In the Matter of Roxanne Adrian, Appellant,v.Board of Education of City School District of City of Niagara Falls et al., Respondents.

Brief

N.Y.January 8, 2013

To be Argued by: MICHAEL F. PERLEY, ESQ. .. STATE OF NEW YORK Estimated Time for Argument: (20 Minutes) illnurt·_nf 1\pptala In the Matter of the Application of ROXANNE ADRIAN, Petitioner-Appellant, For an Order and Judgment Pursuant to Article 78 of the C.P.L.R. vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NIAGARA FALLS and CYNTHIA A. BIANCO, in her capacity as Superintendent of Schools, Respondents-Respondents. Appellate Division Docket Number: CA 11-01545. Niagara County Index No.: 139334. BRIEF FOR RESPONDENTS-RESPONDENTS MICHAEL F. PERLEY, ESQ. TODD C. BUSHWAY, EsQ. CASSANDRA A. KA.zuKENUs, EsQ. Of Counsel HURWITZ & FINE, P.C. Attorneys for Respondents-Respondents 1300 Liberty Building Buffalo, New York 14202 Telephone: (716) 849-8900 Facsimile: (716) 855-087 4 Date of Completion: October 10, 2012 BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... .iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ....... .-................................................................................ 2 ARGUMENT ............................................................................................................. 9 POINT I: The Process Used to Terminate Adrian Fulfilled All Necessary Due Process Requirements ......................................... 9 POINT II: Adrian Was Not Entitled To A Hearing Under Education Law §3020-a Because Her Removal Was The Result Of Her Violation Of A Condition Of Employment Rather Than Misconduct Or Incompetency ............................................ 17 A. By Its Very Terms, Education Law §3020-a Is Not Applicable In This Case ............................................................ 18 B. This Court's Decision in Felix v. New York City Dept. of Citywide Admin. Services Answers the Question of Whether Noncompliance With a Residency Policy is Misconduct. ............................................................................... 23 POINT III: The Standard Of Review By The Court Is Whether The Board's Decision To Terminate Adrian Was Arbitrary And Capricious ..................................................................................... 29 POINT IV: The Board's Finding That Adrian Was Not In Compliance With The Residency Policy Was Not Arbitrary And Capricious .................................................................................... 31 A. The Residency Policy Was Clear And Unambiguous .............. 31 B. There Were Clear Administrative Procedures And Guidelines In Place Which Were Complied With By The Board ......................................................................................... 37 C. Differing Outcomes Does Not Automatically Demonstrate Disparate Facts. Rather, The Specific Facts 1 And The Evidence Presented Was The Driving Force Behind Different Results In The Cases Cited By Adrian ......... 41 POINT V: The Appellate Division Did Not Have Authority To Review The Weight Of The Evidence Before It ........................ .43 POINT VI: The Board Did Not Deviate From Factually Similar Precedent In Determining Adrian Was Not In Compliance With The Residency Policy ........................................................ .46 CONCLUSION ........................................................................................................ 48 11 TABLE OF AUTHORITIES Cases 508 Realty Associates LLC v. New York State Division of Housing and Community Renewal, 61 A.D.3d 753 (2nd Dept. 2009) ................................ .30 Black & Decker US., Inc. v. NYS Dept. of Labor Industrial Bd. Of Appeals, 177 A.D.2d 948 (4th Dept. 1991) .................................................................. .33 Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) ............................ 9 Boddie v. Connecticut, 401 U.S. 371 (1970) ........................................................... 10 Brad H v City of New York, 17 N.Y.3d 180 (2011) ............................................... 33 Chauvel v. Nyquist, 43 N.Y.2d 48 (1977) .......................................................... 29, 30 Claim of Martin, 70 N.Y.2d 679 (1987) .................................................................. 46 Cleveland Board of Education v. Loudermill, 470 U.S.532 (1985) ........................................................... 9, 10, 11, 14, 15, 16 Connally v. General Construction Co., 269 U.S. 385 (1926) ................................. 33 Coriou v Nyquist, 33 A.D.2d 580 (3rd Dept. 1969) .................................................. 22 Currier, McCabe & Assoc., Inc. dba CMA Consulting Services v. Maher, 75 A.D.3d 889 (3rd Dept. 2010) ..................................................................... 33 De La Concha v Fordham Univ., 292 A.D.2d 662 (3rd Dept. 2002) ................ .46, 47 Ellis v Ambach, 124 A.D.2d 854 (3rd Dept. 1986) .................................................... 31 Evans v Famous Music Corp., 1 N.Y.3d 452 (2004) .............................................. 33 Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498 (2004) ........................................................ 23, 24, 25, 26, 28, 29 Fineway Supermarkets, Inc. v. State Liquor Authority, 48 N.Y.2d 464 (1979) ...... 36 Fitzpatrick v Bd. of Educ. of Mamaroneck Union Free School Dist., 96 A.D.2d 557 (2nd Dept. 1983) .............................................................. 21, 22 Guido v. NYS Teachers' Retirement Sys., 94 NY2d 64 (1999) ................................ 29 111 Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877 (2nd Cir. 1996) ......................................................................... 16 In re Auerbach v. Bd ofEduc., 86 N.Y.2d 198 (1995) ........................................... 18 In re Blaize, v Klein, A.D.3d 759 (2nd Dept. 2009) ................................................ .40 In re Kordes, 192 Misc. 626 (Surrogates Court, Queens 1948) ............................. .34 In re Lehman, v. Bd of Ed. of the City School District of the City of New York, 82 A.D.2d 832 (2nd Dept. 1981) ................................................. .40 In re Rodriguez v Goard, 260 A.D.2d 736 (3rd Dept. 1999) ................................... 30 In re Syquia, v. Bd. of Ed. of the Harpursville Central School District, 80 N.Y.2d 531 (1996) .................................................................................... 40 Interboro Institute, Inc. v. Foley, 985 F.2d 90 (2nd Cir. 1993) ................................ 16 Kinsella v. Board of Education, 378 F.Supp. 54 (W.D.N.Y. 1974) .......................... 9 Lighthouse Shores, Inc. v. Islip, 41 N.Y.2d 7 (1976) .............................................. 32 Mandelkern v. City of Buffalo, 64 A.D.2d 279 (4th Dept. 1978) ............................. 26 Mannix v Bd. of Ed. ofCity ofNew York, 21 N.Y.2d 455 (1968) ........................... 21 Marcus Assoc. v. Town of Huntington, 45 N.Y.2d 501 (1978) ............................... 32 Martin v. Amblach, 111 A.D.2d 1009 (3rd Dept. 1985) ........................................... 30 Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174 (1969) ................. 31, 44 Matter of Charles A. Field Delivery Serv., Inc., 66 N.Y.2d 516 (1985) ................ .46 Moritz v. Bd. OfEduc. Of Gowanda Cent. School Dist., 60 A.D.2d 161 (4th Dept. 1977) ..................................................................... 27 Nissho Iwai Europe v Korea First Bank, 99 N.Y.2d 115 (2002) ........................... 33 O'Connor v Bd. of Educ. of City School Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4th Dept. 2008) ........................................... 22, 23, 25, 26, 29 Orens v Novello, 99 N.Y.2d 180 (2002) .................................................................. 18 IV Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205 (1976) ............ 18 Pel! V. Board Of Education Of Union Free School District No. 1 Of The Towns Of Scarsdale And Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974) ........................................................................ 30, 31, 44 People v. Vetri, 309 N.Y. 401 (1955) ...................................................................... 33 Perry v. Sindermann, 408 U.S. 593 (1972) ............................................................... 9 Poster v Strough, 299 A.D.2d 127 (2nd Dept. 2002) ............................................... 30 Prue v. Hunt, 78 N.Y.2d 364 (1991) ....................................................................... 14 Reedv. Medford Fire Department, Inc., 806 F.Supp. 594 (E.D.N.Y. 2011) .......... 16 Robertv. Kurzius Inc. v. Upper Brookvile, 51 N.Y. 2d 338 (1980) ........................ 32 Spaid v. Liverpool Central School District, 169 Misc.2d 41 (Supreme Court, Onondaga County 1996) .......................... 30 Stone v Gross, 25 A.D.2d 753 (2nd Dept. 1966) ...................................................... 32 Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 N.Y.2d 61 (1979) ...................................................................................... 32 Statutes New York Civil Service Law §75 ............................................. 23, 24, 25, 26, 27,28 New York Civil Procedure Laws and Rules Article 78 ............................... 16, 24, 44 New York Education Law §2554 ........................................................................... .32 New York Education Law §3020-a .................. 