| Matter of Weill v New York City Dept. of Educ. |
| 2009 NY Slip Op 02534 [61 AD3d 407] |
| April 2, 2009 |
| Appellate Division, First Department |
| In the Matter of Scott A. Weill, Appellant, v New YorkCity Department of Education et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), forrespondents.
Judgment, Supreme Court, New York County (Leland G. DeGrasse, J.), entered May 1,2008, which denied a petition seeking to annul respondents' determination terminatingpetitioner's employment as a New York City school teacher and dismissed this proceedingbrought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, thepetition reinstated, and the matter remanded to respondent Department of Education for it toprovide its rationale, if any, for rejecting petitioner's excuse for his failure to request timely ahearing.
Petitioner was a tenured New York City school teacher whose employment was terminatedby the Department of Education. Petitioner was accused of, among other things, showing aninappropriate movie to a class and making despicable comments to students. Shortly after he wasserved with notice of the charges, petitioner met with representatives of the United Federation ofTeachers (UFT). At this meeting, petitioner filled out a form requesting a hearing on the charges;the UFT representatives told petitioner that they would ensure that the form was timely filed.That form was not, however, received by the Department within the required time frame(see Education Law § 3020-a [2] [c]).
After he received a letter informing him that he had failed to request a hearing and thereforehad waived his right to a hearing, petitioner contacted the UFT. In an effort to secure a hearing,petitioner's UFT-assigned counsel sent to the Department attorney handling the matter anaffidavit from petitioner offering an explanation of his failure to file a timely request (seeEducation Law § 3020-a [2] [d]). The Department attorney, however, refused to submitthe affidavit to the panel assigned to hear petitioner's case because it contained not onlypetitioner's excuse for his failure to file a timely request for a hearing, but also avermentschallenging the disciplinary charges. According to the Department attorney, she would onlysubmit to the panel an affidavit addressed solely to petitioner's excuse. Petitioner's counsel thensubmitted to the Department attorney a "memorandum" in which he offered an excuse forpetitioner's failure to file a timely request for a hearing; the Department attorney apparentlyprovided this memorandum to the panel.[*2]
The panel acted on the charges against petitioner withoutaffording him a hearing, and, following an inquest hearing at which the Department attorneypresented a summary of "the evidence that DOE would have presented if the case proceeded totrial," the panel concluded that petitioner had engaged in the conduct alleged in the charges. Thechairperson of the panel issued a determination listing the findings of fact made by the panel,specifying the misconduct committed by petitioner and terminating petitioner's employment.
Petitioner commenced this CPLR article 78 proceeding to annul that determination.Petitioner claimed that the panel's rejection of his excuse for his failure to request timely ahearing and concomitant failure to afford him a hearing was arbitrary and capricious. Petitioneralso claimed that the penalty imposed by the panel was excessive. Supreme Court denied thepetition and dismissed the proceeding, and this appeal ensued.
In reviewing an administrative determination that was made without a hearing, we arelimited to determining whether the determination was arbitrary and capricious (CPLR 7803 [3]),i.e., lacks a rational basis (see e.g.Siegel v Board of Educ. of City School Dist. of City of N.Y., 58 AD3d 474 [2009]).Critically, we may only consider evidence that was before the administrative agency (seeMatter of Kelly v Safir, 96 NY2d 32, 39 [2001]; Matter of HLV Assoc. v Aponte,223 AD2d 362 [1996]) and we can only review the grounds presented by the agency at the timeof its determination (see Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662,678 [1997]; Matter of Blum v D'Angelo, 15 AD2d 909, 909 [1962]; see also Matterof Montauk Improvement v Proccacino, 41 NY2d 913, 914 [1977]).
Here, in its determination, the panel did not address petitioner's excuse for his failure to file atimely request for a hearing. Rather, the panel simply noted that petitioner had failed to file atimely request and that he had therefore waived his right to a hearing. Given the absence of anyground in the determination for the panel's rejection of petitioner's excuse, we must remand thematter to the panel for a statement of its rationale for rejecting the excuse. Then, and only then,can we perform the limited function that we are charged with in reviewing the determination ofan administrative body—ascertaining whether that determination is arbitrary andcapricious.
Although the Department attorney submitted an affidavit in opposition to petitioner's CPLRarticle 78 proceeding—in which she attempts to provide the panel's grounds forrejecting petitioner's excuse—we cannot consider it because it was not before the panel(see Kelly, supra; HLV Assoc., supra). More importantly, theattorney prosecuting the disciplinary proceeding cannot supply the panel's rationale for itsdetermination; only the panel can supply its reasoning for the determination.Concur—Saxe, J.P., Buckley, McGuire and Freedman, JJ.