In the Matter of Karri Beck-Nichols, Respondent,v.Cynthia A. Bianco,, et al., Appellants.BriefN.Y.January 8, 20130 To be Argued by: MICHAEL F. PERLEY, ESQ. Estimated Time for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals In the Matter of the Application of KARRI BECK-NICHOLS, Petitioner-Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules Commanding Respondents to Reinstate Petitioner to Her Position as a Production Control Manager in the School District of the City of Niagara Falls, New York vs. CYNTHIA A. BIANCO, as Superintendent of Schools of the City School District of the City of Niagara Falls, New York, RUSSELL PETROZZI, as President of the Niagara Falls Board of Education, NIAGARA FALLS BOARD OF EDUCATION and SCHOOL DISTRICT OF THE CITY OF NIAGARA FALLS, NEW YORK, Respondents-Appellants. Erie County Index No.: I 2009-14459. Appellate Division Docket Number: TP 11-00935. REPLY BRIEF FOR RESPONDENTS-APPELLANTS HURWITZ & FINE, P.C. Attorneys for Respondents-Appellants 1300 Liberty Building Buffalo, New York 14202 Telephone: (716) 849-8900 Facsimile: (716) 855-0874 MICHAEL F. PERLEY, ESQ. TODD C. BUSHWAY, ESQ. CASSANDRA A. KAZUKENUS, ESQ. ANGELO MASSARO, ESQ. Of Counsel Date of Completion: July 5, 2012. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................. ii PRELIMINARY STATEMENT ............................................................................ 1 ARGUMENT POINT I: The Board’s Decision was Rational Because it had the Authority to Give Greater Weight to the Evidence Demonstrating that Beck- Nichols was Domiciled in Lewiston Rather Than Niagara Falls....... 2 POINT II: By Failing to Provide the Deference Due to the Board, The Appellate Division Improperly Shifted the Burden of Proof to the Board ........................................................................................ 7 CONCLUSION....................................................................................................... 9 ii TABLE OF AUTHORITIES Cases Page Arrocha v. Bd. Of Educ. Of City of New York, 93 N.Y.2d 361, 712 N.E.2d 669, 690 N.Y.S.2d 503 (1999) ...........................................................2 Bourne’s Estate, 181 Misc. 238, 247 [Sur Ct 1943] aff’d 267 A.D. 876, 47 N.Y.S.2d 134 (2nd Dept. 1944) aff’d 293 N.Y. 785, 58 N.E.2d 729 (1944) .....4 Carlan v. Bd. Of Educ. Of Lawrence Union Free School District, 128 A.D.2d 706, 513 N.Y.S. 2d 202 (2nd Dept. 1987) .......................................................................2 Matter of Newark Val. Cent. School Distrct v. Public Empl. Relations Bd., 189 A.D.2d 229, 596 N.Y.S.2d 216 (3rd Dept. 1993) .............................................8 Poster v. Strough, 299 A.D.2d 127, 138, 752 N.Y.S.2d 326 (2nd Dept. 2002) .........7 Rodriguez v. Goord, 260 A.D.2d 736, 736-737.........................................................7 1 PRELIMINARY STATEMENT This appeal arises out of the termination by the Niagara Falls City School Board (the “Board”) of the Respondent, Karri Beck-Nichols (“Beck- Nichols”) from her position as a Production Control Manager for the Information Systems Department for the Niagara Falls City School District (the “District”). Beck-Nichols was terminated because she was in violation of the District’s Residency Policy, which required her to be domiciled in the City of Niagara Falls. The Board reviewed a variety of documents related to where Beck-Nichols resided and determined that the evidence established she resided in Lewiston, New York rather than Niagara Falls as required under the Policy. Beck-Nichols sought review of the Board’s decision pursuant to an Article 78 proceeding. In hearing that application, the trial court referred the proceeding to the Appellate Division, determining that it contained a substantial evidence question. Upon review, the Appellate Division, Fourth Department, reversed the Supreme Court’s Order and held that the Board’s termination of Beck- Nichols was arbitrary and capricious. In making its determination, the Appellate Division reviewed the evidence submitted to the Board and made its own determinations as to the weight of the evidence without giving deference to the Board’s determinations. In doing so, the Appellate Division exceeded its authority and failed to apply the proper standard of review, rationality, in making its 2 determination. Accordingly, Appellants respectfully submit the Appellate Division’s decision should be overturned, and the Board’s decision should be reinstated. ARGUMENT POINT I The Board’s Decision Was Rational Because It Had The Authority To Give Greater Weight To The Evidence Demonstrating That Beck-Nichols Was Domiciled In Lewiston Rather Than Niagara Falls. In her brief, Beck-Nichols’ primarily argues the weight she believes the various pieces of evidence submitted to the Board should be given. Not surprisingly, Beck-Nichols accords a great deal of weight to the documents she submitted in support of her assertion that she maintained a domicile in the City of Niagara Falls, while according little to no weight to the evidence in opposition. This argument ignores the