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 7, 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 brief in this matter. The Board’s Position On Section 500.11(A) Review By Alternative Procedure: The Board does not object to the alternative procedure; however, the Board respectfully requests that the Court allow oral argument. Todd C. Bushway firstname.lastname@example.org HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 2 The Board Request to Serve a Reply Pursuant to section 5011(e): Pursuant to Section 5011(e) of the Rules of Appellate Procedure, the Board respectfully requests that it be permitted to serve a reply to Respondents’ filing. The Board Reserves its Right to Any Argument Made in the Intermediate Appellate Court: Pursuant to Section 5011(f) of the Rules of Appellate Procedure, The Board reserves its right not to waive any arguments made before the Intermediate Appellate Court which may not have been addressed in this submission. PRELIMINARY STATEMENT This matter comes to this court upon this court granting leave to appeal via an order dated November 19, 2012. This granting of leave to appeal follows a final decision of the Appellate Division, Fourth Department, denying 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’ motion for re- argument and or leave to appeal to the Court of Appeals. 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 sought re-argument of the Appellate HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 3 Division, Fourth Department’s, decision and order entered February 17, 2012 affirming the retroactive reinstatement of Keli-Koran Luchey to her position as a School Counselor for the Niagara Falls City School District (the “District”), together with back pay and interest, seniority, and retirement credit. STATEMENT OF FACTS On February 3, 1994, the Niagara Falls City School District (the “District”) adopted the following Residency Policy: RESIDENCY POLICY The Niagara Falls Board of Education requires that employees hired or promoted after the effective date of this policy, be residents of the City of Niagara Falls and maintain their residency during their term of employment. Effective Date: March 1, 1994 (R. 131) Following the adoption of the policy, the District adopted residency policies which define “residency” as follows: Residency shall mean, for the purpose of this policy, an individual’s actual principal domicile at which he or she maintains usual personal and household effects. (R. 132) HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 4 Additionally, the regulations provided for a procedure for determining potential violations of the Residency Policy. That procedure, set forth in the policy, is as follows: E. Violation of Residency Requirement Any Niagara Falls Board of Education employee alleged to be in violation of this policy shall be given written notice of the alleged violation by the Human Resources Office. The employee will have seven (7) calendar days in which to respond in writing. If after investigation the Board of Education continues to believe the employee is in violation of the residency policy, the Superintendent of Schools shall institute the necessary proceedings to terminate the individual’s employment status with the school district. (R. 133) Petitioner/Respondent, Keli-Koran Luchey (“Luchey”), had been employed by the District since July 1, 1999 and signed a Residency Affirmation on November 2, 1999. (R. 137) On April 28, 2009, the District conducted an affirmation meeting with Luchey, during which time Luchey identified her primary domicile as 2952 Linwood Avenue, Niagara Falls, NY 14305. (R. 291) The District maintains that the objective evidence clearly shows that Luchey resided at 41 Sunshine Drive, Amherst, New York. HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 5 2952 Linwood Avenue is the single family residence of Terry and Wendy Stiltner. (R. 294, 348) Luchey stated that she lived in the basement of the Stiltner’s home. Ms. Stiltner submitted an Affidavit stating that the quarters resembled an in-law apartment, even though the basement was only partially finished and Ms. Stiltner walked through the alleged apartment to access her laundry area. (R. 383-384) During the affirmation meeting, Luchey confirmed her son attended Heritage Heights Elementary School in the Sweet Home School District, situated near 41 Sunshine Drive, Amherst, New York. (R. 293) Luchey claimed that her son rotated between herself and her son’s father during the school day for most of the school year, but did not respond when asked if her son lived with her at the Linwood Avenue address. (R. 294) This omission is glaring given that Luchey had custody of her son, and in Dave Luchey, Luchey’s ex-husband, affidavit, he stated that they had a verbal agreement he would not pursue custody as long as Luchey did not reside in Niagara Falls. (R. 373) Luchey also acknowledged that she does not have a landline phone at Linwood Ave and that the phone number provided for the address was the Stiltner’s. (R. 295) Luchey claimed to pay her rent in cash, but said she had no receipts. (R. 296-297) HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 6 The District conducted a Westlaw address search of many of its employees, including Luchey, to confirm compliance with the Residency Policy. The Westlaw search revealed that Luchey’s current address was the 41 Sunshine Drive, Amherst, New York location. (R. 265) As part of its investigation, the District also searched the Online Assessment Roll System Property Information