17, 18, 20, 21, 22, 25, 26, 27, 28, 29 Ohio Revised Code Annotated §124.34 (1984) ....................................................... 10 Other Authorities Siegel, New York Practice, § 561 (5th ed. 2011) ..................................................... .44 v PRELIMINARY STATEMENT CYNTHIA A. BIANCO, as Superintendent of Schools of the Niagara Falls City School District, Niagara Falls, New York and THE NIAGARA FALLS BOARD OF EDUCATION, Respondents-Appellants-Respondents in this matter, submit this brief in reply to Petitioner-Respondent-Appellant Roxanne Adrian's ("Adrian") brief to this court dated August 27, 2012. 1 STATEMENT OF FACTS On February 3, 1994, the Niagara Falls City School District (the "District") adopted the following Residency Policy: RESIDENCY POLICY The Niagara Falls Board of Education requires that employees hired or promoted after the effective date of this policy, be residents of the City of Niagara Falls and maintain their residency during their term of employment. Effective Date: March 1, 1994 (A. 184) Following the adoption of the policy, the District adopted residency regulations which define "residency" as follows: Residency shall mean, for the purpose of this policy, an individual's actual principal domicile at which he or she maintains usual personal and household effects. (A. 185) Additionally, the regulations provided for a procedure for making determinations with regard to potential violations of the Residency Policy. That procedure, as set forth in the regulations, is as follows: E. Violation of Residency Requirement Any Niagara Falls Board of Education employee alleged to be in violation of this policy shall be given written notice of the alleged violation by the Human Resources Office. The employee will have seven (7) calendar days in which to respond in writing. 2 If after investigation the Board of Education continues to believe the employee is in violation of the residency policy, the Superintendent of Schools shall institute the necessary proceedings to terminate the individual's employment status with the school district. (A. 186) Petitioner/Respondent, Roxanne Adrian ("Adrian"), began her employment with the District in July of 2003. (A. 190) When hired, Arian completed an Employment Agreement, which included her affirming that she had read and understood the District's Residency Policy. (A. 186) At the time she was hired, Adrian did not live in the City of Niagara Falls. (A. 192) In December of 2003, the District wrote to Adrian to remind her of her obligation to move into the City of Niagara Falls. Adrian responded by requesting an extension of time in which to move. (A. 193) In February of 2004, Adrian formally applied for an extension of time to comply with the Residency Policy. (A. 195) This extension request was approved by the District at a Board meeting on February 26, 2004. (A. 201 ). On August 11, 2004, Adrian submitted to the District a change of address form, notifying the District that she now resided at a Niagara Falls address, namely 205 73rd Street. (A. 203) In August of 2006, Adrian submitted to the District a change of address for mailing only. The mailing address was now a post office box in Niagara Falls. (A. 204) 3 In late 2008 and early 2009, the District began an investigation regarding employee compliance with the District's Residency Policy. Adrian was included in this investigation, which included a Westlaw search of addresses on January 2, 2009. (A. 207) The Westlaw search revealed that Adrian's current address was 162 Garden Parkway, Williamsville, New York, the address Adrian gave when she began working for the district in 2003. It also listed 1750 Genesee Street, Buffalo, New York, 622 Cottonwood Drive, Buffalo, New York, and 1424 Northwood Drive, Buffalo, New York as previous addresses. (A. 207-223) Adrian's claimed address of 205 73rd Street, Niagara Falls, New York was not among the addresses listed. Because this investigation showed that Adrian and other employees were not in compliance with the Residency Policy, a presentation was made to the District's Board of Education on February 5, 2009. (A. 224-225). An inquiry was also made to the New York State Education Department on March 25, 2009 regarding Adrian. Records maintained by that Department showed that Adrian resided at 162 Garden Parkway, Williamsville, New York. (A. 226) A records search also showed that the address listed on the registration for Adrian's vehicle is the 162 Garden Parkway address. Because the District suspected Adrian was not in compliance with the District's Residency Policy, sent correspondence to her on April 1, 2009, via certified mail, advising her of this charge and scheduling a conference to address 4 the issue on April 28, 2009. (A. 228) In that correspondence, Adrian was advised that she was entitled to have union representation and or an attorney present and further advised as to what types of documentation she might bring to support a claim that she was in compliance with the Residency Policy. At the request of Adrian and her attmney, the meeting was rescheduled to May 12, 2009. This change was confirmed via correspondence dated April 30, 2009. (A. 229) That correspondence repeated the allegation against Adrian and again advised her that she was entitled to have union representation and or an attorney present and advised her as to what types of documentation she might bring to support a claim that she was in compliance with the Residency Policy. (A. 229) The hearing took place on May 12, 2009. At that hearing, Adrian identified her primary domicile as 205 73rd Street, Niagara Falls, New York. Adrian stated that she lives on the second floor of that location. That second floor does not have a full kitchen, containing only a small refrigerator and microwave. Adrian identified 162 Garden Parkway, Williamsville, · New York, the location where the District suspected she truly resided as a home where she resided during the summer month only and as a location she shares with a friend. Adrian stated she maintained a landline phone at the Williamsville address. No landline phone was maintained at the Niagara Falls address. During the hearing Adrian and her 5 attmney also presented certain documentary evidence to support her claim that she resided in Niagara Falls. (A. 223-243) In spring of 2009, the District engaged Probe Services to conduct an investigation, including surveillance, of Adrian and her place of residence. That investigation showed Adrian to be residing in Williamsville, New York. The surveillance confirmed that on the five occasions during which surveillance was taken of Adrian, she was never observed at the Niagara Falls address she claimed as her residence. In fact, the surveillance shows that on March 23, 2009, March 24, 2009 and May 29, 2009, Adrian was at the 162 Garden Parkway, Williamsville, New York residence in the early morning hours. On April 1, 2009 and May 28, 2009, Adrian proceeded to the Williamsville address after work hours. At no point did Adrian ever go to the Niagara Falls address she claimed as her residence. This evidence directly contradicted Adrian's claim that 205 73rd Street, Niagara Falls, New York was her domicile, and evidenced that Adrian was in fact residing at the Garden Parkway residence full time. (A. 280-289) By correspondence dated May 14, 2009, Adrian's union wrote to the District's Administrator for Human Resources to follow up on items and issues discussed at the May 12,2009 hearing. (A. 279) The results of the Probe investigation, as well as the additional documents provided by Adrian, were reviewed by the Board on July 28, 2009. (A. 6 291-297) Upon review of the evidence presented to it, the Board detennined that Adrian did not in fact reside at the 205 73rd Street address in Niagara Falls or any other property within the City of Niagara Falls and therefore was in violation of the District's Residency Policy. The Board directed the District to initiate the process of terminating Adrian. A formal letter affording Adrian seven (7) days to respond to the Board's initial determination was sent to Adrian on July 30, 2009. (A. 298) In response, Adrian's attorney, seeking to resolve the matter to Adrian's satisfaction, exchanged correspondence dated August 4, 2009, with Philip Mohr, the District's Director of Human Resources. (A. 299) This communication resulted in a further meeting held on August 18, 2009. (A. 2303) At that meeting, Adrian was afforded an opportunity to be heard by District officials and to provide further proof of her domicile. (A. 303) Following that meeting, Adrian's attorney, via correspondence dated August 20, 2009 submitted additional documentation in an attempt to document that Adrian resided at 205 73 rd Street address. These materials included a voter's registration card, Time Warner account information and a change of address confmnation. (A. 304) By letter dated August 21, 2009, Mohr informed Ms. Adrian a recommendation to terminate her for non-compliance with the Residency Policy would be made to the Board at its September 24, 2009 meeting. (A. 308) 7 The District advised Adrian's attorney, by letter dated September 10, 2009, that it had reviewed her recent submissions and that the Board remained of the opinion that she was not in compliance with the Residency Policy. (A. 31 0) By letter dated September 11, 2009, Ms. Adrian's attorney then sent a copy of a rental agreement for property located at 611 Chasm Avenue, Niagara Falls, New York. (A. 311) That agreement, between Brad Cline and Amy Reesor, Geoffrey Reesor and Ms. Adrian, purported covered the time period of April 2009 through September 30, 2009. This lease is inconsistent with Ms. Adrian's indication at the May 12, 2009 affirmation hearing that her address was 205 73rd Street and that she lived at 162 Garden Parkway in the summers. (A. 312) On September 24, 2009, Adrian was in fact terminated by the Board along with other employees also found to be in violation of the Residency Policy. Adrian was advised of the Board's determination via correspondence dated October 10,2009. (A. 318). She then commenced this proceeding. 