Welcher v. Sobol

• Decision Date: 09 May 1996
• Citation: 227 A.D.2d 770,642 N.Y.S.2d 370
• Parties: , 109 Ed. Law Rep. 896 In the Matter of Robert S. WELCHER, Petitioner, v. Thomas SOBOL, as New York State Commissioner of Education, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 370

642 N.Y.S.2d 370

227 A.D.2d 770, 109 Ed. Law Rep. 896

In the Matter of Robert S. WELCHER, Petitioner, v. Thomas SOBOL, as New York State Commissioner of Education, Respondent.

Supreme Court, Appellate Division,

Third Department.

May 9, 1996.

Earl P. Boyle, Syracuse, for petitioner.

Dennis C. Vacco, Attorney-General (Lisa Le Cours, of counsel), Albany, for respondent.

Before CARDONA, P.J., and CREW, WHITE, CASEY and PETERS, JJ.

PETERS, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which revoked petitioner's elementary school teacher and school administration certifications.

The subject determination of respondent concerning petitioner was recently before us (see, Welcher v. Sobol, 222 A.D.2d 1001, 636 N.Y.S.2d 421). Therein, we reviewed an order of Supreme Court which, inter alia, denied petitioner's motion for a preliminary injunction. The facts, as relevant herein, are fully set forth in our prior decision.

In this proceeding, transferred to this court by an order of Supreme Court, petitioner alleges, inter alia, that respondent lacked jurisdiction to revoke his certification based upon moral character, that respondent erred in his review of the Hearing Panel's determination, that the charges of sexual abuse were uncorroborated, that the evidence of guilt is incredible as a matter of law, that the determination below was not supported by substantial evidence and that the penalty of revocation was excessive.

Addressing first the jurisdictional challenge, we note that contrary to petitioner's contention, the District Superintendent of Schools is not solely authorized to revoke a teaching certificate on the ground of moral character (see, Matter of Groht v. Sobol, 198 A.D.2d 679, 604 N.Y.S.2d 279, lv. dismissed, lv. denied 83 N.Y.2d 961, 616 N.Y.S.2d 12, 639 N.E.2d 751). "By our state system of education protected by the Constitution [respondent] is made the practical administrative head of the system, and in the exercise of sound wisdom * * * [is] the final authority in passing on many questions bound to arise in the administration of the school system" (People ex rel. Board of Educ. of City of N.Y. v. Finley, 211 N.Y. 51, 57, 105 N.E. 109; see, Matter of Malverne Union Free School Dist. v. Sobol, 181 A.D.2d 371, 375-376, 586 N.Y.S.2d 673). Hence, pursuant to the Education Law, respondent is empowered to annul any certificate of qualification "upon cause shown to his satisfaction" (Education Law § 305[7].

Similarly without merit is petitioner's challenge to respondent's determination based upon his contention that respondent failed to personally decide the administrative appeal. As the Court of Appeals has held, " '[w]e do not inquire into the degree of reliance placed by members of [the administrative agency] upon * * * internal assistance; the extent to which independent study * * * is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the commissioners themselves' " (Matter of Wallace v. Murphy, 21 N.Y.2d 433, 438, 288 N.Y.S.2d 613, 235 N.E.2d 759, quoting Matter of Weekes v. O'Connell, 304 N.Y. 259, 265, 107 N.E.2d 290). Upon our review, we find that the determination reflects a comprehensive and independent appraisal of the record. We find no error in respondent's incorporation of the Hearing Panel's findings by reference since such adoption provided a basis for comprehensive appellate review. Rejecting petitioner's contention that due to the gravity of the charges and potential consequences of the hearing we should decline to follow our prior decision in Matter of Northeastern Stud Welding Corp. v. Webster, 211 A.D.2d 889, 890, 621 N.Y.S.2d 170, we turn next to petitioner's challenge to the standard of review utilized.

Petitioner contends that both the Hearing Panel and respondent should have focused on petitioner's present ability to teach when determining his moral fitness as opposed to focusing on conduct occurring in decades past. With the Hearing Panel finding that petitioner did, in fact, commit several acts of sexual misconduct upon children, albeit years ago, and that petitioner had further denied such behavior, we find that there was full compliance with the guidelines of 8 NYCRR part 83. Accordingly, pursuant to 8 NYCRR 83.4(f), it was properly recommended that petitioner's teaching and administrative certificates be revoked on the ground of moral fitness.

We similarly find no merit in petitioner's contentions concerning the quantum and weight of the evidence as well as the circumstances under which he was required to testify, all falling under the ambit of substantial evidence. As stated by the Court of...