# Petition — Wolkenstein v. Reville

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 1105

## Text

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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982

GLORIA WOLKENSTEIN, KATHRYN SILKES,
PHILIP RUMORE and VINCENT NOLA,
INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,

PETITIONERS,

Vv.
EUGENE T. REVILLE, INDIVIDUALLY AND
AS SUPERINTENDENT OF SCHOOLS; CLAUDE
D. CLAPP, INDIVIDUALLY AND AS CHIEF
FISCAL OFFICER OF THE CITY OF
BUFFALO PUBLIC SCHOOL SYSTEM;
FLORENCE E. BAUGH; DAVID KELLY;
JOSEPH E. MURPHY; LOUIS C. BENTON;
JOSEPH D. HILLERY; MOZELLA RICHARD-
SON; DENNIS BULERA; OSCAR SMUCKLER
AND JOHN C. FIORELLA, INDIVIDUALLY
AND AS MEMBERS OF THE BOARD OF
EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF BUFFALO

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

DEBORAH WATARZ, ESQ.

ROBERT D. CLEARFIELD, General
Counsel

BRUCE R. FENWICK, of Counsel

New York Educators Association

Attorneys for Petitioners

107 Washington Avenue

Albany, New York 12210

(518) 462-6451

TABLE OF CONTENTS

Page
Opinions below....... reverse ee 2
JUPAISGICCION.. .ccccccvecccrcccces 2
Constitutional and statutory
provisions involved.....-.+eeeees 3
Statements ccccvsravececvecvesns ys 4
Reasons for granting the
PECACLON occ ccccscsevcssscers yok 14
Cone lusiOn: ss «+5 6405404408a doen 2k
Appendix A....seee- Werrece rs. LA-52A
Appendix B.e.wweeseevevevcvceesvecs 1B-19B
TABLE OF AUTHORITIES
Cases:
Dugan vs. Ohio, 277 U.S. 61
(1928) ccce ccs ceccccseeeen eas ils #3
Gibson vs. Berryhill, 411
U.S. 564 (1973) .--cccceccces 19. es
Hortonville Joint School
District No. 1 vs. Horton-
ville Educational
Association, 426 U.S. 4§2
(1976)... csc0deweeeees ene 16,17, 05
21

Marshall vs. Jerrico, Inc.,
446 U.S. 238 (1980)..2-s 16, 17, 20,

22. 35
In re Murchison, 349 U.S.
133 €1955) .cccccoessevs 18, 19, “

Sanford vs. Rockefeller,

32 N.Y.2d 788, vac. and

rem. 4160577, aff'd 35

N.Y.2d 547, appeal

dismissed 421 U.S. 973

(1975) «cccsevsses ieee ween Sa 15

Tumey vs. Ohio, 273 U.S. 519
(1927) ccccccvcecscccees 15, 16, 17,
iG, 235 #20

Ward vs. Village of Monroe-
ville, 409 U.S. 57 (1972) +t 16, 17;
16,

Constitution and Statutes
United States Constitution:
Fifth Amendment....ccerceeeeevvveees 3
Fourteenth Amendment....+++-. 3, 13
WD U.S.C. LOBZ.cccccccvvvecevscccece 3
New York State Statutes:
Civil Practice Law and Rules:
BTGOL. cccccccccccseccccces 6, 20
S7TE03Z ce ccccccscccccvovccese 6, 20
Civil Service Law:

yl) Pee i]
Dc vadcackuss Bp Sp 105 23,
18, 20, 21, 22

Education Law:
$2566. cece cvecveveccesvess 8, 12
0c 010 21

a

QUESTIONS PRESENTED

1. Whether the procedures for
determining if a public employee
participated in a atrike in violation
of §210.1 of the Civil Service Law of
the State of New York deprives
petitioners of property without due
process of law.

2, Whether the class of petitioners
certified as "all persons who were
penalized by defendants acting
pursuant to Civil Service Law §210,
owing to their involvement in a
teachers’ strike that occurred in
Buffalo, between September 7 and
September 24, 1976" was proper.

ate
IN ‘TMH SUPREME COURT OF THE UNITED STATINS
OCTOBER TERM, 1982

No.
GLOKTA WOLKENSTEIN, ET AL.,
PETITIONERS
V.
MUGENE I’. REVEILLE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

Deborah Watarz, Esaq., on behalf of
the named petitioners, and the class
thereof, petitions for a writ of certe
forari to review the judgment of the
United States Court of Appeals for the
Second Cireutt in this case.

OPINIONS BELOW

The opinion of the Court of Appeals
(App. A, infra, 1A-19A, is reported at
F.2d ‘ The opinion of the
District court (App. A, infra, 20A-51A,
is reported at 539 F.Supp. 87 (1982).

JURISDICTION

The Judgment of the Court of Appeals
(App. A, infra, 52A) was entered
on November 18, 1982. The jurisdiction
of this Court is invoked under 28 U.S.C.

1254 (1).

-3-

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

1. The Fifth Amendment to the United
States Constitution provides in
relevant part:

No person shall...be deprived of
life, liberty, or property, without
due process of law...

2. The Fourteenth Amendment to the
United States Constitution provides in
relevant part:

-».nor Shall any State deprive any
person of life, liberty, or property,
without due process of law;...

3. The statutes involved are set forth
in Appendix B, pages 1B - 19B. They
are:

42 U.S.C. 1983;
$201, Civil Service Law of the State
of New York;
§210, Civil Service Law of the State
of New York;
§2566, Education Law of the State of
New York;
§7801, Civil Practice Law and Rules,
State of New York;
§7803, Civil Practice Law and Rules,
State of New York;
$3020-a, Education Law of the State
of New York

oho

STATEMENT

The named petitioners, and the class
they represent, are all teachers employed
by the public school system in Buffalo,
New York. The class members were
involved in a teachers’ strike that
occurred between September 7 and Septem-
ber 24, 1976. Petitioners seek a
declaration that the procedures for
determining if a public employee parti-
cipated in a strike, in violation of
§210.1 of the Civil Service Law of New
York (commonly referred to as the Taylor
Law) are unconstitutional in depriving
them of property without due process of
law. Under the provisions of the Taylor
Law, once a public employee is determined
to have participated in a strike, the
employee loses the pay for that day(s)
and additionally is subjected to a

penalty equal to an additional day(s)

pay.

Pursuant to §210.2(d) of the Taylor
Law, the superintendent of schools, as
chief executive officer of the school
district, is responsible for determining
if a strike has occurred and which
employees participated therein. Upon
such determination, the superintendent
notifies the employee and the chief
fiscal officer of the district thereof,
pursuant to §210.2(e). Thereafter,
pursuant to §210.2(g), the chief fiscal
officer must deduct from the wages of
the identified employees an amount
equal to twice the daily rate of pay
for each day of the strike. This
deduction must occur between thirty
and ninety days from the superintendent's
initial strike determination.

An employee determined by the

superintendent to have participated in a

dibs
strike may file with the superintendent
his objection to the determination, by
means of an affidavit and supporting
proof. Thereupon, the superintendent,
without affording the employee an
opportunity for a hearing, may summarily
dismiss or sustain the objection. If,
in the superintendent's opinion, the
objection raises a question of fact, the
Superintendent appoints a hearing
officer to hear and determine the matter.