limited scope of review of the court, a review that looks not at the sufficiency of the evidence presented at the board level, but solely whether the board acted in a rational manner in making its decision. As clearly stated repeatedly in New York case law, a court’s review of an administrative body’s determination “can neither weigh the evidence in the record nor substitute our judgment” for that of the administrative body. Carlan v Bd. of Educ. of Lawrence Union Free School Dist., 128 A.D.2d 706, 706, 513 N.Y.S.2d 202 (2nd Dept. 1987) See generally Arrocha v Bd. of Educ. of City of New York, 93 N.Y.2d 3 361, 712 N.E.2d 669, 690 N.Y.S.2d 503 (1999). The question is not whether the reviewing courts views the evidence in favor of one conclusion or the other, but solely whether the board acted in a rational manner in reaching its conclusion. In this case, the Board of Education acted rationality and its determination should not be disturbed. The Board was presented with a variety of evidence regarding Beck- Nichols residence and, after evaluating that evidence, made its determination. Included within the evidence submitted were a number of documents allegedly demonstrating Beck-Nichols resided at one of two addresses in the City of Niagara Falls. Likewise, there was additional evidence presented, including both documentary evidence and surveillance of Beck-Nichols’ activities which demonstrate she resided in Lewiston with her family. In determining whether Beck-Nichols’ was still a resident of Niagara Falls, the Board acted within its power to accord greater weight to a STAR application which swore her primary address was located in Lewiston as well as the surveillance, including Beck- Nichols evasive and secretive actions during the surveillance. The Board was asked to determine whether an individual whose family lived in a different town; who tried to evade the surveillance and changed her behavior once the surveillance was discovered; and who had previously sworn the Lewiston residence was her primary was domiciled in Niagara Falls. In light of the above and after the Board’s 4 weighing of the evidence, the Board rationally found that the evidence clearly demonstrated Beck-Nichols had changed her domicile. “Since actions speak louder than words the conduct of a person is the most important evidence of his intention to acquire a domicile in a place. In any case of discrepancy between his declarations and his acts, his declared intention yields to the conclusion drawn from his acts. In re Bourne's Estate, 181 Misc. 238, 247 [Sur Ct 1943] aff’d 267 A.D. 876, 47 N.Y.S.2d 134 (2nd Dept. 1944) aff’d 293 N.Y. 785, 58 N.E.2d 729 (1944). The surveillance report provided by Probe Services to the Board provided the Board evidence of Beck-Nichols actual behavior. Initially, when surveillance began, Beck-Nichols was residing at the Lewiston address. (R. 42). During the course of the surveillance, Beck-Nichols became aware of the surveillance and changed her behavior. This was noted by Probe, who report stated “during the course of our investigation, Ms. Nichols appeared to be very suspicious of our surveillance”. In fact, Beck-Nichols later admitted she knew of the surveillance. (R. 42). It was certainly within the Board’s review powers to consider that her changed behavior in light of the surveillance impacted the credibility of her statements and actions. The Probe report states that on Thursday, February 19, 2009, Beck- Nichols’ vehicle was located at the Lewiston residence at 5:00 a.m. and never left the residence that day. (R. 44). The next day, the same vehicles were again in the 5 driveway and Beck-Nichols was observed at the Lewiston address. (R. 45). Notably, Beck-Nichols did not report to work either day and was at the Lewiston residence. (R.45). On February 24, 2009, Beck-Nichols made a brief stop at the Joliet address and then proceeded to the Lewiston address. (R.46). At this time, she began driving evasively and drove straight into the garage located at the Lewiston address. (R. 46). Thereafter, the surveillance indicates she stayed at the Jolie address in Niagara Falls, but she would proceed to the Lewiston home after work, and she would remain there until late in the evening. (R. 49-51). During this time, she continued to drive evasively as well. The evidence demonstrates that prior to her knowledge of the surveillance, Beck-Nichols was residing at the Lewiston address. Moreover, even after the surveillance was discovered by Beck-Nichols, she continued to return to the Lewiston address each day, and she would return only at a very late hour to the Joliet address. It was within the Board’s discretion to weigh this evidence against the documentary evidence provided by Beck-Nichols. The Board was certainly entitled to find the surveillance report extremely persuasive in demonstrating Beck-Nichols lived in Lewiston with her family. The surveillance showed Beck- Nichols to be residing in Lewiston with her family and only after becoming aware of the surveillance did she take evasive actions and begin staying at the Niagara Falls residence. Her