8 ARGUMENT POINT I: The Process Used to Terminate Adrian Fulfilled All Necessary Due Process Requirements. Constitutional due process guarantees that certain substantive rights, including life, liberty and property interests shall not be taken away from a person without a process or procedure that passes constitutional muster. Cleveland Board of Education v. Loudermill, 470 U.S.532, 541 (1985). This right to due process flows not from any legislative right or mandate, but is derived directly from the Constitution. Cleveland Board of Education v. Loudermill at 541. The primary question for any due process analysis is first to determine that a protected property interest exists. The presence of a protected property right is a necessary predicate for the viability of a constitutional claim. Cleveland Board of Education v. Loudermill at 538. In this case, clear precedent holds that a tenured school teacher possesses a protected property right in his or her employment. See e.g. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), Perry v. Sindermann, 408 U.S. 593 (1972), Cleveland Board of Education v. Loudermill at 538, Kinsella v. Board of Education, 378 F.Supp. 54 (W.D.N.Y. 1974). Based upon this controlling case law, there is no doubt that Adrian possessed a property interest in her employment with the Niagara Falls School District. There can be no doubt that Adrian's due process rights were both satisfactorily and appropriately 9 protected during the proceedings that terminated her employment with the Niagara Falls City Schools. In Cleveland Board of Education v. Loudermill, the court set forth the basic requirements that were necessary for the satisfaction of due process guarantees. These elementary rights, required when a protected property right is impacted, are, at their most basic form, notice of the allegations or charges against the holder of the property right and an occasion to respond to those charges. Put most simply, the "tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Board of Education v. Loudermill at 546. Once it is determined that a person possesses a protected property right or interest, there is no set formula or equation that determines what is the requisite due process. "The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, 401 U.S. 371, 378 (1970). The central question in this case is then whether the process and proceedings in this case were of such a nature as to have afforded Adrian her due process rights. In Cleveland Board of Education v. Loudermill, the removal of the tenured teacher was done pursuant to an Ohio statute that set forth a defined process. Ohio Revised Code Annotated §124.34 (1984) A portion of the process included in that 10 statute was the right to a post termination hearing. In finding the process in Cleveland Board of Education v. Loudermill constitutional, the Supreme Comt explicitly noted that this post termination hearing was a part of the constitutional due process owed the dismissed teacher. Cleveland Board of Education v. Loudermill, at 546-547. Accordingly, a post deprivation hearing is required. In this case, Adrian was provided with clear notice of the allegation against her (that she was not in compliance with the District's Residency Policy) and provided with several opportunities prior to the Board of Education making its ultimate decision to terminate her. On Apri11, 2009, the District sent to Adrian a letter, via certified mail, advising her that the Board had reason to believe she was in violation of the District's Residency Policy and that her continued employment with the district was at risk because of that violation. (A. 228) That letter further advised that a conference was scheduled to review that matter on April 28, 2009 and that Adrian was requested to bring certain documentary items to show her compliance with the Residency Policy. The letter also advised Adrian was entitled to be accompanied by her union representative and or her attorney. That meeting was later rescheduled to May 12, 2009, as shown by the District's letter, again sent via certified mail, dated April30, 2009. (A. 229) On May 12, 2009 a meeting was held by the District regarding its allegation that Adrian did not properly reside in the City of Niagara Falls. Adrian was 11 present and accompanied by her personal attorney. (A. 233-243) During that meeting, Adrian was able to directly answer questions and articulate her position regarding her residency. In addition, she and her attorney were allowed to present what they represented was documentary evidence supporting her contention that she resided in Niagara Falls. (A. 244-276) The District, via correspondence dated July 7, 2009, then forwarded to Adrian a smmnary of the May 12, 2009 meeting. (A. 290) On July 30, 2009, the District again wrote to Adrian and advised her that the District continued to believe her to be in violation of the District's Residency Policy, and that she had seven days to respond to the alleged violation and that she faced the possibility of termination as a result of the charge. (A. 298) The allowance for seven days to respond was in keeping with the express terms of the Residency Policy. (A. 186) In response to the July 30, 2009 letter from the District, Adrian 's personal attorney responded to the District via correspondence on August 4, 2009. (A. 299) The next step was a meeting between Adrian, her counsel, the District's Administrator for Human Resources and the Board's attorney that took place on August 18, 2009. Adrian was advised of this meeting via correspondence on August 14, 2009 and specifically told that it was her right to have her union representative and or attorney present at the meeting and that at that meeting, the District would share with her the documentation the District had 12 regarding her noncompliance with the Residency Policy. (A. 302) That meeting took place as scheduled and the charges against Adrian and the additional evidence relied upon by the District, including a surveillance report, were shared with Adrian. (A. 303 ) Following that meeting, Adrian's counsel followed up with the attorney for the District by correspondence dated August 20, 2009 and presented additional materials Adrian believed supported her position. (A. 304-307) The next step in the process was correspondence from the District's Administrator for Human Resources dated August 21, 2009, that told Adrian a recommendation to tenninate her for non-compliance with the Residency Policy would be made to the Board at its September 24, 2009 meeting. (A. 308) The District then advised Adrian's attorney, by letter dated September 10, 2009, that it had reviewed her recent submissions and that the Board remained of the opinion that she was not in compliance with the Residency Policy. (A. 31 0) · By letter dated September 11, 2009, Ms. Adrian's attorney then sent a copy of a rental agreement for property located in the City of Niagara Falls in attempt to show compliance with the Residency Policy. (A. 311) The Board of Education found this additional information unpersuasive and terminated her on September 24, 2009. (A. 318) 13 There can be no doubt that the basic elementary due process rights elucidated by the Supreme Court in Cleveland Board of Education v. Loudermill. That court mandated that the "tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Board of Education v. Loudermill at 546. This holding has been explicitly adopted by this Court, which has held that due process "demands no more than that the employees be given an explanation of the charges against them and opportunity to present their side of the story either in writing or in person." Prue v. Hunt, 78 N.Y.2d 364, 369 (1991). Due process "requires only notice and some opportunity to respond." Prue v. Hunt, 78 N.Y.2d at 369. In this case, Adrian was given clear written notice of the charge against her (noncompliance with the District's Residency Policy), together with a statement that the violation could result in the loss of her employment on at least 3 occasions: the District's letters of April1, 2009 (A. 228), April30, 2009 (A. 229) and July 30, 2009. (A. 298) In addition to these written notifications, the charges were also discussed orally at hearings held on May 12, 2009 (A. 233-243) and August 18, 2009. (A. 303) There can be no doubt that Adrian's right to either oral or written notice of the charges against her was satisfied in this case. 14 The second element of the due process mandate is the opportunity to both see the evidence against the interest holder and to present evidence and an explanation. This is the "explanation of the employer's evidence, and an opportunity to present his side of the story" specified by the Supreme Court. Cleveland Board of Education v. Loudermill