dated June 18, 2009. That database listed the Stiltner’s 2952 Linwood Avenue, Niagara Falls, New York address as a single family home of 1,440 square feet with no finished basement. (R. 348) The District engaged Probe Services to conduct surveillance in order to determine where in fact Luchey maintained her domicile. The surveillance confirmed that out of the four occasions during which Luchey was observed, Luchey was never observed at the Niagara Falls address she listed as her domicile. In fact, the surveillance showed that on March 18, 2009 and March 20, 2009 Luchey was at the Amherst residence in the early morning hours and drove to work from that location. (R. 284-286) On March 25, 2009, Luchey proceeded to the Amherst address after work hours and remained there. (R. 287-288) Lastly on March 29, 2009, a Sunday, Luchey was once again observed at the Amherst location. (R. 288-289) Although the surveillance report erroneously identifies HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 7 Ms. Luchey’s race, there is no doubt that the subject of the surveillance was Ms. Luchey. Her vehicle is properly identified in the surveillance report and Ms. Luchey has never denied the material facts shown in the surveillance. This evidence obtained by the District contradicted Luchey’s prior representations that the Linwood Avenue property was her domicile, and evidenced that Luchey was in fact residing at the Amherst residence full time. The results of the Probe investigation, as well as the documents provided by Luchey, were reviewed by the Board on July 28, 2009. (R. 360) After review of the evidence presented to it, the Board reasonably determined that Luchey did not reside at the Linwood Avenue address in Niagara Falls or any other property within the City of Niagara Falls and therefore was in violation of the District’s Residency Policy. The Board directed the District to initiate the process of terminating Luchey. A formal letter affording Luchey seven (7) days to respond to the Board’s initial determination was sent to Luchey on July 30, 2009. (R. 352) In response, Luchey’s personal attorney exchanged multiple correspondences with Philip Mohr, Director of Human Resources seeking to resolve this matter to Luchey’s satisfaction and to demonstrate that she was in compliance with the Residency Policy. (R. 353-358) During this time, Luchey HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 8 also provided the District with handwritten receipts purporting to show payment of rent to the Stiltners. (R. 353-354) By letter dated August 21, 2009, Mr. Mohr informed Luchey that her termination would be recommended to the Board at its September 24, 2009 meeting. (R. 359) On September 24, 2009, Luchey was in fact terminated by the Board, along with nineteen other employees who were also found to be in violation of the Policy. (R. 366) ARGUMENT I. THE RESIDENCY POLICY WAS ENFORCEABLE AS WRITTEN, AND THE LOWER COURTS ERRED IN FINDING THE POLICY VAGUE AND UNENFORCEABLE. A. The Board Is Entitled Deference In Its Interpretation Of The Clear and Unambiguous Residency Policy. The lower courts erred when it found the Residency Policy’s definition was vague and thus unenforceable because it failed to recognize the long standing principal that a legislative act is presumed valid and constitutional. Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 N.Y.2d 61, (1979); Marcus Assoc. v. Town of Huntington, 45 N.Y.2d 501, (1978). To overcome the presumption of validity, a petitioner must show, beyond a reasonable doubt, that the statute or legislative act is unconstitutional by demonstrating that HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 9 men of common intelligence must necessarily guess the legislative acts meaning and differ as to its application. Marcus Assoc. v. Town of Huntington, supra.; Lighthouse Shores, Inc. v. Islip, 41 N.Y.2d 7 (1976) Connally v. General Construction Co., 269 U.S. 385, 391(1926); People v. Vetri, 309 N.Y. 401 (1955). “The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well” (Lighthouse Shores, Inc. v. Islip, supra). Additionally, a “Board of Education is empowered to adopt by-laws (Education Law, §2554, subd. 13) which have the force and effect of law if not in conflict with legislative enactment.” Stone v Gross, 25 A.D.2d 753 (2nd Dept. 1966) affd., 19 N.Y.2d 675 (1967). These principals should be applied in this instance because the Residency Policy is a legislative act of the Board of Education. When interpreting a contract, statute or administrative policy, the words and phrases contained therein are given their ordinary and plain meaning. See Brad H. v City of New York, 17 N.Y.3d 180 (2011); Currier, McCabe & Assoc., Inc. dba CMA Consulting Services v. Maher, 75 A.D.3d 889 (3rd Dept. 2010); Black & Decker U.S., Inc. v. NYS Dept. of Labor Industrial Bd. Of Appeals, 177 A.D.2d 948 (4th Dept. 199). The language of the agreement or policy should HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 10 not be read in isolation but instead as a whole because it is the entire document that is being construed. Brad H. v City of New York, 17 N.Y.3d 180 (2011). “Ambiguity is present if language was written so imperfectly that it is susceptible to more than one reasonable interpretation.” Id. See also. Evans v Famous Music Corp., 1 N.Y.3d 452, 458 (2004); Nissho Iwai Europe v Korea First Bank, 99 N.Y.2d 115, 121-122 (2002). The Board’s interpretation of the Residency Policy should be afforded deference. This Court has specifically held that “the courts should show