Opinion
0113180/2007.
June 20, 2008.
DECISION and ORDER
Petitioner Lois Katz, formerly a tenured cluster teacher, brings this Article 78 proceeding and seeks a judgment: 1) annulling her June 4, 2007, termination; 2) ordering her reinstatement with full back pay and interest, benefits, restoration of seniority, retirement contributions, and all other emoluments of employment; and 3) costs and disbursements. Respondents, the Board of Education of the City School District of the City of New York (DOE) and Joel Klein as Chancellor of the City School District of the City of New York (the Chancellor) (collectively "respondents"), oppose.
I. Facts
Community Superintendent Dr. Jacqueline Peek-Davis drafted a Notice of Charges against petitioner pursuant to Education Law § 2590-j. This Notice of Charges was sent to petitioner on April 11, 2007, both by certified mail, return receipt requested, and by regular mail. The certified mail copy of the Notice of Charges was returned to DOE on May 14, 2007, as "unclaimed," but the regular mail copy was never returned.
On April 17, 2007, DOE sent a written statement detailing the Charges against petitioner, in accordance with Education Law § 3020-a by certified mail, return receipt requested, and by regular mail. On May 8, 2007, the certified mail copy of the Charges again was returned to DOE as "unclaimed," but the regular mail copy of the Charges was never returned.
In a letter dated April 17, 2007, Theresa Europe, Deputy Counsel to the Chancellor, advised petitioner of the charges against her and suspended petitioner, with pay, from her assigned duties effective April 20, 2007. This letter was sent on or about April 17, 2007, and it, too, was sent via certified mail, return receipt requested, and by regular mail. On May 30, 2007, the certified mail copy of Europe's letter was returned to DOE as "insufficient address," but the regular mail copy of the letter was never returned.
Michael Best, General Counsel to the Chancellor, notified petitioner in a letter dated May 7, 2007, that DOE deemed that petitioner had waived her right to a hearing and would proceed with an inquest before the DOE Panel for Educational Policy (the Panel) on May 21, 2007. This letter, once more, was sent via certified mail, return receipt requested, and by regular mail. Neither copy was returned to DOE.
The following day, Michael Best drafted a Memorandum to the Panel detailing the evidence DOE would have presented against Ms. Katz had she requested a hearing. In the Memorandum, Best conveyed that DOE sought the immediate termination of petitioner and requested that the Panel consider such a penalty.
On May 15, 2007, petitioner's lawyer spoke with her and informed her that DOE was alleging it properly served her with the Notice of Charges and written statement of Charges and that it intended to seek her termination at an inquest before the Panel. The next day, petitioner's attorney wrote to her explaining the consequences of failing to request a hearing within ten days of receipt of the charges. Petitioner's attorney requested information as to whether she actually received the charges. He notified petitioner that if she did indeed receive the charges, there was still a chance that she could offer an excuse for not requesting the hearing. No excuse was offered at any time prior to the inquest either by petitioner or her attorney.
The Panel commenced the inquest to terminate petitioner's employment on May 21, 2007. Following the inquest, the Chancellor sent a letter to petitioner informing her of the decision to terminate her employment with DOE. This letter was mailed on or about June 4, 2007, and petitioner acknowledges receiving it. All letters sent to petitioner were mailed to the same address. Only the certified mail from Theresa Europe was returned as "insufficient address." In response to her termination, petitioner served DOE on August 24, 2007, with a claim pursuant to Education Law § 3813 for reinstatement retroactive to the date of her termination, along with restoration of benefits. DOE has not reinstated petitioner. Having exhausted her administrative options, petitioner turns to the court for an Article 78 review of DOE's decision to terminate her employment.
II. Arguments
Petitioner claims that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges because mail often gets lost in her large apartment complex. Additionally, petitioner denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up. Petitioner also maintains that if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.
Petitioner argues that because she never received proper notice of the charges against her, the statutory ten-day period for requesting a hearing never began. In addition, she contends that the Panel ought to have been informed that the Charges sent to her by certified mail were returned to DOE, and that the Panel should have considered whether petitioner's failure to request a hearing was excused. In advancing her first argument, petitioner urges a literal reading of Education Law 3020-a(2)(c), which provides that the teacher must request a hearing "[w]ithin ten days of receipt of the statement of charges." (Emphasis added). As to the second claim, petitioner argues that the failure to request a hearing was excused because the statutory ten-day period never started running, and according to Education Law § 3020-a(2)(d), the Panel should have considered that.
It is the respondents' position that petitioner's offer of an excuse would have been entertained, had she presented one after notification by her lawyer, although it may not have been granted. Additionally, if DOE denied the excuse and continued with the inquest, the Panel would have had the opportunity to consider petitioner's excuse for failing to request a hearing and would have had the power to end the inquest and order a full hearing.
III. Conclusions of Law
In an Article 78 proceeding, the court's role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action. Matter of Fanelli v. New York City Conciliation and Appeals Bd., 90 A.D. 2d 756, 757 (1st Dept. 1982), affd 58 N.Y.2d 952 (1983). The administrative action must be upheld unless it "shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law." Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000). Because the employment of teachers is a matter of public concern, New York courts have granted an even greater degree of deference to administrative discipline of teachers. Matter of Hatta v. Board of Educ., 57 A.D.2d 1005 (3d Dept. 1977).
