In the Matter of Keli-Koran Luchey, Respondent,v.Board of Education of City School District of the City of Niagara Falls et al., Appellants.BriefN.Y.Jan 8, 2013 December 21, 2012 New York Court of Appeals 20 Eagle Street Albany, New York 12207 Attn: Andrew W. Klein, Clerk of the Court RE: Keli-Koran Luchey v. Niagara Falls Board of Education & Cynthia A. Bianco Mo. No. 2012-942 Our File No.: 20091098 Dear Mr. Klein: This office represents 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 (the “Board”) in the above referenced matter. Please allow this to serve as our letter reply brief in this matter. PRELIMINARY STATEMENT This appeal arises out of the termination by the Niagara Falls City School Board (the “Board”) of the Respondent, Keli-Koran Luchey (“Luchey”) from her position as a School Counselor for the Niagara Falls City School District Michael F. Perley email@example.com HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 2 (the “District”). Luchey was terminated because she failed to comply with the District’s Residency Policy, which required her, as a condition of her employment, to be domiciled in the City of Niagara Falls. In determining Luchey had violated the Residency Policy, the Board reviewed a wide range of materials relating to Luchey’s place of residence and determined that the evidence established she resided in Amherst, New York, rather than in the City of Niagara Falls as required under the District’s policy. Luchey sought review of the Board’s decision in an Article 78 proceeding. In hearing that application, the trial court found that the Residency Policy was vague and unenforceable, resulted in an inconsistent application of the policy and that the Board’s decision to terminate Luchey was arbitrary and capricious. Notably, the trial court’s decision applied both to the action brought by Luchey as well as the Article 78 proceeding separately commenced by Roxanne Adrian, another employee of the District. On appeal by Luchey, the Appellate Division, Fourth Department, affirmed the Supreme Court’s Order without decision. However, the Appellate Division, Fourth Department, reversed the trial court’s decision in an appeal brought in the Adrian action. Both decisions by the Fourth Department are currently before this Court for review. HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 3 Appellants in this matter respectfully assert that the Fourth Department and the trial court erred in finding the Residency Policy was inconsistently applied, and that the Board’s determination was arbitrary and capricious. The Board was entitled to review and weigh the evidence presented to it in making its determination Luchey was not in compliance with the Residency Policy. Accordingly, Appellants respectfully submit that both the Appellate Division and trial court’s decisions in this matter should be reversed, and the Board’s decision should be reinstated. Point I Luchey 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. Luchey asserts that New York 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. Section 3020-a, titled Disciplinary Procedures and Penalties, contains clear language that requires, as a prerequisite to its applications, charges of misconduct or incompetency. Clear and unequivocal case law shows that Luchey’s position is not consistent with the state of the law in this area. HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 4 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. When considering 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 of New York, 41 N.Y.2d 205, 208 (1976). 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 or personal conduct of the teacher. Education Law §3020-a provides, in part: § 3020-a. Disciplinary procedures and penalties 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 HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 5 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, return receipt requested or by personal delivery to the employee. (Emphasis added) New York Education Law §3020-a(1) and (2) HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 6 The statute clearly states what triggers its application - 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. Id. (emphasis added) Luchey seeks to apply Education Law §3020-a to any circumstance where a teacher is removed from their employment. Education Law §3020-a is clear on this point. The statute applies only in those circumstances where a teacher’s misconduct or competency is at issue and discipline of the teacher is contemplated. The statute at issue does not apply to other circumstances that may lead to a teacher’s removal, such as the failure to comply with a condition of employment, such as the Residency Policy in place at the Niagara Falls City School District. Prior decisions have upheld the distinction between matters of discipline or competency and other reasons for dismissal. In the case Mannix v Bd. of Ed. of City of New York, 21 N.Y.2d 455, 458 (1968), the tenured teacher failed to fulfill graduate course requirements, leading to her removal. The court HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 7 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, supra. This Court, in Mannix, was clear that certification requirements go to a teacher’s competency, requiring the hearing now sought by Luchey. Similarly, the charges brought against the tenured teacher in Fitzpatrick v Bd. of Educ. of Mamaroneck Union Free School Dist., 96 A.D.2d 557 (2nd Dept. 1983) pertained to his competency to teach, triggering the need for the hearing. In that case, the teacher’s mental disability raised issues such as his “incapacity to teach, conduct unbecoming a teacher, and incompetency in carrying out his assigned duties and responsibilities as a teacher.” Fitzpatrick, supra. The issue of the application of Education Law §3020-a to a residency policy has been directly addressed by the Appellate Division, Fourth Department in O'Connor v Bd. of Educ. of City School Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4th Dept. 2008). In that decision, the court explicitly held that Education Law §3020-a was inapplicable to a failure to comply with the same residency policy at issue in this present case the residency policy “is a HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 8 consideration unrelated to job performance, misconduct or competency.” O’Connor at 1255. B. This Court’s Decision in Felix v. New York City Dept. of Citywide Admin. Services Holds That a Failure to Comply With a Residency Policy is Not Misconduct. Luchey argues that the O'Connor court improperly relied upon this Court’s decision in Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498 (2004) when it ruled that noncompliance with the Niagara Falls City School District’s residency policy was related to job qualification and not misconduct or incompetence and therefore did not trigger any rights to a hearing under Education Law §3020-a. In Felix, this Court was asked to determine whether a permanent civil service employee’s violation of a New York City code’s residency requirement was misconduct entitling him to a hearing under Civil Service Law §75, a corresponding statute to Education Law §3020-a. Felix, supra. New York City law required certain civil service employees “to establish and maintain residence within the five boroughs of New York City as a condition of employment.” Id. Francisco Felix was hired by New York City to a position which was subject to both the New York City residency law as well as Civil Service Law §75. Id. at HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 9 502. Despite Felix having sworn that he would comply with the residency requirement, the City became suspicious that Felix did not reside in the five boroughs and informed Felix of such. Id. at 503. Felix was asked to appear at a meeting to discuss this alleged violation, and it was ultimately determined that he was in violation of the residency requirements. Id. Thereafter, Felix was terminated. Id. at 504. Felix then filed a CPLR 78 proceeding challenging his dismissal, arguing he was entitled to a pre-removal hearing under Civil Service Law §75. The Court explained that a core question was “whether Felix’s nonresidency was a forfeiture of employment or misconduct for which he was entitled to a preremoval hearing.” Felix, supra at 505. This is essentially the same question present in this case – whether the failure to comply with a residency requirement triggers the right to a hearing under the statute controlling dismissals for incompetency or disciplinary reasons. In Felix, 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.” Felix, supra. This Court further held that failure to maintain residence merely HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 10 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.” Felix, supra.1 Absent an instance of incompetency or misconduct, no hearing was required. The same is true in this matter. 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 (d), or paragraph (e) of this subdivision shall not be removed 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 1 This Court’s decision in Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498 (2004) followed its prior decision in Mandelkern v. City of Buffalo, 64 A.D.2d 279, 281 (4th Dept. 1978), where the Fourth Department held that a violation of a residency policy “is a consideration unrelated to job performance, misconduct or competency.” HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 11 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. Civil Service Law §75 clearly states that a hearing is required only where the employee is being removed as a result of incompetency or misconduct. Under §75 of the Civil Service the charges must be commenced within a specified time frame after the “occurrence 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 occurrence of the alleged incompetency or misconduct.” Like Education Law §3020-a, it is clear that Civil Service Law §75 only sets forth disciplinary proceedings for civil service employees subject to dismissal as a result of misconduct or incompetency. As such, this Court’s decision in Felix finding violation of a residency requirement is not misconduct or incompetency under HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 12 Civil Service Law §75 addresses the same question at the heart of this matter; does a violation of a residency policy require a hearing. 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. This Court’s decision in Felix is on point and applicable to this case. Luchey 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 select 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 statutory scheme.” Guido v. NYS Teachers' Retirement Systems, 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. The plain and unambiguous language of Education Law §3020-a requires a hearing for the removal of a tenured teacher when the removal is the HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 13 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 was not required. Point II The Process Used to Terminate Luchey 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 first question for any due process analysis is whether a protected property interest exists, a necessary predicate for the viability of a constitutional claim. Cleveland Board of Education v. Loudermill at 538. There is no doubt 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 HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 14 (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) In this case, the facts clearly show that Luchey’s due process rights were both satisfactorily and appropriately protected during the proceedings that terminated her employment with the Niagara Falls City Schools. In Cleveland Board of Education v. Loudermill, the court sets forth the basic requirements necessary for the satisfaction of due process guarantees when a protected right is at issue. These elementary rights 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 (emphasis added). 