In the Matter of Roxanne Adrian, Appellant,v.Board of Education of City School District of City of Niagara Falls et al., Respondents.BriefN.Y.January 8, 2013To Be Argued By: Anthony J. Brock, Esq. Time Requested: 20 Minutes Court of Appeals State ofNew York In the Matter of the Application of ROXANNE ADRIAN, Petitioner-Appellant, -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, For a Judgment Pursuant to Article 78 of the CPLR BRIEF OF PETITIONER-APPELLANT ROXANNE ADRIAN Brief Submitted: August 27,2012 RICHARD E. CASAGRANDE, ESQ. Attorney for Petitioner-Appellant, Roxanne Adrian Office & P.O. Address 800 Troy Schenectady Road Latham, New York 12110-2455 Tel. No. (518) 213-6000 Fax No. (518) 213-6488 Niagara County Index No. 139334 Appellate Division Docket No. 11-01545 ANTHONY J. BROCK, Of Counsel TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES .............................. 1 PRELIMINARY STATEMENTIPROCEDlJRAL HISTORY ............... 1 JURISDICTIONAL STATEMENT .................................... 3 STATEMENT OF QUESTIONS INVOLVED ........................... 3 STATEMENT OF RELEVANT FACTS ................................ 4 ARGUMENT POINT I PETITIONER WAS ENTITLED TO A HEARING PRIOR TO BEING TERMINATED FOR ALLEGEDLY VIOLATING THE RESPONDENTS' RESIDENCY POLICY BECAUSE, AS A TENURED TEACHER, SHE ENJOYED A CONSTITUTIONALLY PROTECTED PROPERTY INTEREST IN HER CONTINUED PUBLIC EMPLOYMENT ..................................... 12 A. Ms. Adrian Had a Constitutionally Protected Property Right In Her Employment With The Niagara Falls City School District ..................................... 12 B. The Protected Property Interest Ms. Adrian Enjoyed As A Tenured Teacher Is Substantial, As Is The Public Interest In Protecting Tenured Teachers From Arbitrary Dismissal ...... 15 C. The Procedures Used By The School District To Terminate Ms. Adrian's Employment Were Constitutionally Deficient ..... 18 TABLE OF CONTENTS (Cont'd) POINT II THE DISTRICT VIOLATED MS. ADRIAN'S STATUTORY RIGHT TO A HEARING UNDER THE EDUCATION LA W BECAUSE THE PROCEDURES UNDER EDUCATION LAW §3020-a ARE THE EXCLUSIVE PROCEDURES FOR TERMINATING A TENURED TEACHER .................. 23 A. Education Law §3020-a Sets Forth The Exclusive Procedures for Removing a Tenured Teacher for Any Cause, Including Lack of or Failure to Maintain a Legal "Qualification" to Teach .. 23 B. The Civil Service Law Cases Relied on by the Appellate Division Are in Applicable to the Rights of a Tenured Teacher under Education Law §§3020 and 3020-a ......................... 30 POINT III THE APPELLATE DIVISION ERRED BY REVERSING THE SUPREME COURT DETERMINATION BECAUSE THE DISTRICT'S ACTION TERMINATING PETITIONER WAS ARBITRARY AND CAPRICIOUS ........................ 35 A. The District's Implementation Of The Residency Policy Was Arbitrary and Capricious ....................... 36 B. The Appellate Division Incorrectly Weighed The Evidence Presented to the District .......................... 38 C. The District's Failure to Explain Why It Terminated Petitioner Renders Its Action Arbitrary and Capricious ......... 40 D. The Appellate Division Improperly Shifted The Burden Of Proof To Petitioner ................................... 42 CONCLUSION ................................................... 43 TABLE OF CASES AND AUTHORITIES Page(s) CASES Amos v. Bd. ofEduc. 0/Cheektowaga-Sloan Union Free Sch. Dist., 54 A.D.2d 297 (4th Dep't 1976) ....................................... 31 Antinore v. State, 49 A.D.2d (4th Dep't 1975), ajJ'd 40 N.Y.2d 921 (1976) ... 33 Arons v. Jutkowitz, 9 N.Y.3d 393 (2007) ............................... 34 Beck-Nichols v. Bianco, 89 A.D.3d 1405 (4th Dep't 2011) ................. 37 Board o/Regents v. Roth, 408 U.S. 564 (1972) .......................... 13 Boyd v. Collins, 11 N.Y.2d 228 (1962) ................................. 27 Cleveland Bd. ofEduc. v. Loudermill, 470 U.S. 532 (1985) .... 13-15, 18-22,43 Coriou v. Nyquist, 33 A.D.2d 580 (3rd Dep't 1969), app. den. 26 N.Y.2d 610 (1970) ...................................... 28 Economico v. Village o/Pelham, 50 N.Y.2d 120 (1980) .... 14, 1820-22,42-43 Feingoldv. Lynch, 31 A.D.2d 969 (2nd Dep't 1969) ....................... 31 Felix v. New York City Dep 't o/Citywide Admin. Servs., 3 N.Y.3d 498 (2004) ................................... 30-32,34-35,42 Fitzpatrick v. Board ofEducation 0/Mamaroneck Union Free School District, 96 A.D.2d 557 (2nd Dept. 1983), app. den.61 N.Y.2d 607 (1984) ............ 28 Frickv. Bahaou, 56 N.Y.2d 777 (1982) ................................ 38 Gigliotti v. Bianco, 82 A.D.3d 1636 (4th Dep't 2011) .................. 37,40 -1 TABLE OF CASES AND AUTHORITIES Page(s) Glass v. Bd. ofEduc. ofCity ofNew York, 21 A.D.2d 891 (2nd Dep't 1964), aff'd 16 N.Y.2d 982 (1965) ....................................... 27-28 Goldberg v. Kelly, 397 U.S. 254 (1970) ............................... 21 Gould v. Bd. ofEduc., ofthe Sewanhaka Central School Dist., 81 N.Y.2d 446 (1993) ........................................ 13-14,23 Hecht v. Monaghan, 37 N.Y. 461 (1954) ............................ 20-21 Holt v. Bd. ofEduc., Webutuck Cent. Sch. Dist., 52 N.Y.2d 625 (1981) ....... 16 Hosley v. Curry, 85 N.Y.2d 447 (1995) ................................ 40 Kobylski v. Agone, 37 Misc.2d 255 (Sup. Ct. Broome Co. 1962), aff'd on op. below, 19 A.D.2d 761 (3ed Dep't 1963) .................... 27-29 Krajkowski v. Bianco, 85 A.D.3d 1577 (4th Dep't 2011) ............. 37,39-40 Lehman v. Board ofEduc., ofthe City ofNew York, 82 A.D.2d 832 ......... 38 Luchey v. Bd. ofEduc. ofCity Sch. Dist. ofCity ofNiagara Falls, 92 A.D.3d 1276 (4th Dep't 2012) ................................... 3,37 Lynch v. Nyquist, 41 A.D.2d 363 (3 rd Dep't 1973), aff'd, 34 N.Y.2d 588 (1974) ................................ 24, 28, 31-32 Mannix v. Bd. ofEduc., City ofNew York, 21 N.Y.2d 455 (1968) ......... 24-27 Martin v. Ambach, 67 N.Y.2d 975 (1986) .............................. 43 Matthews v. Eldridge, 424 U.S. 319 (1976) ............................. 15 Mtr. ofCharles A. Field Delivery Servo (Roberts), 66 N.Y.2d 516 (1985) ..... 41 -11 TABLE OF CASES AND AUTHORITIES Page(s) Matter ofAbramovich v. Bd. ofEduc. ofCent. Sch. Dist. No.1 of Towns ofBrookhaven & Smithtown, 46 N.Y.2d 450 (1979) .......... 16-17,27 Matter ofFeatherstone (Franco), 95 N.Y.2d 550 (2000) .................. 41 Matter ofMontauk Improve men tv. Procacino,41 N.Y.2d913 (1977) ........ 42 Moritz v. Bd. ofEduc. ofGowanda Cent. Sch. Dist., 60A.D.2d 161 (4th Dep't 1977) ....................................... 32 O'Connor v. Bd. ofEduc. ofCity Sch. Dist. ofCity ofNiagara Falls, 48 A.D.3d 1254 (4th Dep't 2008), mot Iv app denied, 10 N.Y.3d 928 (2008) ........................................ 14,30,37 Pel! v. Bd. ofEduc., 34 N.Y. 222 (1974) ............................... 38 People ex rei. Murphy v. Maxwell, 177 N.Y. 494 (1904) ................... 26 Prue v. Hunt, 78 N.Y.2d 364 (1991) ............................ 14, 18-22 Ricca v. Bd. ofEduc., City Sch. Dist. ofCity ofNew York, 47 N.Y.2d 385 (1979) ........................................... 17,24 Simpson v. Wolansky, 38 N.Y.2d 319 (1975) ........................... 21 STATUTES CPLR Article 78 ............................................. 1, 11, 25 CPLR §5602(a)(1)(i) ............................................... 3 Civil Service Law §71 ............................................. 33 Civil Service Law §72 ............................................. 33 ... -111 TABLE OF CASES AND AUTHORITIES Page(s) Civil Service Law § 73 ............................................. 33 Education Law §2509(2) .......................................... 4,23 Education Law §3020 ................................ 4, 13,24,30-31,42 Civil Service Law §75 ........................................... 30-32 Education Law §2573 .............................................. 25 Education Law §3009 .............................................. 32 Education Law §3010 .............................................. 32 Education Law §3020-a . . . . . . . . . . . . . . . . . . .. 3-4, 12, 16, 23-24, 28-33, 35, 42 Education Law §3020-a(2)(b) ..................................... 32, 34 Education Law §3020-a(4) .......................................... 28 Education Law §3020-a(4)(c) ....................................... 33 Education Law §3020-a(b )(ii) ....................................... 32 Education Law §3020-a(b )(ii)(C) ..................................... 32 Education Law §3020-a(c)(i) ........................................ 32 Education Law §3020-a( c )(iii)(B) .................................... 