In the Matter of Grant Springer, Appellant,v.Board of Education of the City School District of the City of New York, et al., Respondents.BriefN.Y.February 17, 2016To Be Argued By: Maria Elena Gonzalez Time Requested: 10 Minutes APL-2015-00085 Appellate Division First Department Docket No. 13156 Supreme Court, New York County, Index No. 104080/2012 COURT OF APPEALS STATE OF NEW YORK In the Matter ofthe Applieation of GRANT SPRINGER, Petitioner-Appellant, - against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF TIIE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR ofthe C I T Y SCHOOL DISTRICT OF THE CITY OF NEW YORK, For a Judgment Pursuant to Article 78 ofthe New York Civil Practice Laws and Rules. BRIEF ON BEHALF OF PETITIONER-APPELLANT RICHARD E. CASAGRANDE Attorney for Petitioner-Appellant 52 Broadway, 9th Floor New York, New York 10004 (212) 533-6300 OfCounsel: Maria Elena Gonzalez Michael J. Del Piano Brief Completed: June 5, 2015 NYC-Legal : 174223 STATEMENT OF JURISDICTION In compliance with Court of Appeals Rule § 500.13(a), the Court has jurisdiction to entertain the instant appeal and to review the questions raised as a result of entry of an order of the Appellate Division, First Department ("Appellate Division") granting leave for an appeal to the Court of Appeals pursuant to C P L R § 5602(a). On November 7, 2014, Petitioner-Appellant Grant Springer ("Appellant") moved for an order granting re-argument or, in the alternative, for leave to appeal to the Court of Appeals from a decision and order issued by the Appellate Division, dated October 9, 2014 ("the Decision"). On March 24, 2015, upon due deliberation, the Appellate Division granted Appellant's motion, in part, by granting leave to appeal to the Court of Appeals, and denied Appellant's motion, in part, by denying reargument. The questions presented in this appeal have been preserved for this Court's review. See Notice of Appeal, dated May 20, 2013, Record on Appeal at 52-53.' See also Affirmation of Maria Elena Gonzalez, dated November 7, 2014. R.25-29. On Apr i l 8, 2015, the Court accepted Appellant's appeal and ordered that the instant appeal proceed in the nonnal course of briefing and argument. ' Citations to the Record on Appeal will appear as R. i i NYCLegal: 174223 STATEMENT OF R E L A T E D LITIGATION In further compliance with Court of Appeals Rule § 500.13(a), there is no related litigation to the instant matter. NYCLegal: 174223 i i i T A B L E OF CONTENTS P A G E P R E L I M I N A R Y STATEMENT. . . . . . . . 1 Q U E S T I O N P R E S E N T E D 3 S T A T E M E N T OF FACTS. . . . . . 4 A R G U M E N T 10 POINT I T H E A P P E L L A T E DIVISION E R R E D W H E N IT H E L D T H A T A P P E L L A N T W A S NOT R E S T O R E D TO T E N U R E B E C A U S E P U R S U A N T TO C-205(29) A P P E L L A N T R E M A I N E D T E N U R E D A F T E R FIIS R E S I G N A T I O N 10 POINTI I A P P E L L A N T W A S NOT R E Q U I R E D TO E X H A U S T HIS A D M I N I S T R A T I V E R E M E D I E S B E C A U S E T H E I N S T A N T M A T T E R IS A Q U E S T I O N OF L A W A N D T H E A G E N C Y A C T I O N W A S U N C O N S T I T U T I O N A L 17 POINT III R E S P O N D E N T S V I O L A T E D A P P E L L A N T ' S D U E P R O C E S S RIGHTS W H E N T H E Y TERMESTATED H I M W I T H O U T A H E A R I N G P U R S U A N T TO E D U C A T I O N L A W § 3020-A 20 C O N C L U S I O N 23 P R I N T I N G SPECIFICATIONS S T A T E M E N T 24 NYCLegal: 174223 iv T A B L E OF AUTHORITIES P A G E Cases Apex Air Freight, Inc. v. O'Cleireacain, 210 A.D.2d 7,619 N.Y.S.2d 38 (P'' Dept. 1994). 17 Brennan v. City of New York, 123 A.D.3d 607, 999 N.Y.S.2d 62 (1'' Dept. 2014) 14, 15 Coleman v. Daines, 79 A.D.3d 554, 560, 913 N.Y.S .2d 83, 89 Dept. 2010) 17 Frick V. Bahou, 52 N .Y .2d 777, 452 N.Y.S.2d 18 (1982).... 10 Friedman v. Bd ofEduc. of the City Sch. Dist ofthe City ofNew York, 109 A.D.3d 413, 970 N.Y.S.2d 521 {Y' Dept. 2013) iQ Gould V. Bd. ofEduc. of Sewenhaka Cent Sch. Dist, 81 N.Y.2d 446, 599 N.Y.S.2d 787 (1993) 16, 18, 20 Jimenez v. Negroni, 143 A.D.2d 636, 533 N.Y.S.2d 23 (2d Dept. 1988) 18 Kahn v. New York City Dep't ofEduc., 18 N . Y . 