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March 18, 1975

Luis FUENTES, Plaintiff,
Adolph ROHER et al., Defendants

Stewart, District Judge.

The opinion of the court was delivered by: STEWART


STEWART, District Judge.

 Plaintiff Luis Fuentes brought this action in December, 1973 pursuant to 42 U.S.C. § 1983 seeking preliminary and permanent injunctions against defendant members of Community School Board Number One in Lower Manhattan to set aside plaintiff's suspension with pay from his position as that board's superintendent. *fn1" Fuentes alleges that his suspension violated and penalized his exercise of free speech, freedom of association and political expression, and his right to procedural due process. He also seeks a declaratory judgment that his suspension was unlawful. In addition, Fuentes contends that his suspension violates his rights guaranteed by New York Education Law, McKinney's Consol. Laws, c. 16, Article 52-A, Section 2590 et seq., and the contract of employment dated October 31, 1972 between Fuentes and the members of the board at that time. Fuentes also seeks, as a pendent claim, an order declaring that the board's charges brought against him in October, 1973 are defamatory and awarding him damages. Pursuant to his supplemental complaint of August 18, 1974, Fuentes has increased his damages claim for defamation from $250,000 to $350,000, and has added as defendants those members of Community School Board Number One who were elected in a special election held last May by order of this court. *fn2"

 Shortly after the supplemental complaint was filed, plaintiff Fuentes moved for a preliminary injunction to enjoin the members of the board from suspending him with pay and the defendants cross-moved to dismiss the action. While those motions were pending, plaintiff moved for a preliminary injunction to enjoin the commencement of the administrative hearings relating to the charges against him which led to his suspension. That motion was denied from the bench on November 12, 1974, but this court subsequently granted plaintiff's motion for reargument.

 In order to properly consider the issues presented, a review of the factual background is necessary.

 I. Factual Background

 Plaintiff Fuentes was originally suspended without pay in October, 1973 by the then-members of Community School Board Number One. At that time 31 charges were brought against him including one that he "engaged in partisan political conduct during the campaign for the election of the Community School Board members in District 1 on May 1, 1973." Fuentes alleged that his suspension on this ground was a violation of his first amendment rights, and that the other charges against him were without foundation.

 The original complaint was filed December 21, 1973, but no action was taken, due to an earlier order by this court in a related case, Coalition for Education in District One v. Board of Elections, City of New York, 370 F. Supp. 42 (S.D.N.Y.) aff'd, 495 F.2d 1090 (2d Cir. 1974). That order, dated October 19, 1973, temporarily restrained the defendant Community School Board of District One and its members from:

implementing the suspension of Luis Fuentes as Community Superintendent of Schools including but not limited to: (a) suspending his pay; (b) preventing him from fulfilling the duties of a Community Superintendent of Schools as required by the New York State Education Law and the rules and regulations of the New York City Central School Board.

 That order was to remain in effect pending the outcome of the case, in which we ordered a special community school board election to be held on May 14, 1974, under the supervision of a court-appointed special board. *fn3"

 On August 8, 1974, the newly elected members of the Community School Board passed a resolution (5-0, with four abstentions) preferring 41 charges against Fuentes and suspending him with pay pending hearing and determination of the charges. The hearing, before a person to be designated as trial examiner by the board, *fn4" with full notice and opportunity for Fuentes to be present with counsel, was scheduled to commence August 28, 1974. The resolution further provided that the report and recommendations of the trial examiner would be received and acted upon by the board. Appointing Deputy Superintendent Annie Mersereau to be acting superintendent, the board directed Fuentes to remain away from the District offices and from the school buildings under the jurisdiction of the board pending the outcome of the hearing.

 In its resolution, the board explained its reasons for suspending Fuentes:

Serious charges against Mr. Fuentes have been presented and are now before the Board for decision. In his dealings with members of the Community School Board, Mr. Fuentes has exhibited antagonism, disrespect and truculence. He has openly flaunted his hostility toward and disregard of the lawful directions of, the duly elected Board, thereby contributing to the disruption of the educational processes in the District. He has publicly called for opposition to the lawful decisions, actions and directions of the School Board and has served as a rallying point and focus for the small minority which has interfered with the Board in the exercise of its duties and its authority.

 The board also declared that it "must take appropriate action on charges which have been filed against the Community Superintendent because of their serious nature." During the meeting, the five person majority on the board distributed a copy of the specifications of charges to the four minority board members; Fuentes did not receive a copy of the specification of charges until after the board had approved its resolution.

 The 41 charges include the 31 charges originally brought against him, plus ten additional charges concerning events subsequent to the filing of the initial charges. The charges involve allegations that Fuentes improperly and illegally committed and expended school funds; that Fuentes was insubordinate, rude, and disobedient towards members of the school board; that Fuentes breached his employment contract dated October 31, 1972 by making appointments without notifying the board of existing vacancies; and that Fuentes failed and/or refused to implement resolutions and actions duly adopted by the board at its meetings. The charges also allege that Fuentes failed and neglected to investigate incidents of assaults on children and on a parent after being directed to do so in June of 1974. And the charges further allege that Fuentes improperly engaged publicly in partisan political activity on behalf of certain candidates for election to the school board in May of 1974. In addition, the charges accuse Fuentes of misconduct in improperly soliciting campaign funds and conspiring to disrupt school board meetings during certain months of 1973. *fn5"

 Believing that his suspension was illegal in that it violated his rights under his employment contract, was enacted in contravention of state and federal law, and took place despite the alleged failure of the majority members of the school board to give him and the public a copy of the charges before the board's vote, Fuentes returned to work on Friday, August 9, 1974.