32 -IV TABLE OF CASES AND AUTHORITIES Page(s) OTHER Appeal ofBd. ofEduc., ofthe Nanuet Union Free School Dis., 21 Ed. Dept. Rep. 482 (1982) ........................................ 29 Laws of 2008, Chapter 296 ......................................... 34 McKinney's Statutes § 240 ....................................... 33-34 NEW YORK STATE COUNCIL OF SCHOOL SUPERINTENDENTS, AT THE EDGE: A SURVEY OF NEW YORK STATE SCHOOL SUPERINTENDENTS ON FISCAL MATTERS. (October 2011), available at http://www.nyscoss.orglpdfluploadl AttheEdgeSurveyReportFINAL.pd£ ..... 16 CENTERS FOR DISEASE CONTROL AND PREVENTION, WIRELESS SUBSTITUTION: EARLY RELEASE OF ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY, January - June 2011 (2011), available at www.cdc.gov/nchs/data/nnis/earlyrelease/wireless201112.htm .. 40 EXECUTIVE OFFICE OF THE PRESIDENT, INVESTING IN OUR FUTURE: RETURNING TEACHERS TO THE CLASSROOM. (August 18, 2012), available at http://www.whitehouse.gov/sites/default/files Investing in Our Future Report.pdf ................................. 16 -v STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of ROXANNE ADRIAN, Petitioner-Appellant, -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, For a Judgment Pursuant to Article 78 of the CPLR BRIEF ON BEHALF OF PETITIONER-APPELLANT PRELIMINARY STATEMENTIPROCEDURAL HISTORY Petitioner Roxanne Adrian brought this Article 78 proceeding challenging the determination of 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 (collectively referred to as "Respondents" or the "District") to discharge her from her tenured English teacher position for alleged violation of the District's residency policy. Another tenured guidance counselor from the District, Ms. Kelli Koran -1 Luchey, commenced a separate Article 78 proceeding challenging her termination. In September 2010, the Honorable Ralph A. Boniello, III, Supreme Court, Niagara County, issued a single decision and order directing that both petitioners be reinstated to their tenured positions, with full back pay and benefits, retroactive to their discharge in September 2009. CA. 16-20). Justice Boniello found that the residency policy did not contain an objective definition of residency, but rather a vague and ambiguous definition to determine residency. CA. 18-19). Further, the policy was not accompanied by "administrative procedures and guidelines consistent with and to give full force and effect to the District's residency policy," as required by the residency policy itself, and which resulted in "varied and subjective interpretations leading to disparate results." (A. 18 19). The court found that, as a result, the residency policy is "unenforceable, incomplete" and that respondents' action terminating Ms. Adrian was arbitrary and capricious. (A. 19). The respondents' appeal was filed and served in November 2010. (A. 11). Ms. Adrian served a notice ofcross-appeal in November 2010, appealing only that portion of the underlying decision and order which declared that she was not entitled to a hearing. The Appellate Division, Fourth Department, reversed the judgment granting Ms. Adrian's petition and dismissed her cross-appeal. It affirmed -2 the Supreme Court's decision in Ms. Luchey's case. Luchey v. Ed. 0/Educ. o/City Sch. Dist. o/City o/Niagara Falls, 92 A.D.3d 1276 (4th Dep't 2012). This Court granted Ms. Adrian's motion for leave to appeal. JURISDICTIONAL STATEMENT This Court has jurisdiction ofthe appeal under CPLR § 5602( a)( 1 )(i) because the appeal is taken in a proceeding originating in the Supreme Court, from a unanimous order of the Appellate Division that finally determined the matter, and which is not appealable as of right. The order below constitutes a "final determination" in that it dismissed the petition. STATEMENT OF QUESTIONS INVOLVED 1. When a school district seeks to dismiss a tenured educator for violating its residency policy, is it required to conduct a due process hearing prior to the final deprivation of the teacher's protected property interest in her continued public employment? (A. 36-37, ~3-5; A. 14). Answer: Yes. A tenured teacher, having a constitutionally protected property interest in her continued employment, can only be terminated for just cause after a due process hearing. 2. When a school district seeks to terminate a tenured teacher, must it utilize the statutory procedure under Education Law §3020-a? (A. 36-37, ~3-5; A. -3 14). Answer: Yes. The procedure under Education Law §3020-a IS the exclusive procedure for tenninating the employment of a tenured teacher. 3. Did the Appellate Division err by finding that the respondents' detennination that Ms. Adrian was domiciled outside of district boundaries was not arbitrary and capricious? (A. 37, ~6). Answer: Yes. The Appellate Division erred because the respondents' detennination that petitioner-appellant was domiciled outside of district boundaries was arbitrary and capricious. STATEMENT OF RELEV ANT FACTS On September 24,2009, effective September 25,2009, the respondents voted to tenninate Roxanne Adrian, a tenured English teacher who had been employed by the District since 2003 (A. 27, ~4; 29, ~11; 40-42), for alleged noncompliance with its residency policy. (A. 156; 311-12; 19-20 ~3; 25 ~31-32). In 2006, the respondents granted Ms. Adrian tenure in the English tenure area. (A. 132). Prior to her tennination, Ms. Adrian was not served with any charges or afforded a hearing pursuant to Education Law §§ 2509(2), 3020, and 3020-a or otherwise. (A. 33, ~38, 39; 172, ~18). Ms. Adrian did not waive any of her rights under the Education Law. (A. 33, ~40). The respondents' actions resulted in the loss -4 of Ms. Adrian's salary, benefits and all other emoluments of employment. (A. 32, ~33). Since February 1994, the respondents have maintained a residency policy requiring that employees hired or promoted after the effective date ofMarch 1, 1994 maintain residency in the City ofNiagara Falls, during the term oftheir employment. (A. 127-32; 27 ~6). The residency policy states, inter alia: A. Definition: 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. B. Residency for New Employees Every person appointed by the Board ofEducation after the adoption of this policy, except substitute positions, shall, as a qualification for employment, become a resident ofthe City of Niagara Falls, within six months of the date of appointment to the School District. Upon recommendation ofthe Superintendent, one additional six-month extension may be granted by the Board of Education in its sole discretion to an employee who has shown due diligence in attempting to become a city resident and because of extreme hardship is unable to do so within the period allowed. During the time of service of said employee, he or she must maintain residency. CA. 128). * * * * * -5 E. Violation of Residency Requirement Any Niagara Falls Board ofEducation 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. If after investigation the Board of Education continues to believe the employee is in violation ofthe residency policy, the Superintendent of Schools shall institute the necessary proceedings to terminate the individual's employment status with the school district. (A. 129). * * * * * 1. Superintendent of Schools to Develop Procedures and Guidelines to Implement Policy. 