October 24, 2019

The authority of an administrative agency to promulgate rules and regulations

The State University of New York Board of Trustees' Charter School Committee [SUNY/CSC], asserting that an independent licensure process was necessary to alleviate a teacher shortage at certain Charter School,  promulgated Regulations* that purported to establish an independent licensure process from that established by State Education Department and State Board of Regents [SED].

SED subsequently initiated a CPLR Article 78 action [Petitioner Proceeding 1] seeking to, among other things, a court order annulling the SUNY/CSC's regulations, contending that the Committee lacked such authority under Education Law §355(2-a), conflicted with Education Law article 56 [the Charter Schools Act] and other provisions of the Education Law, violated the separation of powers doctrine and were not promulgated in accordance with the State Administrative Procedure Act [SAPA].

In addition, a second Article 78 action was commenced by the New York State United Teachers [NYSUT], the United Federation of Teachers, Local 2 [UFT], the National Association for the Advancement of Colored People, New York State Conference [NAACP] and two teachers and a parent [Petitioner Proceeding 2].

Supreme Court granted the amended petitions/complaints, vacated the Regulations and enjoined their implementation. The court found, among other things, that the Education Department and the Commissioner have standing to bring the Article 78 action, that Education Law §355(2-a) does not authorize SUNY/CSC to promulgate regulations that alter minimum teacher certification requirements, and that the regulations were not promulgated in accordance with SAPA. SUNY/CSC [Respondents] appealed the Supreme Court's rulings.

Addressing the standing of SED to initiate the action in Proceeding 1, the Appellate Division, citing Matter of Graziano v County of Albany, 3 NY3d 475, observed that governmental entities have the capacity to sue only when it is based upon a "concrete statutory predicate ... expressly granted in enabling legislation or it may be inferred from review of the entity's statutory functions or responsibilities." The court then opined that "[p]ursuant to the Education Law, the Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the [B]oard of [R]egents" (Education Law § 305 [1])" and "Education Law §308 provides that the Commissioner has the power and the duty 'to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in [the Education Law] or in any other general or special law pertaining to the school system of the state or any part thereof or to any school district or city.'"

Thus, the court concluded that the Commissioner, as the chief executive officer of the Education Department and the Board of Regents, has both express and implied capacity to bring Petitioner Proceeding No. 1.

In addition, however, to establish standing, a petitioner must show that it "ha[s] something truly at stake in a genuine controversy" by establishing "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated."  Petitioner  Proceeding 1, asserting that [1] the Commissioner has exclusive statutory authority to promulgate regulations governing the certification of public school teachers, to certify qualified individuals to teach in public schools, and to register teacher preparation programs in this state, [2] the Regulations promulgated by SUNY/CSC conflict with Education Law §§2854(3)(a-1) and 3602-ee, which require teachers employed in charter schools and charter school pre-kindergarten programs to be certified according to the same requirements that apply to other public school teachers, with certain limited exceptions, and [3] the Commissioner averred by affidavit that the Regulations promulgated by SUNY/CSC "usurp the Commissioner's authority, contravene the purposes and policies of the Charter Schools Act and Education Law §3004 and will injure Petitioners in proceeding No. 1 and the students whose education they are charged with protecting by permitting unqualified persons to teach in SUNY-authorized charter schools.

The Appellate Division held that these allegations were sufficient to establish that the claimed injuries fall within the zone of interests sought to be protected by the Education Law and that the Commissioner has suffered "direct harm," consisting of "injury that is . . . different from that of the public at large."

In contrast, with respect to the Petitioners Proceeding 2, the Appellate Division ruled that none of the employee organizations, the NAACP, the teachers or the parents alleged facts that would support a claim for standing with respect to Petitioner Proceeding 2 or advanced only "tenuous and ephemeral" claims insufficient to constitute injury in fact. In the words of the court, "on this record, none of these [parties] show[ed] that at least one of [their] members would have standing to sue," and we need not examine the other elements of organizational standing." Accordingly, said the court, "the amended petition/complaint in Proceeding No. 2 should have been dismissed."

Turning to the merits of Respondents' arguments in Proceeding No. 1, the Appellate Division explained that it is a basic principle of administrative law that an administrative agency has only "those powers expressly conferred by its authorizing statute, as well as those required by necessary implication." Noting that the Education Law does not define the word "operation" in the sense relied upon by Respondents, the court concluded that "[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning" and in context, is " performance of a practical work or of something involving the practical application of principles or processes"**. This definition, opined the Appellate Division, with its emphasis on practical function, does not support Respondents' interpretation based on its argument that the operation or "practical work" of a charter school clearly includes the hiring and supervision of teachers "as such tasks are not the same as establishing requirements for the certification of teachers, which other public schools do not perform, and which involves policy determinations beyond a school's ordinary management and functioning."

Commenting that the Charter Schools Act consistently uses the word "operation" to refer to the practical administration, management and supervision of individual charter schools, the Appellate Division concluded that the inclusion of the word "operation" in Education Law §355(2-a) does not authorize the Committee to promulgate regulations pertaining to teacher licensure and certification.

In addition, the court found that the Regulations were in conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers.

Considering the guidelines first established in Boreali v Axelrod, 71 NY2d 1, the Appellate Division said it agreed with Supreme Court that the regulations "constituted a product of improper legislative policymaking by an administrative agency" and the Respondents in Proceeding 1 had violated SAPA by making "substantial revision[s]" in the proposed regulations before their adoption without a notice of revised rulemaking and an opportunity for additional public comment.

* 8 NYCRR 700

** (Merriam-Webster Online Dictionary, [https://www.merriam-webster.com/dictionary/operation])

The decision is posted on the Internet at:


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