July 13, 2010

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426

When the New York City Office of Administrative Tribunals and Hearings attempted to conduct an administrative hearing involving Stephen Rosenblum’s alleged infraction of the City’s “conflict of interest” law, Rosenbaum obtained a court order from Supreme Court in the nature of a writ of prohibition.

The Appellate Division affirmed the lower court’s determination, holding that Supreme Court properly ruled that Rosenbaum could seek a judgment prohibiting the enforcement of the conflict of interest law of the City of New York against him through an OATH proceeding as he was a “tenured pedagogue employed by the Board of Education of the City of New York.”

The Appellate Division explained that “the exclusive avenue to discipline a tenured pedagogue is Education Law §3020-a and thus it would be violative of the Education Law to allow an OATH hearing which does not require the same procedural protections as those provided to a tenured educator by §3020-a.

In addition, the decision notes that there was no requirement for exhaustion of administrative remedies as a condition precedent in an Article 78 proceeding “in the nature of a writ of prohibition,” where, as here, the "legality of the [underlying OATH] proceeding itself" was implicated.”

The writ of prohibition is one of a number of the ancient “English common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."

Other English common law writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].

The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient common law writs.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05875.htm

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