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. (A. 132). Neither the District's Superintendent ofSchools Cynthia Bianco, nor any ofher predecessors, have ever "establish[ ed] administrative procedures and guidelines consistent with and to give full effect to the district's residency policy" as required by the Residency Policy (Section I). (A. 18; 28-29, ~8-10; 171, ~8-10). Mr. Philip Mohr, the District's Administrator for Human Resources, notified Ms. Adrian by letter dated July 30,2009, that the Board ofEducation had "reason to believe that [Ms. Adrian was] in violation of [the] [residency] policy" and that she -6 had seven days to respond in writing to the alleged violation. (A. 29, ,13; 172, ,13; 298). The District's suspicions were with regard to Ms. Adrian's residence at 205 73rd Street, Niagara Falls, NY 14304, and not her new address at 611 Chasm Avenue, Apt. 2, Niagara Falls, NY. (A. 290-296). Ms. Adrian's former counsel, William Berard, sent a letter to the District on her behalf within the required seven days and sought the District's input as to what "steps are necessary to resolve this matter to [his] client's satisfaction." (A. 140). By letter dated August 14,2009, Administrator Mohr invited Ms. Adrian and her counsel to a pre-scheduled meeting on August 18, 2009, to provide her with copies of documents the District had concerning her compliance with the residency policy, but cautioned that the meeting would last no more than twenty (20) minutes. (A. 141). Attorney Berard attended the August 18th meeting with Ms. Adrian and informed both the school district's attorney, Angelo Massaro, and Administrator Mohr that Ms. Adrian had a new address: 611 Chasm Avenue, Apt. 2, Niagara Falls, New York. (A. 29-30, '16). Attorney Massaro and Administrator Mohr informed Attorney Berard that Ms. Adrian must submit documentation or show proof to support her residency at that address. (A. 30, '17). Attorney Berard corresponded with the District during the month ofAugust to address their concerns about Ms. Adrian's residency. (A. 326-27). On August 20, -7 2009, Attorney Berard provided the District with the documentation confirming Ms. Adrian's residence at 611 Chasm Avenue, Apt. 2, Niagara Falls, New York, including a copy of Ms. Adrian's recent voter registration card for both primary and general elections, mailed to her at that address; a copy of her Time Wamer Cable account creation and change of address confirmation, listing that address; and a copy of her first Time Warner Cable bill sent to that address. (A. 142-50). Administrator Mohr notified Ms. Adrian by letter dated August 21, 2009 that "the Superintendent will be recommending to the board ofeducation at its September 24, 2009 meeting that [her] services as an English Teacher with the Niagara Falls City School District be terminated for [her] failure to comply with the District residency policy." (A. 30, ~18; 151). Attorney Berard responded by sending a letter to Attorney Massaro dated August 24, 2009, asking for advice as to what documentation was necessary to stop the termination scheduled for September 24, 2009. (A. 30, ~20; 309; 326, ~9). Neither Ms. Adrian, nor her representatives, received any response from the District regarding Attorney Berard's August 24, 2009 request. (A. 30, ~21). On September 10, 2009, Attorney Massaro informed Attorney Berard that the District "remains of the opinion that Roxanne Adrian is not in compliance with the residency policy." (A. 30-31, ~22; 310; 327, ~10). In response, Attorney Berard sent Attorney Massaro a letter dated September 11,2009 to reaffirm Ms. Adrian's address -8 at 611 Chasm Avenue, Niagara Falls, New York, and enclosed a copy ofthe lease for that address. (A. 31, ~23-24; 155-160; 327, ~11). Attorney Berard received no response from Attorney Massaro. (A. 327, ~f12). On September 11,2009, Ms. Adrian went into Administrator Mohr's office to submit a copy ofa cable bill for the address at 611 Chasm Avenue. (A. 31, ~25). During the conversation, Mr. Mohr informed Ms. Adrian that Attorney Massaro was in receipt of the lease for said address and stated, "that should do it," or words to that effect to Ms. Adrian, referring to the copy of the lease Attorney Massaro received. (A. 31, ~26). The lease showed that Ms. Adrian was a tenant at 611 Chasm Avenue with two other roommates from September 1,2009 to an undetermined "move out date." (A. 306). On September 22,2009, Attorney Berard called Attorney Massaro about the status of Ms. Adrian's employment. (A. 321, ~15). Attorney Massaro informed Attorney Berard that he had received the lease and other documents and these documents were unacceptable. (A. 327, ~16). Attorney Massaro also stated that Ms. Adrian was deemed to be out of compliance with the residency policy and that the respondents "were not going to change their minds," or words to that effect. (A. 327, On September 24, 2009, respondents terminated Ms. Adrian's employment. Administrator Mohr notified Ms. Adrian ofher termination by letter dated September -9 29,2009 sent to the 611 Chasm Avenue, Niagara Falls address. (A. 32, ,31,32; 317; 327, '17). The District never explained the basis for its determination that Ms. Adrian was not in compliance with the residency policy. (A. 173, ,19; 328, '18). Ms. Adrian has continuously asserted that she came into compliance with the District's residency policy before it voted to terminate her employment on September 24,2009. (A. 32, '34). Attorney Berard provided all ofthe necessary documentation to the District to establish residency at least 30 days before the District took action to terminate Ms. Adrian. (A. 328, '19). The District has conceded that Ms. Adrian had until the Board ofEducation's September 24, 2009 meeting to "come into compliance" with the residency policy. (A. 174, ,1; A. 32, '35). The District has also conceded that it previously allowed a non-compliant teacher, Rose Rajczak, to merely provide "a single document" demonstrating an "intent to come into compliance with the policy" -- not actual compliance -- to avoid termination. (A. 18-19; 174, '1; 33, ,37; 172, ,15, 16). This documentation was accepted by the District and resulted in the removal ofher name from the list ofteachers recommended for termination approximately 24 hours before the District voted for termination. (A. 33, '36,37; 172, '16). Ms. Adrian, however, provided documents such as a lease and a copy of her voter's registration card, demonstrating residency in the City of Niagara Falls. (A. -10 30, ~18; 31, ~23; 326, ~8; 327, ~11). Despite Ms. Adrian's submissions ofthe various documents to establish residency before the September 24,2009 Board ofEducation vote, the District terminated her employment. On September 30,2010, the Niagara County Supreme Court entered an Order and Judgment pursuant to CPLR Article 78, finding that the District failed to adopt an objective definition of "residency" which resulted in "varied and subjective interpretations [of the residency policy] leading to disparate results." (A. 19). As such, the District's decision to terminate Ms. Adrian in this case, on the basis ofthis policy, was held to be arbitrary and capricious. (A. 19). The court also found that there was "undisputed" evidence that the District had allowed other noncompliant employees to come into compliance prior to taking action to terminate those employees on the basis oftheir residency - even when there was no dispute that there was in fact a violation of the District's residency policy. (A. 18). Ms. Adrian was "not so fortunate." (A. 19). -11 ARGUMENT POINT I PETITIONER WAS ENTITLED TO A HEARING PRIOR TO BEING TERMINATED FOR ALLEGEDL Y VIOLATING THE RESPONDENTS' RESIDENCY POLICY BECAUSE, AS A TENURED TEACHER, SHE ENJOYED A CONSTITUTIONALLY PROTECTED PROPERTY INTEREST IN HER CONTINUED PUBLIC EMPLOYMENT. The Appellate Division erred in holding that Ms. Adrian was not entitled to a hearing. (A. 7). As a tenured teacher, Ms. Adrian had a constitutionally protected property interest in her continued pubic employment. When the District accused her of violating its residency policy, Ms. Adrian was constitutionally entitled to a due process hearing prior to the final deprivation of that property interest. Because Ms. Adrian was denied access to a constitutionally adequate hearing I , her termination was unlawful and must be reversed. A. Ms. Adrian Had a Constitutionally Protected Property Right In Her Employment With The Niagara Falls City School District The first question in any due process claim is whether the claimant has a protected property or liberty interest. Ms. Adrian gained tenure in the Niagara Falls I As will be seen in Point II, below, in New York the Legislature has mandated, in Education Law §3020-a, the specific procedures attendant to the deprivation of a tenured teacher's property interest in her continued employment. These procedures may exceed those minimum procedures mandated by the Constitution. -12 City School District in 2006. (A. 132). Accordingly, she had a "... protected property interest in her position and a right to retain it subject to being discharged for cause in accordance with the provisions ofEducation law §3020-a." Gould v. Bd. of Educ., of the Sewanhaka Central School Dist., 81 N.Y.2d 446,451 (1993). This holding is fully in accord with United States Supreme Court rulings. What constitutes "property" for purposes of constitutional protection IS governed by ". . . existing rules or understanding that stem from an independent source such as state law ... rules or understanding that secure certain benefits and that support claims of entitlement to those benefits." Board ofRegents v. Roth, 408 U.S. 564, 577 (1972). As the Supreme Court noted in Roth: [To] have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. [Id., 408 U.S. at 