The determination of the superinten-
dent is reviewable pursuant to Article 78
of the Civil Practice Law and Rules of
New York. (§§7801, 7803). Such review
1s limited and is not a de novo consid-
eration.

Between September 7 and September 24,
1976, a strike was determined to have
occurred affecting the Buffalo school

system. Approximately 3000 teachers

>
were determined to have participated
therein by the superintendent, Reville.
Notices of his initial determination
were given to the members of the class
of petitioners on or about October 14,
1976. Approximately 400 class members
filed objections to this determination,
and of these, approximately 330,
including those objections of the named
petitioners, were summarily dismissed
by the superintendent. Each member of
the class then suffered the penalties
proscribed by the section. These
deductions totalled approximately six
million dollars, consisting of approx-
imately three million dollars in wages
for the days of the strike, and three
million dollars in penalties.

Action was commenced in the United
States District Court for the Western

District of New York alleging that the

-

strike determinations of §210 of the
Taylor Law are unconstitutional in that
it deprives public employees in New York,
and specifically the petitioners, of
property without due process of law, in
that the superintendent, as chief

executive officer, is not impartial or

neutral, in the making of his initial
strike determination, since he is also
charged with the financial responsibil-
ities of the district. He is, or may be,
influenced in his determination of
whether a strike occurred, who partici-
pated therein, and the resultant
penalties. Petitioners contended that
the possibility of bias results from the
multi-faceted and inconsistent roles
placed on the superintendent, as chief
executive officer of a city school
district. (§2566, Education Law).

Certain facts were stipulated to

aQa

between the parties. In relevant part,
these were:

1. “petitioners” are employed as
teachers in the Buffalo Public School
System;

2. “petitioners” are public
employees and the school system is a
public employer, as the terms are
defined in the Taylor Law;

3. the respondent, Reville, is the
"chief executive officer" of the school
district, the respondent Clapp, is the
"chief fiscal officer" of the school
district, as the terms are used in the
Taylor Law;

4, the remaining named respondents
comprised the members of the elected
Bonrd of Education of the district;

5. the claims of the named "peti-
tioners" are typical of the claims of

the class of "petitioners" and the named

-10-

"petitioners" will fairly and adequately
protect the interests of the class. A
class action is superior to all other
available means of fair and efficient

adjudication of the matter;

6. Questions of law and fact

common to the class predominate over any
questions affecting individual members
thereof;

7. §210.2 of the Taylor Law is the
section, the constitutionality of which
is challenged;

8. the procedures contained in
said section are to determine if a
public employee violated the no-strike
provision of the Taylor Law;

9. approximately 3000 teachers
employed by the school district engaged
in what was determined to be strike
activity between September 7 and
September 24, 1976.

elle

10. On or about October 14, 1976,
Reville determined a strike had occurred
and that the class of "petitioners" had
participated therein;

ll. The class of "petitioners"
were so informed and advised of the
penalties therefor;

12. The named "petitioners" filed
objections to the determination with
respondent, Reville, and or or about
December 3, 1976 received notice that
the said respondent had summarily
dismissed the objections;

13. Approximately 400 teachers
filed objections to respondent's strike
determinations and of that number,
approximately 325 were denied a hearing
and were summarily dismissed;

14. Respondent, Clapp, as chief
fiscal officer, caused to be deducted

from the wages of the class of

°12@
"petitioners" amounts equal to two days
pay for each day of strike participa-
tion.

15. The deductions totalled
approximately six million dollars,
which sum was returned by the district
and used by it towards its operating
budget and expenses;

16. Pursuant to their statutory
duties under the Education Law of New
York, the respondents, Reville and
Clapp, were involved in the formation
of the district budget, and the planning
and utilization of the six million
dollars.

Upon this stipulation, and the
papers, "petitioners" moved for certifi-
cation of the class and summary judgment.
The District Court granted class certifi-
cation, denied "petitioners" summary

judgment and granted such in favor of

o13-

respondents (App. 514A)

On appeal, the Second Circuit
affirmed, holding that the presumption
of unbiasness occasioned on administra-
tors serving as adjudicators was not
overcome by “petitioners” and that
"netitioners" had not demonstrated a
violation of their constitutional
rights. The Court noted that petition-
ers claim was rejected by the District
Court...not without evident misgivings...,
(App. 3A).

It determined the precise issue as
whether "...4n authorizing Superinten-
dent Reville to pass on the legal
sufficiency of objections, §210.2(h)
transgresses the command, rooted in
common law practice...and considered to
be inherent in the due process clause
of the Fourteenth Amendment...that no

person shall be judge in a case in the

-14-

outcome of which he has an interest."

REASONS FOR GRANTING THE PETITION

The case presents both an important
question of federal law which has not
been settled by this Court and the
federal question was decided by the
Court of Appeals in a conflicting
manner with previous decisions of this
Court. The Court of Appeals, in its
affirmance, held that the combination
of administrative, investigatory,
financial and adjudicatory responsibili-
ties, found in respondent, Reville, did
not create a possibility of bias
sufficient to affect his initial strike
determination or his summary rejection
of any objections filed thereto.

Petitioners readily conceed that
various aspects of the Taylor Law have

been previously challenged unsuccessfully,

=15=

e.g. Sanford vs. Rockefeller, 32 N.Y.2d

788, vac. and rem. 4160577, aff'd. 35
N.Y.2d 547, appeal dismissed 421 U.S.
973 (1975). However, the precise
neutrality objection to the Taylor Law,
as raised herein, has not been ruled on.
Previous decisions of this Court,
delineating the command that "no person
shall be judge in a case in the outcome
of which he has an interest" were stated
by the Court of Appeals not to be con-
Clusive on this precise question.

In Tumey vs. Ohio, 273 U.S. 519
(1927) and Ward vs. Village of Monroe-

ville, 409 U.S. 57 (1972), both criminal
cases involving, "Mayors Courts" in Onio,
the state statutes involved were held to
violate due process; in Tumey, on two
grounds. First, the mayor "as an
individual” had a "direct, personal,

pecuniary interest" in the costs which

atthe

he received from convictions (273 U.S.
at p. 523, 531-5) and because the mayor,
as chief executive, had a strong
"official motive to convict and to
praduate the fine to help the financial
needs of the village" (273 U.S. at p.
535). Ward was found to fall within
this latter ground.

In Hortonville Joint School

District No. 1 vs. Hortonville Educa-

tional Association, 426 U.S. 482 (1976)

and Marshall vs. Jerrico, Inc., 446

U.S. 238 (1980), the challenged statutes
withstood the attack on their constitu-
tionality. However, the school board in
Hortonville, was engaged in educational
policy-making, not in adjudication of
the striking teachers therein. And in
Marshall, it was held that the "rigid
requirements of Tumey and Ward,

designed for officials performing

ol7-

judicial or quasi-judicial functions"
(446 U.S. at p. 248) were inapplicable
to the administrators therein whose
function was akin to a "prosecutor or
civil plaintiff" rather than a judge.
(446 U.S. at p. 247).

Thus, the situation presented in
this case falls between the previous
decisions of this Court, somewhere on
the continuum established by the Tumey
and Ward cases at one end, and the

Hortonville and Marshall cases at the

other.