3 d 457, 940 N.Y.S.2d 540 (2012) 19 Matter of Lehman v. Bd ofEduc. of the City Sch. Dist ofthe City ofNew York, 82 A.D.2d 832, 439 N.Y.S .2d 670 (2d Dept. 1981) 10, 17 Mendez v. New York City Dep't of Educ., _ A . D . 3 d _ , _ N . Y . S . 2 d _ , 2015 N .Y .S l ip Op. 04408 {V' Dept. 2015) 15, 16 O 'Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005) 20 NYCLegal: 174223 Ricca V. Bd. ofEduc. ofthe City Sch. Dist of the City ofNew York, 47 N .Y .2d 385, 418 N.Y.S.2d 345 (1975) 20, 21 Rocovich V. Consolidated Edison Co., 78 N . Y . 2 d 509, 577 N.Y.S.2d 219 (1991). 13 Vaccaro v. Bd. ofEduc. of the City Sch. Dist qf the City ofNew York, 39 Misc.3d 1241(A), 975 N.Y.S .2d 370 (Sup. Ct. New York County 2013) .... 14 Watergate IIApartments v. Buffalo Sewer Auth., 46 N . Y . 2 d 52, 412 N.Y.S.2d 821 (1978) 17 Wolin V. Walcott, 121 A .D.3d 648, _ N . Y . S . 2 d _ {V' Dept. 2015) 15, 16 Statutes C P L R Article 78 1 Education Law § 2573 20, 22 Education Law § 2573(5) 20, 21 Education Law § 2590-d 10 Education Law § 2590-h 10 Education Law § 2590-j 7, 18, 22 Education Law § 2590-j(7) 21 Education Law § 3020 7, 20 Education Law § 3020(1) 7 Education Law § 3020-a passim Education Law § 3020-a(2)(b) 21, 22 NYCLegal : 174223 New York City Chancellor's Regulations C-205(l).. 13 C-205(6) 13 €-205(24)..................... 11,15 €-205(26).... 11 C-205(28) ..passim C-205(29) passim NYCLegal: 174223 vii P R E L I M I N A R Y S T A T E M E N T Appellant, a tenured teacher, brought a proceeding pursuant to Article 78 of the C P L R against Respondents-Respondents Board of Education of the City School District of the City of New York ("Board") and Dennis M . Walcott, in his official capacity as Chancellor of the City School District of the City o f N e w York (collectively "Respondents"). Appellant sought a judgment declaring that Respondents failed to perform a duty enjoined upon them by law, acted in bad faith, violated lawful procedure, were arbitrary and capricious, and abused their discretion by failing to recognize Appellant's tenure rights, in violation of New York City Chancellor's Regulations C-205(28) and (29)', and by subsequently terminating Appellant's employment without due process, in violation of Education Law § 3020-a. Appellant further sought an order directing Respondents to reinstate Appellant to his former position, and to pay him all salary, benefits, and other emoluments of employment to which he would have been entitled had Respondents complied with the law. Respondents filed a cross-motion to dismiss the Article 78 petition for failure to state a claim upon which relief can be granted. After oral argument, the Honorable Eileen Rakower granted Respondents' cross-motion and denied the ^ A l l references to the Chancellor's Regulations will appear as C-205O unless otherwise stated. 1 NYCLegal : 174223 petition on the record for "reasons stated therein" and for "failure to exhaust administrative remedies." Appellant appealed Justice Rakower's decision to the Appellate Division. After oral argument, the Appellate Division issued the Decision, which unanimously affirmed the lower court's decision holding that Appellant did not have tenure. On November 7, 2014, Appellant made a motion to the Appellate Division for re-argument or in the alternative for leave to appeal to the Court of Appeals. The Appellate Division granted Appellant's motion, in part, for leave to appeal to the Court of Appeals, and denied Appellant's motion, in part, by denying reargument. The Appellate Division certified the following question of law to be reviewed by the Court of Appeals: Was the order of this Court, which unanimously affinned the order of Supreme Court, properly made?