577]. The Supreme Court has further explained that if under statute a public employee cannot be removed except "for cause," such employee has acquired a constitutionally protected property interest in her continued employment. Cleveland Bd. ofEduc., v. Loudermill, 470 U.S. 532, 538-539 (1985). In New York, the law could not be clearer on this point. Education Law §3020 expressly provides: -13 No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three-thousand twenty-a of this article .... [emphasis supplied.] Thus, because by statute tenured teachers can only be removed for "just cause," under Supreme Court precedent Ms. Adrian had a constitutionally protected property interest in her continued employment with the District. This Court has long recognized, even prior to Lo uderm ill, that "permanent" civil servants enjoy a protected property interest in their continued employment. See, e.g., Economico v. Village o/Pelham, 50 N.Y.2d 120, 125 (1980), overruled, in part, on other grounds, by Prue v. Hunt, 78 N.Y.2d 364, 367 (1991); accord, Gould, supra at 81 N.Y.2d 45 1. Both the District's decision to terminate Ms. Adrian without a hearing, and the logic used to support the Appellate Division decision in 0 'Connor v. Board 0/ Education o/the City School District o/City o/Niagara Falls, 48 A.D.3d 1254 (4th Dep't 2008) rely upon a legal fiction that denies Ms. Adrian a property interest and a right to a hearing because she does not possess a "qualification" for employment. A public employer, however, "cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why [a tenured educator] should not have been hired in the first place." Loudermill, supra at 470 U.S. 539, fn. 5, at 539. Here, Ms. Adrian was hired and gained a protected property interest when she was -14 granted tenure. From a procedural due process standpoint, it makes no difference whether the alleged cause for removal is misconduct, incompetence or any other cause. A due process hearing is still required to determine whether the cause exists, and whether discharge is appropriate. Because there can be no dispute that Ms. Adrian had a constitutionally protected property interest in her continued employment as a tenured teacher, the remaining question is whether the District violated her right to due process in the procedure it utilized in finally extinguishing that interest. As will be seen, the Appellate Division committed reversible error by holding that Ms. Adrian could be removed from her tenured employment, for cause, without a due process hearing. B. The Protected Property Interest Ms. Adrian Enjoyed As A Tenured Teacher Is Substantial, As Is The Public Interest In Protecting Tenured Teachers From Arbitrary Dismissal. Under the familiar Matthews v. Eldridge test, the quantum of process due is measured, in part, by the substantiality ofthe property interest at stake. 424 U.S. 319, 335 (1976). In terminating Ms. Adrian's employment as a tenured teacher, the District deprived her ofa very substantial property interest. The Supreme Court has stated that "the significance ofthe private interest in retaining employment cannot be gainsaid." Loudermill, supra at 470 U.S. 543. The importance of the loss of Mr. -15 Adrian's tenured teaching position, her salary, her health and dental insurance, her public retirement benefits, and perhaps her professional career cannot be overstated, particularly in today's economic climate.2 This critical private property interest granted to New York's tenured teachers cannot be deprived without adequate due process. The tenure statutes not only confer a substantial private property interest on tenured teachers, they reflect an important public interest - - protection from arbitrary removal for educators who have successfully completed a probationary period. As stated by this Court in Holt v. Ed. ofEduc., Webutuck Cent. School Dist., 52 N.Y.2d 625,632 (1981): One ofthe bulwarks ofthat tenure system is section 3020-a ofthe Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as 'a critical part ofthe system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice.' [emphasis supplied] (Matter ofAbramovich v. Ed. ofEduc. 2 Since June 2009, over 300,000 educators have been laid off nationally. EXECUTIVE OFFICE OF THE PRESIDENT. INVESTING IN OUR FUTURE: RETURNING TEACHERS TO THE CLASSROOM. (August 18,2012), available athttp://www.whitehouse.gov/sites/ default/files/Investing in Our Future Report.pdf. In New York State, 7,000 educators were laid off last year. NEW YORK STATE COUNCIL OF SCHOOL SUPERINTENDENTS. AT THE EDGE: A SURVEY OF NEW YORK STATE SCHOOL SUPERINTENDENTS ON FISCAL MATTERS. (October 2011), available at http://www.nyscoss.org/pdf/uploadl AttheEdgeSurveyReportFINAL.pd£ Final New York figures for this year have yet to be finalized. -16 of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450,454 [1979].) This Court has also instructed that the courts must vigilantly protect the tenure system against local strategies, such as challenged in the instant case, that attempt to circumvent the will ofthe Legislature, and that the protections of the tenure statutes must be broadly construed in favor ofteachers who have successfully completed their probationary periods. As stated in Ricca v. Bd. ofEduc., City School Dist. ofCity of New York, 47 N.Y.2d 385, 391 (1979): [The tenure system] ... it is a legislative expression of a firm public policy determination that the interests of the public in the education ofour youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to ifthey could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor ofthe teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure. * * * Even good faith violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect ofnumerous well-intentioned exceptions. Clearly, Ms. Adrian enjoyed a substantial property interest in her continued employment as a tenured teacher. The protection oftenured teachers from arbitrary -17 dismissal also furthers an important public interest. The only real question is whether the procedures followed by the Niagara City School District were consistent with constitutional mandates. They were not. C. The Procedures Used By The School District To Terminate Ms. Adrian's Employment Were Constitutionally Deficient. The Supreme Court has made it clear: "The due process clause provides that certain substantive rights - - life, liberty, and property - - cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct." Loudermill, supra, at 470 U.S. 541. Once the property right is conferred to a public employee, it cannot be taken away "without appropriate procedural safeguards." Loudermill, supra, at 541; accord, Economico, supra, at 50 N.Y.2d 127. When a governmental authority seeks to deprive a public employee of a constitutionally protected property interest, the pre-termination proceedings "need not be elaborate," but the due process clause requires "a full post-termination hearing." Loudermill at 545-546. This Court too, has required pre and post termination due process protections before a permanent or tenured public employee is finally deprived tenured employment. Prue, supra at 78 N.Y.2d 369. Petitioner Adrian was denied due process. In fact, she received no hearing at -18 all, as "hearing" is reasonably interpreted in light ofjudicial precedent. Despite the fact that the residency policy under which Ms. Adrian was fired specifically called for the adoption ofimplementing procedures (A. 132), no such procedures were ever adopted. (A. 18; 28-29, ~8-10; 171, ~8-10). While Ms. Adrian was given notice of the alleged violation and a chance to submit documentary evidence, she was given no opportunity, pre or post termination, to see the evidence on which the District relied, to call witnesses, or cross examine any adverse witnesses. Further, despite the fact that other teachers have been given the opportunity to come into compliance (A. 18 19; 174, ~1; 33, ~37; 172, ~15-16), no findings of fact were made to support why the District deemed her not to be in compliance and no explanation was given why, even if she were not in compliance, she could not have the opportunity to come into compliance. (A. 173, ~19; 328, ~18). While Ms. Adrian received pre-termination notice ofthe alleged violation and an opportunity to submit documentary evidence, that is all she received and, by constitutional standards, that was not enough. Pre-termination, Ms. Adrian received no reasonable opportunity to invoke the discretion of the decision-maker. Post termination, she received no "hearing" at all, much less the full