Dugan vs. Ohio, 277 U.S. 61 (1928)
presented a situation which fell within
the later established continuum and
which was relied on by the Court of
Appeals. The differences between Dugan
and the present case are apparent.
Respondent, Reville, pursuant to §2566

of the Education Law, as chief executive

officer, was responsible for the
finances of the school district, and
Jugeled his many hats during the

period of the strike and the determina-
tions made by him in connection there-
with.

The precise question raised by
this petition, whether the strike
determinations made by a superintendent
of a city school district under the
terms of the Taylor Law, violate public
employees' due process rights, given
the combination of responsibilities
vested in the superintendent, has not
been ruled on, other than in this case.
Since a neutral tribunal is fundamental
to the notion of due process (Ward vs.

Village of Monroeville, supra; Tumey vs.

Ohio, supra; In re Murchison, 349 U.S.

133 (1955), and since §210 of the Taylor

Law fails to assure such an impartial

tribunal, in that the multitide of
responsibilities placed on the respon-
dent, as superintendent augers for a
potential of bias, petitioners' due
process rights have been violated.

The constitutional shortcomings of

Murchison, Ward and Tumey exist in the

Taylor Law procedures attacked herein.
See also: Gibson vs. Berryhill, 411
U.S. 564 (1973).

The monies garnered by the district

as a result of the superintendent's
strike decisions facilitated his ful-
filling his budgetary and financial
responsibilities. The existence of the
possibility of influence on his Taylor
Law determinations deprived petitioners
of their right of due process.

Although the respondent's strike
determinations were reviewable by means

of an “Article 78" proceeding, pursuant

-20-

to New York's Civil Practice Law and
Rules, such review is not de novo, as
succinctly noted by the District Court,
but will lead to affirmance if not
arbitrary or capricious, an "exacting
Standard that can cover a multitude of
misdeterminations". (App. 35A). Such
review also fails to insure an impartial
tribunal in the first instance. (c.f.

Marshall vs. Jerrico, Inc., supra).

Although this Court upheld the
dismissal of striking teachers in

Hortonville (supra), important factual

differences exist between it and the
present case. Under the challenged
§210 procedures, the superintendent,
not the elected school board members,
serves as the adjudicator. Also, under
New York law, striking teachers cannot
be dismissed by their Board of Educa-

tion. Only as a result of charges

placed against a tenured teacher
pursuant to §3020-a of the Education
Law (App. 17B ) can such a teacher be
disciplined. Section 3020-a sets forth
the procedure for such disciplinary
action, culminating in a binding
decision by a three-member panel, after
a complete, due process hearing. In

Hortonville, the applicable Wisconsin

law provided for the elected Board
members to make this determination.
Thus, the §210 procedures are akin to
rendering financial penalties for the
benefit of the school district (or
other public employer), rather than
making decisions concerning educational
policy and the educational process.
Also, the decision to discharge

the teachers was attacked in Hortonville,

the constitutionality of the Wisconsin

statute was not challenged. Here, the

-22-

issue is whether the strike determina-
tion procedures of §210 afford public
employees in New York their due process
rights, especially given the conflict-
ing roles served by the respondent,
superintendent, which led to the strike
and his determinations (1.e. general
supervision of teacher conduct, budget-
ary and financial, involvement in the
failed collective bargaining process
which led to the strike determinations).
The judicial, or quasi-judicial
role of the superintendent brings the
present case under the Tumey and Ward
doctrines, rather than Marshall vs.

Jerrico, Inc. (supra). The factors

present in Marshall upon which the
finding of constitutionality was based,
are not present herein. In Marshall,
the public official performed no
Judicial or quasi-judicial role, but

=230

was more akin to a prosecutor. Under
the challenged procedures herein, the
chief executive officer acts as prose-
cutor and judge. In Marshall, full de
novo review was statutorily provided
for. Here, there is none. In Marshall,
the amount of penalties assessed
compared to the overall Employment
Standards Administration (ESA), was
insignificant. Here the amount of
penalties bears a significant relation-
ship to the overall budget of the
district (App. 45A - 47A).

In sum, petitioners contend the
Court of Appeals put this case on the
wrong portion of the continuum estab-
lished by the decisions of this Court

in Tumey, Ward, Dugan, Hortonville, and

Marshall. The succinct issue raised,

whether the strike determination

procedures deprive petitioners of their

=2he

due process rights has not been
answered other than herein. Those
challenged procedures fail to insure a
neutral tribunal, and fail to insure
petitioners a proceeding wherein their
position may be advanced to an adjudi-
cator not potentially predisposed to

find against them.

CONCLUSION
For the reasons stated herein, it
is respectfully requested that the
petition for a writ of certiorari be
granted.
Respectfully submitted,

DEBORAH WATARZ, ESQ.

ROBERT D. CLEARFIELD, General
Counsel

BRUCE R. FENWICK, of Counsel

New York Educators Association

Attorneys for Petitioners

107 Washington Avenue

Albany, New York 12210

(518) 462-6451

1A

UNITED STATES COURT OF APPEALS
For THE SECOND Circuit

a a

No. 51—August Term, 1982

(Argued September 16, 1982
Decided November 18, 1982)

Docket No, 82-7173

Ca

GLORIA WOLKENSTEIN, KATHRYN SILKES, PHILip RUMORE
and VINCENT Nota, individually and on behalf of all
others similarly situated,

Plaintiffs-Appellants,

a

EvuGent T. Revitte, individually and as Superintendent
of Schools; Ciaupe D. CLapr, individually and as
Chief Fiscal Officer of the City of Buffalo Public
School System; FLoreNce E. BAUGH; David KELLY;
JospeH E. Murpny; Louis C. Benton; Josern D.
HILLERY; MOZELLA RICHARDSON; DENNIS BULERA; Os.
CAR SMUCKLER; JOHN C. FiORELLA; as members of the
Board of Education of the City School District of the
City of Buffalo,

Defendants-Appellees.

303

2A

Before:

FEINBERG, Chief Judge,
and FrRigNDLY and KAUFMAN, Circuit Judges.

0

Appeal by plaintiffs from an order of the District
Court for the Western District of New York, John T.
Elfvin, Judge, 539 F.Supp. 87 (1982), granting defen-
dants’ motion for summary judgment in an action in
which plaintiffs challenged the constitutionality of
§ 210.2 of the New York Civil Service Law (the Taylor
Law). Affirmed.

>

Bruce Fenwick, Buffalo, NY (Robert D.
Clearfield, General Counsel, New York
Educators Association), for Plaintiffs-
Appellants.

WittiaAM E. Carey, Assistant Corporation
Counsel, Buffalo, NY (Joseph P. McNa-
mara, Corporation Counsel of the City
of Buffalo), for Defendants-Appellees.

ROBERT ABRAMS, Attorney General of the
State of New York, Albany, NY (Jere-
miah Jochnowitz, Assistant Solicitor
General, and John Q. Driscoll, Assistant
Attorney General, of counsel), for the
Attorney General of the State of New
York, Amicus Curiae.