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 HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 15 central question in this case is then whether the process and proceedings in this case were of such a nature as to have afforded Luchey 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) Included in the statute was the right to a post termination hearing. In finding the process in Cleveland Board of Education v. Loudermill constitutional, the Supreme Court 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, Luchey 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 to respond prior to the Board of Education making its ultimate decision to terminate her. On April 1, 2009, the District sent to Luchey correspondence, 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. (R. 162) That letter further advised that a conference was scheduled to review the HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 16 matter on April 28, 2009 and that Luchey was requested to bring certain documentary items to show her compliance with the Residency Policy. The letter also advised Luchey was entitled to be accompanied by her union representative and or her attorney. In response to the notification, Luchey, through her then counsel LoTempio & Brown, prepared and submitted a lengthy response to the allegation of non-compliance with the residency policy. This response included an attorney submission, together with a set of documents that Luchey believed showed her to reside in Niagara Falls. (R.163-212) The District did in fact conduct a Residency Affirmation Hearing on April 28, 2009. At that meeting Luchey was present and accompanied by her personal attorney. (R. 213-219) During that meeting, Luchey 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. (R. 213-219) Following that hearing, Luchey’s counsel wrote to the District and confirmed that the District would provide Luchey with all documentation supporting the allegation of non-compliance with the Residency Policy. (R. 346) HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 17 On May 11, 2009, Luchey’s Union also wrote to the District requesting copies of the evidence against Luchey. (R.347) On July 10, 2009, the District sent to Luchey a summary of the hearing and asked her to submit any further documentation she believed supported her claim of residency. (R.212-219) On July 30, 2009, the District again wrote to Luchey and formally advised her that the District believed her to be in violation of the policy. (R. 220) Per the July 30, 2009 letter, Luchey, was given seven (7) days to respond in writing to the allegation. The allowance for seven days to respond was in keeping with the express terms of the Residency Policy. (R. 133) The letter goes on to advise Luchey that a finding of violation would result in her termination. By correspondence dated August 4, 2009, Luchey, through her then counsel LoTempio & Brown, responded to the District’s July 30, 2009 letter and submitted additional documentation to her claim of residency. (R. 221) On August 14, 2009, the District again wrote Luchey and advised her that an additional meeting was scheduled for August 18, 2009 to review with Luchey additional information the District had concerning her compliance with the Residency Policy. (R. 224) That correspondence also advised Luchey that she was entitled to have present her union representative and or personal counsel and HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 18 that the District’s Attorney would also be present to answer any questions. In response to the August 14, 2009 letter, Luchey’s counsel wrote to the District on August 17, 2009 again requesting documentation and taking the arbitrary position that no meeting would take place without those records. (R. 355) On August 20, 2009, Luchey’s counsel again wrote the District and confirmed that documentation would be provided to Luchey. (R. 356) On August 21, 2009, the District’s counsel responded to Luchey and confirmed that all documentation had been shared with Luchey. (R. 357). Luchey’s counsel responded to this correspondence on August 21, 2009. (R. 358) The District wrote to Luchey again on August 21, 2009 (via certified mail) (R. 233) and advised her that the District’s Superintendent would be recommending to the Board of Education, at its meeting on September 24, 2009, that she be terminated for non-compliance with the District’s Residency Policy. Following the Board’s meeting on September 24, 2009, the District wrote to Luchey on October 10, 2009 and formally advised Luchey that she had been terminated. (R.234) There can be no doubt that the basic elementary due process rights elucidated by the Supreme Court in Cleveland Board of Education v. Loudermill have been complied with in this matter. That court mandated that the “tenured HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 19 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, Luchey 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 two occasions - the District’s letters of April 1, 2009 (R. 162) and July 30, 2009. (R. 220) In addition to these written notifications, the charges were also discussed orally at the hearing held on April 28, 2009 (R. 213) Luchey was also offered the further opportunity to present additional evidence at a second hearing on August 18, 2009. (R. 224) There can be no doubt that Luchey’s right to either oral or written notice of the charges against her was satisfied in this case. HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 20 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 reasonable dispute that this occurred in this case. Luchey was represented by counsel and allowed 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 (R. 162) to list examples of the types of documents and other evidentiary materials Luchey might secure and present in order to express and support her position. The record is also clear that Luchey took advantage of this opportunity, demonstrated in both her submission, via counsel, to the District (R. 163-211) and in the summary of the April 28, 2009 hearing, (R 213-219) together with her further submission on August 4, 2009. (R. 221) The clear record in this case demonstrates beyond question that Luchey was given both the opportunity to review and examine the District’s evidence against her and to present the evidence she believed supported her position. The due process requirements of notice and an opportunity to be heard HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 21 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 Luchey 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). Constitutional due process