particular deference in matters of internal discipline to determinations made by boards of education which possess a peculiar sensitivity to and comprehension of the complexities and nuances of personnel administration and have responsibility for appropriate accommodation of the points of view of administration, teachers, pupils, parents and the community.” Sarro v New York City Bd. of Ed., 47 N.Y.2d 913, 914 (1979). See also Fineway Supermarkets, Inc. v. State Liquor Authority, 48 N.Y.2d 464 (1979); Johannesson v. NYC Dept. of Educ., 2010 NY Slip Op 30066U (Sup. Ct. 2010). HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 11 Based upon its plain language, the Residency Policy is not vague and is informative on its face. The Residency Policy clearly sets forth what is required of any affected district employee. The policy simply states that: “Every person appointed by the Board of Education after the adoption of this Policy, except substitute positions, shall as a qualification for employment become a resident of the City of Niagara Falls within six (6) months of the date of appointment to the School District”. (R. 132) Furthermore, “residency” is simply and clearly defined by the Policy to be the employee’s “principal domicile where he/she maintain his/her personal and household effects.” The plain and ordinary meaning of the phrase “personal and household effects” is personal property generally associated with the physical person and owned by the person. Further, the plain meaning of the term “principal domicile’ is the place the employee intends to make his/her home or which he/she intends to be his/her permanent residence. Principal domicile does not mean a temporary residence; it means that the employee resides in the City of Niagara Falls, making that City his/her intended permanent home and where that employee keeps their necessary personal effects and where their family lives. HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 12 The policy simply requires an employee reside in the City of Niagara Falls as a qualification for employment. A person’s principal domicile is the one he or she intends to make his/her permanent home and where his/her personal and household effects are maintained and where his/her family lives. It is not the unfinished basement of an otherwise occupied single family home or a bedroom in an apartment with strangers, when that person has another home where her son, whom she has primary custody over, resides and from where her son attends school. The Residency Policy is informative and clear on its face, and requires no guessing as to its meaning and application. As such, the lower courts erred in determining the Residency Policy was vague and unenforceable. In accord with the above, the Board’s interpretation of the definition of “residence” and the phrase “usual household and personal effect” should be given deference as long as that interpretation is not irrational, unreasonable or inconsistent. A review of the entire Residency Policy clearly demonstrates that the purpose of the policy is to ensure that the teachers who work for the City of Niagara Falls School District reside within the school district. Keeping the purpose of the policy in mind, it is reasonable to interpret the phrase, as the Board did, to mean that a teacher’s residence is the location where they keep the majority HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 13 of their belongings and spend the majority of their time. A residence under the Board’s policy is not an address where only the bare necessities are kept for the occasional stay. The trial court erred when it found that the phrase “personal and household effects” was ambiguous because it failed to construe the document as a whole and instead interpreted a phrase, “personal and household effects”, in isolation finding an ambiguity where none exists. Although the trial court had clearly reviewed the Residency Policy and understood that the Appellants were implementing a policy which “would require that their teachers live within the City of Niagara Falls for the purpose of community involvement and in order to educate their children within the District in which they work,” the trial court failed to interpret the phrase “personal and household contents” in the context of the Residency Policy and its purpose. (R. 10) The trial court relied on a Surrogate Court’s decision which merely explains that the phrase “personal effect” when used in a will has “no fixed meaning.” In re Kordes, 192 Misc. 626 (Surr. Ct. Queens 1948). That court made no finding that the phrase was ambiguous. The trial court’s reliance upon that decision for its finding that “personal and household effects” is ambiguous is not HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 14 supported by the decision. Id. Notably, in Kordes, the court made obvious the fact that when interpreting this phrase in wills, one must look to the testator’s intent as found in the will. Id. For example, the court explained that if there is no further modification of the phrase by referencing specific types of items, the application of the phrase is general. Id. Thus, if there is no limitation, the phrase can be interpreted to signify “a broad group of articles generally associated with the physical person of the testator or even all the personal property owned by him.” Id. Rather than supporting the trial court’s determination that the phrase “personal and household effect” is ambiguous, the decision in Kordes reaffirms Appellants’ point and conforms to the