—+
304

4A
PRieNoLy, Circuit Judge:

This is the latest in a long series of challenges in the
state and federal courts over the last decade to the
constitutionality of § 210 of New York's Civil Service
Law (the Taylor Law), which prohibits strikes by public

employees, See Cheeseman v. Carey, 623 F.2d 1387,
1389-90 & note 3 (2 Cir, 1980). The action, brought under
42 U.S.C. § 1983 and its jurisdictional counterpart, 28
U.S.C, § 13433), in the District Court for the Western
District of New York, contests the procedures prescribed
by § 210.2 lor determining whether a public employee
participated in a strike in violation of § 210.1 and for
imposing a penalty on those determined to have so
participated, The district court granted the named plain-
tiffs permission to represent a class consisting of “all
persons who were penalized by defendants acting pur-
suant to CSL § 210 owing to their involvement in the
teachers’ sirike that occurred in Buffalo between Septem-
ber 7th and 24th, 1976". Defendants are Eugene T.
Reville, individually and as superintendent of Buffalo's
schools; Claude D, Clapp, individually and as chief fiscal
officer of the Buffalo public school system; and the
members of the Board of Education of the City School
District of Buffalo. Both sides moved for summary judg-
ment. In somewhat of a dubitante opinion, Judge Elfvin
granted the defendants’ motion, 539 F.Supp. 87 (1982).
This appeal followed.

The procedures for determining violations of the Taylor
Law and imposing penalties therefor are prescribed by
§ 210.2, the relevant paragraphs of which we have set out
in full in the margin.’ The “chief executive officer” of the

(d) Determination, In the event that it appears that a violation of
this subthivision may have occurred, the chief executive officer of

305

4A

governmental unit involved is empowered to determine,
“on the basis of such investigation and affidavits as he

ee ee ee ee —

the government involved shall, on the basis of such investigation
and affidavits as he may deem appropriate, determine whether or
not such violation has occurred and the date or dates of such
violation. If the chief executive officer determines that such viola-
ton has occurred, he shall further determine, on the basis of such
further investigation and affidavits as he may deem appropriatc, the
names of employees who committed such violation and the date or
dates thereof. Such determination shall not be deemed to be final
until the completion of the procedures provided for in this subdivi-
sion

(ce) Notice. The chief executive officer shall forthwith notify each
employee that he has been found to have committed such violation
the dute or dates thereof and of his right to object to such
determination pursuant to paragraph (h) of this subdivision, he
shall also notify the chief fiscal officer of the names of all such
employees and of the total number of days, or part thereo!, on
which it has been determined that such violation occurred, Notice
to each employee shall be by personal service or by certified mail to
his last address filed by him with his employer

(g) Payroll Deductions, Not earlier than thirty nor later than
ninety days following the date of such determination, the chief
fiscal officer of the government involved shall deduct from the
compensation of each such public employee an amount equal to
twice his daily rate of pay for each day or part thereof that it was
determined that he had violated this subdivision; such rate of pay to
be computed as of the time of such violation. In computing such
deduction, credit shall be allowed for amounts already withheld
from such employee's compensation on account of his absence
from work or other withholding of services on such day or days. In
computing the aforesaid thirty to ninety day period of time follow-
ing the determination of a violation pursuant to subdivision (d) of
paragraph two of this section and where the employee's annual
compensation is paid over a period of time which is less than
fifty-two weeks, that period of time between the last day of the last
payroll period of the employment term in which the violation
occurred and the first day of the first payroll period of the next
succeeding employment term shall be disregarded and not counted.

(h) Objections and restoration. Any’ employee determined to
have violated this subdivision may object to such determination by
filing with the chief executive officer, (within twenty days of the
date on which notice was served or mailed to him pursuant to
paragraph (e) of this subdivision) his swdrn affidavit, supported by
available documentary proof, containing a short and plain state-

306

5A

may deem appropriate”, whether an illegal strike has
occurred and which employees have participated.
§ 210.2(d). In making the latter determination he may
employ the presumption, established by § 210.2(b), that
an “employee who is absent from work without permis-
sion, or who abstains wholly or in part from the full
performance of his duties in his normal manner without
permission”, has participated in the strike. An employee
who has been notified that the chief executive officer has
found him to have participated in an illegal strike may
object to this initial determination by filing a “sworn
affidavit, supported by available documentary proof,
containing a short and plain statement of the facts upon
which he relies . . . .” § 210.2(h). The chief executive
officer evaluates the objections and is obliged to refer
ment of the tacts upon which he relies to show that such determina-
ton was incorrect. Such affidavit shall be subject to the penalties of
perjury. If the chiet executive officer shall determine that the
itive and supporting proof establishes that the employee did not
viohite this subdivision, he shall sustain the objection. If the chiet
exceutive officer shall determine that the affidavit and supporting
proof fails to establish that the employee did not violate this
subdivision, he shall dismiss the objection and so notify the em-
ployee. HW the chiet executive officer shall determine that the
alfidavit and supporting proof raises a question of fact which, if
resolved in favor of the employee, would establish that the em-
ployee did not violate this subdivision, he shall appoint a hearing
officer to determine whether in fact the employee did violate this
subdivision after a hearing at which such employee shall bear the
burden of proof. If the hearing officer shall determine that the
employee failed to establish that he did not violate this subdivision,
the chief executive officer shall so notify the employee. If the chief
executive officer sustains an objection or the hearing officer deter-
mines on a preponderance of the evidence that such employee did
not violate this subdivision, the chief executive officer shall forth-
with restore to the employee the tenure suspended pursuant to
paragraph (1) of this subdivision, and notify the chief fiscal officer
who shall thereupon cease all further deductions and refund any
deductions previously made pursuant to this subdivision. The deter-

minations provided in this paragraph shall be reviewable pursuant
to article seventy-cight of the civil practice law and rules.

307

6A

those raising material questions of fact to a hearing
officer. id. Between 30 and 90 days after the chief execu-
tive officer's initial determination, the “chief fiscal offi-
cer” begins payroll deductions of amounts equal to twice
the daily rate of pay for each day on strike. These
deductions are not stayed until the employee's objection
has been sustained, at which time all deductions pre-
viously made are refunded. §§ 210.2(g), (h). The deter-
minations made under § 210.2(h), including the chief
executive officer's determination whether an objection
raises a material question of fact, are judicially review-
able pursuant to Article 78 of the New York CPLR.

The stipulation upon which summary judgment was
entered below was, in relevant part, as follows. On
September 7, 1976, approximately 3000 of the 3300
school teachers employed by the Buffalo School District
commenced a strike which continued through September
24, 1976. By notice dated October 14, 1976, Superinten-
dent of Schools Reville, the district’s “chief executive
officer”, see § 201.10, informed these 3000 teachers that
he had found them to have participated in an illegal
strike. Approximately 400 teachers, including the fout
named plaintiffs,’ filed objections. Some 325 of these,
again including the named plaintiffs, received notices,
signed by Reville, dismissing their objections and denying
a hearing on the ground that they had failed to establish
that they had not participated or to raise a question of
fact us to their participation, Several of thos who were
thus denied a hearing availed themselves of the opportu-

2 Each of the objections filed by named plaintiffs Wolkenstein, Silkes,
and Rumore consists in good part of what appears to be a form
affidavit, alleging, inter alia, that the employee's absence was caused
by the provocative actions of the Board of Education. The record on
appeal contains none of the other 400 or so objections filed.