requires the holder of a protected property right be given notice 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 Luchey 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 an HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 22 opportunity to both challenge the District’s supporting documentation and to present her own evidence and explanation. Because these basic requirements were unmistakably met, there can be no credible claim of a due process violation. Point III The Board’s Decision Finding Luchey In Violation Of The Residency Policy Was Not Arbitrary and Capricious. A. The Board Has Consistently And Appropriately Considered The Evidence Presented And Followed The Procedures Set Forth In The Residency Policy In Determining Whether An Employee, Including Luchey, Was In Compliance With The Residency Policy. The trial court’s holding that the Residency Policy was vague and thus unenforceable failed to adhere to long standing statutory principles requiring courts to give effect to a word’s plain and ordinary meaning. See e.g. Brad H. v City of New York, 17 N.Y.3d 180 (2011) As a starting point, the Residency Policy is presumed valid and enforceable. Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 N.Y.2d 61, (1979) In making her claim that the Residency Policy is vague and ambiguous, Luchey fails to apply these basic tenets. When read in its entirety, the Residency Policy is clear on its face. The purpose of the policy is simple – employees of the school district are required to maintain a HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 23 primary residence in the City of Niagara Falls “for the purpose of community involvement.” (R. 10) Luchey’s claim that the policy is ambiguous is without both merit and support. Likewise, Luchey’s assertion that the Board did not follow the procedures set forth in the Residency Policy is without support in the record. That record demonstrates that the Board followed each of the steps required in the Residency Policy, including providing written notice of the alleged violation, giving seven days to respond to the allegations, and commencing further investigation. Unlike the cases relied upon by Luchey, there is no evidence that any of the procedures set forth by the Board were not followed. Luchey’s reliance upon Lehman v Bd. of Ed. of City School Dist. of City of New York, 82 A.D.2d 832 (2nd Dept. 1981) is misplaced. In Lehman, the court reversed the agency’s decision to terminate the employee because the school failed to have the recommendation of termination reviewed by the Executive Director of DSEPPS, a step specifically required in its procedures. This factual element is missing in this case, where each of the District’s Policy’s procedural mandates were followed. Luchey also argues that the Board’s application of the Residency Policy led to disparate results. This argument is apparently based upon the Fourth HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 24 Department’s review of several other cases arising from dismissals for violations of the District’s Residency Policy. In making such an assertion, Luchey fails to recognize that the Board’s determination in these other matters was very dependent on the individual facts of each case. The Board is required under the Residency Policy to review the specific documents and 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 and is not required to reach the same conclusion in each instance. Luchey relies upon Matter of Charles A. Field Delivery Serv., Inc., 66 N.Y.2d 516 (1985), for her assertion that the Board’s determination must be reversed because there was no written decision setting forth the reasons for the Board’s decision. This contention misconstrues the law as set forth by this Court in that case. An explanation of the Board’s decision is not necessary or required in every instance. Rather, as this Court succinctly explained, an administrative agency’s decision is arbitrary and capricious when its decision “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 HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 25 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). Luchey’s argument has ground only 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., 292 A.D.2d 662 (3rd Dept. 2002), the Appellate Division, Third Department was asked to determine whether a Workers’ Compensation Board’s decision was arbitrary and capricious because it deviated from prior precedent. The employer asserted that the facts of this case were factually similar to the Workers’ Compensation Board’s decision in at least two other prior cases. Id. Upon review of the facts of the case before it and the facts and issues involved in the other two cases presented as binding precedent, the court rejected the employer’s assertion that the Workers’ Compensation Board’s decision was arbitrary and capricious. The Court found that the precedent relied upon by the employer did not arise out of essentially the same facts. Id. at 664. Luchey’s claim that the Board’s was required to explain its supposed departure from prior precedent must fail. At the onset, Luchey has failed to even HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 26 provide the alleged precedent she claims the Board departed from in deciding she failed to comply with the Residency Policy. Instead, Luchey makes a blanket assertion that the Board let other employees come into compliance. As shown in the Record, Luchey, in years past, had been granted a waiver to allow her to come into compliance with the Residency Policy. Further, this Record is completely devoid of any of the facts or circumstances surrounding the Board’s decision to allow this other employee to come into compliance because those facts were never submitted to the court. The only reference to this fact is a statement made in an affidavit by Luchey’s union president, and then that statement is made only “upon information and belief” with no other facts recited or referenced. (R. 243) Luchey has not set forth how this matter is factually similar to any other instances where the Board came to a differing conclusion. Without precedent on essentially the same facts, Luchey’s assertion must fail. B. The Board’s Determination Must Be Upheld