post-termination hearing contemplated by cases such as Loudermill and Economico. Prior to termination, a tenured public employee is entitled to notice of the -19 charges and a reasonable opportunity to be heard. Loudermill, supra at 434 U.S. 543 544; Prue, supra at 78 N.Y.2d 368-369. This is important as an initial check against erroneous decision. Loudermill, supra at 434 U.S. 543. But, even where the facts are clear, the necessity of discharge may not be, and the accused is entitled to a reasonable opportunity to invoke the discretion of the decision-maker. Id. Notably, the right to pre-termination due process is particularly important where, as here, there was no available post-termination hearing process. See, Prue, supra at 78 N.Y.2d 369-370. Thus, even assuming Ms. Adrian was not a resident, the record shows that the District has allowed other teachers to come into compliance. (A. 18-19). Why this discretion was not exercised in Ms. Adrian's case remains a mystery. It must be concluded that pre-termination Ms. Adrian had no meaningful opportunity to invoke the decision-maker's discretion. Not only was there a failure to provide adequate pre-termination due process, there was a complete failure to provide any post-termination review. The Appellate Division found that Ms. Adrian had no right to a hearing. (A. 7). But long before the Supreme Court's Loudermill decision, this Court in Hecht v. Monaghan, 37 N.Y. 461 (1954), held that where a public agency determines property rights, " ... no essential element ofa fair trial can be dispensed with unless waived." Id. at 470. That means: -20 · .. among other things, that the party whose rights are being determined must be fully apprised of the claims of the opposing party and of the evidence to be considered, and must be given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal [citations omitted; id. at 470]. In later cases, both the Supreme Court in Loudermill, supra at 434 U.S. 546, and this Court in Economico, supra at 50 N.Y.2d 127-128, and, Prue, supra at 78 N.Y.2d 369-370, have required full post-termination due process hearings before a tenured public employee's property interest in that employment may be finally extinguished. In fact, in Loudermill and Prue, the pre-termination procedures were deemed adequate because of the opportunity for a full pre-termination hearing. Loudermill, supra, at 434 U.S. 546; Prue, supra, at 78 N.Y.2d 369-370. The denial to Ms. Adrian ofmeaningful pre-termination due process and any post-termination review violated the most basic due process principles. Ms. Adrian was never given a chance to present testimony. (Hecht, supra at 370 N.Y. 470). There was no record of the evidence relied on by the District to counter her documentary evidence, and no opportunity to challenge such evidence. (Hecht, supra at 370 N.Y. 470). There was no statement by the District of the reasons for its determination or the evidence on which it relied. [See, Goldberg v. Kelly, 397 U.S. 254, 271 (1970); and Simpson v. Wolansky, 38 N.Y.2d 391, 396 (1975) (both -21 requiring that the decision-maker base its decision on the record and give reasons for the determination). The due process to which Ms. Adrian was constitutionally entitled would have been crucial for two reasons. First, there was a factual dispute over the key issue - whether Ms. Adrian was a resident ofNiagara Falls. Ms. Adrian asserted that she was a resident and submitted documentary evidence in support ofher assertion. CA. 143 50; 156-60; 244-76). Where the key facts are factually disputed, the need for a hearing is apparent and required. Loudermill, supra, at 534 U.S. at 542; Economico, supra, at 50 N.Y.2d 128-129; Prue, supra at 78 N.Y.2d 369. Second, even if there had been no factual dispute as to her residency, the appropriateness of discharge was not apparent. The record shows that the District has, in applying its policy, allowed other teachers to come into compliance. CA. 18 19). In these circumstances, a meaningful opportunity to invoke the discretion ofthe decision-maker also requires some form of procedural due process. Loudermill, supra, 534 U.S. at 543, 547; Prue, supra at 78 N.Y.2d 368-370. It is clear that the lack of adequate due process in the termination of Ms. Adrian's employment renders that termination void, and requires reversal of the Appellate Division's decision. -22 POINT II THE DISTRICT VIOLATED MS. ADRIAN'S STATUTORY RIGHT TO A HEARING UNDER THE EDUCATION LAW BECAUSE THE PROCEDURES UNDER EDUCATION LAW §3020-a ARE THE EXCLUSIVE PROCEDURES FOR TERMINATING A TENURED TEACHER. We have seen that the procedure used by the District to finally terminate Ms. Adrian's tenured employment did not meet constitutional standards. But it should be unnecessary to decide this appeal on constitutional grounds, because the Legislature in Education Law §3020-a has specified the exclusive procedures by which a tenured teacher may be deprived of her protected property interest in her teaching position. Gould, supra at 81 N. Y.2d 451. The procedures in 3020-a certainly may exceed those that are constitutionally required. There is, of course, no prohibition against legislatively providing teachers with greater procedural protections than those that may be minimally required by the constitutional guarantee of due process. A. Education Law §3020-a Sets Forth The Exclusive Procedures for Removing a Tenured Teacher for Any Cause, Including Lack ofor Failure to Maintain a Legal "Qualification" to Teach. In New York, the Legislature has plainly and specifically set the exclusive procedures which must be utilized before a tenured teacher is removed from her teaching appointment. Education Law § 2509 (2) states that educators granted tenure: -23 · . . shall hold their respective positions during good behavior and efficient and competent service, and shall not be removable except for cause after a hearing as provided by section three thousand twenty-a of such law. [Emphasis supplied]. Education Law § 3020 states, in relevant part: No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article [ .] [Emphasis supplied]. This Court has long held that 3020-a is the "exclusive" procedure under which a tenured teacher can be terminated. Lynchv. Nyquist, 34 N.Y.2d 588 (1974), affirming on the decision ofthe Appellate Division at 41 A.D.2d 363 (3rd Dep't 1973). Here, under New York's tenure laws, the District voted to grant Ms. Adrian tenure in 2006. (A. 132). When it came to her termination, however, the District simply ignored the very statutes under which Ms. Adrian was appointed and held her tenured position. This not only violated express statutory law, but the precedents of this Court. Those precedents conclusively show that 3020-a applies whether the cause for removal is "disciplinary" or is based on a lack of"qualification" to teach. In Mannix v. Bd. ofEduc., City ofNew York, 21 N.Y.2d455 (1968) (cited by the Court in Ricca, supra, 47 N.Y.2d at 392) this Court ruled that a tenured teacher may not be removed, except for cause after a hearing on stated charges, -24 notwithstanding a school district's claim that she/he failed to meet or maintain a qualification or condition for employment. At issue in Mannix was the failure of a tenured teacher to fulfill a graduate course requirement upon which her licensure and appointment were contingent. Id. at 457-58. After she completed her probation, Mannix was permanently appointed, with the caveat that the appointment "was subject to the conditions, 'if any,'" upon which her license was granted. Id. at 458. Mannix did not complete her graduate work in the required time. Id. She was then notified that she would be removed from her tenured position without a hearing and without charges. Id. Mannix commenced an Article 78 proceeding to prevent the board of education from removing her without charges and a hearing. Id. The applicable statute (Education Law § 2573) stated that after satisfactory completion ofprobationary service, a teacher "shall not be removable except for cause." (subd. 5). Id. at 456-457. This Court affirmed the judgment at the Appellate Division reinstating Mannix. The Court instructed that a board ofeducation can not lawfully impose employment qualifications that survive past the grant of tenure as a continuing condition of employment, such as to privilege the board of education, upon a claim that the qualifications were not met or maintained, to remove a tenured teacher without -25 charges and cause proven at a hearing. Id. at 462-63. The Mannix Court emphasized the undesirable