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FOREMAN v. AMBACH

October 29, 1981

Stephen H. FOREMAN, Plaintiff,
v.
Gordon M. AMBACH, individually and as Commissioner of Education of the State of New York, The New York State Board of Regents, Willard A. Genrich, J. Edward Meyer, Kenneth B. Clark, Harold E. Newcomb, Emlyn I. Griffith, Mary Alice Kendall, Jorge L. Batista, Louis E. Yavner, Laura B. Chodos, Martin C. Barell, Louise P. Matteoni, R. Carlos Carballada, Floyd F. Linton, Salvatore J. Sclafani, as individuals and as members of the New York State Board of Regents, and New York State Department of Education, Defendants



The opinion of the court was delivered by: WEINFELD

This is the third action, the second instituted in this Court, seeking to declare void and to enjoin enforcement of an order of the Board of Regents of the State of New York (the "Board") suspending plaintiff's state license as a podiatrist for a period of ninety days and imposing a $ 1,000 fine upon him. The defendants are the Board of Regents, its individual members, the Commissioner of Education of the State of New York and the State Department of Education.

The plaintiff was convicted upon his plea of guilty of the crime of conspiracy in the third degree, a Class A misdemeanor, *fn1" in the Criminal Court of the City of New York. The initial underlying charge was that plaintiff and other podiatrists had combined and agreed among themselves and with other persons to raise a sum of money to bribe a public official with respect to legislation then pending before the New York State Legislature that would have removed podiatry from reimbursement under the State Medicaid Program. Following the entry by plaintiff of his guilty plea, the Board, after a hearing referred to hereafter, entered the order of suspension and fine. Petitioner then sought review in the Appellate Division, Third Department, which denied his petition. *fn2" Thereafter leave to appeal to the New York State Court of Appeals was denied. *fn3"

 Upon the rejection of his claim by the state courts, plaintiff commenced his first action in this Court for judgment declaring the disciplinary order void as in violation of his constitutional rights to procedural and substantive due process. Judge Goettel, to whom the case was assigned, found that the plaintiff had failed to establish any violation of his constitutional rights and dismissed his complaint upon the merits.

 Plaintiff then commenced the instant action under 42 U.S.C. § 1983. Simultaneously he moved for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure and the defendants cross-moved to dismiss the complaint pursuant to Rule 12(b)(6). This Court denied the motion for a preliminary injunction and dismissed the defendants' cross-motion as moot. However, the dismissal was without prejudice to any motion directed to an amended complaint which the plaintiff had served during the pendency of the hearing on the motion for injunctive relief.

 The defendants now move for judgment dismissing the amended complaint under Rule 12(b)(6) and pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. In support of their motion, defendants have filed a statement pursuant to local civil rule 3(g). Since the plaintiff has not filed any response thereto, all the material allegations set forth therein are deemed admitted. *fn4" Upon argument of this motion, the parties stipulated that there shall be included in the instant record the testimony taken on an application for a preliminary injunction in an action instituted by other podiatrists in the United States District Court, Eastern District, seeking substantially the same relief as sought by the plaintiff herein. *fn5"

 The amended complaint alleges that the defendants under color of law violated plaintiff's rights under the Fourteenth Amendment: (1) to the equal protection of the laws in that as a podiatrist he was subjected to disciplinary procedures different from those applied to members of the medical profession similarly situated under New York law; (2) to due process of law in that the order suspending plaintiff's license failed to contain a full and proper statement of factual findings and the reasons and purposes of its conclusions; that the members of the Board of Regents "unduly and illegally" influenced members of the Charge Committee of the State Podiatry Board by directing the Committee to bring the specifications against the plaintiff; that thereafter they and others conspired to deny him a fair hearing before the Hearing Panel which heard the charges; that the order of the Board suspending the plaintiff's license was based upon a conviction illegally obtained; that the Board failed to give appropriate consideration to the circumstances of his individual background and degree of participation in the offense, as distinguished from other podiatrists whose licenses also were suspended; and that the defendants suspended plaintiff's license for reasons much less severe than was the case in the vast majority of situations similar to his case. In addition to declaratory and injunctive relief, plaintiff seeks monetary damages against the defendants in the sum of $ 1,000,000. *fn6"

 Before considering plaintiff's claims of constitutional violations, it is desirable to note the following facts set forth in defendants' 3(g) statement that are not disputed: plaintiff's conviction of the crime of conspiracy, referred to above, is still in full force and effect and has not been appealed; he was represented by counsel when he entered his plea of guilty; the Assistant District Attorney who represented the prosecution at the time plaintiff entered his plea did not violate any of plaintiff's rights; the Board of Regents suspended and fined petitioner upon a finding that he had been convicted of the aforesaid crime; plaintiff had a full disciplinary hearing pursuant to the provisions of the Education Law, *fn7" at which he appeared with counsel and plaintiff had an opportunity to testify and produce evidence on his own behalf; and none of the Panel members who heard plaintiff's case were coerced in any way to render a recommendation.