*** 2 NYCLegal: 174223 QUESTIONS PRESENTED 1. Whether the Appellate Division erred in its application of C-205(29) and, i f so, is Appellant a tenured teacher entitled to a due process hearing pursuant to Education Law § 3020-a prior to termination? The Appellate Division held that Appellant was not a tenured teacher and that Respondents did not act in an arbitrary and capricious manner when they terminated his employment without a hearing pursuant to Education Law § 3020-a. NYCLegal: 174223 3 S T A T E M E N T OF FACTS The instant matter regards a tenured teacher in New York City who resigned from his position, then later withdrew his resignation, and was subsequently rehired as a tenured teacher pursuant to C-205(29). Respondents employed Appellant as a tenured teacher in the Catering tenure area from September 8, 2001 until January 18, 2011, when he resigned to pursue a career opportunity as a corporate chef R.73. During that time, Appellant taught at M288 - Food and Finance High School, located in Community School District No. 2 in Manhattan. R.73. Appellant returned to Respondents' employ in May 2011, when Respondents re-appointed him as a substitute teacher in the Catering tenure area. R.73. Respondents then re-appointed Appellant to a permanent teaching position in the Catering tenure area on October 24, 2011. R.73. On June 22, 2012, Respondents terminated Appellant's employment without a hearing pursuant to Education Law § 3020-a. . R.74-75. Appellant was a tenured teacher in good standing with Respondent Board when he resigned in January 2011. R.73. He never received disciplinary charges during any of his employment for Respondent Board. R.73. Appellant received "Satisfactory" ratings ("S-Rating") on every annual professional perfonnance review ("APPR") from 2001-2011. R.73. 4 NYCLegal : 174223 Appellant withdrew his resignation pursuant to C-205(29) when he applied for positions in writing in the Catering tenure area with Respondent Board. R.73. Respondents accepted Appellant's withdrawal of resignation when they re- appointed him to a substitute teacher position in May 2011 and affirmed such acceptance when they re-appointed Appellant to a permanent position on October 24, 2011. R.73. Respondents re-appointed Appellant to a teaching position under his prior license, file number and tenure area at M415 Wadleigh Secondary School for the Performing and Visual Arts ("Wadleigh"), located in Community School District No. 3 in Manhattan. R.73. Prior to Appellant's re-appointment to the position at Wadleigh, he informed Wadleigh principal Herma Hall ("Principal HaU") that he was a tenured teacher, having attained tenure prior to his resignation in January 2011. R.73-74. Appellant further informed Principal Hall that he was a teacher in good standing when he resigned. R.73-74. Principal Hall never informed Appellant at any time that he was required to formally withdraw his resignation prior to re-appointment, nor did she require Appellant to complete any particular form memorializing the withdrawal of his resignation. R.74. Furthermore, Respondents never conditioned Appellant's re- appointment upon a waiver ofh is tenure rights. R.74. NYCLegal : 174223 5 During the 2011-2012 school year, Principal Hall was excessed and replaced by a new principal, Tyee Chin ("Principal Chin"). R.74. Principal Chin informed Appellant in Apri l 2012 that he believed Appellant did not have tenure. R.74. Appellant disagreed with Principal Chin's assessment because Appellant resigned as a tenured teacher in good standing and was reinstated without waiver of his tenure rights. R.73-74. On Apri l 16, 2012, Appellant, upon the advice of his union. United Federation of Teachers, Local 2, American Federation of Teachers, A F L - C I O , further memorialized the withdrawal of his resignation on the form purportedly required by Respondents. R.74. A t no time prior to or subsequent after Appellant's reemployment did Respondents tell Appellant that he needed to use a particular form to effectuate withdrawal of his resignation. R.74. Rather, Respondents told Appellant that his application to withdraw his resignation on their purported form was too late and that it would not be processed. R.74. On May 22, 2012, Appellant received an unsatisfactory rating ("U-Rating") for the 2011-2012 school year. R.74. On June 18, 2012, Tameka Matheson, Superintendent of Manhattan High Schools, informed Appellant that the "discontinuance of his probationaiy service" was affirmed and that he was temiinated effective the close of business June 22, 2012. R.74, 79. Respondents 6 NYCLegal: 174223 never served Appellant with disciplinary