case law set forth above that you must look to the entire document when construing it and cannot read phrases in isolation in order to find an ambiguity. B. The Appellants Followed The Procedures Set Forth In The Residency Policy, And Consistently Interpreted The Policy To Determine Whether Compliance With The Policy Had Been Met. The trial court decision found that the Residency Policy was “interpreted inconsistently” and that the failure to consistently interpret the Policy was “compounded by the Superintendent of Schools who did not establish administrative procedures and guidelines…” (R. 11) This finding by the trial court HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 15 led, in part, to its determination that the Residency Policy was unenforceable. This determination by the trial court fails to consider the Residency Policy as a whole as well as the facts actually before the court. A review of the entire Residency Policy reveals that the policy contains within its body all necessary procedures and guidelines for the implementation of the Residency Policy. Further, the Residency Policy simply grants the Superintendent of Schools the authority “to establish administrative procedures and guidelines consistent with and to give full effect to the district’s residency policy.” (R. 260) Whether or not the Superintendent established written procedures or guidelines beyond the Residency Policy does not affect the validity of the policy. The Residency Policy provides the following procedural requirements: 1. All subject employees are to become a resident within six months of their date of appointment (Section B) or within six months of their promotion (Section C); 2. A six month extension may be granted to allow a new employee (Section B) or newly promoted employee (Section C) to come into compliance with the residency requirement; HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 16 3. A copy of the Residency Policy shall be given to all newly hired or promoted employees (Section D); 4. Written notice of an alleged violation of the policy is to be given to any employee suspected of not complying with the policy (Section E); 5. Any employee receiving written notice of an alleged violation shall have seven days to respond (Section E); 6. Termination proceedings shall be undertaken only after further investigation and a belief by the Board of Education that the employee remains in violation of the policy. (Section E). (R. 255-260) This delineated set of procedures gives the District and its employees a clear understanding of what is expected and required. The procedures set forth in the Residency Policy require the Human Resources Office to provide written notice to the employee, allows an opportunity to respond and for further investigation. After those steps, if the District continues to believe the employee is in violation of the policy, the proceedings required to terminate employment are commenced. In this instance, the Residency Policy specifically set forth procedures to be complied with, and those procedures were followed. When Luchey was hired, the District informed her that she was to comply with the Residency Policy, and Luchey signed an affirmation and an employment HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 17 agreement when she was hired that she would comply within six months of being hired by the District. (R. 137-139) After affirming she would comply, Luchey sought an extension of time pursuant to the Residency Policy which was granted by the District. (R. 143-148) Additionally, Luchey was provided a copy of the Residency Policy in accord with its procedures when she was hired. (R. 138) As required by the procedures in the Residency Policy, Luchey was notified by the District that it was believed that she was in violation of the Residency Policy. (R. 162) After the above occurred, the Residency Policy requires implementation of termination proceedings if the Board continued to believe the employee had violated the Residency Policy. Rather than simply make the determination that Luchey had violated the Residency Policy at that point, the District continued its investigation by hiring Probe Services to conduct surveillance. The District not only complied with the procedures set forth in the Residency Policy but also provided Luchey additional protection by conducting additional investigation. The steps set forth in the Residency Policy were complied with by the District and Board. Even if the procedures set forth in the Residency Policy were not followed, the termination of Luchey remains proper. Not all deviations from HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 18 procedure requirements render an administrative decision void. In re Syquia, v. Bd. of Ed. of the Harpursville Central School District, 80 N.Y.2d 531 (1996). Reversal of an administrative decision is appropriate only when the procedure is mandatory or substantial prejudice can be shown as a result of the decision. Id. To determine whether the procedure was mandatory, the reviewing court must evaluate the policy or regulation setting forth the procedure in question. “An adverse agency determination must be reversed when the relevant agency does not comply with either a mandatory provision, or one that was ‘intended to be strictly enforced.’” In re Blaize v Klein, A.D.3d 759 (2nd Dept. 2009), citing In re Lehman, v. Bd. of Ed. of the City School District of the City of New York, 82 A.D.2d 832, 834 (2nd Dept. 1981). The trial court fixated upon one sentence in the Residency Policy for