at 546. There can be no doubt that this occurred in this case. Adrian was represented by counsel and allowed at two separate hearings, held on notice, to present to the School District documentary evidence that supported her position. In fact, the District made sure in its initial correspondence to her on April 1, 2009 (A. 228) to list examples of the types of documents and other evidentiary materials Adrian might secure and present in order to express and support her position. The record is also clear that Adrian took advantage of this opportunity, demonstrated in the summary of the May 12, 2009 hearing (A. 233-243), the record generated following the August 18, 2009 hearing (A. 303) and in her attorney's correspondence to the District on August 4, 2009, (A. 300) and August 20, 2009 (304) and September 11, 2009 (A. 311) which enclosed additional materials Adrian desired the Board to review. The record is also clear that through the two hearings Adrian counsel were provided with the documentary materials amassed by the Board to support its position. The summary of the May 12, 2009 meeting documents the materials shown to Adrian and her counsel during that meeting. (A. 233-243) In addition, 15 the meeting notes from the second meeting, held on August 18, 2009 with both Adrian and her counsel present, show that Adrian and her counsel were shown additional materials to support the District's position. (A. 303) There can be no doubt fi·om the clear record in this case that Adrian was given both the opportunity to review and examine the District's evidence against her and to present her own documentary evidence in support of her position. The due process requirements of notice and an opportunity to be heard were more than met in this case and there can be no credible claim of a lack of due process. As noted, the Court in Cleveland Board of Education v. Loudermill included in its analysis of due process the requirement of the Ohio statute for a post termination hearing, holding that this requirement was a necessary element of due process. Cleveland Board of Education v. Loudermill, supra at 546-547. This requirement is met in this case by the availability of a claim made pursuant to New York Civil Procedure Laws and Rules Article 78, the mechanism by which Adrian brings this claim. It is settled law that an Article 78 proceeding fulfills the requirements for a post deprivation hearing. See e.g. Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877 (2nd Cir. 1996), Interboro Institute, Inc. v. Foley, 985 F.2d 90 (2nd Cir. 1993); Reed v. Medford Fire· Department, Inc., 806 F.Supp. 594 (E.D.N.Y. 2011). 16 Constitutional due process requires the holder of a protected property right be given n~tice of the charges against them and a meaningful opportunity to respond prior to that protected right being taken away. The record is clear in this case that Adrian received both oral and written notice of the District's charge that she was in violation of the District's Residency Policy and was given several opportunities to both challenge the District's supporting documentation and to present her own evidence and explanation. Because these basic requirements were umnistakably met, there can be no credible claim of a due process violation. POINTll: Adrian Was Not Entitled To A Hearing Under Education Law §3020-a Because Her Removal Was The Result Of Her Violation Of A Condition Of Employment Rather Than Misconduct Or Incompetency. Adrian seeks to have this Court reverse the Appellate Division, Fourth Department's multiple decisions holding that a hearing pursuant to New York Education Law §3020-a, titled Disciplinary Procedures and Penalties, is inapplicable in cases dealing with·a residency requirement. This argument is made despite the clear language of this statute requires, as a prerequisite, charges of misconduct or incompetency. Adrian asserts that Education Law §3020-a is the exclusive procedure for any removal of a tenured teacher, regardless of reason. This argument is inconsistent with the very language of §3020-a. 17 A. By Its Very Terms, Education Law §3020-a Is Not Applicable In This Case. Education Law §3020-a's plain language specifies that it applies in those instances where there is a charge against the teacher of misconduct or incompetency. Adrian's assertions that §3020-a applies to the present scenario requires a strained reading of the statute, in clear contravention of the rules of statutory construction. When the question before the court is one of statutory interpretation, the court "begins with the language of the statute. If the terms are clear and unambiguous, 'the court should construe it so as to give effect to the plain meaning of the words used."' Orens v Novello, 99 N.Y.2d 180, 185 (2002), quoting In re Auerbach v. Bd. of Educ., 86 N.Y.2d 198, 204 (1995) quoting Patrolmen's Benevolent Assn. v. City ofNew York, 41 N.Y.2d 205, 208 (1976). At issue in this matter is the application of Education Law §3020-a to a situation where a teacher is being removed for a condition of employment and not for any misconduct, malfeasance or incompetence. Education Law §3020-a applies when a tenured teacher has been charged with misconduct or incompetence; two issues that directly pertain to the teaching ability of the teacher. Education Law §3020-a provides, in part: § 3020-a. Disciplinary procedures and penalties 18 1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed. (emphasis added) 2. Disposition of charges. a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, 19 return receipt requested or by personal delivery to the employee. (ftmphasis added) New York Education Law §3020-a(l) and (2) The statute is clear as to what triggers its application - there needs to be a charge brought against the teacher within "three years after the occurrence of the alleged incompetency or misconduct." Education Law § 3020-a (emphasis added). Then, if there is "probable cause to bring [ ... ] a disciplinary proceeding against an employee pursuant to this section," there is a written charge provided to the employee. I d. (emphasis added) Adrian seeks to have this Court hold that Education Law §3020-a applies regardless of whether the cause for the removal is misconduct, incompetence, or a result of a teacher's failure to remain in compliance with a condition of employment unrelated to his or her teaching competence. The language of Education Law §3020-a is clear. Education Law §3020-a applies when a charge regarding a teacher's misconduct or competency is at issue and discipline of the teacher is contemplated. The statute at issue does not mention or even allude to its application in instances where a teacher has failed to comply with a School District's policy unrelated to the teacher's ability to teach. The cases relied upon by Adrian in support of her position all relate to situations where the teacher had engaged in misconduct that negatively affected his or her ability to teach and/or an inability to competently teach the students. In contrast, the issue in 20 this matter is whether Education Law §3020-a in implicated by the failure of a teacher to abide by a condition of employment - a School District Policy requiring residency within the City of Niagara Falls. Adrian seeks to liken her termination with other "non-disciplinary" removals such as a lack of obtaining required certifications in order to assert that Education Law §3020-a applies even in non-disciplinary situations. This continues to ignore the plain language of this statute. The statute applies when there is a charge relating to the teacher's competence. The cases relied upon by Adrian even go to the teacher's competence to teach. For instance, in Mannix, a case where the tenured teacher failed to fulfill graduate course requirements, the court explained that "[i]f the failure of the petitioner to meet the preconditions attached to her permanent appointment adversely affected her competency to teach, this would be a valid ground for her removal on charges and after a hearing." (emphasis added) Mannix v Bd. of Ed. of City ofNew York, 21 N.Y.2d 455, 458 (1968). The Mannix case is clear that certification requirements go to a teacher's competency. Similarly, the charges brought against the tenured teacher in Fitzpatrick as a result of mental disability included "incapacity to teach, conduct unbecoming a teacher, and incompetency in carrying out his assigned duties and responsibilities as a teacher" because his serious personality disorder affected his ability to teach. (emphasis added) Fitzpatrick v Bd. of Educ. of Mamaroneck Union Free School 21 Dist., 96 A.D.2d 557 (2nd Dept. 1983). By its very nature of the charges, the behavior and condition at issue rose to the level of misconduct. In yet another case relied upon by Adrian, the court explained that physical disability can go to the teacher's ability to carry out his or her job duties. Coriou v Nyquist, 33 A.D.2d 580 (3rd Dept. 1969). In other words, mental or physical disability goes to the teacher's competence. The only case directly on point is O'Connor v Bd. of Educ. of City School Dist. of City of Niagara Falls. In O'Connor, the Appellate Division, Fourth Department was asked to determine whether dismissal of a teacher for violating the same residency policy at issue in this case was subject to Education Law §3020-a. O'Connor v Bd. of Educ. of City School Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4th Dept. 2008). The court explicitly held that Education Law §3020-a was inapplicable because the statute addresses "issues relating to a teacher's competency and the applicable disciplinary procedures and penalties attendant thereto, while the residency policy "is a consideration unrelated to job performance, misconduct or competency." ld. at 1255. Thus, under the plain language of Education Law §3020-a and 0 'Connor, it is clear that Education Law §3020-a is only applicable when a teacher is charged with misconduct or incompetence and does not apply in this instance. 