| Matter of Yager v Massena Cent. Sch. Dist. |
| 2014 NY Slip Op 05014 [119 AD3d 1066] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Cynthia Yager,Appellant, v Massena Central School District et al.,Respondents. |
James P. Brodie, School Administrators Association, Latham, for appellant.
Law Firm of Frank W. Miller, East Syracuse (John A. Sickinger of counsel), forrespondents.
Clark, J. Appeals (1) from a judgment of the Supreme Court (Demarest, J.), enteredApril 12, 2013 in St. Lawrence County, which, among other things, partially dismissedpetitioner's application, in a proceeding pursuant to CPLR article 78, to compelrespondents to release an unredacted investigative report, and (2) from an order of saidcourt, entered September 30, 2013 in St. Lawrence County, which denied petitioner'smotion for reconsideration.
Petitioner was formerly employed as an assistant superintendent by respondentMassena Central School District. In 2011, she filed a complaint with respondent Boardof Education of the Massena Central School District, asserting that DistrictSuperintendent Roger Clough, among others, had engaged in discrimination andharassment against her. She further alleges that she was forced to retire in 2012 due toretaliation. The Board appointed independent counsel, Michaela Perrotto, to investigatepetitioner's complaint.
Upon Perrotto's completion of her final report recommending that the complaint bedismissed, petitioner requested a copy of the full report and a hearing on appeal beforethe Board, but was refused. Petitioner then commenced this CPLR article 78 proceeding,seeking to compel the Board to release the full Perrotto report to her pursuant to theDistrict's regulations and to hold an evidentiary hearing on her appeal of Perrotto'sfindings. As relevant here, Supreme Court determined that petitioner had the right to ahearing before the Board and to a copy of the [*2]report,but directed the Board to submit the report for in camera review given the confidentialnature of the disclosures contained in it. Following review, the court concluded that thereport was "inappropriate for comprehensive redaction," and issued judgment directingthat only the findings and conclusion be disclosed.[FN*]Petitioner appeals from the judgment, aswell as from a subsequent order denying her motion to renew and reargue.
Petitioner argues that Supreme Court erred in failing to compel respondents torelease the full Perrotto report to her pursuant to the Board's policies and regulations.Mandamus to compel lies "to enforce a clear legal right where the public official hasfailed to perform a duty enjoined by law" (New York Civ. Liberties Union v State of New York, 4 NY3d175, 184 [2005]; accordMatter of Schmitt v Skovira, 53 AD3d 918, 920 [2008]). The remedy, however,is available only "to compel a governmental entity or officer to perform a ministerialduty, [and] does not lie to compel an act which involves an exercise of judgment ordiscretion" (Matter of Brusco v Braun, 84 NY2d 674, 679 [1994]; see NewYork Civ. Liberties Union v State of New York, 4 NY3d at 184). The parties are inagreement that the Board's policy No. 3121 and its accompanying implementingregulation set forth respondents' duties here. As petitioner asserts, it is well settled thatabsent conflict with a statute, the rules and regulations promulgated by a board ofeducation have the force of law and are binding upon it (see Board of Educ. of CitySchool Dist. of City of Lockport v Licata, 42 NY2d 815, 816 [1977]; Matter ofHewel v Board of Educ. of City School Dist. of Peekskill, 139 AD2d 742, 744[1988]). Thus, the dispositive question on this appeal is whether policy No. 3121 andregulation No. 3121R afford the Board any discretion to refuse to release the full Perrottoreport to petitioner (see Matter of Brusco v Braun, 84 NY2d at 679; Matter of George F. Johnson Mem.Lib. v Springer, 11 AD3d 804, 806 [2004]). We conclude that they do not.
Regulation No. 3121R provides that harassment complaints will be made first to adesignated complaint officer, who is required to assure all parties that "complaints anddiscussions will remain as confidential as possible, and will be disclosed only on a 'needto know' basis in order to effectively investigate the complaint [or] as mandated by lawor court order." The regulation further specifies that "a written record of the investigationand any action taken will be established," and contemplates that the complainant willreceive a copy of the complaint officer's report. Specifically, the regulation states that thecomplainant may appeal to the superintendent "[i]f not satisfied with the complaintofficer's report," which necessarily implies that the complainant will have received thecomplaint officer's report. The regulation also mandates that both "[t]he complainant andthe accused will receive a copy of any and all reports issued by the [s]uperintendentpertaining to the investigation/outcome of the formal complaint." If either party isunsatisfied with the superintendent's resolution, he or she may appeal to the Board, whichmust conduct a hearing and "issue a written response to the complainant and theaccused."
Inasmuch as petitioner's complaint was made against the superintendent, the Boardmodified its procedure in this instance by accepting her initial complaint and appointingPerrotto to investigate the allegations. Thus, while in the normal course under regulationNo. 3121R, petitioner would have received both a copy of the complaint officer's reportand all reports issued by the superintendent on either the investigation or the outcome ofthe proceeding, no report was [*3]issued by thesuperintendent. Rather, Perrotto prepared a written report of the investigation, as theregulation requires of both the complaint officer and the superintendent. Althoughpetitioner argued to the Board that regulation No. 3121R mandates disclosure, the Boardmaintains that it correctly provided her with only the three-page conclusion section of the73-page report because the regulation requires the release only of the superintendent'sreport.
In our view, the Board's interpretation is inconsistent with the language of theregulation, which is mandatory and dictates that the complainant and the accused willhave received at least one report "pertaining to the investigation/outcome of the formalcomplaint" prior to the Board holding a hearing on the matter. Even assuming thatPerrotto was appointed to perform only the complaint officer's role—as opposed tothe superintendent's role—in the adjudicatory structure set forth in the regulation,a complainant is entitled to a copy of the complaint officer's report under the regulation.Nevertheless, respondents failed to provide either the complainant or this Court with acopy of the report.
We note that Supreme Court concluded that the entirety of the report should not bereleased because it is "more or less a journal . . . full of conjecture andhearsay and all kinds of materials that were, maybe, proper for [Perrotto] to consider inreaching her conclusions, but certainly didn't need to be put into that kind of report." Thequality and style of the report, however, does not impact petitioner's right to receive itunder regulation No. 3121R. Under these circumstances, petitioner has established both aclear legal right to relief and that the duty to disclose the report was nondiscretionary.Accordingly, respondents must be compelled to comply with the terms of regulation No.3121R and release the full Perrotto report to petitioner (see Matter of Brusco vBraun, 84 NY2d at 680; Matter of George F. Johnson Mem. Lib. v Springer,11 AD3d at 806-808).
The parties' remaining arguments are either meritless or academic. In addition, to theextent that petitioner appeals from the denial of her motion to reargue, no appeal lies (see e.g. Matter of Torpey v Townof Colonie, N.Y., 107 AD3d 1124, 1126 [2013]). Moreover, her challenge to thedenial of her motion, insofar as she sought renewal, is now academic. Respondents'argument that petitioner failed to exhaust her administrative remedies prior tocommencing this proceeding patently lacks merit inasmuch as respondents refused toprovide a hearing on appeal before the Board until Supreme Court directed them to doso.
Lahtinen, J.P., McCarthy, Garry and Lynch, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as partially dismissedpetitioner's application; petition granted in its entirety; and, as so modified, affirmed.Ordered that the order is affirmed, without costs.
Footnote *:In addition, SupremeCourt denied a motion by Clough, who had left the District's employ, to intervene.