its determination that the procedures necessary under the Policy were not implemented creating inconsistent results. This provision states “The Superintendent of Schools is authorized and directed to establish administrative procedures and guidelines consistent with and to give full effect to the district’s residency policy.” (emphasis added). (R. 260) Nowhere in this provision is there a requirement that the Superintendent create administrative procedures and HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 19 guidelines. Rather, the phrase merely grants the authority to create such guidelines and procedures deemed necessary to fully implement the policy. Thus, the provision at issue in this matter is not a mandatory provision requiring compliance. Here, because the policy itself contained, within its own borders, a full and complete set of guidelines and procedures, there was no need for additional administrative procedures and guidelines to be established by the Superintendent for the policy to be effective and capable of being fully implemented. In finding that there was an inconsistent application of the above procedures and rules, the trial court found that “some” employees were allowed to come into compliance with the Residency Policy. This information behind this question is not contained in the record below, as it pertains to another district employee. Initially, the use of the term “some” implies that multiple teachers were granted this option while, in reality, this assertion is apparently based on the Board allowing one non-compliant teacher an extension of time to become compliant with the Residency Policy. Per the specific procedures set forth in the policy, the Board is allowed to grant an extension of time. It has done so on other occasions and, in fact, Luchey was previously a beneficiary of this provision. (R. 143-147) The trial court relied upon allegations that only one document was submitted as a HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 20 fact while the facts of the other case, which are not in this record, were not before the trial court. Each employee whose residency status was examined by the Board was subject to a full examination, similar to that undergone by Luchey. Contrary to the trial court’s decision stating that only one document was needed to persuade the Board to grant additional time to comply, multiple documents were submitted to the Board in that matter as well. Moreover, a finding that the Residency Policy was inconsistently enforced because the Board reached a different determination in another teacher’s case is absurd. Surely, 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 be required to reach the same conclusion in each instance, regardless of the facts presented. Case law provides no support for the idea that an agency cannot come to differing conclusions if the facts warrant such a determination. In fact, the Second Department has held that where “the Board provides a rational explanation for reaching a different result on similar facts, the determination will not be viewed as HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 21 either arbitrary or capricious.” Matter of Berk v. McMahon, 29 A.D.3d 902, 903 (2nd Dept. 2006). The procedures set forth in the Residency Policy were followed and upon review of the facts presented to it, the Board made a factual determination regarding whether Luchey was in compliance with the Policy. The Board, acting upon evidence specific to each case, terminated those employees, including Luchey, it found to have been residing outside of the City of Niagara Falls in violation of the Residency Policy, retained those teachers it found in compliance with the Residency Policy and allowed one teacher additional time to come into compliance with the Residency. There is no evidence the Board failed to follow the procedures laid out in detail in the Residency Policy. Accordingly, a finding that the policy was unenforceable and inconsistently applied has no basis in the facts and should be overturned. POINT II The Appropriate Standard Of Review On Appeal In This Matter Is Whether The Board’s Determination Was Arbitrary And Capricious. A. Rationality Is What Is Reviewed Under Either The Arbitrary And Capricious Standard Or The Substantial Evidence Standard. HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 22 Review of an administrative decision by a court in this state is limited to questions of law, whether the administrative body acted in excess of its authority, whether the determination made was in violation of lawful process, and whether the decision was supported by substantial evidence after a quasi-judicial proceeding. See, CPLR §7803. “The courts cannot interfere unless there is no rational basis for the exercise of discretion [by the administrative tribunal] or the action complained of is arbitrary and capricious.” Pell v. Bd. of Educ., 34 N.Y.2d 222, 231 (1974). A court must uphold the administrative decision as long as there was a rational basis for the decision. Id. Under either the substantial evidence rule or the arbitrary and capricious standard, rationality is what is reviewed rather than the weight of the evidence. Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174, 178 1969. See, Jennings v. NYS Office of Mental Health, 90 N.Y.2d 227 (1997); Pell v. Bd. of Education, 34 N.Y.2d 222 (1974). “The courts cannot interfere unless there is no rational basis for the exercise of discretion [by the administrative tribunal] or the action complained of is arbitrary and capricious.” Jennings, at 232. A court must uphold the administrative decision as long as there was a rational basis for the decision. Id. Such a decision may only be overturned if it is untenable as a matter of law. See Siegel, New York Practice, § 561, at 966- HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 23 967 (5th ed. 2011). A court, in reviewing the Board’s decision, cannot assess the weight of the evidence presented. Judicial review is limited to whether the decision made by the Board was rational. The existence of conflicting evidence does not automatically render an agency’s determination irrational. See generally, Hason v. Dep't of Health, 744 N.Y.S.2d 86, 90 (3rd Dept. 2002); Brockport Cent. Sch. Dist. v. New York State & Local Employees' Retirement Sys., 704 N.Y.S.2d 714 (3rd Dept. 2000). In cases of conflicting evidence, “it is not [the reviewing court’s] function to weigh conflicting evidence or to substitute its judgment even where the record may support an opposite result.” Id. Likewise, it is not necessary to find that the decision reached by the administrative body is the only rational conclusion, and the existence of another rational conclusion does not “warrant annulment of the agency's conclusion.” Jennings v. NYS Office of Mental Health, 90 N.Y.2d 227, 239 (1997). The reviewing court’s role is not that of fact finder but instead to determine whether the agency’s decision was rational in light of the evidence submitted and the agency’s entitlement to weigh the evidence submitted. See, Lindemann v. American Horse Shows Ass'n, 634 N.Y.S.2d 697 (1st Dept. 1995). Further, in weighing the evidence, the reviewing agency is entitled to rely upon its own HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 24 findings and investigation. See, Brockport Cent. Sch. Dist. v. New York State & Local Employees' Retirement Sys., 704 N.Y.S.2d 714, 716 (3rd Dept. 2000). The First Department applied the aforementioned principles in an article 78 proceeding in the case of Lindemann v. American Horse Shows Ass'n, 634 N.Y.S.2d 697 (1st Dept. 1995). Lindemann was indicated for conspiracy to collect insurance money by arranging for the murder of his race horse. Id. at 698. The American Horse Show Association’s Hearing Committee conducted a hearing wherein it determined that Lindemann had violated the association’s rules and found that his suspension was mandated. Id. A second hearing was held and involved the presentation of extensive evidence in the form of affidavits and testimony. Id. at 699. Again, the Hearing Committee suspended Lindemann. Id. The Supreme Court, upon review, found that the respondent’s determination was arbitrary and capricious, and that decision was appealed. Id. The First Department, understanding that its review was limited to whether the Supreme Court applied the correct standard of review, explained that “[i]t is axiomatic that the court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or the credibility of the witnesses for that of the Administrative Law Judge or hearing panel.” Id. The First HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 25 Department found that the Supreme Court violated these tenets and substituted its own judgment for that of the administrative agency. Id. The court held that “[t]he inferences drawn by defendant Association from that evidence were rational and not arbitrary. The court was not warranted, therefore, in choosing among conflicting inferences and substituting its assessment of the evidence for that of the Association.” Id. Similarly, in its decision in Shapiro, this Court reversed the Third Department’s finding that the Tax Commission’s decision was arbitrary and capricious because there was substantial evidence supporting the Tax Commission’s decision. Shapiro v. State Tax Com., 50 N.Y.2d 822 (1980). In the underlying decision, the Third Department found that the evidence submitted to the Tax Commission supported a finding that the petitioner had in fact taken steps to establish his domicile in England rather than in New York. Shapiro v. State Tax Com., 67 A.D.2d 191, 192-193 (3rd Dept. 1979). In rendering its decision, the Third Department reviewed the evidence submitted rather than reviewing whether it was reasonable that the Tax Commission could rationally find that the petitioner was domiciled in New York. The Third Department weighed the conflicting evidence submitted for both arguments and rendered a decision based on its review HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 26 of the facts. In its review of the Third Department’s decision, the Court of Appeals found the dissenting opinion written by Justice J. Clarence Herlihy persuasive. Shapiro v. State Tax Com., 50 N.Y.2d 822 (1980). Justice Herlihy found that the Tax Commission’s decision was not arbitrary or capricious because upon review of the record he found that there “was evidence which would have supported a finding that the petitioner was a resident (domiciliary) of New York State at all times.” Shapiro v. State Tax Com., 67 A.D.2d 191, 194 (3rd Dept. 1979). Herlihy further stated “[i]t is well established that if there are any facts or reasonable inferences from the record evidence to support the determination of the Tax Commission, the assessment should be confirmed.” Id. B. The Board’s Determination That Luchey Did Not Comply With The Residency Policy Was Rationally Based Upon The Board’s Review And Weighing Of The Evidence Presented. It is well-established that a person’s existing domicile continues until a new domicile is acquired, and