Because The Board Is Entitled Deference And Has The Power To Review The Weight Of The Evidence Presented To It. “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 (2nd Dept. HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 27 2002) quoting In re Rodriguez v Goord, 260 A.D.2d 736, 736-737 (3rd Dept. 1999). In this matter, Luchey must establish not only that the Board failed to make a rational decision in finding that she did not comply with the District’s residency requirement, but she must also demonstrate she changed her domicile from North Tonawanda to Niagara Falls (In re Estate of Newcomb, 192 N.Y. 238, 250 (1908)). Luchey contends that she proved her residency in the City of Niagara Falls by giving primary weight to the various pieces of evidence she and her counsel submitted to the Board. Not surprisingly, Luchey accords a great deal of significance to the documents she submitted, while according little to no weight to the contradictory evidence. In asking the courts to review and assess the individual evidence and replace the Board’s determination with their own, Luchey ignores the limited scope of review of by the court in an Article 78 proceeding, a review that does not weigh the sufficiency of the evidence presented at the board level de novo, but looks solely at whether the board acted in a rational manner in making its decision. As clearly and repeatedly stated 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 (2nd Dept. HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 28 1987); See generally Arrocha v Bd. of Educ. of City of New York, 93 N.Y.2d 361 (1999). The question is not whether the reviewing courts could or would interpret the evidence differently from the Board or agency, but solely whether the Board acted in a rational manner in reaching its conclusion. In this case, the Board of Education acted rationally and its determination should not be disturbed. The Board was presented with numerous pieces of evidence regarding Luchey’s residence and, after evaluating that evidence, made its determination. The evidence submitted included a number of documents allegedly demonstrating Luchey resided at a residence on Linwood Avenue in Niagara Falls. Likewise, there was additional evidence presented, including both documentary evidence and surveillance of Luchey’s activities, which demonstrate she resided in Amherst with her son. In determining whether Luchey was a resident of Niagara Falls, the Board acted within its power to accord greater weight to the fact that she had full custody of her son, had agreed as part of her divorce that her son would not live in Niagara Falls, (R. 373) as well as surveillance which showed Luchey never went to the Niagara Falls address she listed as her residence (R. 225-232). In this matter, the Board was asked to determine whether an individual who admittedly was not a resident of Niagara Falls when she accepted her position (R. 138); who sought an HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 29 extension of time to obtain a residence in Niagara Falls because she resided with her fiancé and renting two apartments would be a financial burden (R. 144-145); and whose son over whom she has full custody of allegedly lives in a different town (R. 373), was domiciled in Niagara Falls. In light of the above conflicting evidence and after the Board’s weighing of the evidence, the Board rationally found that the evidence clearly demonstrated Luchey had not established a domicile in Niagara Falls. “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 (2nd Dept. 1944) aff’d 293 N.Y. 785 (1944). The surveillance report provided by Probe Services to the Board gave the Board credible evidence of Luchey’s actual behavior and residence. That there was a mistake regarding her description does not alter the facts especially in light of the photographs and video and other investigative findings contained in the surveillance report. (R. 225-232) In fact, Luchey has never denied that she is the person described and depicted in that surveillance report. That surveillance HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 30 showed Luchey leaving from, and returning to, the Amherst address where her school age son resided. (R. 226-232) She was never observed going to or coming from her claimed Niagara Falls address. (R. 225-232) It was certainly within the Board’s review powers to consider Luchey’s actions more persuasive than the documentary evidence provided. Additionally, there is no question Luchey had full custody of her son, and that as part of the custody agreement, her son could not reside in Niagara Falls. (R. 373) Luchey’s custody agreement regarding her son’s place of residence and schooling impacts her credibility in claiming that Niagara Falls was her primary residence. To claim an “in-law apartment” in the Stiltner’s house to be her permanent home when she rented another apartment in Amherst where her son lived is inherently suspect. The Board had the discretion to weigh and assess the credibility of the evidence obtained by the District against the evidence provided by Luchey. The Board was certainly entitled to find Luchey’s custody agreement and the facts shown in the surveillance report extremely persuasive in demonstrating Luchey lived in Amherst with her son. The Board was required to assess the quality of the evidence and was acting within its discretion when it gave greater weight to both the surveillance HURWITZ & FINE, P.C. Court of Appeals December 21, 2012 Page 31 report and the custody agreement. In light of the weight given to the above evidence, the Board’s decision that Luchey was residing in Amherst in violation of the Residency Policy was rational and should be upheld. CONCLUSION For the reasons set forth both above and in our brief, it is respectfully submitted that this Court should dismiss the Petition of Keli-Koran Luchey, and let stand the decision of the Board of Education dismissing Keli-Koran Luchey from her position with the Board of Education for her failure to comply with the School District’s Residency Policy. Thank you for your attention to this matter. Respectfully submitted, HURWITZ & FINE, P.C. Michael F. Perley firstname.lastname@example.org MFP/crh cc: Anthony J. Brock, Esq.