 The following Monday, August 12, Justice Bernard Nadel of the New York Supreme Court (New York County) signed a temporary restraining order enjoining Fuentes from, inter alia :

entering upon the premises of any building or facility under the direction and control of Community School District #1 or remaining thereon except with the permission of the Community School Board or a duly authorized agent thereof . . . [and from] . . . preventing, hindering, or interfering in any way with the administration of the schools, staff or operations of Community School District #1.

 Roher v. Fuentes, 46 A.D.2d 1016, 362 N.Y.S.2d 841 (Sup.Ct., N.Y.Cty.). This temporary restraining order was made effective pending a hearing for a preliminary injunction.

 After this restraining order had been entered, Fuentes did not move to have it vacated, but instead sought to remove the state action to federal court. Roher v. Fuentes (S.D.N.Y., 74 Civ. 3524). Plaintiff Roher then moved by order to show cause to remand the case to state court. After hearings before this court on August 15 and 19, Judge Richard Owen granted plaintiff Roher's motion to remand and also made Justice Nadel's temporary restraining order against Fuentes an order of this court, thus continuing it in full force and effect. Judge Owen further denied a motion by Fuentes for a temporary restraining order enjoining the board from enforcing its suspension of him.

 On August 26, 1974, attorneys for Fuentes successfully adjourned a hearing scheduled to be held in State Supreme Court on Roher's motion for a preliminary injunction against Fuentes. However, Justice Morris Spector specifically extended until September 4 the temporary restraining order previously signed by Justice Nadel and continued in effect by Judge Owen. *fn6"

 On August 28, meanwhile, the administrative hearing involving the charges against Fuentes did not begin as scheduled, since Fuentes' counsel advised the trial examiner that "pending litigation in both federal and state courts related to the matter here makes such a meeting inadvisable at the present time."

 At about this point, Fuentes began to relitigate his original action in federal court which had been filed in December of 1973 to set aside his suspension. On August 22, plaintiff Fuentes sought from this court a temporary restraining order and a preliminary injunction enjoining his August 8, 1974 suspension by the board. This court denied the motion, finding that, while Fuentes raised substantial and difficult constitutional issues, he had not shown that "he, personally, would be irreparably harmed pending a fuller hearing for a preliminary injunction." We also concluded that Fuentes had not demonstrated that his ability to perform the "duties as superintendent in the future has now or will be impaired by what might be just a temporary suspension."

 After attending one session of the administrative hearing, which had been rescheduled from August 28 to September 24, *fn7" Fuentes filed the present motion to suspend the administrative hearings relating to the charges against him. This motion was brought on by an order to show cause signed September 27 by this court. Three days later, Fuentes' attorneys sent a letter to the hearing examiner indicating that the order to show cause had been signed, and advising him that in light of the pendency of the preliminary injunction motion, Fuentes "will appear at no further meetings nor serve any papers in this matter." *fn8"

 In arguing the preliminary injunction motion to suspend the administrative proceedings before this court, attorneys for Fuentes contended that hearing examiner Marcy Cowan had indicated at the September 24th meeting that he would be able to hold hearings only during two, two-hour sessions per week. During the September 24th meeting, however, Fuentes' attorneys had not objected to the proposed schedule of meetings. On October 3, 1974, Cowan wrote to Fuentes' attorneys that, while no objection had been made to the proposed schedule on September 24, he was willing to hold "full day [sessions] as often as the parties desire in order to expedite things." *fn9"

 Meanwhile, after hearings before this court on Fuentes' motion to enjoin the administrative proceedings, this court signed a temporary restraining order on October 11 enjoining "defendants, their agents, employees and representatives . . . from proceeding with or otherwise causing the administrative hearing to proceed pending the holding of an evidentiary hearing before this court scheduled for October 21." The evidentiary hearing was scheduled to consider the questions of alleged bias on the part of defendants and the purported futility of the administrative process. The effect of signing this temporary restraining order was to stay the administrative hearings which had been scheduled to proceed on October 16th.

 Shortly after the temporary restraining order was signed, defendants moved before this court for reconsideration of that decision. Having concluded that the evidentiary hearing before this court should commence expeditiously, but that the administrative hearing should not be stayed, this court acted on October 21 to modify its order of October 11. As a result, the court's evidentiary hearing on the issues of defendants' bias and the futility of the administrative procedure was rescheduled to commence on October 25, and the stay of the administrative hearings was rescinded.

 In accordance with the court's order of October 21, evidentiary hearings began as planned on October 25, and continued for several days. This court heard extensive testimony from, among others, hearing examiner Marcy Cowan, defendant school board members Adolph Roher and Richard Lee Price, and defendant ex-school board member Donald Brown. The testimony focused on the issues of the alleged bias against Fuentes of Cowan and defendant majority members of the school board. *fn10"

 Following these hearings, this court orally denied plaintiff's motion to suspend the administrative hearings on November 12, 1974. In announcing our decision, we concluded that Fuentes would not suffer irreparable harm by proceeding with the administrative hearing. (Tr.737). We further found that trial examiner Marcy Cowan "indicated an ability to act on this matter impartially" (Tr. 735) and that Cowan "will deal with this objectively and impartially." (Tr.737). We also concluded that Fuentes had failed to prove that the defendant members of the board would be biased in passing on the record developed by Cowan as trial examiner.

 Fuentes then moved for reargument and reconsideration of our oral decision. We granted that motion, and heard oral argument on December 2. It is this motion for reargument which is now before us.

 In addition to affirming our decision of November 12, we now grant defendants' motion to dismiss. At this same time, we deny Fuentes' motion to enjoin his suspension and dismiss his pendent state claims. We also dismiss defendant Richard Lee Price's federal- and state-based counterclaims. We will first describe the provisions in ...

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