the burden of demonstrating the change in domicile is upon the party asserting the change. In re Estate of Newcomb, 192 N.Y. 238, 250 (1908). To establish a new domicile, “[t]here must be a present, definite, and honest purpose to give up the old and take up the new place as the domicile of the person whose status is under consideration.” Id. at 251. Merely HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 27 changing residence does not evince an intention to change a person’s domicile. Id. Rather, “domicile means living in [a] locality with intent to make it a fixed and permanent home.” Johnson v Town of Amherst, 74 A.D.3d 1896 (4th Dept. 2010) quoting In re Estate of Newcomb, 192 N.Y. 238, 250 (1908). In order to determine whether a person has intended to make a new location their domicile, the moving individual must demonstrate that “the place of habitation is the permanent home of a person, with the range of sentiment, feeling, and permanent association with it.” Bodfish v. Gallman, 50 A.D.2d 457, 458 (3rd Dept. 1976) citing In re Bourne, 181 Misc. 238, 246, (Surr. Ct. 1943) affd. 267 A.D. 876, affd. 293 N.Y. 785 (1944). The courts must look to the individual’s actions because a simple declaration of a change of domicile without facts consistent with such a change does not demonstrate a change of domicile. In re Bourne, 181 Misc. 238, 246, (Surr. Ct. 1943) affd. 267 A.D. 876, affd. 293 N.Y. 785 (1944) As demonstrated in In re Peck v Town Bd. of Town of Amherst, the mere renting of an apartment does not evince intent to change a person’s domicile. In re Peck v Town Bd. of Town of Amherst, 93 A.D.3d 1326 (4th Dept. 2012). In Peck, the petitioner was terminated for violating the town’s requirement that he be domiciled within the Town of Amherst. Id. As is true in this matter, there was no HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 28 question petitioner was domiciled in Buffalo rather than Amherst when he was hired, and he requested two extensions of time to comply with the residency requirement. Id. The question to be determined was whether petitioner had met his burden in demonstrating a change in domicile. Id. In support of his contention that he had changed his domicile to a location in Amherst, the petitioner asserted his apartment in Amherst was his domicile, claiming he had requested his bankruptcy attorney to assist in turning his Buffalo home over to his creditors. Id. However, petitioner did not present any evidence to demonstrate he was in fact losing his home and was presently domiciled in Amherst. Id. The respondent found that petitioner did not demonstrate he had changed his domicile from Buffalo to Amherst, and even the petitioner admitted that rental of an apartment is not enough to demonstrate domicile. Id. As such, the Fourth Department found that the Board’s decision was not arbitrary and capricious. Id. In another recent Fourth Department case with facts similar to those found in this matter, the Fourth Department found that the Town of Amherst’s decision to terminate an employee for failure to comply with a residency requirement was rational. Johnson v Town of Amherst, 74 A.D.3d 1896 (4th Dept. 2010). James Johnson, an employee of the Town of Amherst was terminated due HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 29 to his failure to satisfy the residency requirement of the Town Code requiring town employees to be domiciled in the town. Id at 1897. The facts presented at a hearing included evidence that Mr. Johnson’s family lived in a home in Elba; the Elba address was listed on his New York State income tax forms; Mr. Johnson had no intention of moving his family to Amherst; and that he had established residency in the Town solely to comply with the residency requirements of his employment. Id. The court found that these facts demonstrate that the Town’s determination to terminate Johnson for failing to establish his domicile in Amherst was supported by substantial evidence. Id. As was true in Peck, Luchey was not domiciled in Niagara Falls when she accepted her position with the School District, and was instead domiciled in North Tonawanda, New York. (R. 138) Because Luchey now asserts she changed her domicile from North Tonawanda to Niagara Falls, Luchey has the burden of demonstrating a change in her domicile. In this case, Luchey has failed to meet this burden, and the Board’s determination that Luchey was not in compliance with the Residency Policy was rational in light of the evidence presented. Luchey’s domicile at the time of her application for a job with the Niagara Falls City School District was 547 Meadowbrook Drive, North HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 30 Tonawanda, New York. (R. 261) There is no question this was Luchey’s domicile as it was her childhood home which she continued to use as her domicile through college and into adulthood. (R. 291) Luchey now bears the burden establishing that she intended to give up this North Tonawanda domicile and establish a new domicile in the city of Niagara Falls. As stated above, simply renting a second apartment is not sufficient to establish a change in domicile. Instead, Luchey had the burden of demonstrating to the Board that she “had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home.” In re Johnson's Will, 259 A.D. 290 (2nd Dept. 1940) affd., 284 N.Y. 733 (1940). When Luchey was hired, she represented that she did not have a residence in the City of Niagara Falls and resided in North Tonawanda, later providing evidence she resided with her fiancé