Citation Numbers: 20 Misc. 2d 1067
Judges: Hamm
Filed Date: 8/19/1959
Status: Precedential
Modified Date: 2/5/2022
The petitioner is a teacher. By a written statement dated November 7, 1957 the Superintendent of Schools initiated a disciplinary proceeding against him. The written statement comprised 36 separately numbered allegations characterized as “ charges ”, After hearings conducted on several days the Board of Education stated in writing: “it is the unanimous decision of the members of the Board of Education hearing this matter that the credible evidence sustains the charges and that said Philip Chuff * * * be dismissed as a teacher in said school district ”. No findings of fact were made which would show the particular matter determined against the petitioner herein.
Subdivision 3 of section 3012 of the Education Law as pertinent provides: “At the time and place set the issues shall be heard. Each witness shall be required to take oath or affirmation before an officer of the board of education. At such hearing, which shall be private or public at the discretion of the teacher,
An appeal was made to the Tenure Commission. The Tenure Commission stated that it regarded eight of the charges as unsubstantial or as not established by competent evidence and that another charge that the petitioner had not acquired tenure was ‘ ‘ manifestly erroneous and insufficient on its face as a matter of law ”. For its recommendation the Tenure Commission concluded ‘ ‘ the members of the Commission participating in this decision unanimously recommended that the determination of the Board be affirmed”. The commissioner said: ‘ ‘ Upon an examination of the record in this proceeding, it appears that there is no basis for substitution of my judgment for that of the Board of Education and the Tenure Commission. it is ordered that the recommendation of the Tenure Commission be affirmed.”
Section 3012 states that the 11 decision of the commissioner of education shall be final.” It does not require, as does section 310 of the Education Law, that the commissioner’s decision shall be “ not subject to question or review in any place or court whatever”, nor does it state, as does section 2037, that the commissioner’s decisions shall be “ not subject to review.” Although it has been held that section 310 does not prevent judicial review to the extent of determining whether the commissioner was purely arbitrary (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127), some doubt has been
It seems clear that this article 78 (Civ. Prac. Act) proceeding to review the commissioner’s decision should be regarded as one in the nature of certiorari, rather than mandamus (Matter of Irving v. Finger Lakes Comm., 12 Misc 2d 1087, 1088-1089). This is a proceeding to scrutinize the judicial determination of the commissioner after his judicial examination of evidence as the result of a hearing held, at which evidence was taken pursuant to statutory requirement after an opportunity to be heard and to present evidence had been afforded. Issues as to whether the charges were supported by substantial evidence are raised under subdivisions 6 and 7 of section 1296 of the Civil Practice Act and transfer to the Appellate Division is indicated.
The commissioner urges the petitioner’s appeal to him was not only under section 3012 but also under section 310 of the Education Law and that the only issue is whether the commissioner was arbitrary. If this were so, the issue would be not whether the charges were supported by substantial evidence but whether a reasonable man could find that they were supported by substantial evidence. It is indisputable that the appeal under consideration was taken under and pursuant to section 3012. The caution exercised in limiting review of the commissioner’s decisions when they are by statute ‘‘ not subject to question or review in any place or court whatever ” is not required when there is no such statutory limitation. In fact, the deliberate omission of statutory restriction of the right to review so manifests.
The petitioner, stating that this proceeding should be transferred, urges that there is a preliminary question of law to be
In this case it will be for the Appellate Division to decide whether the record is such as to be reviewable without the findings which the petitioner contends should have been made.
Submit order of transfer in accordance herewith. The pleadings, affidavits and exhibits will be forwarded with the signed order.