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The administrative body, rather than its attorney, must indicate the basis for its administrative action or decision

The administrative body, rather than its attorney, must indicate the basis for its administrative action or decision
Matter of Weill v New York City Dept. of Educ., 61 AD3d 407

Scott A. Weill appealed a decision by Justice Leland G. DeGrasse, Supreme Court, New York County, that denied his petition seeking to annul the New York City Board of Education?s determination terminating his employment as a New York City schoolteacher. The Appellate unanimously reversed the lower court?s ruling and remanded the matter to the Department of Education ?for it to provide its rationale, if any, for rejecting [Weill?s] excuse for his failure to request timely a hearing.?

Weill had been service with disciplinary charges alleging he had shown ?an inappropriate movie to a class? and made ?despicable comments to students.? Weill then met with representatives of the United Federation of Teachers (UFT) and filled out a form requesting a hearing on the charges. Although the UFT representatives assured Weill that UFT ?would ensure that the form was timely filed,? the form was not received by the Education Department within the required time.*

In an effort to secure a hearing, Weill?s UFT-assigned counsel sent the Department attorney handling the matter an affidavit offering an explanation of his failure to file a timely request but the Department?s attorney ?refused to submit the affidavit to the panel assigned to hear [Weill's] case because it contained not only [his] excuse for his failure to file a timely request for a hearing, but also averments challenging the disciplinary charges.? Ultimately the Department?s attorney submitted the UFT attorney?s "memorandum" in which he offered an excuse for Weill's failure to file a timely request for a hearing to the disciplinary panel.

The panel, however, acted on the charges against Weill without giving him a hearing, and, following ?an inquest hearing at which the Department attorney presented a summary of ?the evidence that DOE would have presented if the case proceeded to trial,? the panel concluded that [Weill] had engaged in the conduct alleged in the charges.?

The chairperson of the panel issued a determination listing the findings of fact made by the panel, specifying the misconduct committed by Weill and terminating his employment. In so doing, said the Appellate Division , the panel did not address Weill's excuse for his failure to file a timely request for a hearing but, rather, simply noted that he had failed to file a timely request and ?that he had therefore waived his right to a hearing.?**

The Appellate Division said that in view of the fact that there was nothing in to indicate ?any ground in the determination for the panel's rejection of [Weill?s] excuse, we must remand the matter to the panel for a statement of its rationale for rejecting the excuse.? Only then, said the court, would it be able to execute the limited function permitted in its reviewing the determination of an administrative body ? ascertaining whether that determination is arbitrary and capricious.

The Appellate Division noted that the Department attorney submitted an affidavit in opposition to Weill's CPLR article 78 proceeding in which she attempts to provide the panel's reasons for rejecting Weill?s excuse. It said that it could not consider the attorney's affidavit because it was not before the panel and, more importantly, ?the attorney prosecuting the disciplinary proceeding cannot supply the panel's rationale for its determination; only the panel can supply its reasoning for the determination.?

* Section 3020-a.2(c) of the Education Law provides that ?Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges ?."

** Section 3020-a.2(d) of the Education Law provides that ?The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing.?

Full post as published by New York Public Personnel Law on February 10, 2010 (boomark / email).