22 B. This Court's Decision in Felix v. New York City Dept. of Citywide Admin. Services Answers the Question of Whether Noncompliance With a Residency Policy is Misconduct. Adrian argues that the Fourth Department, in its decision in O'Connor v Bd. of Educ. of City School Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4th Dept. 2008), improperly relied upon this Court's decision in Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498 (2004). In Felix, this Comi was asked to determine whether a permanent civil service employee's violation of a city code creating a residency requirement is misconduct which entitles him to a hearing under Civil Service Law § 7 5. Felix v New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498, 499 (2004). In 1986, New York City enacted a law that required certain civil service employees "to establish and maintain residence within the five boroughs of New York City as a condition of employment." !d. In 1993, Francisco Felix was hired by the New York City Department of Citywide Administrative Services ("DCAS") and pennanently appointed to a competitive class position which was subject to both the New York City residency law as well as Civil Service Law §75. !d. at 502. Despite swearing that he would comply with the residency requirement, DCAS became suspicious that Felix did not reside in the five boroughs and informed Felix of such. !d. at 503. Felix was asked to appear at a meeting to discuss this alleged 23 violation, and it was ultimately detennined that he was in violation of the residency requirements. Id. Thereafter, Felix was tenninated. Id. at 504. Upon dismissal Felix filed a CPLR 78 proceeding challenging his dismissal because he was not granted a pre-removal hearing under Civil Service Law §75. Id. The Court explained that there are two questions which it must answer. Id. at 505. The question relevant to our inquiry was "whether Felix's nonresidency was a forfeiture of employment or misconduct for which he was entitled to a preremoval hearing." Id. Upon review of the statute and the facts, this Court explained that "the act of failing to maintain one's residence within the municipality is separate and distinct from an act of misconduct by a municipal employee in the performance of his or her work." !d. This Court clarified that failure to maintain residence merely renders an individual "ineligible for continued municipal employment" under the New York City Code while "an act of misconduct invoke[s] Civil Service §75 disciplinary procedures" because residency requirements only define eligibility for employment rather than "misconduct to which civil service protections would apply." !d. Further, the residency requirement has a different purpose than Civil Service Law § 7 5. Because violation the residency requirement is not misconduct or incompetence on the part of the employee and the fact that Civil Service Law 24 §75 applies to 1nisconduct, this Court held that a pre-removal hearing under Civil Service Law §75 was not necessary. Id. at 506. The same is true in this matter. The District created a residency requirement as a condition of employment. As explained by this Court in Felix, residency requirements do not constitute misconduct or incompetency. The fact that a residency requirement is not misconduct or incompetency is not altered merely because the Felix case reviewed the applicability of the Civil Service hearing statute. Rather, what is applicable is this Court's clear holding that a residency requirement is a condition of employment totally unrelated to misconduct or incompetence. Despite Adrian's assertion, the court in O'Connor did not allege or assert that Felix decision was determinative of the issue of whether a tenured teacher is entitled to a hearing under Education Law §3020-a. Instead, recognizing that statutory interpretation of a disciplinary statute was at issue in both cases, the court looked to the Felix decision for guidance as to whether noncompliance with a mandatory residency policy constituted misconduct or incompetence. 0 'Connor, at 1255. The issue in both the Felix and O'Connor cases was whether violation of a residency policy was an offense which constituted misconduct under the relevant statutes. It making its decision, the Fourth Department followed clear and direct 25 precedent from this Court that is determinative on the issue before it: does failure to comply with a residency policy constitute misconduct? In addition to this Court's decision in Felix, the Appellate Division also reviewed its prior decision in Mandel kern v. City of Buffalo. In both Felix and Mandelkern, the courts found that violation of a residency policy "is a consideration unrelated to job perfonnance, misconduct or competency." Mandelkern v. City of Buffalo, 64 A.D.2d 279, 281 (4th Dept. 1978). In determining that a violation of a residency policy is not a charge of misconduct or competency, the Fourth Department held that Education Law §3020-a is "inapplicable inasmuch as they address issues relating to a teacher's competency and the applicable disciplinary procedures and penalties attendant thereto." O'Connor 48 A.D.3d at 1255. In O'Connor, the court reviewed the purpose and language of Education Law §3020-a and found that it only applied to a teacher's competency. Since a violation of a residency policy is unrelated to competency or misconduct, the statute does not apply. Additionally, comparisons between New York Civil Service Law §75 and Education Law §3020-a are appropriate given the fact that both statutes involve similar language setting forth when each is applicable. Civil Service Law §75.states, in relevant part: 1. Removal and other disciplinary action. A person described in paragraph (a) or paragraph (b), or paragraph (c), or paragraph 26 (d), or paragraph (e) of this subdivision shall not be renwved or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section. **** 4. Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime. (emphasis added). New York Civil Service Law §75. Upon reading Civil Service Law §75, it is clear that the proceedings required under this provision apply only where the employee is being removed as a result of incompetency or misconduct. Under Section 75 of the Civil Service the charges must be cmmnenced within a specified time frame after the "occunence of the alleged incompetency or misconduct." This language is nearly identical to Education Law §3020-a's requirement that "no charges under this section shall be brought more than three years after the occunence of the alleged incompetency or misconduct."1 Like Education Law §3020-a, it is clear that Civil Service Law §75 1 Adrian asserts that Moritz v. Bd. Of Educ. Of Gowanda Cent. School Dist., 60 A.D.2d 161 (4th Dept. 1977), held that "the protections afforded to civil servants under the Civil Service Law are 27 only sets fmih disciplinary proceedings for civil service employees subject to dismissal as a result of 1nisconduct or incompetency. As such, this Court's decision in Felix finding violation of a residency requirement is not misconduct or incompetency under Civil Service Law §75 addresses the same question at the herui of this matter; is violation of a residency policy misconduct or incompetency subject to the disciplinary procedures set forth under the Education Law? Under both Civil Service Law §75 and Education Law §3020-a there must be a charge of incompetence or misconduct in order for either statute's hearing requirements to be triggered. Thus a review of the court's decision in Felix is reasonable in light of the fact that both statutes at issue require a charge of misconduct or incompetency and the conduct at issue is the violation of a residency policy or statute. Adrian also asserts that her position is supported by the principle of statutory construction known as expression unius est exclusion alterius. In making such an argument, she ignores the basic tenet of statutory construction requiring statutes to be first read in the whole and in context rather than isolating selective portions of the statute. It is axiomatic that "[e]ffect should be given to all words of a statute, particularly where the relevant language forms part of an integral not legally equivalent to the rights of tenured teachers under the Education Law." This is an overstatement of the dicta in that case. Rather the court merely noted that the Civil Service Law and Education Law are similar, but that merit for employees under each statutory scheme is determined differently. 