Appling the correct test in resolving a challenge to an administrative determination

Appling the correct test in resolving a challenge to an administrative determination
Matter of Heather Duncan v Klein, 38 A.D.3d 380

Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.

A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”

Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.

The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.

As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”

The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_02469.htm