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Appointing authority?s final determination as whether or not to take disciplinary action against an employee controls

Appointing authority?s final determination as whether or not to take disciplinary action against an employee controls
Rosenblum v New York City Conflicts of Interest Board, 2009 NY Slip Op 31073(U), April 29, 2009, Supreme Court, New York County, Docket Number: 101121/09, Judge Jane S. Solomon, [not selected for official publication]

Stephen Rosenblum, a provisional Principal employed by the New York City Board of Education [Education], filed an petition pursuant to CPLR Article 78 seeking a court order prohibiting the New York Conflicts of Interest Board (Board) and New York City Office of Administrative Trials and Hearings (OATH) from proceeding with an administrative hearing before OATH initiated by the Board.

The Board served Rosenblum with a Notice of Initial Determination of Probable Cause based on statements by another Principal alleging that Rosenblum had approached him seeking his aid in keeping Rosenblum's son, a teacher in that Principal's school, from losing his job.

The Board alleged that Rosenblum?s action violated the Charter of City of New York Section 2604(b)( 3 ).

Section 2604(b)(3) provides that ?No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.?

However, about October 7, 2008, Theresa Europe, Deputy Counsel to the Chancellor of the Board of Education, informed the Conflicts of Interest Board?s staff that Education had made its final determination and it decided not to proceed with charges against Rosenblum on the basis of the facts alleged in the Board's initial determination of probable cause.

Notwithstanding Education?s decision, the Board asked OATH to find Rosenblum guilty of violating Section 2604(b)(3) and to impose a $10,000 fine and issue an order ?imposing such other penalty as it deemed proper.?

Rosenblum?s motion to dismiss the OATH proceeding was denied by OATH Administrative Law Judge Faye Lewis.

Addressing Rosenblum's petition, Judge Solomon noted that although ?as a general rule courts do no interject themselves into ongoing administrative proceedings, they may do so when the agency in question acts without jurisdiction, or in excess of powers in a proceeding over which it has a clear legal right to such jurisdiction.? In such cases a writ of ?prohibition may lie.?

In this instance, said the court, Rosenblum ?has a clear legal right to judicial intervention to prevent the Board from continuing with its hearing before OATH.

Although the Education had made a final decision not to proceed with charges against Rosenbaum, the Board argued that, notwithstanding that decision, Section 2603 (h) authorizes it to proceed with the administrative hearing, to impose a fine, and to recommend that Rosenblum be suspended or dismissed.

In response, Supreme Court said that ?While an agency's interpretation of the statute that it administers is entitled to deference, so long as it is reasonable ?the Board's interpretation here does not meet that standard."

Judge Solomon ruled ?Nothing in this subsection authorizes the Board to sanction a public servant whose appointing officer has made a final decision not to discipline him or her.?

Judge Solomon granted Rosenblum?s petition prohibiting the New York Conflicts of Interest Board and the New York City Office of Administrative Trials and Hearings from proceeding any further with the administrative hearing [OATH Index no. 1233/09].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2009/2009_31073.pdf

Full post as published by New York Public Personnel Law on May 21, 2009 (boomark / email).