308

TA

nity provided by § 210.2(h) to challenge Reville’s deter-
mination in an Article 78 proceeding; the Supreme Court
of New York directed that hearings be held in three such
cases. The payroll deductions made by Deputy Superin-
tendent Clapp, the district’s “chief fiscal officer”, to-
talled some $6 million, all of which was applied to the
school district's operating budget. Finally, it was stipu-
lated that Reville and Clapp were “involved in the forma-
tion of the budget and the planning with regard to the
utilization” of the $6 million.

On the basis of this stipulation plaintiffs sought below
a declaration that the procedures in § 210.2 deprived
them of their property without due process of law. They
made two claims. The first was that Reville, given his
various executive responsibilities for the school system's
operation and budget, has a disqualifying interest in the
determinations he makes under § 210.2(h). The second
was that the procedures are infirm on their face for
failure to provide hearings prior to the commencement of
payroll deductions. The first claim was rejected by the
district court, nol without evident misgivings, on the basis
of a prior decision of this court.’ The second claim was
found to be settled authoritatively against plaintiffs by
the Supreme Court's dismissal of the appeal from San-
ford v. Rockefeller, 364 N.Y.S.2d 450 (1974), “for want
of a substantial federal question”, 421 U.S. 973 (1975).

' The district judge considered himself bound by our decision in
Aornu v. Bourd of Education, 59\ F.2d 1330 (2 Cir, 1978), cert,
denied, 440 U.S. 946 (1979), which sustained § 210.2(h) against a claim
of the sort raised here, The decision in Kornit, however, was rendered
in an unpublished opinion, As such it is subject to our local rule § 0.23
which denies precedential status to summary orders. It could be argued
that this rule should not be applied with full rigor to an order, like that
in Aorni, which affirmed “substantially for the reasons stated by [the
district judge|". Be that as it may, we do not rely on Kornit here but
consider the matter afresh,

309

BA

Since plaintiffs have not renewed their second claim,
the sole question for review is whether in authorizing
Superintendent Revijle to pass an the legal subficiency of
objections, § 210 2(h) transgresses the command, rooted
in common law nracuce, see Bonham’s Case, 8 Co. 107a,
77 Eng. Rep. 638 (K.B. 1608); 2 Cooley, Constitutional
Limitations 870-75 (8th ed. 1927), and considered to he
inherent in the due process clause of the 14th amendment
sec In re Murchison, 349 U.S. 133, 137 (1955), tyat no
person shall be judge ip a case in the outcome of which he
has an interest. The constitutional contours of that com-
mand have been most fully explored in a quintet of
Supreme Court decisions: Tumey v. Ohio, 273 U.S. 519
(1927); Dugan v. Ohio, 277 U.S. 61 (1928); Ward v.
Village of Monroeville, 409 U.S. 57 (1972); Hortonville
Joint School District No. 1 v. Hortonville Educational
Ass'n, 426 U.S. 482 (1976); and Marshall v. Jerrico, Inc.,
446 U.S, 238 (1980). Although none is conclusive of the
precise question before us, we must look to these deci-
sions in secking a resolutian,

Jumey, Dugan and Ward were criminal cases involving
Ohio “Mayors’ Courts”. In Tumey the defendant had
been convicted of violating the state’s prohibition act
after a trial before the mayor of North College Hill in the
Village’s “Liquor Court”. Pursuant to state statute, half
of the fines assessed in this court were retained by the
Village. These funds were used partly to compensate the
deputy marshals and detectives who secured evidence and
the prosecutors who secured convictions, 273 U.S. at
518-19, and partly for general “village improvements and
repairs”, id. at 521. The Village ordinance establishing
the Liquor Court further provided that the mayor rece ve
“his costs in each case, in addition to his regular salary, as
compensation for hearing such cases”, id. at 519; how-

310

9A

ever, no costs were paid to him unless the defendant was
convicted, During a seven-month period in 1923 some
$11,000 in fines redounded to the Village—this amounted
to $10 per Village resident—and some $696 came to the
mayor as costs in addition to his regular salary. /d. at
521-22. The scheme was held to violate due process on
two grounds—first, because the mayor. “as an individ-
val’ hada “direct, personal. pecunjary imterest” ur Lbe
costs which he received trom convictions, id. at 523,
531-455; second, because the mayor, as the Village's chief
executive, cnarged with the business of looking aster its
finances, nad a strong “otticiai motive to convict ana to
graduate the tine to pelp the tunancial needs of the
Village , 1a. at 535,

A limitation on the second ground of Tumey was
shortly set in Dugan v. Ohio, supra, 277 U.S. 61, written,
as Tumey had been, by Chief Justice Taft. The defendant
there had been convicted by the mayor of the city of
Xenia for a state liquor offense. Since the mayor was a
salaried official who did not participate in the costs
collected or fines imposed by his court, the first ground
of Tumey was inapplicable. Despite the fact that, as in
Tumey, half of the fines imposed were retained by the city,
the second ground was held inapplicable as well. The
reason was that unlike the mayor of North College Hill,
who “as chief executive was responsible for the financial
condition of the village” and who thus “might be tempted
to accumulate from heavy fines a large fund by which the
running expenses of a small village could be paid, im-
provements might be made, and taxes reduced,” id. at 65,
the mavor of Xenia had no executive functions. Xenia
had a commission torm of government; the mayor was
only one of five commissioners, while the “active execu-
tive” was the city manager. /d. at 63. The Court con-

311

10A

cluded that the mayor’s “relation under the Xenia charter,
as one of five members of the city commission, to the
fund contributed to by his fines as judge, or to the
executive or financial policy of the city” was too “re-
mote” to create a practical conflict of interest. id. at 65,
This was said despite the fact that ultimate responsibility
for raising the city’s revenues, as for spending them, sce
id. at 62, presumably rested with the commission rather
than the city manager.

Ward v. Village of Monroeville, supra, 409 U.S. 57,
was held to fall within the second ground of Tumey rather
than under Dugan. This was for two reasons. First, the
village of Monroeville, like North College Hill, had a
traditional form of municipal government in which the
mayor had “wide executive powers” and exercised
“general overall supervision of village affairs”, id. at 58.
Second, Monroeville, like North College Hill, derived a
“major part” of its income from the fines and fees
imposed by the mayor’s court—ranging from 37% to
50% in the five years cited, id. at 58. Indeed, so vital was
the revenne generated by the mayor's court that “when
the state legislature threatened its Inss, Monroeville re-
tained 4 management consulient tor advice upap the
proniem” , id. at 50-59 and n. 1.

