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O'BRIEN v. BOARD OF EDUC. OF THE CITY SCH. DIST. O

July 8, 1980

Peter S. O'BRIEN, as President of the Council of Supervisors and Administrators of the City of New York, Local 1, SASOC, AFL-CIO, and Solomon Zeichner, on behalf of all others similarly situated, Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Irving Anker, as Chancellor of the City School District of the City of New York and Hugh L. Carey, as Governor of the State of New York, Defendants



The opinion of the court was delivered by: LEVAL

MEMORANDUM ORDER

Peter S. O'Brien, President of the Council of Supervisors and Administrators of the City of New York, Local 1, brought this action as representative of a class of supervisory employees of the New York City school system against, inter alia, the Board of Education of the City of New York and Hugh L. Carey in his capacity as Governor of the State. The plaintiffs challenge the constitutionality of the strike penalty provisions of New York's Taylor Law, New York Civil Service Law §§ 200, 210 (McKinney's Supp.1978) (hereinafter cited by section), as those provisions are recorded on the face of the statute and as they were applied to the plaintiffs in the course of a labor dispute between the parties in 1975. The class of plaintiffs seeks declaratory and injunctive relief as well as damages.

 In their second amended complaint, the plaintiffs narrowed their constitutional attack on the face of the penalty provisions to two contentions so as to avoid arguments already rejected by the U.S. Supreme Court when it dismissed the appeal in Sanford v. Carey, 421 U.S. 973, 95 S. Ct. 1972, 44 L. Ed. 2d 464 (1975) for want of a substantial federal question. They contend first, that § 210 violates due process because it does not afford employees a fair and impartial tribunal; and second, that the deprivation of tenure protection is a cruel and unusual punishment.

 The State has moved to dismiss the plaintiffs' complaint against the Governor on the ground that the complaint fails to state a cause of action, F.R.Civ.P. 12(b)(6). For the reasons stated below, the motion is granted, and the complaint is ordered dismissed as against the State.

 A. The Taylor Law

 The Taylor Law prohibits public employees from engaging in strikes or other concerted stoppages or slowdowns of work, §§ 201.9, 210.1.

 The chief executive officer of the agency of government involved is empowered in the first instance to determine whether an illegal strike has occurred, § 210.2(d), and is obliged to notify each employee found to have committed a violation of the Taylor Law, § 210.2(e). The Taylor Law provides that an employee notified that he or she has been found to have participated in an illegal strike may file objections to this determination with the chief executive officer. The chief executive officer must evaluate the objections and refer material questions of fact to a hearing officer appointed by the chief executive officer, § 210.2(h). Payroll deductions from the employee's wages begin upon the initial determination that an employee has engaged in an illegal strike, and are not stayed until the finding that the employee has engaged in an illegal strike has been reversed, at which time all deductions previously made would be refunded. §§ 210.2(g), .2(h). See generally Tepper v. Galloway, 481 F. Supp. 1211 (E.D.N.Y.1979).

 Two other provisions of the Taylor Law deserve mention.

 First, the statute creates a presumption that an employee absent from work without permission on the days when a strike is taking place is presumed to have participated in the strike, § 210.2(b); the burden is on the employee to prove that he did not participate in the strike.

 Additionally, the determination of the chief executive officer is subject to immediate judicial review in a proceeding under Article 78 of the N.Y.C.P.L.R. If the chief executive officer rejects an absent employee's contention that he was not on strike without affording him a hearing, the standard of review in an Article 78 proceeding is whether the employee's excuse for his absence is insufficient as a matter of law. If the chief executive officer rejects an employee's objection to a strike penalty after providing the employee with a hearing, the standard of review in an Article 78 proceeding is whether the officer's finding is supported by substantial evidence, § 7803(4), and whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed, § 7803(3).

 B. The Due Process Claim

 The plaintiffs contend that the Chancellor of the New York City School system, who acted as chief executive officer for the defendants for the purposes of § 210.2(d), was incapable of providing the plaintiffs with an impartial tribunal for the purpose of evaluating objections to the Chancellor's preliminary determination that the employees were in violation of the Taylor Law, see § 210.2. The plaintiffs contend that two aspects of the Chancellor's relationship with the school system make him presumptively, as well as actually, biased and render the penalty scheme of the Taylor Law unconstitutional: first, the Chancellor is responsible for administering the school system, which is the beneficiary of the fines and civil contempt penalties to be collected under the Taylor Law; second, the Chancellor is authorized to provide the chief legal officer of the Board of Education with the data necessary to enable him to apply for an injunction and subsequent contempt orders. For the reasons stated below, I do not find that either contention supports the plaintiffs' constitutional attack on the Taylor Law.

 The plaintiffs' contention regarding the Chancellor's pecuniary interest in rendering a decision adverse to objecting employees has been rejected before as a basis for attacking the constitutionality of the Taylor Law's strike penalty provisions. See Tepper v. Galloway, 481 F. Supp. 1211 (E.D.N.Y.1979); Starrs v. Bock, 77 Civ. 5435 (S.D.N.Y. Dec. 21, 1978); Kornit v. Board of Education, 75 Civ. 578 (E.D.N.Y. July 22, 1975), remanded, 542 F.2d 593 (2d Cir. 1976), remanded, 438 U.S. 902, 98 S. Ct. 3118, 57 L. Ed. 2d 1144 (1978), aff'd on original opinion, 591 F.2d 1330 (2d Cir. 1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281, 59 L. Ed. 2d 495 (1979). The plaintiffs suggest that the courts in Tepper, Starrs and Kornit neglected to give due weight to the Supreme Court's decision in Ward v. Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). I disagree.

 In Ward, the Supreme Court declared unconstitutional an Ohio statute which authorized mayors to sit as judges in cases of ordinance violations and certain traffic offenses. The Court found that although the mayor did not share directly in the penalties and fines exacted, compare Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), the mayor's responsibilities for "revenue production", 409 U.S. at 58, 93 S. Ct. at 82, and "village finances", 409 U.S. at 60, 93 S. Ct. at 83, created a practical and serious inconsistency with the obligations incident to his judicial office. The Court in Ward distinguished the case of Dugan v. Ohio, 277 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 (1928), in which a mayor who shared legislative and executive authority with four other persons was found to have a ...


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