28 statutory scheme." Guido v. NYS Teachers' Retirement Sys., 94 N.Y.2d 64, 69 (1999). As noted by the Fourth Department in O'Connor, these sections of the Education Law pertain to issues of a teacher's competency and do not apply to conditions of employment unrelated to teacher competency. As set forth at length above, the plain and unambiguous language of Education Law §3020-a only requires a hearing for the removal of a tenured teacher when the removal is the result of misconduct or incompetency on the part of the teacher. This Court's finding in Felix that violation of a residency requirement is not related to misconduct or incompetency supports the Board's assertion that Education Law §3020-a was not implicated and a hearing under this statute is not required. The Fourth Depmiment properly determined that Adrian was not entitled to a hearing under Education Law §3020-a. POINTDI: The Standard Of Review By The Court Is Whether The Board's Decision To Terminate Adrian Was Arbitrary And Capricious. In its decision below, the Fourth Department's Decision applied the proper standard of review - was the Board's decision arbitrary and capricious? It is axiomatic that the inquiry on an appeal from a board decision is whether the determination at the board level was arbitrary and capricious, meaning that there was no rational basis for the decision. See e.g. Chauvel v. Nyquist, 43 N.Y.2d 48, 52 (1977), Pell V. Board Of Education Of Union Free School District No. 1 OfThe 29 Towns Of Scarsdale And Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974), 508 Realty Associates LLC v. New York State Division of Housing and Community Renewal, 61 A.D.3d 753, 754 (2nd Dept. 2009). In attempting to meet this standard, "the petitioner 'has an initial burden of presenting factual allegations of an evidentiary nature or other competent evidence.'" Poster v Strough, 299 A.D.2d 127, 138 (2nd Dept. 2002), quoting In re Rodriguez v Goard, 260 A.D.2d 736, 737 (3rd Dept. 1999). The Court below properly held Adrian to this standard and found her petition lacking. In asserting that the Board needed to demonstrate violation of the Residency Policy by the preponderance of the evidence, Adrian misstates the standard review. As noted, the proper standard of review at the trial court and appellate levels was whether it was rational to find that the Board did establish that Adrian violated the Residency Policy. Chauvel v. Nyquist, supra. The preponderance of the evidence standard cited by Adrian applies to the decision of the board at the board level. 508 Realty Assoc., LLC v New York State Div. of Hous. and Community Renewal, 61 A.D.3d 753 (2nd Dept. 2009), Martin v. Amblach, 111 A.D.2d 1009 (3rd Dept. 1985), Spaid v. Liverpool Central School District, 169 Misc.2d 41 (Supreme Court, Onondaga County 1996). In making its determination to terminate Adrian for violating the Residency Policy, the District was bound by the standard of whether a 30 preponderance of the evidence ·established that Adrian was in violation of the Residency Policy. Preponderance of the evidence is established when it more likely than not that Adrian had violated the Residency Policy. Ellis v Ambach, 124 A.D.2d 854 (3rd Dept. 1986). In reviewing the District's decision, the Courts are limited to the sole question of whether the administrative decision was arbitrary or capricious. Pell v. Bd. of Educ., supra at 231. "The courts cannot interfere unless there is no rational basis for the exercise of discretion [by the administrative tribunal] or the action complained of is arbitrary and capricious." Pell v. Bd. of Educ., supra at 231. A court must uphold the administrative decision as long as there was a rational basis for the decision. (Jd. ). In making that review, rationality is what the court is to consider, not the weight of the evidence. Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174, 178 (1969). In this case, the Court below properly found the District's decision rational. POINT IV: The Board's Finding That Adrian Was Not In Compliance With The Residency Policy Was Not Arbitrary And Capricious. A. The Residency Policy Was Clear And Unambiguous. Despite the Fourth Department proper reversal of the trial court's finding that the Residency Policy was vague and ambiguous, Adrian continues to 31 assert the trial court's decision was proper without providing any case law or reasoning in support of her assertion.2 A "Board of Education is empowered to adopt by-laws (Education Law, §2554, subd. 13) which have the force and effect of law if not in conflict with legislative enactment." Stone v Gross, 25 A.D.2d 753 (2nd Dept. 1966) a.ffd., 19 N.Y.2d 675 (1967). As such, the Residency Policy adopted by the Board in this matter is a legislative act and as such is presumed valid and constitutional. Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 N.Y.2d 61 (1979); Marcus Assoc. v. Town of Huntington, 45 N.Y.2d 501 (1978). Unless evidence is presented to prove otherwise, legislative acts remain valid and enforceable. Robert v. Kurzius Inc. v. Upper Brookvile, 51 N.Y. 2d 338 (1980). To overcome the presumption of validity, a petitioner must show, beyond a reasonable doubt that the statute or legislative act is unconstitutional. Marcus Assoc. v. Town of Huntington, supra.; Lighthouse Shores, Inc. v. Islip, 41 N.Y.2d 7 (1976). The presumed constitutionality of a legislative enactment is an "elementary but significant principle of law." Marcus Associates, Inc. v. Huntington, supra at 505. It is against this backdrop that the Residency Policy at issue in this matter must be evaluated. 2 A second appeal arising out of the Hon. Ralph A. Boniello' s decision resulted in a second opinion from the Fourth Department wherein his decision was upheld without any discussion regarding the enforceability of the Residency Policy. An appeal has been sought from this Court with regard to that decision. Respondents respectfully submit that for the reasons set forth above, the decision issued by the Fourth Department in this matter is proper. 32 For a legislative act to be found vague and ambiguous, it must be such that men of common intelligence must necessarily guess its meaning and differ as to its application. Connally v. General Construction Co., 269 U.S. 385, 391 (1926); People v. Vetri, 309 N.Y. 401 (1955). Moreover, when interpreting a contract, statute or administrative policy, the words and phrases contained therein are given their ordinary and plain meaning. See, Brad H v City of New York, 17 N.Y.3d 180 (2011). See also Currier, McCabe & Assoc., Inc. dba CMA Consulting Services v. Maher, 75 A.D.3d 889 (3rd Dept. 2010) (interpreting an employment contract and employee handbook), Black & Decker US., Inc. v. NYS Dept. of Labor Industrial Bd. Of Appeals, 177 A.D.2d 948 (4th Dept. 1991). The language of the agreement or policy should not be read in isolation but instead as a whole because it is the entire document that is being construed. Brad H v City of New York, 17 N.Y.3d 180 (2011). "Ambiguity is present if language was written so imperfectly that it is susceptible to more than one reasonable interpretation." Id. See also. Evans v Famous Music Corp., 1 N.Y.3d 452, 458 (2004); Nissho Iwai Europe v Korea First Bank, 99 N.Y.2d 115, 121-122 (2002). The trial court erred when it found that the phrase "personal and household effects" was ambiguous, leading to its decision that the Residency Policy was vague and ambiguous. The trial court failed to construe the document as a whole and instead interpreted an isolated phrase, "personal and household 33 effects" without looking to the entire Residency Policy to determine the meaning of the entire policy and the phrase itself. The lower court relied on a Surrogate Court's decision which merely stated that the phrase "personal effect" when used in a will has "no fixed meaning." In re Kordes, 192 Misc. 626 (Surrogates Court, Queens 1948). Nowhere in Kordes decision did the court find the phrase ambiguous. !d. Notably, the court explained that when interpreting this phrase in wills, one must look to the testator's intent as found in the will. !d. For example, if there is no further modification of the phrase by referencing specific types of items, the application of the phrase is general. Id. If there is no limitation, the phrase can be interpreted to signify "a broad group of articles generally associated with the physical person of the testator or even all the personal property owned by him." !d. The trial court misconstrued the Kordes decision. When it found that the phrase "personal and household effects" as used in the District's Residency Policy was ambiguous, it failed to read this phrase in conjunction with the intent behind the Residency Policy. The Residency Policy clearly and unmistakably seeks to enforce a policy wherein the employees of the Niagara City School District maintain a domicile in the City of Niagara Falls. When the phrase "personal and household effects" is read together with the purpose of the District's Residency Policy, it is clear the Residency Policy defmes residence as the location 34 where the employee keeps the majority of their personal property. There is no other reasonable interpretation of this phrase when the phrase is read in its complete context. A review of the Residency Policy shows that the Policy clearly sets forth what is required of any affected district employee and a straightforward definition of residency. The Policy simply states that: Residency shall mean, for the purpose of this policy, an individual's actual principal domicile at which he or she maintains usual personal and household effects. **** Every person appointed by the Board of Education after the adoption of this Policy, except substitute positions, shall as a qualification for employment become a resident of the City of Niagara Falls within six (6) months of the date