charges in accordance with Education Law § 3020-a prior to his tennination. R.75. On September 21, 2012, Appellant served Respondents with a Verified Notice of Claim, presenting his claim that Respondents violated Education Law §§ 2590-j and 3020(1). R.76, 117-123. In October 2012, Appellant filed an Article 78 in Supreme Court, New York County, seeking redress for Respondents termination of his employment in violation of Education Law §§ 2590-j, 3020, 3020-a, and C-205(28) and (29). R.71-78. On or about January 15, 2013, Respondents made a cross-motion to dismiss the petition for failure to assert a cause of action upon which relief can be granted. R. 124-125. Oral argument on Respondents' cross-motion was held on Apr i l 2,2013. R.55-67. At oral arguinent, tlie lower court inquired whether Appellant pursued a contractual grievance. R.62. The lower court also discussed its interpretation of C-205(29), in that since Respondents re-appointed Appellant after the start of school in October 2011, Appellant did not properly withdraw his resignation pursuant to C-205(29). R.58-60. According to the lower court, reinstatement was required to occur prior to September for Appellant to be tenured pursuant to C- 205(29). R58-60. NYCLegal: 174223 7 On Apri l 2, 2013, the lower court issued the following decision and order: "After oral argument on the record and for the reasons stated therein, the A R T I C L E 78 petition is denied for failure to exhaust administrative remedies. X motion is G R A N T E D and Petition is dismissed." R.19, 54-67. On Apri l 22, 2013, Respondents served notice of entry in the above- referenced decision and order with the transcript of the oral argument. R.68. Appellant thereafter served a notice of appeal to the Appellate Division on May 22, 2013. R.52-53. B y order dated, October 9, 2014, after oral argument, the Appellate Division affirmed the lower court's decision. R.47-48. The Appellate Division held that Appellant did not properly follow C-205(28) and (29), and that, therefore, he was not restored to tenure when rehired. R.47-48. In a footnote, the Appellate Division further stated "We note that neither side has explained why petitioner could not still be restored to tenure i f he followed the procedures of the chancellor's regulations." R.47. On November 7, 2014, Appellant made a motion to the Appellate Division for an order granting re-argument or, in the altemative, for leave to appeal to the Court of Appeals on the grounds that the Appellate Division misapprehended C- 205(29) to require withdrawal of resignation on a particular form. R.23-36. Appellant further asserted that the Appellant Division misapprehended his tenure 8 NYCLegal : 174223 status by holding that he was not restored to tenure when he was rehired because he remained tenured when he resigned pursuant to C-205(29). R.23-26. Appellant also addressed the footnote in the Decision, in that he had in fact memorialized his withdrawal of resignation on Respondents' purported form on Apr i l 16, 2012. R.27. Respondents opposed Appellant's motion. R.37-46. By order, dated March 24, 2015 the Appellate Division granted Appellant's motion, in part, by granting leave to appeal to the Court of Appeals, and denied Appellant's motion, in part, by denying reargument. R.22. The Appellate Division certified the following question for review by the Court ofAppeals: Was the order of this Court, which unanimously affirmed the order of Supreme Court, properly made?*** R.22. The Court further certified that "its determination was made as a matter of law and not in the exercise of discretion." R.22. NYCLegal: 174223 9 A R G U M E N T POINT I T H E A P P E L L A T E DIVISION ERRED WHEN IT H E L D T H A T A P P E L L A N T WAS NOT RESTORED T O TENURE BECAUSE PURSUANT T O C-205(29) A P P E L L A N T REMAINED TENURED A F T E R HIS RESIGNATION. The instant matter addresses the narrow issue of whether Appellant was a tenured teacher when he was reinstated to Respondent Board's employ. As set forth below, the Appellate Division erred in holding that Appellant was not restored to tenure in contravention of the plain language set forth in C-205(29 ). It is