Education Law § 2590-j provides that the community superintendent shall alert the employee to the nature of the complaint prior to the filing of charges. The method of such notification, however, is not specified. Education Law § 3020-a then requires DOE to send a written statement to the employee, detailing the charges. This statement must be sent "by certified or registered mail, return receipt requested, or by personal delivery to the employee." Id. Education Law § 3020-a further provides that the employee may request a hearing within ten days of receipt of the charges. The charges must detail the potential maximum penalties the teacher faces if the teacher does not request a hearing or is found guilty after a hearing. After the ten days have passed, the right to the hearing is deemed waived. If no hearing is held, DOE will hold an inquest to determine the appropriate punishment.
A. Petitioner's claim that she was wrongfully terminated without a hearing
Petitioner's argument that Education Law § 3020-a(2)(c) requires receipt of the charges for the ten-day period to begin running, hinges on her contention that she never actually received proper notice. However, DOE properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that petitioner failed to pick them up from the post office, not that they were improperly sent. Given respondents' proof of mailings, the court is not persuaded by petitioner's statement that she did not receive the Notice of Charges or the Charges. Respondents produced properly executed affidavits demonstrating that both the Notice of Charges and the written statement detailing the Charges were mailed with proper postage and to the correct address, an address which matched that of the Michael Best letter and the June 4 letter from the Chancellor — two letters petitioner does not deny receiving. Evidence of proper mailing creates a presumption of receipt of the regular mail. Engel v. Lichterman, 95 A.D.2d 536, 538 (2d Dept 1983), affd 62 N.Y.2d 943 (1984); Caprino v. Nationwide Mut. Ins. Co., 34 A.D.2d 522 (1st Dept. 1970). Petitioner's bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received. Azcona v. Salem, 49 A.D.3d 343, (1st Dept. 2008); Flushing Nat'l Bank v. Rich-Haven Motor Sales, Inc., 123 A.D.2d 663 (2d Dept. 1986). It was not arbitrary or capricious for DOE to proceed with the inquest after properly mailing multiple letters informing petitioner of the situation.
Nor can this court agree with petitioner's argument that her due process rights under the New York State Constitution were violated. It is well established that notice will be constitutionally sufficient as long the "notice [is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Silverstein v. Minkin, 49 N.Y.2d 260, 262 (1980) quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314 (1950). Here, respondents sent relevant correspondences and notifications through reliable and reasonable means.
In Harner v. County of Tioga, 5 N.Y.3d 136 (2005), the court addressed the issue of due process and an "unclaimed" notice sent by certified mail, as well as regular mail, in an Article 78 proceeding. In its decision, the Harner court held that "unclaimed" certified mail did not render the notice deficient and that plaintiff's due process rights were not violated. Id. at 141 See also Temple Bnai Shalom of Great Neck v. Village of Great Neck Estates, 32 A.D.3d 391 (2d Dept. 2006). Certified mail returned as "unclaimed" is not indicative of improper service, it is merely indicative of the recipient's failure to go to the post office and pick up the certified letter after three attempts oatdelivery. Cadle Co. v. Tri-Angle Assocs., 18 A.D.3d 100, 104 (1st Dept. 2005). Indeed, the Harner court distinguished between certified mail returned as "unclaimed" and certified mail returned as "undeliverable." Harner, supra. at 140. The instant case demonstrates why this is an important distinction.
B. Petitioner's claim that the Panel ought to have considered whether her failure to request a hearing was excused
As for the petitioner's second claim, the timeline petitioner provides indicates that there was a period of at least six days where petitioner definitively knew that she faced possible termination by the Panel. While it is possible that petitioner knew of the charges for a much longer period, the fact that she spoke with her attorney on May 15, 2007, and he informed her of DOE's plan to move forward with the inquest, means that petitioner had at least some opportunity to offer an excuse. She did not do so. The ten-day period to request a hearing is irrelevant in this analysis because this discussion relates only to the failure by petitioner to offer an excuse at some point for not requesting a hearing. Respondents aptly note that petitioner's attorney is General Counsel for New York State United Teachers, the parent union of the United Federation of Teachers, and is familiar with the means of offering an excuse before an inquest, even if the process had to be expedited. Petitioner, thus, had ample time to offer an excuse before the inquest.
It defies logic to argue that the Panel wrongly proceeded with the inquest without considering whether petitioner's failure to request a hearing was excused, when no excuse was offered either during the six-day period before the inquest, or even shortly after the inquest. Petitioner did not take any action to stop the inquest or challenge its holding until serving DOE on August 24, 2007, with her claim to be reinstated. This was fully three months after the inquest. Granting petitioner's second claim would undermine the finality of administrative decisions by entertaining an excuse months after the excuse should have properly been offered. DOE's decision to proceed with the inquest without entertaining the possibility that the failure to request a hearing was excused was not arbitrary or capricious and does not shock the judicial conscience. Accordingly, it is
ORDERED and ADJUDGED that the application by petitioner seeking to vacate and annul the determination by respondent is denied and the proceeding is dismissed. The clerk shall enter judgment accordingly.