June 18, 2013
Gaetano VACCARO, Petitioner(s),
BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK; and Dennis Walcott, as Chancellor of the Board of Education of the City School District of the City of New York, Respondent(s). No. 104435/12.
This decision has been referenced in a table in the New York Supplement.
Richard E. Casagrande New York, for Petitioner.
Michael A. Cardozo, Corporation Counsel of the City of New York New York, for Respondent.
MANUEL J. MENDEZ, J.
Upon a reading of the foregoing cited papers, it is ordered and adjudged that this Article 78 Petition is granted. Respondent's Cross-Motion is denied.
In this Article 78 Proceeding, Petitioner seeks a judgment reversing Respondent's discontinuance of Petitioner's employment and to reinstate him as a tenured teacher.
Petitioner was employed by Respondent as an English as a Second Language teacher from 2003 through 2008. Petitioner received tenure in 2006.
Petitioner resigned on August 28, 2008.
On or about July 9, 2011, Respondent reinstated Petitioner to a teaching position for the 2011-2012 school year.
On or about March 13, 2012, Petitioner submitted to Respondent an Application for Withdrawal of Resignation/Retirement.
This Court was not made aware of an official response by Respondent to Petitioner's Application.
On or about June 11, 2012, Petitioner received an Unsatisfactory rating for the 2011-2012 school year.
By way of a letter dated July 18, 2012, Respondent notified Petitioner of its intention to terminate Petitioner.
Petitioner submitted a written rebuttal to Respondent's intention to terminate him dated August 6, 2012.
By way of a letter dated September 6, 2012, Respondent informed Petitioner that Respondent had terminated Petitioner's employment.
Petitioner commenced this Article 78 proceeding asserting that as a tenured teacher, he had the right to a due process hearing according to the requirements of N.Y. Educ. Law Section(s) 3020 and 3020-a prior to being terminated.
Respondent cross-moves to dismiss the Petition on the grounds that Petitioner has failed to exhaust all of his administrative remedies and that Petitioner fails to state a cause of action.
An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious. See Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974); Ansonia Residents Ass'n v. New York State Div. of Housing and Community Renewal, 75 N.Y.2d 206, 551 N.E.2d 72, 551 N.Y.S.2d 871 (1989).
" It is a fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation." Cohn v. Board of Education of City School District of City of New York, 2011 N.Y. Slip Op 31555U, 31 Misc.3d 1241(A) (N.Y. Sup.Ct. 2nd Dept 2011) quoting from Matter of Lehman v. Board of Education of City School District of City of New York, 82 A.D.2d 832, 439 N.Y.S.2d 670 (N.Y.A.D. 2nd Dept 1981). " Rules" have been defined by the Courts as norms or procedures promulgated by an agency that establish a fixed pattern or course of conduct for the future. See People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38 (1961); and Cubas v. Martinez, 8 N.Y.3d 611, 838 N.Y.S.2d 815 (2007).
The Regulation of the Chancellor was issued by Respondent on September 5, 2000. Section C-205 concerns the category of Pedagogical Personnel. Section 29 of Section C-205, titled, " Withdrawal of Resignation Within Five Years by Tenured Staff" states that, " [e]xcept for persons covered by Section 24 or subdivision 26b of this Regulation, a non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall, remain tenured ..."
It is clear from the plain language of Section 29 that once Petitioner was granted tenure, Petitioner retained tenured status after resigning.
Section 29 of the Regulation of the Chancellor also permits a tenured teacher to withdraw their resignation subject to certain requirements and conditions. However, rehiring a teacher into the very same position from which they had previously resigned must also be considered an acceptance of the withdrawal of resignation.
Respondent's argument that Petitioner had to actually apply to withdraw his resignation even though Petitioner had already been re-hired by Respondent is kafkaesque. However bizarre Respondent's argument regarding Petitioner's withdrawal of resignation may be, it is inconsequential to the issue of Petitioner's status as a tenured teacher, as Section 29 of the Regulation of the Chancellor clearly states that tenured status is retained after resignation.
The case law cited by Respondent regarding tenured teachers who retire has no bearing on this case. The Regulation of the Chancellor makes a clear distinction between teachers who retire and teachers who resign, rules are specifically addressed to one situation or the other.
Lastly, Respondent's argument that Petitioner has failed to exhaust his administrative remedies related to the grievance process fails to convince the Court. The teacher's contract to which Respondent refers states that " the term grievance' shall not apply to any matter as to which (1) a method of review is prescribed by law, or by any rule or regulation of the State Commissioner of Education having the force and effect of law, or by any bylaw of the Board of Education." The Regulation of the Chancellor would fall within the category of bylaws of the Board of Education.
" [A] corollary of [the principle that rules promulgated by an agency are binding upon it] is that rules of an administrative agency which regulate procedure affecting substantial rights of individuals may not be waived by the agency." Lehman v. Board of Ed., supra. The right of a tenured teacher to a hearing prior to being terminated is a substantial right granted to tenured teachers, which Respondent had no right to waive.
Accordingly, it is the decision and judgment of this Court that the Petition is granted, Petitioner is declared a tenured teacher at the time of his discontinuance. Respondent's Cross-Motion is denied.
Accordingly, it is ORDERED and ADJUDGED that the Petition is granted, and it is further,
ORDERED that Respondent's Cross-Motion is denied, and it is further,
ORDERED that the matter is remanded to Respondent for further proceedings not inconsistent with this Court's Decision and N.Y. Educ. Law Section(s) 3020 and 3020-a.