Hortonville, supra, 426 U.S. 482, like the instant case,
dealt not with criminal proceedings but with the disciplin-
ing of teachers who had struck in violation of state law.
The discipline, there dismissal rather than mere fine, was
administered, however, not by the Hortonville school
district’s superintendent but by its elected seven-member
School Board, which had engaged in the pre-strike nego-
tiations with the teachers and had sole statutory authority
to hire and fire. The Court rejected the dismissed
teachers’ due process challenge to the Board's impartial-

312

1l1A

ity. Leaving open the question whether Tumey and Ward
“state the governing standards when the decisionmaker is
a public employer dealing with employees”, it held that
“the teachers did not show, and the Wisconsin courts did
not find, that the Board members had the kind of
personal or financial stake in the decision that might
create a conflict of interest. . . .” /d. at 491. However,
the decision is less telling for defendants in our case than
the statement up to this point might seem to make it. The
Board had engaged, the Court pointedly noted, not in
adjudication—the dismissed teachers all admitted that
they had struck-but in policy-making, to wit, determin-
ing whether dismissal or some less drastic measure, such
as mediation or continued bargaining, would best serve
the interests of the school system and the taxpayers. /d. at
494-95. To such a decision the stringent standards of
Tumey and Ward simply did not apply.’

The Court's most recent extended discussion of the
impartiality requirement is Marshall v. Jerrico, Inc.,
supra, 446 U.S, 238. At issue there was the constitutional-

= -- ome

4 Since the dismissed teachers conceded their participation in the
strike, “there was no possibility of an erroneous factual determination
on this critical threshold issue,” éd, at 494, The Board's decision to
dismiss the teachers was “only incidentally a disciplinary decision, it
had significant governmental and public policy dimensions as well." id
at 495 $ our case, in contrast, plaintiffs have pot .all admutied
engagin 41976 sitike: moreover, itis precisgly this “orijical
ihre sua” sadhiehh § 20005¢h)-somenie-te Supesiaiendaat Reville's
initial determination, Bucther, the imposition of penaliies vgder
$210.” ‘wolves no discsoonasy considerations whatever: the penal:
ties Mow automatically from Reville's finding of strike participation

b Hortonville also rejected a claim of bias with respect to the policy
decision based on the Board members’ participation in the negotiations
prior to the strike, which allegedly made it impossible for them to deal
fairly with the question of remedy. This portion of the decision is not
relevant here since the Taylor Law mandates the deduction for any
public employee who was on strike.

313

L2A

ity of § 16(e) of the Fair Labor Standards Act, 29 U.S.C.
§ 216(e), under which sums collected as civil penalties for
the unlawful employment of child labor are returned to
the Employment Standards Administration (ESA) of the
Depariment of Labor in reimbursement for the costs
incurred by its assistant regional administrators (“ad-
ministrators”) in determining violations and assessing
penalties. The Court unanimously rejected the claim that
this statutory scheme impermissibly encouraged the ad-
ministrators to make unduly numerous and large assess-
ments, It held that the “rigid requirements of 7umey and
Ward, designed for officials performing judicial or quasi-
judicial functions”, id, at 248, are inapplicable to the
ESA's administrators whose function of assessing viola-
tions is “akin to that of a prosecutor or civil plaintiff”
rather than a judge, id. at 247," Beyond this the Court
found that the reimbursement scheme does not offend the
more relaxed standard applicable to “administrative pros.
ecutors”, The administrators are salaried officials who in
no way profit personally from the assessments they make.
Since the sums collected were very small—“substantially
less" than 1% of the ESA's budget in the three years
examined, and less than the amounts returned to the
Treasury by the ESA in each of these years—there was no
“realistic possibility” that the judgment of the adminis-
trators would be “distorted by the prospect of institu-
tional gain .. .". /d. at 250. Moreover, the ESA's
administration of § 16(e) had minimized the potential for
bias. In the one year in which the BSA elected to allocate
part of the civil penalties to the regional offices rather

tn An employer against whom @ penalty is assessed has the statutory
rieht to a de novo hearing before an ALJ. It is the latter, not the
assistant regional administrator, the Court found, who performs the
function of “adjudicating” child labor violations.

314

1°4

than retain the entirety in the national office, it did so in
proportion to the expenses incurred in investigating and
prosecuting violations not in proportion to the amount of
penalties actually collected. This being so, an administra-
tor could not expect to benefit his own regional office by
imposing large penalties. /d, at 251.

We are thus left with a case not so strong for unconsti-
tutionalitv as Jumev ana wara ang not so strong for
constitutionatity as etortonville or Jerrico. Auwnougn Vue
gan v. Gn, Supra, 277 U.S. 61, surery is NOL Urey ON
point, District Judge Leval may well have been right in
thinking that decision, which stands in the middle of the
continuum, to be a better guide for decision here than any
of the other cases, see O'Brien v, Board of Education,
498 F.Supp. 1033, 1036 (S.D.N.Y. 1980). We hold that,
for the reasons that follow, plaintiffs have not made out
their claim,

We begin with the proposition that “[t]he very nature
of due process negates any concept of inflexible proce-
dures universally applicable to every imaginable situa-
tion”, Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961), Whether a particular decisionmaking nrocedure is
constitutionaliv aetective tor want of impartiality will
depend on many tacto.. among which are the yoaracter
of the decision being made, see Jerrico, supra, 446 U.S.
at 247-4y, ine naire of the individual and governmental
interests at stake, see Mortonville, supra, 426 U.S. at 491,
and the teasibility of alternative procedures. See, e¢.g.,
Lopez v. rlenry Phipps Mlazu soutn, inc, 498 F.2d 937,
943-44 (2 Cir. 1974) (manager of a publicly assisted
housing project not so “management oriented” as to be
disqualified from presiding over eviction hearing involv-
ing another project owned by the same federally funded
landlord); Powell v. Ward, 542 F.2d 101 (2 Cir. 1976)

315

L4A

(prison official with direct responsibility for institutional
security not disqualified solely by reason of his position
from adjudicating allegations of breaches of prison se-
curity).

In the instant case the decisions which Superintendent
Reville made under § 210.3(h) were neither “prosecutor.
ial”, compare Jerrico, nor “governmental”, compare
Hortonville, but adindicative, and adjudicative in a very
special cense, In evaluating the obigctinng filed by the
teacners Keville was deciding the purelv legal anestion
whether the excuse alleged tor absence wos srificient as a
matter ot law. As our review of the authormes has
shown, due process demands strict impartiality on the
part of those wno function in a judicial or Quasi-judicial
capacity, Nevertheless, ine Court has made clear on
several occasions that administretors serving as adiudica-
tors are presumed to be unbiased, See, ¢.g., United States
v. Morgan, 313 U.S. 409, 421 (1949); Withrow v. Larkin,
421 U.S. 35, 47 (1975); Schweiker v. McClure, 50
U.S.L.W. 4406 (April 20, 1982). This presumption can be
rebutted by a showing of disqualifving imerest, einer
pecuniary, see Gibson v, Berrynill, 411 U.S. $04, 578-79
(1973), or institutional, see Ward, supra, or both, see
Tumey, supra, But the burden of establishing a disqualify-
ing interest rests on the party making the asseruon.,
Schweiker v. McClure, supra, 50 U.S.L.W. at 4406.

Fairly read, neither the facts stipulated to below nor the
generalized assertions made here about Reville’s “incon-
sistent™ responsibilities, prove an interest uu his part in
the outcome of tne determinauions mane under § 41U.2(n)
suffivent, under the Supreme Court's standaras, to over-
come the “presumption of honestv and integyity,”
Withrow v. Larkin, supra, 421 U.S. at 47, that attaches
by virtue of his office. Even if the “rigid requirements” of

316

Tumey and Ward were thought applicable to administra-
tive adjudication in the public employment context, a
question, as we noted previously, expressly left open in
Hortonville, supra, 426 U.S. at 481, plaintiffs simply
have failed to show that Reville’s situation is “one which
would offer 4 possipie tempiation to the averner man as a
judge”, 7umey, supra, 273 U.S. at 552; Ward, supru, 409
U.». at 60; Murchison, supra, 349 U.S. at 136, to deny
hearings 10 teachers whose objections were legally suffi-
cient.

