August 13, 2019

Reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by the court


Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved the suspension at "the next regular meeting of the board," and therefore there was no authority for the continued the suspension.

In rebuttal, the Board contended that as that issue was considered in the course of an earlier arbitration and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement,** the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation." The Commissioner, however, exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment "insofar as appealed from," reinstated Principals' petition, and gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principle's Article 78 action.

* The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision addressing the issue on its merits.

** The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

The decision is posted on the Internet at:

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