when she was hired. Id. Luchey did not meet the residency requirement within six months of being hired and instead sought an extension of time to find a residence in the city of Niagara Falls. A that time, she stated her and her fiancé’s lease for their apartment was non- negotiable and not due to expire for several more months. (R. 145) In the affidavit submitted by Luchey’s ex-husband, Dave Luchey, he states that he resided at 64 HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 31 East Depew Avenue, Buffalo, New York from October of 1999 until August of 2004. (R. 372) Interestingly, Luchey’s request for an extension was based upon the fact that she resided with Mr. Luchey, although she and Mr. Luchey now represent she in fact did not reside with him. (R. 213) Mr. Luchey further states that Luchey resided in Niagara Falls from October 2000 until September 2001. Id. Remarkably, Luchey claimed it would be a hardship for her to get an apartment in Niagara Falls because she and her fiancé were unable to break the lease, and yet it was not a hardship a few months later for Luchey and her fiancé to maintain two separate apartments. Mr. Luchey further stated that Luchey resided at an apartment located at 445 Portage Road, Niagara Falls, despite the fact that the two had a child together. (R. 373) In July of 2005, Luchey and her ex-husband were divorced. As part of the divorce agreement, Luchey agreed that her son would not live in Niagara Falls, and in return, her ex-husband would not seek custody of their son. (R. 373) Luchey then began renting an apartment at 41 Sunshine Drive in Amherst, New York. Her son then began attending Amherst schools, based upon this address. Luchey also claims she began residing in the basement of a single family home owned by Terry and Wendy Stiltner in June of 2006. (R. 384) Per Luchey’s own HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 32 submissions, her seven year old son, of whom she had legal custody, resided at the Amherst apartment while she allegedly resided in the basement of a friend’s home in Niagara Falls. Like Mr. Johnson above, Luchey’s actions do not demonstrate the actions of someone who intended to make Niagara Falls her permanent home. Rather, her actions establish that she, like Mr. Johnson, rented an apartment or a space within the city without any intention of making it her permanent home. Merely renting an apartment is not enough to demonstrate intent to change domicile. Instead, there must be factual evidence demonstrating intent to make an apartment one’s permanent residence. Mere statements or assertions of a change in domicile are insufficient. Luchey’s claims that she resided in Niagara Falls are betrayed by her son’s residence in Amherst. Her actions are clearly at odds with her assertions. The Board had the responsibility of determining the weight of the evidence presented to it. The Board rationally found the evidence before it clearly showed that Luchey had never changed her domicile to Niagara Falls. Although the evidence discussed above, including her family obligations, plainly demonstrated that Luchey never intended to be domiciled in Niagara Falls, the Board was presented with additional evidence further HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 33 demonstrating that Luchey did not reside in Niagara Falls. Surveillance, undertaken at the Board’s request, showed that Luchey did not have a residence in the City of Niagara Falls. A key component of demonstrating an individual has changed their domicile is presence. See, In re Johnson's Will, 259 A.D. 290 (2nd Dept. 1940) affd., 284 NY 733 (1940). The surveillance revealed that Luchey was never observed at her alleged Niagara Falls residence. A review of the Probe surveillance report, taken in conjunction with the fact that Luchey agreed she would not allow her son to reside in Niagara Falls (although she had custody of the child) and the fact that the apartment she claimed as her domicile is the basement of a single family home that is described on the Online Assessment Roll System Property Information as not having a finished basement, allows a fully reasonable conclusion that Luchey never changed her domicile to Niagara Falls. Luchey’s claimed evidence to the contrary is limited to showing that she received some mail at the Niagara Falls residence. No utility bill was provided for review, even though requested and the rent receipts submitted by Luchey were not created until after the issue of her domicile arose. In light of the evidence presented, it is a reasonable conclusion that the documentation provided by Luchey is unpersuasive. HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 34 Luchey has failed to meet her heavy burden of demonstrating that Niagara Falls was ever her domicile. Rather, the evidence demonstrates that Luchey originally maintained a domicile in North Tonawanda, moved to Buffalo, and at the time of her termination, resided in Amherst with her family. Plainly put, she never intended to make Niagara Falls her permanent home. The Board was entitled to review and weigh the evidence presented, and that evidence provides a rational basis for the Board’s determination that Luchey failed to meet her burden of demonstrating Niagara Falls was her domicile. HURWITZ & FINE, P.C. Court of Appeals December 7, 2012 Page 35 CONCLUSION For the reasons set forth above, 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. Todd C. Bushway email@example.com Michael F. Perley firstname.lastname@example.org TCB/crh cc: Anthony J. Brock, Esq.