of appointment to the School District". (A. 185) The plain and ordinary meaning of the phrase "personal and household effect" is a reference to the personal property generally associated with the physical person and included the personal property owned by the person. Indeed, even if the phrase is read in isolation rather than in the context of the Residency Policy, the phrase references an individual's personal belongings. It is evident to the average person that the District will consider an employee's residence to be the location where they keep their personal property and belongings rather than a location which contains none or only a few of these items. As such, the defmition of 35 residence in the Residency Policy establishes an objective standard upon which the Board can rely upon to make a detennination as to whether an employee of the District is in compliance with the Residency Policy. When the trial court held that the Residency Policy was vague and unenforceable without finding that the Policy was unconstitutional it was an error and incorrect basis upon which to find the Board's actions arbitrary and capricious. Furthermore, the Board's interpretation of the defmition of "residence" and the phrase "usual household and personal effect" should be given deference as long as that interpretation is not irrational, unreasonable or inconsistent. See, Fineway Supermarkets, Inc. v. State Liquor Authority, 48 N.Y.2d 464 (1979). A review of the entire Residency Policy clearly demonstrates that the purpose of the Policy is to ensure that the teachers who work for the City of Niagara Falls School District reside within the school district. Keeping the purpose of the Residency Policy in mind, it is reasonable to interpret the phrase, as the Board did, to mean that a teacher's residence is the location where they keep the majority of their belongings and spend the majority of their time. A residence under the Board's policy is not an address where only the bare necessities are kept for the occasional stay. Under the Residency Policy, an employee must reside in the City of Niagara Falls as a qualification for employment. A person of common intelligence knows that "principal domicile" is the one he or she intends to make his/her 36 permanent home where his/her personal and household effects are maintained and where his/her family lives. It is not the unfinished basement of an otherwise occupied single family home or a bedroom in an apartment with strangers, when that person has a home where their family resides and carries out the elements and activities of daily life. The Residency Policy is informative and clear on its face, and requires no guessing as to its meaning and application. As such, the trial court erred in determining the Residency Policy was vague and unenforceable, and the Fourth Department was correct when it upheld the Residency Policy. B. There Were Clear Administrative Procedures And Guidelines In Place Which Were Complied With By The Board. The Residency Policy provides that "The Superintendent of Schools is authorized and directed to establish administrative procedures and guidelines consistent with and to give full effect to the district's residency policy." In this case the Residency Policy contains within its written content all necessary procedures and guidelines for the implementation of the Residency Policy. Whether or not the Superintendent established written procedures or guidelines beyond the Residency Policy does not affect the validity of the Policy. The Policy provides the following procedural requirements: 37 1. All subject employees are to become a resident within six months of their date of appointment (Section B) or within six months of their promotion (Section C); 2. A six month extension may be granted to allow a new employee (Section B) or newly promoted employee (Section C) to come into compliance with the residency requirement; 3. A copy of the Residency Policy shall be given to all newly hired or promoted employees (Section D); 4. Written notice of an alleged violation of the policy is to be given to any employee suspected of not complying with the policy (Section E); 5. Any employee receiving written notice of an alleged violation shall have seven days to respond (Section E); 6. Termination proceedings shall be undertaken only after further investigation and a belief by the Board of Education that the employee remains in violation of the policy. (Section E). (A. 183-189) This delineated set of procedures gives the District and its employees a clear understanding of what is expected and required. The procedures set forth in the Residency Policy require the Human Resources Office to provide written notice to the employee, allows an opportunity to respond and for further investigation. After those steps, if the District continues to believe the employee is in violation of the policy, the proceedings required to terminate employment are commenced. Because this clear set of guidelines is demarcated in the Residency Policy itself, it was not necessary that additional administrative procedures be 38 established by the Superintendent, and the lack of such did not affect the validity of the Residency Policy. In the instant case, the delineated procedures were followed. Consistent with the District's Residency Policy, written notice and a full opportunity to respond, was given to each effected employee, including Adrian. The Superintendent required residency affirmation meetings to be conducted prior to a recommendation to the Board for each of the employees investigated. These hearings served to allow participation by the affected employee into the investigation regarding the actual domicile of the District employee and an opportunity to present any evidence of residency and domicile the employee felt necessary. The hearing was followed with a written summary of the meeting. If additional investigation was needed, supplementary meetings or surveillance was conducted in order to ensure a thorough investigation had been conducted. Upon completion of the investigation, the Superintendent then submitted to the Board her conclusions regarding compliance with the Residency policy and the Board, after reviewing the evidence, would then make the final determination. Under this procedure, the Board reviewed the evidence submitted by the Superintendent and made a decision as to whether the employee was in compliance with the Residency Policy. The Superintendent and Board both followed the administrative provisions set forth in the Residency Policy during 39 both the investigation and subsequent termination of Adrian for violation of the Residency Policy. Even assuming arguendo the procedures set forth in the Residency Policy were not followed, the termination of Petitioner remains proper. Not all deviations from procedure requirements render an administrative decision void. In re Syquia, v. Bd. of Ed. of the Harpursville Central School District, 80 N.Y.2d 531 (1996). Reversal of an administrative decision is appropriate only when the procedure is mandatory or substantial prejudice can be shown as a result of the decision. Id. To determine whether the procedure was mandatory, the reviewing · court must evaluate the policy or regulation setting forth the procedure in question. "An adverse agency determination must be reversed when the relevant agency does not comply with either a mandatory provision, or one that was 'intended to be strictly enforced'" In re Blaize v Klein, A.D.3d 759 (2nd Dept. 2009) citing In re Lehman, v. Bd. of Ed. of the City School District of the City of New York, 82 A.D.2d 832, 834 (2nd Dept. 1981). In this instance, the Residency Policy specifically set forth procedures to be complied with. These procedures required a letter from Human Resources setting forth the alleged violation, allowing the employee seven days to respond, with the implementation of termination proceedings if the Board continued to believe the employee had violated the Residency Policy. These steps were 40 complied with by the District and Board. Adrian relies upon one sentence in the Residency Policy for her assertion that the procedures set forth in the Residency Policy were not followed. This provision states "The Superintendent of Schools is authorized and directed to establish administrative procedures and guidelines consistent with and to give full effect to the district's residency policy." (emphasis added). (A. 189) Nowhere in this provision is there a requirement that the Superintendent create administrative procedures and guidelines. Rather, the phrase merely grants the authority to create such guidelines and procedures deemed necessary to fully implement the policy. Thus, the provision at issue in this matter is not a mandatory provision requiring compliance. Here, since the Policy itself contained within its own borders a full and complete set of guidelines and procedures, there was no need for additional administrative procedures and guidelines to be established by the Superintendent for the Policy to be effective and capable of being fully implemented. C. Differing Outcomes Does Not Automatically Demonstrate Disparate Facts. Rather, The Specific Facts And The Evidence Presented Was The Driving Force Behind Different Results In The Cases Cited By Adrian. As urged by Adrian, the trial court found that "some" employees were allowed to come into compliance with the Residency Policy, thus resulting in inconsistency with the