Law, section 3020-a, goes to great lengths to assure the impartiality of the hearing and each of the three panel members, and to assure that procedural due process is had. Thus the statute ( § 3020-a[c] prohibits any of the three panel members from being resident in or employed in the geographical territory under the jurisdiction of the Board of Education preferring the charges, and requires that the tenured teacher "shall have a reasonable opportunity to defend himself and an opportunity to testify in his own behalf" (which rights would have little meaning if any of the panel members were permitted to be advocates), that each party shall have the right to be represented by counsel, to subpoena...
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