Judicial review of administrative determinations is limited to the facts and record adduced in the course of the agency's administrative hearing

The New York City Office of Administrative Trials and Hearings [OATH] affirmed so much of a determination of a hearing officer, as, after a hearing, found that Petitioner in the administrative appeal violated Administrative Code of the City of New York §28-210.3 and directed the petitioner to pay a civil penalty of $1,000 per day for a period of 39 days.

The Appellate Division confirmed OATH's ruling "on the merits," without costs or disbursements.

Petitioner had filed an administrative appeal from so much of the hearing officer's determination as imposed a civil penalty of $1,000 per day for a period of 39 days. Petitioner contended that the violation of Administrative Code §28-210.3 at issue was cured almost immediately after the Petitioner received notice of the violation and, therefore, the daily penalties should be limited to only two days. 

OATH, however, had  affirmed so much of the hearing officer's determination as directed the Petitioner to pay a civil penalty of $1,000 per day for a period of 39 days from November 9, 2019, to December 17, 2019, December 17, 2019 being "the date the violation was corrected according to a sworn certificate of correction of the Petitioner's owner".

Citing Matter of Call-A-Head Portable Toilets, Inc. v New York State Dept. of Envtl. Conservation, 213 AD3d 842, the Appellate Division said "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence", observing that "Substantial evidence 'means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'".

Here, contrary to Petitioner's contention, the Appellate Division opined that OATH's determination directing the Petitioner to pay a civil penalty of $1,000 per day for a period of 39 days was supported by substantial evidence, including the sworn statement by the Petitioner's owner in the certificate of correction identifying December 17, 2019, as the date the violation was corrected.

Noting that judicial review of administrative determinations is confined to the facts and record adduced before the agency, the court opined that Petitioner's reliance upon evidence that it did not introduce at the hearing was improper.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Part-time teaching assistants not within the ambit of Education Law §3013(2) in the event of a layoff

Education Law §3013(2) provides as follows: "Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

Two part-time teaching assistants [Petitioners] challenged their termination by the Board of Education when the Board declined to terminate the employment of at least two full-time teaching assistants having less seniority. Petitioners contended that the Board's decision resulting in their termination violate Education Law §3013(2) and provisions set out in a collective bargaining agreement between the Board and Petitioners' union.*

Supreme Court denied the Petitioners' petitions and dismissed the proceeding. The Appellate Division affirmed the Supreme Court's ruling.

Pursuant to Education Law §3013(2), whenever a board of education "abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." In this instance the relevant collective bargaining agreement provided that "[l]ayoffs for Teaching Assistants shall be in accordance with Education Law Section 3013." Moreover, the Court of Appeals has recognized that teaching assistants fall within the ambit of Education Law §3013(2) "for the purpose of determining layoffs".**

However, the Board contended that the protections afforded individuals pursuant to Education Law §3013(2) apply only to full-time teaching assistants and that the Petitioners were part-time teaching assistants. Petitioners did not dispute the Board's contention that Education Law §3013(2) applies only to full-time teaching assistants.

Citing Matter of Walters v Amityville Union Free School Dist., 251 AD2d 590, and Matter of Cole v Board of Educ. of Syosset Cent. School Dist., 167 AD2d 538, the Appellate Division, noting that Petitioners "failed to establish that they were full-time teaching assistants entitled to the protections afforded under Education Law §3013(2)", held that Supreme Court properly denied their petitions.  

* Taylor Law contract provisions, however, may not adversely affect the layoff rights vested in employees by law. See, for example, Plattsburgh v Local 788, 108 AD2d 1045 and Szumigala v Hicksville Union Free School District, 148 AD2d 621, citing Cheektowaga v Nyquest, 38 NY2d 137.

 ** Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51.

Click HERE to access the Appellate Division's decision posted on the Internet.

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State Commission on Judicial Conduct determined a Town Court justice should be removed from office

The State Commission on Judicial Conduct determined that a Justice of a Town Court committed certain acts of misconduct and should be removed from office, citing Article VI, §22 of New York State's Constitution and Judiciary Law §44.

In lieu of a hearing, the Justice entered into an agreed statement of facts indicating that he had:

[1] "Brandished a loaded firearm at a litigant who was waiting for his case to be called; and

[2] Engaged in "improper fundraising".  

Finding that the "the record amply supports the conclusion that the Justice's misconduct 'transcends poor judgment' and warrants removal", the Court of Appeals held that the State Commission on Judicial Conduct's "determined sanction", removal from office, should be implemented.

Click HERE to access the Court of Appeals decision posted on the Internet.