settled law that an agency must follow its own mles and regulations created pursuant to law. Frick v. Bahou, 56 N .Y .2d 777, 778, 452 N.Y.S.2d 18, 19 (1982); see also Friedman v. Bd ofEduc. ofthe City Sch. Dist ofthe City ofNew York, 109 A.D.3d 413, 415, 970 N.Y.S.2d 521, 522 (1'' Dept. 2013). The Chancellor's Regulations are promulgated pursuant to the Education Law and have the force and effect of law. See Education Law §§ 2590-d and 2590-h. As such, the Chancellor's Regulations are binding upon Respondents. See Matter of Lehman v. Bd of Educ. of the City Sch. Dist ofthe City ofNew York, 82 A.D.2d 832, 833, 439 N.Y .S .2d 670, 672 (2d Dept. 1981). There are several provisions contained within C-205 which set forth the rules goveming resignations in the New York City public schools. See C-205(24), 10 NYCLegal: 174223 entitled Dismissal for Cause, Resignation or Retirement While Charges are Pending (R.93); C-205(26), entitled Resignation (R.94-95); C-205(28), entitled Withdrawal of Resignation Generally (R.95-96); and C-205(29), entitled Withdrawal of Resignation Within Five Years hy Tenured Staff (R.96). C-205(28) govems generally who may withdraw a resignation. Any teacher who resigns while Education § 3020-a charges are pending against him or is deemed to have resigned for abandoning his position may not withdraw such resignation without authorization from Respondent Board's Executive Director of Human Resources and written authorization from Respondent Chancellor. See C-205(24); 26(b); and (28). R.93-96. Since neither of these situations applies to the instant matter, Appellant was permitted to withdraw his 2011 resignation. In addition, C-205(29) applies to the instant matter because Appellant had permanent tenure at the time of resignation. C-205(29), entitled Withdrawal of Resignation Within Five Years by Tenured Staff provides that: Except for persons covered by Section 24 or subdivision 26b of this Regulation'^ a non-supervisory pedagogical employee who attained permanent tenure prior to the date of resignation shall, remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or ^ As stated previously, neither of these provisions applies to the instant matter. 11 NYCLegal: 174223 before the opening of school in September next following five years after the effect date of resignation. If reinstatement is made after this date, a two year probationary period wi l l be required. R.96. (emphasis supplied) The Appellate Division erred when it held that Appellant was not restored to tenure when he was rehired. Under C-205(29), a tenured teacher in good standing who resigns remains tenured after such resignation. If said teacher withdraws such resignation and is reinstated to Respondent Board's employ within five years, he is a tenured teacher. Appellant never lost tenure, and, therefore, it was unnecessary for his tenure to be restored. The Appellate Division further erred when it held that Appellant did not properly withdraw his resignation. Under C-205(29), any tenured teacher in good standing who resigns remains tenured and has five years to withdraw said resignation and be reinstated to employment. If reinstatement does not occur within five years, then the teacher must serve a two year probationary period. C- 205(29) does not require the teacher to submit withdrawal of resignation on any particular form. Rather, C-205(29) requires solely that withdrawal be in writing and that the teacher be reinstated within five years. Appellant complied with the requirements of C-205(29). He attained pennanent tenure prior to his resignation on January 18, 2011. Thus, pursuant to C-205(29), he remained tenured after his resignation. Appellant thereafter 12 NYCLegal: 174223 withdrew his resignation in writing several times; when he applied for various positions in Respondent Board's employ and when he submitted a withdrawal of resignation on Respondents' purported form. R.73-74. Appellant was reinstated to Respondent Board's employ on October 24, 2011, well before September 1, 2016, which would have been the September following five years after the effective date ofhis 2011 resignation. Moreover, Appellant was reappointed under