 In the light of the foregoing, any claim that plaintiff was denied due process of law because the order suspending his license and imposing the fine did not contain "a full and proper statement of factual findings and the reasons and purposes of its conclusion" borders on the absurd. The determination by the Board which accepted the Hearing Panel's finding that petitioner had been convicted of a crime under New York State law was sufficient to sustain the order of suspension. *fn8" The Board's finding had the virtue of simplicity and specificity-the fact of conviction was never disputed-indeed, it could not, since it is conceded that it remains of record in the State Court where the judgment of conviction was entered. *fn9" Moreover, due process does not require that the Board articulate the reasons for its action, particularly since the statute itself specified a state conviction as professional misconduct constituting a ground for disciplinary action and the Board's action was within authorized limits. *fn10"

 A sufficient reason for its order of suspension and fine was the fact of conviction of a serious crime-a conspiracy to corrupt a public official. While the Board here did not base its suspension upon the alternative ground of unprofessional conduct, New York courts have held in the instance of conviction of a crime of the type of which plaintiff was convicted that "unprofessional conduct on the part of a physician is not limited to acts directly relating to his treatment of patients. *fn11" In a case where a physician had pled guilty to conspiracy to obstruct justice and his license to practice had been revoked, the court, in upholding the order of revocation, stated:

 
Although we conclude that the finding of unprofessional conduct was warranted, we consider that, in any event, the semantics are not important and the determination was essentially and properly grounded upon the admitted facts underlying the conviction. Had the board chosen to rest its determination and the punishment of license revocation upon the conviction alone ... the discipline imposed could not, even then, be modified ... and this whether the facts be deemed to have given rise to two specifications or but one. *fn12"

 We next consider plaintiff's claim that he was denied his rights under the Equal Protection clause of the Fourteenth Amendment in that as a podiatrist he was subjected to disciplinary procedures different from those applied to members of the medical profession under New York law.

 The proceeding against plaintiff was instituted pursuant to § 6510 of the Education Law, which governs disciplinary procedures of thirty licensed professions and which, up to 1975, included physicians. In 1975, however, the New York State Legislature enacted Public Health Law § 230, which established partially separate procedures for the discipline of physicians. These new procedures were established as part of a comprehensive effort by the Legislature to deal with a critical threat to the availability of medical services because of the lack of adequate medical malpractice insurance at reasonable rates. *fn13"

 The major objectives of the bill, as noted by the Governor in approving it, were to guarantee the continued adequacy of medical malpractice insurance to members of the medical profession and health providers in New York State and to assure the public the basic protection to which all patients are entitled. *fn14" The only significant difference between the procedure under § 6510 applicable to podiatrists and other licensees mentioned therein and that applicable to physicians under § 230 of the Public Health Law pursuant to the 1975 amendment, is that in the former the findings and recommendations of the Hearing Panel are reviewed by a Regents Review Committee which submits its recommendation to the Board of Regents, whereas in the instance of physicians the Hearing Panel's findings and recommendations are reviewed by the State Commissioner of Health, who reports his recommendations thereon to the Board of Regents. In each instance, however, the Board of Regents is vested with the final power to decide whether the licensee is guilty or not guilty of the charges and what penalties, if any, are to be imposed.

 Thus, in the instance of the plaintiff, the Education Department instituted a disciplinary proceeding based upon two separate charges: (1) conviction of a crime under New York law *fn15" and (2) unprofessional conduct. *fn16" After an initial presentation before a so-called Charging Committee, consisting of three podiatrists which authorized the filing of charges based on the two specifications, a hearing was held before a five-member peer panel of the Committee on Professional Conduct of the State Board of Podiatry at which plaintiff was represented by counsel. The Panel found plaintiff guilty of the first specification, but not guilty on the second, and recommended that no further punishment or action be taken against the plaintiff. In accordance with § 6510(3)(a) of the Education Law, their recommendations and the transcript of the hearing before them were submitted to a Regents Review Committee, which was under the duty of reviewing the record and in turn making its own recommendation to the Board of Regents. The Regents Review Committee agreed with the Hearing Panel on the first ...


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