Tombler v. Board of Ed. of Brookhaven-Comsewogue Union Free School Dist., BROOKHAVEN-COMSEWOGUE
| Decision Date | 08 July 1981 |
| Docket Number | BROOKHAVEN-COMSEWOGUE |
| Citation | 109 Misc.2d 821,440 N.Y.S.2d 1012 |
| Parties | In the Matter of the Application of Anne TOMBLER, Petitioner, v. BOARD OF EDUCATION OF theUNION FREE SCHOOL DISTRICT, R. Peter Rovegna, as Superintendent of Schools, and Thomas F. Carey (Chairman), Pierce Hoban and Martin Cullinan, in their official capacity constituting the panel convened pursuant to Section 3020-a of the New York State Education Law, Respondents. For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. |
| Court | New York Supreme Court |
James R. Sandner, New York City, for petitioner.
Frederic Block, P. C., Smithtown, for respondents Bd. of Ed. and Superintendent of Schools.
Where an Article 78 proceeding is commenced by a tenured teacher seeking review of a determination made by a hearing panel convened pursuant to Education Law section 3020-a, is the Court authorized to stay or dismiss the proceeding for the purpose of permitting the Commissioner of Education to render a decision in an appeal subsequently commenced by the Board of Education? This is the issue raised by the respondent Board of Education and Superintendent of Schools (the "Board") in their motion to stay or dismiss this Article 78 proceeding commenced by Anne Tombler, a tenured teacher in the Brookhaven-Comsewogue Union Free School District.
By decision dated March 26, 1981 a statutory three member panel found the petitioner guilty on charges of neglect of duty, inefficiency, incompetency and conduct unbecoming a teacher and "recommended" a one-year suspension without pay commencing on April 15, 1981. It appears that a copy of the panel's findings and determination was received in the office of the New York State United Teachers, which represents petitioner, on April 3, 1981, although that organization's counsel asserts in her memorandum that she received the copies on April 6, 1981. Counsel for the Board asserts that he too received copies on April 6, 1981. On April 7, 1981 petitioner commenced this Article 78 proceeding, alleging among other things that there is not substantial evidence in the record of the hearing to support the panel's findings and that the penalty is excessive. The Board of Education met in a special workshop session on the evening of April 6, 1981 and authorized its counsel to prepare an appeal from the panel's determination to the Commissioner of Education alleging that the record does not support a penalty limited to a one-year suspension and urging the Commissioner to direct that the petitioner be dismissed. The following day, counsel prepared the petition and on April 8, 1981 he secured the requisite verification and served the petitioner. By letter dated April 10, 1981 petitioner's counsel advised the Commissioner of the pendency of this Article 78 proceeding and requested that he decline jurisdiction of the Board's appeal. The Commissioner responded that objections could only be raised in an answer to the petition and accordingly petitioner served an answer "for the limited purpose of challenging the jurisdiction of the Commissioner of Education to hear and determine this appeal."
By order to show cause dated May 8, 1981 the Board brought on the instant motion to dismiss this proceeding upon the ground that (1) the Court lacks jurisdiction; (2) there is a proceeding pending before the Commissioner of Education between the same parties involving issues dispositive of the subject proceeding; and (3) the panel's determination can be adequately reviewed by the Commissioner of Education. In the alternative, the Board seeks a stay of this proceeding until such time as the Commissioner of Education shall have acted on the Board's appeal.
The dispute is generated by the invitation to "forum shopping" contained in Education Law section 3020-a, subdivision 5 as amended (L.1977, ch. 82) which provides as follows:
The Board's thesis is that teachers will generally seek court review of panel determinations on punishment because the court's power of review of the measure of punishment imposed is limited to the question of whether the sanction is so disproportionate to the offense as to "shock the conscience of the court", whereas the Commissioner is statutorily empowered to substitute his judgment for that of the hearing panel and to fix an appropriate penalty if he concludes that employee conduct is detrimental and injurious to the school system. "It is unlikely," the Board concludes, "that a Board of Education could ever outrace the individual teacher since the speed by which a municipal body can act can never match the speed of a single individual" and thus, unless the courts are willing to stay or dismiss Article 78 proceedings commenced by teachers, the Commissioner of Education will be precluded "from hereafter sitting in review of any 3020-a appeals," an opportunity the Commissioner, "having special expertise and experience in matters of teacher discipline, should have * * *."
The petitioner counters with the assertion that she commenced this action first, and that the Court has no discretion under the statute to decline jurisdiction and that even if the Court had such power it would be an abuse of discretion to exercise it here since the Court is as competent as the Commissioner to review the measure of punishment. Like the Board, the petitioner also asserts that the standard of review in the forum chosen by her adversary is somehow inimical to her interests. Even though the Commissioner is empowered to substitute his judgment on findings of fact and the penalty imposed for that of the panel (and, she asserts, has shown a "propensity" to do so), the Court will set his determination aside only if it is purely arbitrary or illegal.
Prior to 1977, Education Law, section 3020-a, subdivision 4 did not mandate that the recommendations of the hearing panel be accepted by the Board of Education; instead, the Board was empowered to fix the penalty or punishment by majority vote within thirty (30) days of receipt of the hearing report. In 1977 the section was amended to provide that the Board "shall implement the hearing panel's recommendations" (L. 1977, ch. 82). Subdivision 5, which had authorized appeals only by the aggrieved employee, was also amended to give the Board the same right. According to the legislative memorandum of Senator Rolison, the bill's sponsor, the purpose of the amendments "is to provide uniform, impartial hearing procedures for the handling of disciplinary matters for teachers who have acquired tenure * * * " (see Governor's Bill Jacket, L. 1977, Ch. 82). The senator noted that because the "current weakness of the hearing panel function allows many boards to make a charade out of the entire procedure", the amendment makes the hearing panel's recommendations binding. "To ensure due process to both parties," the memorandum concludes, "both the board and the employee are provided the right to appeal the hearing panel's determination, either to the commissioner of education or through an article 78 proceeding." Perusal of the legislative history of the amendment discloses no recognition of the fact that providing both parties with a choice of forum could engender the unseemly race that has occurred here--although the reference to due process in the sponsor's memorandum suggests that the Legislature was aware of the fact that the provision in the amended statute depriving the employer of the power to determine the measure of punishment was an unusual procedure (the statute provides that the Board may fix the penalty or punishment only when the employee fails to timely request a hearing The reference to due process and the provision granting the Board as well as the teacher the right of appeal (presumably not only from the findings of fact with respect to guilt but also from the measure of punishment imposed compels the conclusion that the legislative intent was at least to insure that both the Board and the teacher have access to a forum empowered to fashion the particular remedy each might seek on such an appeal. Thus, the threshold issue is whether one or both of the appeals forums are empowered to grant the relief sought by the teacher (a ruling that the finding of guilt is not supported by substantial evidence and reduction in the measure of punishment) and that sought by the Board (dismissal instead of suspension).
Pursuant to CPLR 7803, subdivision 3, review of the question of whether there has been an "abuse of discretion as to the measure or mode of penalty or discipline imposed") involves a two-tiered test. The Court must first determine whether there is substantial evidence to support a finding of guilt and, if so, the test is whether the punishment imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321). The latter determination is made as a matter of law on the basis of arbitrariness rather than substantial evidence (Pauling v. Smith, 46 A.D.2d 759, 361 N.Y.S.2d 16).
Subdivision 3 of CPLR 7803 was first enacted in 1955 (as subdivision 5-a of section 1296 of the Civil Practice Act in response to prior judicial rulings to the effect that the courts lacked jurisdiction to review the measure of punishment imposed as an incident to disciplinary action ordered by an...
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