the same file nuinber, salary step, and tenure area as he was prior to his resignation. Respondents clearly had notice of Appellant's prior status. Respondents approved Appellant's witlidrawal of resignation by reinstating Appellant to a teaching position at Wadleigh. Furthermore, Respondent Chancellor approved the reinstatement as the Chancellor approved his license. See C-205(l) and (6). R.83, 85. Under these circumstances. Appellant complied with C-205(29). Appellant's reading of C-205(29) is consistent with the settled rules of statutory construction. It is well settled that "all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 515, 577 N.Y.S.2d 219, 222 (1991). Under the Appellate Division's construction, the provision which states that a teacher shall remain tenured would be meaningless. Moreover, the Appellate Division's constmction adds an 13 NYCLegal: 174223 additional requirement not found in C-205(29), that the withdrawal be done on a particular form. Furthermore, Appellant's reading gives full effect to the public policy set forth on the plain reading of C-205(29): to provide an incentive to experienced, tenured teachers in good standing at the time of resignation to return to the New York City public schools. The dispositive question involved in the instant matter is the same issue decided in Vaccaro v. Bd. of Educ. of the City Sch. Dist ofthe City ofNew York, 39 Misc.3d 1241(A), 975 N.Y.S.2d 370 (Sup. Ct. New York County 2013, J. Mendez)''. R.32-36. In Vaccaro, the court, applying C-205(29), held that a tenured teacher who resigns retains tenured status after resignation. The court further stated that "rehiring a teacher into the very position from which they had previously resigned must also be considered an acceptance of the withdrawal of resignation." R.34. The Court should not give any credence to the Appellate Division's holding in Brennan v. City ofNew York, 123 A.D.3d 607, 608 999 N.Y.S.2d 62 Dept. 2014)(1'' Dept. 2014). Brennan was decided shortly after the Appellate Division decided the instant matter and relies solely on the Decision for the premise that Ms. Brennan failed to properly withdraw her resignation. The validity of the holding in Vaccaro is on appeal to the Appellate Division. Oral argument on the appeal was held on February 26,2015. 14 NYCLegal : 174223 Brennan was called into serious doubt when the Appellate Division granted leave to appeal to the Court of Appeals in the instant matter. Moreover, Brennan is factually distinguishable from the instant matter. In Brennan, the petitioner failed to follow a court's order to take certain steps to effectuate her reinstatement. Here, Appellant, though not required to, did in fact submit a withdrawal of resignation on Respondents' purported form. The instant matter is also factually distinguishable from the Appellate Division's recent holding in Wolin v. Walcott, 111 A.D.Sd 648, _ N . Y . S . 2 d _ , (1'̂ Dept. 2015). In Wolin, the petitioner never achieved tenure prior to her resignation. As such, the narrow exception for tenured teachers contained in C- 205(29) did not apply and she was correctly determined to be a probationary teacher. See C-205(28) for withdrawals of resignations by teachers who have not attained permanent tenure. R.95-96. The instant matter is further distinguishable from the Appellate Division's recent holding in Mendez v. New York City Dep't of Educ., A.D.Sd , N.Y.S.2d _ , 2015 N . Y . Slip Op. 04408 {Y' Dept. 2015). In Mendez, the Appellate Division drew a distinction between attempts to rescind a resignation prior to its effective date compared to withdrawing a resignation after the effective date pursuant to C-205(29). In addition, unlike the petitioner in Mendez, Appellant did not resign with Education Law § S020-a charges pending against him. See C- 15 NYCLegal: 174223 205(24) and (29) for resignations by teachers who resigned with discipHnary charges pending. R.93, 96. Similar to the petitioner in Wolin, the petitioner in Mendez also failed to fall within the narrow constmct of C-205(29). Pursuant to C-205(29), Appellant remained a tenure teacher after resignation and thus was tenured when he was rehired