consequences that would be visited upon the statewide system of teacher tenure if local school boards were permitted to impose such continuing qualifications in derogation of tenure rights, stating: It is manifest that ifconditions ofone sort or another could be attached to a probationary appointment, restrictions could readily be envisaged and imposed by the board which might destroy the basic protection of the teachers' tenure law. [Id. at 457] The Mannix Court embraced two of it own opinions and two opinions of the Appellate Divisions, recognizing, as far back as the turn ofthe 20th century, the rights oftenured teachers now asserted by Ms. Adrian. In each opinion, boards ofeducation were precluded from enforcing employment qualifications or conditions in derogation ofthe right oftenured teachers to charges and a hearing to determine ifcause existed to justity removal. The first ofthis Court's decisions, People ex reI. Murphy v. Maxwell, 177 N.Y. 494 (1904), held that a bylaw ofthe New York City Board ofEducation, conditioning a tenured female teacher's continued employment upon her remaining unmarried, did not, without a hearing upon charges, permit the board of education to terminate her when she married. (Id. at 496-497). -26 In Boyd v. Col/ins, 11 N.Y.2d 228 (1962), this Court vitiated an agreement between a board of education and a teacher under which the teacher would resign after a stated period in lieu of charges. The Court plainly stated that the "statutory tenure terms can be changed by the Legislature but never by a board of education." Id. at 233. As summarized by the Court in Mannix, supra, "[i]t was made clear in [Boyd] that no act of a board of education could effect a method of bypassing the tenure statute." Mannix, 21 N. Y.2d at 459. While Boyd was subsequently overruled in Matter ofAbramovich v. Bd. ofEduc. ofCent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450 (1979), it was overruled solely on the ground that the law does not absolutely forbid a tenured teacher from waiving the protections of the tenure statutes if the record establishes a truly knowing, open and voluntary waiver. Id. at 455. Ms. Adrian has never waived her tenure rights. Therefore, Boyd's reversal does not affect the present analysis. The first of the Appellate Division cases embraced by the Mannix Court, Kobylski v. Agone, 37 Misc.2d 255 (Sup. Ct. Broome Co., 1962), ajf'd on op. below, 19 A.D.2d 761 (3 rd Dep't 1963), determined that a tenured teacher who had not completed all courses required by the Commissioner of Education to achieve permanent certification could not be removed without charges and a hearing on the question ofhis competency. In the second case, Glass v. Bd. ofEduc., 21 A.D.2d 891 -27 (2nd Dep't 1964), ajf'd, 16 N.Y.2d 982 (1965), the Appellate Division and this Court held that notwithstanding the failure of a teacher to complete all of the announced eligibility requirements for her teaching position, once the teacher had been granted tenure at the completion ofher probationary term, she could not be dismissed without a hearing on charges of incompetency. Id., at 21 A.d.2d 892. Other non-disciplinary "causes" for removing a tenured teacher also fall with the scope of section 3020-a, including mental disability (see, Fitzpatrick v. Board of Education ofMamaroneck Union Free School District, 96 A.D.2d 557 (2nd Dept. 1983), app. den., 61 N.Y.2d 607 (1984); and physical disability (see, Coriou v. Nyquist, 33 A.D.2d 580 (3 rd Dep't 1969), app. den., 26 N.Y.2d 610 (1970). Certainly teachers who are mentally or physically ill are not the subject of"discipline" as that term is commonly understood to connote punishment. Yet, they clearly are subject to removal-- pursuant to section 3020-a -- because physical or mental competence to teach is a necessary qualification for the profession.3 It makes perfect sense to include the alleged failure to maintain a job qualification in hearings designed to adjudicate a teacher's competence. In Lynch v. Nyquist, 41 A.D.2d363, 365 (3rd Dep't 1973),ajf'd, 34N.Y.2d 588 (1974), this Court 3 Under Section 3020-a(4), the hearing officer, rather than imposing a "penalty," can order remedial measures, including leaves ofabsence and medical treatment. -28 adopted the opinion below defining a lack of qualification of certification as "legal incompetence," and confirming that a tenured teacher cannot be removed for an alleged lack of qualification except pursuant to Education Law §3020-a. In this regard, Webster's Third International Dictionary defines "incompetence" as "lack of legal qualifications or fitness." Further, the necessity of a 3020-a hearing is apparent because even in cases where it is shown a teacher lacks a job qualification, such as certification or residency, discharge may not be appropriate. See Kobylski, supra, at 37 Misc. 2d 263. Thus, in Appeal ofBd. ofEduc., ofthe Nanuet Union Free School Dist., 21 Ed. Dept. Rep. 482, 484 (1982), the Commissioner of Education imposed a one year suspension without pay in an Education Law §3020-a proceeding where the tenured teacher was charged with lack of certification, stating: " ... it may not in all instance be necessary to authorize the termination ofthe teacher's services." The applicability of the precedents is well-demonstrated by Ms. Adrian's case, because the record shows the District has allowed non-residents to come into compliance. Thus, conceptually, it matters not whether a tenured teacher is accused of misconduct or incompetence, or whether the alleged incompetence is pedagogic, physical, mental or legal- - such as failure to maintain certification or residency. In each situation, 3020-a is the exclusive procedure governing the removal of a -29 tenured teacher. B. The Civil Service Law Cases Relied on by the Appellate Division Are Inapplicable to the Rights ofa Tenured Teacher under Education Law §§3020 and 3020-a. In rejecting Ms. Adrian's cross-appeal for a 3020-a hearing, the Appellate Division held that no hearing was required by law and inappropriately relied upon a series of cases holding that where a civil servant is removed for failure to maintain a job "qualification," such as residence, the hearing procedures under Civil Service Law §75 do not apply. (A. 7). The Appellate Division cited its prior decision in O'Connor v. Board ofEducation of the City School District ofNiagara Falls, 48 A.D.3d 1254, (2008), app. dism., 10 N.Y.3d 928 (2008). O'Connor, in tum, relied on this Court's decision in Felix v. New York Citywide Admin Servs., 3 N.Y.3d 498 (2004). The Appellate Division, in so holding, erred in two major ways. First, Felix did not hold that the tenured civil servant who was removed for failure to maintain residence, pursuant to a city rule, was not entitled to due process. Quite the contrary, Felix held that the employee was not entitled to a section 75 hearing, and that he received the "requisite due process" under the City's procedures. Id., at 3 N.Y.3d 506. In Ms. Adrian's case, the complete failure of the District to provide adequate due process requires reversal. -30 Even more important, the fact that Civil Service Law §75 rights may not apply when a permanent civil servant is accused of failing to maintain a job qualification, as set forth in Felix, is not dispositive of the rights of a tenured teacher under the Education Law. In Felix, this Court found that Civil Service Law §75 applies solely to disciplinary matters, and that the failure to maintain a job qualification was not disciplinary. Felix, supra at 3 N.Y.3d 507. Unlike section 75, however, Education Law §§ 3020 and 3020-a have long been held to govern cases dealing with teacher qualification, and have long been held to be the "exclusive" procedures for removal of tenured teachers. See, cases discussed above at pp. 24-29; see also Feingold v. Lynch, 31 A.D.2d 969, 970 (2nd Dep't 1969) (failure to maintain certification is grounds for dismissal ofa tenured teacher for incompetency, but only after the teacher was afforded a hearing); accord, Amos v. Bd. o/Educ. o/Cheektowaga-Sloan Union Free School Dist., 54 A.D.2d 297,301-303 (4th Dep't 1976). This Court, as noted, has also affirmed that in cases ofteacher certification requirements, that employment qualifications may "not be employed to erode the protections afforded tenured teachers, since the tenure statutes provide the exclusive method for dismissal for those teachers." Lynch v. Nyquist, 34 N.Y.2d 588,589 (1974) (dismissal for "legal incompetence due to lack ofcertification" requires a hearing pursuant to Education -31 Law § 3020-a). Id. at 589. Therefore, it is respectfully submitted that no logical distinction can be made between certification and residency for purposes of teacher tenure statutes. Both are necessary "qualifications," - - the former imposed by state law, the latter by District rule.4 Second, the Felix rationale IS inapplicable to this case because, under Education Law §3020-a, the Legislature has provided tenured educators significantly different and in some respects greater protection than those afforded to the civil servants under section 75.5 These greater protections include prohibition on suspension without pay (except in isolated incidents) [3020-a(2)(b )], the ability to select a hearing officer [3020-a(3)(b )(ii)] , pre-hearing discovery [3020-a(3)( c )iii)(C)], the right to avoid giving evidence against oneself[3020-a(3)( c )(i)] , the right to make a pre-hearing motion challenging the sufficiency ofthe charges [3020-a(3)( c )(iii)(B), and the right to seek sanctions and attorneys' fees in the event of frivolous charges 4 Notably, it is unlawful and potentially a misdemeanor, in most instances, for a Board of Education to employ an uncertified teacher. See Education Law §§3009, 3010. Nonetheless, the tenure laws and this Court's precedent require that an uncertified teacher is entitled to a hearing under 3020-a before termination. It is difficult to reconcile a statutory interpretation requiring a 3020-a hearing in cases where a teacher lacks a statutory qualification, with an interpretation, such as that made by the Appellate Division (A. 7), that no hearing is required where a teacher allegedly lacks a locally imposed qualification to teach. 5 Moritz v. Bd. ofEduc. ofGowanda Cent. School Dist. held, in a different context from the instant proceeding, the protections afforded to civil servants under the Civil Service Law are not legally equivalent to the rights of tenured teachers under the Education Law. [d., 60 A.D.2d 161, 167 (4th Dep't 1977). -32 [3020-a(4)(c)]. Moreover, the courts have held that section 75 hearing rights can be waived or altered through collective bargaining. See Antinore v. State, 49 A.D.2d (4th Dep't 1975), aff'd on opinion ofAppellate Division 40 N.Y.2d 921 (1976). Under Section 3020(1), however, any alternate procedure negotiated by a tenured educator's collective bargaining representative must allow the tenured educator the option to select between the alternate bargained procedure and the statutory procedure afforded by Education Law §3020-a. This embodies the Legislature'S recognition that the property interest protected by the tenure statutes is critical, and can only be waived by the individual holder of that interest. The Education Law also differs because under Civil Service Law §§71-73, a civil servant who is allegedly occupationally or non-occupationally disabled from performing duties is entitled to a panoply ofdue process protections, prior to removal, to determine whether he/she is physically or mentally qualified to perform duties. For tenured teachers, as noted above, at pp. 28, a dispute over a teacher's physical or mental qualification to teach is determined under 3020-a. Third, Ms. Adrian's argument is supported also by the principle of statutory construction known as expressio unius est exclusio alterius. McKINNEY'S Statutes §240 ("where a law describes a particular act ... to which it shall apply, an irrefutable -33 inference must be drawn that what is omitted or not included was intended to be omitted or excluded"); Arons v. Jutkowitz 9 N.Y.3d 393, 418 (2007) ("the expression of one thing is the exclusion of another"). When carving out exceptions to 3020-a, the Legislature has been specific. In 2008, it amended the tenure statute to require the automatic termination of employment without a further due process hearing for teachers criminally convicted ofcertain sex offenses. Education Law § 3020-a(2)(b); Laws of 2008, Chapter 296. The Legislature's amendment of the tenure statute to estab lish the loss ofone's property interest in continued employment based on certain criminal convictions, without establishing such a loss based on a failure to comply with local board of education policy (here residency) shows that the Legislature mandates the necessity of a due process hearing provided by 3020-a in the latter situation. See McKINNEY'S Statutes § 240. Thus, if the Legislature intended to require the automatic forfeiture ofone's property interest in circumstances involving non-compliance with a residency policy, or other local board ofeducation policies, it would have clearly done so in the 2008 amendment of the tenure statute or thereafter. Finally, Felix is factually distinguishable from this case. In Felix, the City's policy mandatedforfeiture ofemployment upon failure to establish residence. Felix, supra at 3 N.Y.3d 501. Here, the record shows that the District maintained and -34 exercised discretion to allow non-residents to come into compliance. (A. 18-19). Further, in Felix, there appears to have been no dispute that Felix was a non-resident at the time the violation was alleged, as all of the documentary evidence post-dated the alleged violation. Felix, supra at 3 N.Y.3d 506. Here, Ms. Adrian maintains that she was a resident of Niagara Falls at all relevant times. (A. 142-150). Finally, in Felix, this Court required due process (3 N.Y.3d 506) and the process found acceptable was more substantial than that provided to Ms. Adrian, and included a written finding that the evidence Felix submitted was created post-hoc. (Id.) No findings as to the alleged sufficiency of Ms. Adrian evidence were made by the Niagara Falls City School District. (A. 173, 328). In conclusion, in accordance with the Legislative intent of the tenure statute and public policy, a 3020-ahearing should have been afforded Ms. Adrian before she was terminated. POINT III THE APPELLATE DIVISION ERRED BY REVERSING THE SUPREME COURT DETERMINATION BECAUSE THE DISTRICT'S ACTION TERMINATING PETITIONER WAS ARBITRARY AND CAPRICIOUS. Whether Ms. Adrian was denied her due process right to a hearing or her statutory right to a hearing, the Appellate Division must still be reversed because the -35 District's actions were completely arbitrary. A. The District's Implementation Of The Residency Policy Was Arbitrary And Capricious. Justice Boniello found multiple problems with the interpretation and application of the district's residency policy, leading him to find "the policy to be unenforceable, incomplete and any action taken therein to terminate Ms. Adrian's employment pursuant to the policy to be arbitrary and capricious." (A. 19). First, he found the District's definition of"residency" to be "vague and ambiguous" resulting in the policy being interpreted inconsistently. (A. 18). Second, the problems created by the vague definition of residency were compounded by the fact that the District's superintendent of schools never issued "administrative procedures and guidelines" to clarify implementation of the policy, even though specifically required to do so by the policy. (A. 18). In fact, even when Ms. Adrian's attorney asked for guidance, the District failed to respond. (A. 327, ~14). Finally, Justice Boniello found the District inconsistently applied the policy, including allowing a teacher to merely provide a single document evidencing an "intent to come into compliance," whereas Ms. Adrian was not treated equally. (A. 19). According to Justice Boniello, all of these issues have led to "varied and -36 subjective interpretations leading to disparate results." (A. 19). The Fourth Department did not address any of these issues in its decision finding the District's action to not be arbitrary and capricious. It is respectfully submitted that Justice Boniello correctly characterized the District's residency policy as leading to disparate results. Since 2008 multiple cases concerning the District's residency policy have reached the Appellate Division, Fourth Department, receiving various results. (See, Matter a/O'Connor v. Board 0/ Education a/City School District a/City a/Niagara Falls, 48 A.D. 3d 1254, Iv dism., 10 N.Y.3d 928 (2008) (terminations upheld); Gigliotti v. Bianco, 82 A.D.3d 1636 (4th Dep't 2011) (District action held arbitrary and capricious); Krajkowski v. Bianco, 85 A.D.3d 1577 (4th Dep't 2011) (District action held arbitrary and capricious); Beck Nichols v. Bianco, 89 A.D.3d 1405 (4th Dep't 2011) (District action held arbitrary and capricious); Luchey v. Bd. 0/Educ. a/City Sch. Dist. a/City a/Niagara Falls, 92 A.D.3d 1276 (4 th Dep't2012) (district action held arbitrary and capricious). Causing even further confusion is the Fourth Department's decision in this case dismissing the petition, yet upon review ofthe exact same Supreme Court decision finding the policy to be unenforceable, affirming the decision in Luchey v. Bd. 0/ Educ., Id. It is respectfully submitted that based on the inconsistent application of the policy Supreme Court properly determined that the District's action was "arbitrary and -37 capricious[.]" Matter of Pell v. Bd. of Educ., 34 N.Y. 222 (1974). Further, the District's failure to adopt an implementing procedure, in violation of its policy, requires reversal of its determination. See, Frick v. Bahou, 56 N.Y.2d 777, 778 (1982); and Lehman v. Board ofEduc., ofthe City ofNew York, 82 A.D.2d 832, 833 834 (2nd Dep't 1981) (agency bound by its own policies). B. The Appellate Division Incorrectly Weighed The Evidence Presented to the District. Ms. Adrian provided the District with numerous documents to establish her residency at the 73rd Street, Niagara Falls, address through the Spring of 2009, including a rental lease agreement; voter registration notification cards for the 2004, 2005 and 2006 primary and general elections; correspondence from the District including a 2006 assignment letter; Adelphia cable bills; Time Warner cable bills; NYSUT member benefit updates and benefits statements; correspondence from BOCES; and her New York State Driver's License listing the 73rd Street address. (A. 244-76). In addition, the following uncontested evidence was submitted prior to the Board ofEducation vote showing residency at the 611 Chasm Street, Niagara Falls address commencing in the Fall of2009: a rental lease agreement (A. 156-60); a copy ofMs. Adrian's voter registration card for both primary and general elections; a copy -38 of her Time Warner cable change of address confirmation listing 611 Chasm Ave, Apt. 2 as the new address on her account; and a copy of her first Time Warner cable bill sent to the new address. (A. 143-50). The Fourth Department has previously held that a motor vehicle registration and a driver's license, utility bills, and voter registration cards listing that an individual is registered to vote in Niagara Falls is sufficient evidence of domicile. Krajkowski v. Bianco, 85 A.D.3d 1577, 1577 (4th Dep't 2011). Here, the driver's license, vehicle registration, utility bills and voter registration were deemed insufficient. (A. 7). In addition, Justice Boniello noted that when asked by the court what would be sufficient evidence, counsel for the District stated "the renting ofan apartment for yourself." (A. 19). Indeed, Ms. Adrian did provide a lease showing the renting of a Niagara Falls apartment with other documents demonstrating residency . (A. 304-16). This too was not addressed by the Fourth Department. The Fourth Department relied on a surveillance report, motor vehicle records, a land line phone account in Williamsville and the lack of a land line phone in Niagara Falls to reject Ms. Adrian's contention of residency. (A. 7). Today, however, when an estimated 31.60/0 of American homes have only wireless telephones, it would be unreasonable for a teacher to expect that by not installing a -39 land line phone in a rental unit, she would be exposed to allegations of noncompliance with a residency policy.6 Ms. Adrian's connection to another dwelling in Williamsville, which housed a friend or family member, is not enough to show that she did not reside in Niagara Falls. See, Krajkowski, 85 A.D.3d at 1577. Likewise, evidence that an individual kept personal effects at a residence outside ofNiagara Falls, or that she visited her family in the second residence outside City limits on the weekends, did not establish a violation of the residency policy in Gigliotti v. Bianco, 82 A.D.3d 1636, 1638 (4th Dep't 2011). As the Supreme Court noted, this Court has held that an individual may maintain a domicile purely for employment purposes. See, Matter ofHosley v. Curry, 85 N.Y.2d447, 452 (1995). Thus, it is respectfully submitted that the Fourth Department incorrectly weighed the evidence of residency. C. The District's Failure to Explain Why It Terminated Petitioner Renders Its Action Arbitrary and Capricious. By weighing the quality of evidence presented to the District, the Fourth 6 CENTERS FOR DISEASE CONTROL AND PREVENTION, WIRELESS SUBSTITUTION: EARLY RELEASE OF ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY, January - June 2011 (2011), available at www.cdc.gov/nchs/datainnis/ earlyrelease/wireless201112.htm. -40 Department impermissibly surmised what reasoning the District used when making its decision to terminate. The District never stated the reasons why it terminated petitioner, or why it allowed others to simply promise to come into compliance. Such reasoning needs to be provided before litigation is commenced challenging government action. Matter a/Featherstone (Franco), 95 N.Y.2d 550 (2000). Without an explanation, a reviewing court cannot determine the constitutional soundness of the District's actions, and requires reversal due to the arbitrariness of the board action. This concept was succinctly stated by this Court in Mtr. a/Charles A. Field Delivery Servo (Roberts), 66 N.Y.2d 516, 520 (1985): From the policy considerations embodied in administrative law, it follows that when an agency determines to alter its prior stated course it must set forth its reasons for doing so. Unless such an explanation is furnished, a reviewing court will be unable to determine whether the agency has changed its prior interpretation ofthe law for valid reasons, or has simply overlooked or ignored its prior decision. (citation omitted). Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made. (Further citations omitted). The District's failure to explain why the evidence presented by Ms. Adrian in support of residency was insufficient, thus justifYing her termination, forces a reviewing court to speculate why the District took this action. The courts are not -41 allowed to engage in such speculation, which denies Ms. Adrian's statutory right to review. Matter ofMontauk Improve men tv. Procacino, 41 N.Y.2d 913,914 (1977). Accordingly, the District's failure to explain its findings, and the reasons behind its action terminating Ms. Adrian, justify a finding that its actions were arbitrary and capricious.7 D. The Appellate Division Improperly Shifted The Burden OfProof To Petitioner. In its decision, the Appellate Division recited the evidence presented by Ms. Adrian, and characterized that evidence as "not so overwhelming as to support the [lower] court's determination granting the petition. (A. 7). This shifting of the burden ofproofonto the tenured teacher is inconsistent with the public policy ofthis State. "The public policy of the State, by the terms of its statutes, regulations and common law defines the scope and contours of [the property] interest." Matter of Economico supra, at 50 N.Y.2d 126. The public policy of this State and the "scope and contours" of Ms. Adrian's property interest, are defined in Education Law §§ 3020 and 3020-a. It has long been held that when a board of education attempts to deprive a 7 Notably, in Felix, the City did provide an explanation of its finding that Felix was in violation of the residency policy. Felix, supra, at 3 N.Y.3d 504. -42 ____ tenured teacher ofher property interest, it is incumbent upon the board ofeducation to establish cause by a preponderance ofthe evidence. Martin v. Ambach, 67 N.Y.2d 975,977 (1986). Here, by requiring Ms. Adrian to produce "overwhelming" evidence in support of residency, the Appellate Division has shifted the burden of proof from the board of education to the holder of the constitutionally protected property interest. This completely abrogates the protections established by the New York State Legislature, and the United States Constitution. [See, Economico, supra; Loudermill, supra.] Accordingly, the decision of the Appellate Division should be reversed because it incorrectly and arbitrarily shifted the burden of proof to Ms. Adrian. CONCLUSION It is respectfully requested that this Court reverse the decision ofthe Appellate Division, in is entirety, and order that Ms. Adrian be reinstated to her tenured teaching position, with full back pay and benefits. Dated: August 27, 2012 Respectfully submitted, Latham, New York 12110 ruCHARDE.CASAGRANDE Attorney for Petitioner-Appellant 800 Troy-Schenectady Road Latham, New York 12110-2455 Te . (518) 2 3-o~a By: 102745/cwa1l41 -43