sudden change in behavior is a legitimate basis to question the 6 credibility of her statements and evidence presented made during the investigation into her residency. Beck-Nichols also asserts that the 2001 STAR application should not be given any weight because she did not have to sign it, and an amended STAR application was filed after an investigation into her residency took place. Again, it was the Board’s right and duty to determine which evidence it found credible. It was within the Board’s discretion to determine that an amended STAR application filed after the investigation regarding Beck-Nichols’ residence was less persuasive than a STAR application filed before the application, especially in light of her evasive and secretive actions taken once surveillance was noted. The 2001 STAR application filed by Beck-Nichols and her husband stated: I (we) certify that all of the above information is correct and that the property listed above is owned by and is my (our) primary residence. I (we) understand it is my (our) obligation to notify the assessor if I (we) relocate to another primary residence and to provide any documentation of eligibility that is requested. This document contains a clear statement by Beck-Nichols on the central question before the Board. Beck-Nichols now asserts that her “declarations of intention” to retain a Niagara Falls domicile supersede the 2001 STAR application. The evidence demonstrates that prior to the investigation into her domicile, Beck- Nichols certified, subject to fines and criminal prosecution, that her primary residence was located in Lewiston. Later, once her domicile and her position at the 7 School District were in jeopardy, she and her husband filed a new STAR application in her husband’s name only and without her sworn statement as to residency. The Board’s reliance and deference given to the 2001 STAR application is a rational and logical interpretation of this evidence. The Board was entitled to assess the quality of the evidence and was acting within its discretion when it gave greater weight to both the 2001 STAR application and her actions prior to her discovering the surveillance. In light of the weight given to the above evidence, the Board’s decision that those documents and other evidence provided clear and convincing proof she was residing in Lewiston. This decision is rational and should have been upheld. The trial court and Appellate Division improperly undertook to substitute their judgment of the evidence rather than determining whether the Board’s decision was rational and should be upheld. POINT II By Failing To Provide The Deference Due To The Board, The Appellate Division Improperly Shifted The Burden Of Proof To the Board. “In a proceeding in the nature of mandamus to review, 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, 752 N.Y.S.2d 326 (2d Dept 2002) quoting In re Rodriguez v Goord, 260 A.D.2d 736, 736-737. In this matter, the burden is upon Beck-Nichols to establish that the 8 Board failed to make a rational decision in finding that she did not comply with the district’s residency requirement. Rather than hold Beck-Nichols to that standard, the Appellate Division improperly shifted the burden to the Board to prove the evidence demonstrated that Beck-Nichols had changed her domicile. This shift in burden occurred when the appellate court reviewed the evidence in its entirety and substituted its own determinations on the evidence. A school district’s interpretation of its policy regarding conditions of employment is accorded judicial deference. See, Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 189 A.D.2d 229, 596 N.Y.S.2d 216 (3rd Dept. 1993). When the Appellate Division reviewed the evidence de novo, it shifted the burden away from Beck-Nichols, the petitioner whom the burden should have been upon, to the Board because the deference afforded the Board was no longer applied. Rather than having to demonstrate why the Board’s decision was not entitled to deference, Beck-Nichols merely had to submit the evidence provided to the Board and seek the Appellate Division’s independent determination of that evidence. In making this shift, the Board was assigned the burden of establishing that the evidence before it clearly and convincingly established Beck-Nichols changed her domicile. By failing to give the Board’s interpretation of the Residency policy deference and failing to accept the Board’s weighing of the evidence, the Appellate Division placed the burden on the Board 9 of establishing Beck-Nichols had changed her residency. The Court should have given the Board’s determination deference and required Beck-Nichols to establish the Board’s decision was not rational. CONCLUSION For the reasons set forth above as well as those reasons set forth in our original brief, the Appellate Division’s determination that Beck-Nichols should be reinstated to her position should be reversed and the Board’s decision should be reinstated. _____________________________ Michael F. Perley Hurwitz & Fine, P.C. 1300 Liberty Building Buffalo, New York 14202 716-849-8900