by Respondent Board. Appellant as a tenured teacher cannot be removed from employment without a due process hearing pursuant to Education Law § 3020-a. See Gould v. Bd. of Educ. of Sewenhaka Cent. High Sch. Dist., 81 N.Y.2d 446, 451, 599 N.Y.S .2d 787, 789 (1993). Therefore, the Decision must be reversed. NYCLegal: 174223 16 POINT II A P P E L L A N T W A S N O T R E Q U I R E D T O E X H A U S T HIS ADMINISTRATIVE REMEDIES BECAUSE T H E INSTANT M A T T E R IS A QUESTION OF L A W AND T H E A G E N C Y ACTION WAS UNCONSITUTIONAL. The general rule that "one who objects to the act of an administrative agency must exhaust all administrative remedies before being permitted to litigate in a court of law" Watergate II Apartments v. Buffalo Sewer Auth., 46 N Y . 2 d 52, 57, 412 N.Y.S .2d 821, 824 (1978) is inapplicable to this matter. There are exceptions to the general rule, such as when the agency action is being challenged as "either unconstitutional or wholly beyond its grant of power." Id. Moreover, a party need not exhaust administrative remedies when doing so would be futile or result in irreparable injury. Id. Furthermore, exhaustion is not required when the matter involved is a question of law. See Coleman v. Daines, 79 A.D.3d 554, 560, 913 N.Y.S .2d 83, 89 (1'* Dept. 2010); Apex Air Freight, Inc. v. O'Cleireacain. 210 A.D.2d 7, 619 N.Y.S.2d 38 (1'' Dept. 1994). As stated previously. Chancellor's Regulations have the ful l force and effect of law and are binding on Respondents. See Matter of Lehman, 82 A.D.2d at 833. Whether Appellant is tenured pursuant to C-205(29), and therefore entitled to a due process hearing, is a question of law. Therefore, Appellant was not required to exhaust administrative remedies in this matter. NYCLegal: 174223 17 In addition, Appellant, as a tenured teacher, has a constitutionally protected property right that cannot be taken away from him without due process of law. See Gould, 81 N.Y.2d at 451. Respondents deprived Appellant of his property rights without due process of law, which violated his constitutional rights. The legislature codified this property right in Education Law § 3020(1), which states, in part: "[n]o person enjoying tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in [Education Law § 3020-a]." Any requirement to exhaust administrative remedies is obviated by Respondents' violation of Appellant's due process rights. Cf. Jimenez v. Negroni, 143 A.D.2d 636, 533 N.Y.S .2d 23 (2d Dept. 1988) (Principal who was removed from a high school was required to exhaust his administrative remedies because he sought to enforce seniority rights under a collective bargaining agreement, not Education Law § 2590-j.) Moreover, to require Appellant to exhaust his administrative remedies in this situation would result in irreparable harm. Tenure is a constitutionally protected property right that cannot be taken away without due process of law. See Gould, 81 N.Y.2d at 451. Even under Respondents' erroneous assertion that Appellant was a probationary teacher during the 2011-2012 school year, he still would not be required to exhaust his administrative remedies to challenge his discontinuance 18 NYCLegal: 174223 without a due process hearing. See Kahn v. New York City Dep't of Educ., 18 N . Y . S d 457, 462, 940 N.Y.S .2d 540, 541 (2012). In Kahn, this Court held that Respondents' decision to terminate a probationary teacher's employment becomes final and binding on the date his probationary service ended. Id. at 462. This Court explicitly stated that the review procedures in the C B A , for termination of probationar}' teachers, "stem solely from the C B A and constitute an optional procedure under which a teacher may ask D O E to reconsider and reverse its initial decision which is final and which, when made, in all respects terminates the employment of a probationer . . . they are not administrative remedies that petitioners were required to exhaust before litigating the termination of their probationary employment." Id. (emphasis in original) (internal citations and quotations omitted). Therefore, Appellant was not required to exhaust any administrative remedies prior to commencement