application of the Residency Policy. Initially, the use of the term "some" implies that multiple teachers were granted this option while, in 41 reality, this assertion is based on the Board allowing one non-compliant teacher an extension of time to become compliant with the Residency Policy. Adrian also incorrectly asserts that this extension was granted upon the submission of only one document by this other teacher. Contrary to the assertions of Adrian, multiple documents were submitted to the Board in that matter as well. What Adrian's conclusory statement fails to address is what the facts were for the other case (not contained in the Record before this court) and whether the documents submitted would satisfy the requirements needed to grant an extension. Adrian instead blindly asserts that because one non-compliant teacher was given an opportunity to become compliant in accordance with the Residency Policy, the policy was subjectively applied. Absent the facts of the other case, which are not in this record, that claim could not and should be assessed in this matter. Not surprisingly Adrian also fails to note that she herself had previously been granted an extension of time to become compliant with the Residency Policy. (A. 195-201) After having herself utilized this very provision, it is hypocritical for Adrian to assert that provision is subjectively applied when another is given its benefit. Adrian also asserts that the fact that the Fourth Department's review of several other appeals stemming from dismissals for violations of the District's Residency Policy demonstrates that there has been disparate results. The Board is required under the Residency Policy to review the specific documents and 42 evidence before it in each particular case, weigh such, and make an independent determination in that specific case as to whether that teacher is compliant with the policy. The Board cannot be required to reach the same conclusion in each instance, regardless of the facts presented. Case law provides no support for the idea that an agency cannot come to differing conclusions if the facts warrant such a determination. The procedures set forth in the Residency Policy were followed and upon review of the facts presented to it, the Board made a factual determination regarding whether Adrian was in compliance with the Policy. The Board, acting upon evidence specific to each case, terminated those employees, including_ Adrian, it found to have been residing outside of the City of Niagara Falls in violation of the Residency Policy, retained those teachers it found in compliance with the Residency Policy and allowed one teacher additional time to come into compliance with the Residency. There is no evidence the Board acted improperly in making those determinations. POINTY: The Appellate Division Did Not Have Authority To Review The Weight Of The Evidence Before It. Adrian improperly asserts that the Fourth Department incorrectly weighed the evidence before it. The standard of review in this matter does not allow for the Fourth Department or even the trial court to re-weigh the evidence 43 presented to the Board. Rather, review of an administrative decision by a court in this state is limited to questions of law, whether the administrative body acted in excess of its authority, whether the determination made was in violation of lawful process and whether the decision was supported by substantial evidence after a quasi-judicial proceeding. CPLR §7803 "The courts cannot interfere unless there is no rational basis for the exercise of discretion [by the administrative tribunal] or the action complained of is arbitrary and capricious." Pell v. Bd. of Educ., 34 N.Y.2d 222, 231 (1974). A court must uphold the administrative decision as long as there was a rational basis for the decision. Id. Such a decision may only be overturned if it is untenable as a matter of law. See Siegel, New York Practice, § 561, at 966-967 [5th ed. 2011]. Rationality is what is reviewed rather than the weight of the evidence. Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174, 178 (1969). As such, neither the trial court nor the Appellate Division had authority to weigh the evidence presented to the Board in this matter. Giving the Board's interpretation of the Residency Policy its due deference, the Fourth Department properly found that the Board's decision was reasonable and rational and that decision should not be invaded by the court. Although there was conflicting evidence before the Board, the Board's finding that Adrian was not residing within the City of Niagara Falls had, as noted by the Fourth Department, a reasonable basis. 44 The Board's decision fmding that Adrian was not domiciled in the City of Niagara Falls is rational based on the information presented to the Board. The surveillance conducted by the District is persuasive evidence showing that Adrian did not have a residence in the City of Niagara Falls because she was never observed at her claimed Niagara Falls residence on the dates surveillance was undertaken. The infmmation from the surveillance report, taken in conjunction with the lack of a full kitchen at the first location in Niagara Falls Adrian claimed as her residence, the fact that her car and New York State Education Department Office of Teaching Initiatives address was listed as the Willimnsville address and her subsequent submission of a rental agreement with unrelated roommates for a second Niagara Falls location, it was reasonable for the District and Board to find that Adrian's domicile was the Williamsville address where she regularly slept, had a full kitchen, registered her car and maintained a landline telephone. It is a reasonable conclusion that the documentation provided by Adrian was unpersuasive. No utility bill was provided for review, even though requested and the rental agreement submitted for the second Niagara Falls location contradicted her own prior claims and was not even created until the issue of her domicile arose. 45 POINT VI: The Board Did Not Deviate From Factually Similar Precedent In Determining Adrian Was Not In Compliance With The Residency Policy. Adrian misconstrues the law and the facts when the she asserts that the District's decision is arbitrary because it allegedly failed to explain why the evidence presented to the Board was insufficient. An explanation explaining the Board's decision is not necessary or required in every instance. Rather, this Court has succinctly explained that an administrative agency's decision is arbitrary and capricious where "[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts." Matter of Charles A. Field Delivery Serv., Inc., 66 N.Y.2d 516, 516-517 (1985). Critical to the requirement that an administrative body explain its decision is a departure from precedent wherein the issue before the administrative issue was based on "essentially the same facts." Id. See also, Claim of Martin, 70 N.Y.2d 679 (1987). As set forth in Fields, Adrian's assertion is only applicable if the Board failed to explain its departure from precedent, and the preceding cases are essentially the same factually. That situation is not present in this case. In De La Concha v Fordham Univ., the Third Department was asked to determine whether the Workers' Compensation Board's decision was arbitrary and capricious because it deviated from prior precedent 292 A.D.2d 662 (3rd Dept. 2002). The employer 46 asserted that the facts of this case were factually similar to the Board's decision in at least two other cases. Id. Upon review of the facts of the matter before the Appellate Division and the facts and issues involved in the other two cases, the court rejected the employer's assertion that the Workers' Compensation Board's decision was arbitrary and capricious because the precedent relied upon by the employer did not arise out of essentially the same facts. !d. at 664. Adrian's conclusory assertion that the Board's decision must contain an explanation of its departure from prior precedent must fail. Initially, Adrian has failed to even provide the alleged precedent she claims the Board allegedly departed from in deciding she failed to comply with the Residency Policy. Instead, Adrian makes a blanket assertion that the Board let other employees come into compliance as her basis for the assertion. As stated before, she herself had been allowed to come into compliance with the Residency Policy previously, and the facts surrounding the Board's decision to allow this other employee to come into compliance are not before this Court. Adrian has not set forth how this matter is factually similar to any other instances where the Board came to a differing conclusion. Moreover, the record before this Court does not contain any information or factual details regarding the Board's decision in any other matters under the Residency Policy. Without precedent on essentially the same facts, Adrian's assertion must fail. 47 CONCLUSION For the foregoing reasons, the decision of the Appellate Division, Fourth Department fmding that the decision of the Board to terminate Adrian from her employment was not arbitrary and capricious was proper and should be affirmed. Dated: October 10, 2012 By: HURWITZ & FINE, P.C. Attorneys for Respondents-Appellants- Respondents Board of Education of the City School District of the City of Niagara Falls and Cynthia A. Bianco, as Superintendent 1300 Liberty Building Buffalo, New York 14202 (716) 84 .-8900 48