Plaintiffs do not contend that Reville has a “direct,
personal, pecuniary interest” in the determinations he
makes under § 210.2(h) of the sort found in Tumey.’
Plaintiffs’ contention is rather that because Reville has a
strong “otticial mouve , Tumey, supra, 2/3 U.S. at 535,
to maximize tne amount of penalties collected, the case
falls within the secona grouna ot Jumey. We find the
contention unpersuasive tor several reasons.

Unlike the mayors in 7umey and ward, Reville is not
responsible for seeing to it that the money needed to run
Buffalo's schools is provided; that responsibility rests
with the Mayor and Common Council. Plaintiffs_cefer
vaguely to Reville’s particination in the budgetary
process, nut they nowhere furnish details a< 19 the precise
part he tances. Common sense, contirmed by contempora-

? Plaintiffs were well advised not to claim this. Superintendent Re-
ville, like the mayor in Dugan, is a salaried official who in no way
participates in the penalties collected under the Taylor Law. We cannot
divine any indirect pecuniary interest Reville had or could be thought
to have had in maximizing the penalties imposed. There is no allega
hon or prool that his compensation as superintendent varied inversely
with the amounts paid to the teachers or that he would be likely to be
rewarded fur seul in imposing penalties by a salary raise, One can, of
course, suppose that Reville might fare better in an easy rather than «
tight budgetary situation, but in that respect he seems not very
different from the mayor in Dugan.

317

16A

neous newspaper accounts of the school strike, attached
as exhibits to defendants’ motion to dismiss, see n.9,
infra, and by the district court’s researches, see S79
FSupp. at 97, suggests that he prepares a proposed
budget, oul That his responsibility ends with preparing
and defending it. Although the Superintendent has broad
powers and duties, see N.Y. Education Law § 2446, it is
the School Board, not he, who submits budgetary re-
quests ‘to the Mayor and Common Council. See 539
F.Supp. at 97. See also N.Y. Education Law § 2576. So
far as the record shows, then, Reville is a public servant
whose interest is only in running a successful operation
for which elected officials must find the money. It cannot
Seriously he sunnosed that such an official would make
unjustitied vetermenations under § 210 2h) simpiv to
secure am erement in revenue tor his district or to
ingret ate ninisert with tne Board and the taxpayers. bor
one thing, a superintenaem s success depenas in tne long
run” on many factors, not the least of which is the steady
good will and support of his teachers. For another,
Reville doubtless knew full well that the means of correct-
ing any wrong decision on his part were readily at
hand—in immediate Article 78 review. A record of fre-
quent reversals would hardly further Reville’s career.

In both Tumey and Ward the Court put great emphasis
on the fact that the revenues generated by the Mayor's
Court were very substantial and vitally important to the
village's fiscal well being. See Tumey, supra, 273 U.S. at
521; Ward, supra, 409 U.S. at $8-59. These mayor's
courts were ongoing institutions, doubtless prized by the

" The school superintendent in a district like Buffalo can afford to
take the long view. He holds his position for a term of six years during
which he cannot be removed save for cause. N.Y. Education Law
4 2565

318

17A

local taxpayers, the purpose of which was as much to
raise revenue as to enforce the state's liquor laws. The
contrast with the instant case is plain enough. Neither in
intent nor operation do the strike-penalty provisions of
the Taylor Law serve primarily, or even significantly, to
raise revenues; their evident purpose is to deter strikes by
public employees. The iniposiuion of penalties is sporadic
and occasional—-as sporadic and occasional as the strikes
themselves. More important, the particular sums at stake
in this case were hardly substantial enough to turn Re-
ville’s head. Of the $6 million stipulated to have been
collected from the 3,000 striking teachers, only about
$600,000 came from the 325 teachers whose objections
were dismissed by Reville as insufficient on their face. See
539 F.Supp. at 95 n.4. This sum represents little more
than half of one percent of the School Board's more than
$100,000,000 budget for the 1976-77 fiscal year. The great
disparity between this percentage and that in Ward, where
the fines assessed in the Mayor's Court ran from one-
third to one-half of the village’s revenues, is not without
constitutional significance. See Jerrico, supra, 446 U.S. at
245, 250-51.”

9 We do not mean to suggest that $600,000 is a trifling sum even for a
city of Buffalo's size. We are well aware that in times of severe fiscal
stress a loss of $600,000 may force painful cutbacks in one school
program or another. But the plaintiffs provide no information with
which to assess the precise marginal utility of the $600,000 collected
here. The stipulation says only that all of it “was applied by defendants
with regard to the operating budget and expenses of the District.”
However, newspaper accounis of the strike, attached as exhibits to
defendants’ motion to dismiss the complaint, seem to indicate that the
moneys were used to restore kindergarten and bus transportation
programs—programs which had been sharply cut by the Board in an
austerity budget which Reville, two months before the strike, had
characterized as “totally inadequate”. Further, Judge Elfvin's indepen-
dent investigations revealed that the Board's supplemental budget
request for 1976-77, the year of the strike, was a good deal smaller
than in either the preceding or subsequent year, $39 F.Supp. at 98. The

319

18A

An added reason for our conclusion is the nature of the
determination made by Reville and the remedy provided
for any error. In each of the 325 cases in which Reville
dismissed objections without a hearing, he made a deter-
mination of law, namely, that taking the objector’s affi-
davit and supporting proof to be true, the excuse
proffered was insufficient. An objector dissatisfied with
such a ruling had immediate recourse to an Article 78
proceeding, where the standard of review would be pre-
cisely the same as that applied by Reville in the first
instance. See CPLR 7803(3) and Sanford v. Rockefeller,
364 N.Y.S.2d 450, 454-56 (1974), appeal dismissed for
want of a substantial federal question, 421 U.S. 973
(1975). Here, as indicated, as a result of Article 78 review,
hearings were directed to be held in three cases. See also
Zarella v. Koch, 425 N.Y.S.2d 582 (App. Div., Ist Dept.
1980) (affidavit of civil service employee, which stated
that he telephoned to find out if he should report to work
and was told that his plant was no! operating, was
sufficient to raise a question of fact requiring that a
hearing office be appointed); St. Pierre v. Board of
Education, 337 N.Y.S.2d 706 (App. Div., 3d Dept. 1972)
(affidavits stating that employees reported for work at the
customary time on day of strike and performed all usual
duties until normal departure time were sufficient to
require appointment of hearing officer). Under
§ 210.2(h), then, an employee who believes himself en-
titled to a hearing on the question of his strike participa-

—

plaintiffs, however, have made nothing of this either here or in the
district court. Their claim relies only on the barebones stipulation of
facts summarized above and certain general propositions about Re-
ville’s various executive responsibilities. In determining whether they
have overcome the presumption that Reville is impartial, we necessarily
confine ourselves to the claims plaintiffs have actually raised.