of the instant matter. NYCLegal: 174223 19 POINT III RESPONDENTS V I O L A T E D APPELANT'S DUE PROCESS RIGHTS W H E N T H E Y TERMINATED HIM WITHOUT A HEARING PURSUANT T O EDUCATION L A W § 3020-A. Once a teacher acquires tenure, he cannot be summarily dismissed from his employment without a just cause hearing of the charges pursuant to Education Law § 3020-a. See Education Law §§ 2573, 2590-j, and 3020. Education Law § 2573(5) provides, in pertinent part: Such persons . . . who have served the foil probationary period, or have rendered satisfactorily an equivalent period of service . . . shall not be removable except for cause after a hearing as provided by [Education Law § 3020-a]." The law protects a tenured employee's constitutional right to due process before being deprived of a property interest. See Gould, 81 N .Y .2d at 452; see also O'Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005) (proving that the state-law property interest of government employees who may only be discharged for cause, such as tenured teachers, is a constitutionally protected property interest for purposes of the Fourteenth Amendment). In Ricca v. Bd of Educ. of the City Sch. Dist ofthe City ofNew York, 47 N . Y . 2 d 385, 418 N.Y.S.2d 345 (1975), this Court held that the tenure laws constitute vital public policy for Education in the State o f N e w York. A s stated in Rima;xmmQis: 20 NYCLegal : 174223 . . . a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to i f they could be dismissed at the whim, of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure. Instead of construing the tenure system broadly in favor of the teacher as the legislature intended and this Court held in Ricca, Respondents denied Appellant due process prior to his termination. Respondents refused to acknowledge that Appellant, as a tenured teacher pursuant to C-205(29), was entitled to a due process hearing prior to termination. Due to Appellant's tenured status. Respondents were without authority to remove Appellant except for certain specified causes, and in accordance with the aforementioned constitutionally guaranteed due process procedures set forth in Education Law § 3020-a. Such due process procedures include, but are not liinited to: the right to full and accurate discovery; an impartial hearing officer; counsel; stenographic record; and the requirement that Respondents adhere to the tenants of just cause prior to termination. See Education Law §§ 2573(5), 2590-j(7), and 3020-a. Furthennore, in accordance witli Education Law § 3020-a(2)(b), during NYCLegal: 174223 21 the pendency of the due process hearing, the charged teacher is generally suspended with pay. By terminating Appellant's employment without a due process hearing, Respondents deprived Appellant of his constitutional rights and stripped him of his property interests in violation of the requirements set forth in the Education Law. Appellant's tennination is therefore a nullity as a matter of law, and, furthermore, arbitrary, capricious, irrational, in violation of lawful procedure and of the rights guaranteed to Appellant under Education Law §§ 2573, 2590-j, and 3020. Because Respondents violated Appellant's right to due process of law, the Decision must be reversed. NYCLegal : 174223 22 CONCLUSION For the reasons stated in this brief, Appellant respectfully requests that the Court answer the certified question in the negative, reverse the Decision, grant the petition, and order Respondents to reinstate Appellant to his tenured teaching position, together with such other, further, and different relief as the Court deems necessary and proper. Dated: New York, New York June 5, 2015 Respectfully submitted, R I C H A R D E. C A S A G R A N D E Attorney for Petiti oner-Appellant 52 Broadway, 9* Floor New York, New York 10004 (212)533-6300 mgonzale@nvsutmail.org M A R I A E L E N A G O m A L E Z OfCounsel 23 NYCLegal: 174223 PRINTING SPECIFICATIONS S T A T E M E N T This brief was prepared using Microsoft Word, Times Ne w Roman typeface, size 14 point with footnotes in size 12 point. The word count as calculated by the Microsoft Word processing system is 4,230. NYCLegal : 174223 24