Monday, July 21, 2014

A school board must comply with its own rules and regulations, which have the force and effect of law

A school board must comply with its own rules and regulations, which have the force and effect of law
2014 NY Slip Op 05014, Appellate Division, Third Department

A former employee [Petitioner] of the school district filed a complaint with Board of Education alleging that the school superintendent, among others, had subjected her to unlawful discrimination and harassment. She further alleged that she was forced to retire from her position due to retaliation.

The Board, because the superintendent was allegedly involved in such unlawful activities, appointed independent counsel, MP, to investigate Petitioner's complaints. MP’s final report recommended that Petitioner’s complaint be dismissed. Petitioner then requested a copy of the full report and a hearing before the Board on her appeal challenging MP's findings. Her request for a hearing was refused and the Board only provided Petitioner with the three-page conclusion section of MP’s 73-page report

Petitioner initiated an Article 78 proceeding, seeking a court order compelling the Board to release MP’s full report to her pursuant to the Board's regulations and to hold an evidentiary hearing on her appeal of MP's findings.

Focusing on the issue concerning the releasing the full report, this aspect of Petitioner’s action was “in the nature of mandamus.”*  Such an action is initiated "to enforce a clear legal right where the public official has failed to perform a duty enjoined by law," and is available only "to compel a governmental entity or officer to perform a ministerial duty,”

Supreme Court had ruled that Petitioner had the right to a hearing before the Board and to a copy of the report, but directed the Board to submit the report for in camera** review by the court “given the confidential nature of the disclosures contained in it.” Supreme Court ultimately concluded that the report was "inappropriate for comprehensive redaction," and issued an order directing that only MP's truncated report be disclosed to Petitioner.

Petitioner appealed, contending that Supreme Court erred in failing to compel the Board to release MP’s full report to her in accordance with the Board's policies and regulations. The Appellate Division agreed, noting that the relevant Board regulations provided that "a written record of the investigation and any action taken will be established," and contemplates that the complainant would receive a copy of the complaint officer's [here MP’s] report. The court further noted that “it is well settled that absent a conflict with a statute, the rules and regulations promulgated by a board of education have the force of law and are binding upon it.”

Under the Board’s regulations Petitioner would have received both a copy of the complaint officer's report and all reports issued by the superintendent on either the investigation or the outcome of the proceeding. No report was issued by the superintendent, who in this instance was named as a respondent in Petitioner's complaint. Accordingly, MP prepared the written report of the investigation made at the Board’s request.

Although Petitioner argued that the Board regulations mandated full disclosure of MP's report, the Board contended that it correctly provided Petitioner with only the three-page conclusion section of MP’s 73-page report "because the regulation requires the release only of the superintendent's report."

The Appellate Division said that in its view, the Board's interpretation “is inconsistent with the language of the regulation, which is mandatory" and requires that both the complainant and those accused of wrongdoing "will have received at least one report pertaining to the investigation/outcome of the formal complaint prior to the Board holding a hearing on the matter.”

The court then observed that “Even assuming that [MP] was appointed to perform only the complaint officer's role — as opposed to the superintendent's role — in the adjudicatory structure set forth in the regulation, a complainant is entitled to a copy of the complaint officer's report under the regulation. Nevertheless, the Board failed to provide either [Petitioner] or this Court with a copy of the report.”

Supreme Court had concluded that the entirety of the report should not be released because it is "more or less a journal . . . full of conjecture and hearsay and all kinds of materials that were, maybe, proper for [MP] to consider in reaching her conclusions, but certainly didn't need to be put into that kind of report." The Appellate Division disagreed, stating that “The quality and style of the report, however, does not impact [Petitioner's] right to receive it under [the Board’s regulation].”

The bottom line: the Appellate Division ruled that “Under these circumstances, [Petitioner] has established both a clear legal right to relief and that the [Board’s] duty to disclose the report was nondiscretionary. Accordingly, [the Board] must be compelled to comply with the terms of [its regulation] and release the full [MP] report to [Petitioner]”

* The writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other ancient “common law” writs included the writ of prohibition -- 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;" 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] used to challenge a person's right to hold a public or corporate office. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

** Latin for "in chambers." In this instance Supreme Court privately looks at MP’s report to determine what, if any, information may be revealed to a party or made public.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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