320

19A

tion has two bites at the apple. If the chief executive
officer dismisses his objection without a hearing, he can
immediatcly request the state court to pass on the legal
sufficiency of his objection. The interposition of the chief
executive officer between the employee and the state
courts serves the important state interest of relieving the
latter of the need to evaluate the legal sufficiency of each
and every objection filed, many of which are palpably
without basis. We are, of course, mindful of the ruling in
Ward v. Village of Monroeville, supra, 409 U.S. at 61-62,
that the availabilitv of a trial de novo hefore an unbiased
judge did not remove the constyutional infirmity in an
Original trial Hetore one whose smpartiality was ‘mpaired,
since a litioanr “1s entitled to a neutral and detached iudge
in the tirst instance.” Bui We ase vy NO Meaty sure (nal
this rulings, mauec in a criminal case, applies to the
decision of a school administrator on a point of law
which is subject to prompt, full, and inexpensive judicial
review. Be that as it may, the preceding discussion has
shown that plaintiffs here in fact received a neutral
evaluation of their Opvecuons in the first insiance.

In suin, while New York, « Only w avoid itigation on
facts more persuasive than those here, might be well
advised to commit the initial evaluation of the legal
sufficiency of objections to some other administrator
lower in the administrative hierarchy than the chief execu-
tive officer, these plaintiffs have demonstrated no vioia-
tion of their federal constitutional rights, and summary
judgment for defendants was properly entered.

Affirmed.

321

te

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

i eS AS cD ce

GLORIA WOLKENSTEIN, KATHRYN SILKES,

PHILIP RUMOPRE and VINCENT NOLA,

individually and on behalf of all CIV~77-618
others similarly situated,

Plaintiffs,
-Vs-
EUGENE T. REVILLE, individually

and as Superintendent of Schools;
CLAUDE D. CLAPP, individually and

as Chief Fiscal Officer of the MEMORANDUM
City of Buffalo Public School System;

FLORENCE E. BAUGH; DAVID KELLY; and
JOSEPI) E. MURPHY; LOUIS C. BENTON;

JOSEPH D. HILLERY; MOZELLA RICHARDSON; ORDER

DENNIS BULERA; OSCAR SMUCKLER;

JOU C. FIORELLA, as members of the
Board of Education of the City School
District of the City of Buffalo,

Defendants

Piaintiffs have brought this class action on behalf of
themselves and others similarly situated, seeking a judgment
declaring the procedures set forth in section 210 of New
York's Civil Service Law ["CSL"] unconstitutional on their
face and a& applied because they deprive pubiic employees of
their property without due process of law. Plaintiffs
allege that these procedures are defective in that they (1)
fail to provide an impartial initial hearing on the question
of strike participation, and (2) do not provide any hearing
at all prior to the commencement of deductions from wages as
a penalty for strike participation, Plaintiffs also seek to
recover the amounts deducted from their wages and from the

wages of the class in actordance with those procedures. Now

2lA

“-2-«
before me are plaintiffs' motions for class action certi-
fication pursuant to Fed.R.Civ.P. rule 23 and for summary
judgment pursuant to Fed.R.Civ.P. rule 56. Defendants have

submitted memoranda opposing plaintiffs' motion for summary

judgment; no opposition has been raised anent the motion for

class action certification.

Background
The individual plaintiffs, together with "all others
Similarly situated" in this case, comprise a body con-
Sisting of nearly 3,000 persons, all of whom were teachers
in the Buffalo public school system at the time of a
teachers' strike beginning September 7, 1976 and ending
September 24, 1976. On October 14, 1976 defendant Reville,
Buffalo's Superintendent of Schools, determined that this
Strike violated CSL §210 and that each of the individual
plaintiffs and all of the members of the class had partici-
pated in the strike. By a notice dated October 14, 1976,
Reville informed plaintiffs and the members of the proposed
class of this determination and advised them that they were
subject to the penalties provided by CSL §§210.2(f) and
(g). These paragraphs, since EOE. imposed on strik-
ing public employees a one-year probationary period and
payroll deductions in an amount equal to twice the daily

The paragraphs prescribing the procedure for impos-
ing these penalties (CSL §210.2(d), (e), (h)), challenged
by plaintiffs on due process grounds, are still in effect.

2en

rate of pay for each day of participation in a strike.
According to 4 stipulation by the parties, the named
plaintiffs filed objections to Reville's October 14th deter-
minations, as authorized by CSL §210.2(h), which provides
for review by Reville of his initial determination. On
December 3, 1976 the named plaintiffs received form notices
summarily dismissing their objections and denying a hearing,
on the grounds that they had failed to establish that they did
not participate in the strike or to raise a question of fact
as to their participation, as provided by section 210.2(h).
Altogether approximately 400 members of the proposed class
filed such objections, of whom about 325 were denied hear-

ings on the same grounds, These secondary determinations by

Reville were challenged by several class mombers in the New York

courts, pursuant to CSL §210.2(h) and Article 78 of New York's
Civil Practice Law and Rules ("CPLR"). It is stipulated that
of these challenges only three led to a hearing on the merits.
The results of these hearings have not been indicated.

It in further stipulated that defendant Clapp caused
approximately six million dollars in section 210 penalties
to be deducted from the salaries of the members of the pro-
posed class, the deductions being made in three parts from
paychecks duce on the third, seventeenth and thirty-first of
December, 1976. It is stipulated that this entire amount
was retained by defendants and applied by them to the opera~

ting budget and expenses of the Buffalo School District.

23h

Plaintiffs’ Motion For Class Action Certification

In order to certify an action as a class action this
Court must be satisfied both that the prerequisites to a
class action stated in Fed.R.Civ.P. rule 23(a) are met and
that the action falls in one of the categories set forth in
Fed.R.Civ.P. rule 23(b).

The rule 23(a) prerequisites to a class action are
four:

"(1) the class is so numerous that joinder
of all members is impracticable, (2) there
are questions of law or fact common to the
class, (3) the claims or defenses of the rep-
resentative parties are typical of the claims
or defenses of the class, and (4) the repre-

sentative parties will fairly and adequately i
protect the interests of the class."

Prerequisite (2) presents no obstacle to certification here.
There are apparently no questions of fact involved, except
tangential issues related to the requested relief. Plain-
tiffs urge the invalidity of the law under which they were
penalized without cegard to factual guilt or innocence.

This contention is the only central question of law presented
by the Complaint and it is clearly common to all who were
penalized under the statute in issue. This point demon-
Strates that the typicality requirement of prerequisite (3)
is also satisfied.

The numerosity requirement, prerequisite (1), would
also appear to be amply satisfied where the class that
Plaintiffs allege to be entitled to relief numbers nearly
3,000 members. It has been observed that “while there are

exceptions, numbers in excess of forty, particularly those

24A

exceeding one hundred or one thousand have sustained the
[numerosity] requirement." 3B Moore's Federal Practice,

423.05[1).

Although defendants have not directly opposed certifi-
cation, they have made a passing reference to the plain-
tiffs' "failure to exhaust their administrative remedies,”
in opposing plaintiffs’ motion for summary judgment.
Memorandum of Law in Opposition to Plaintiffs' Motion for
Summary Judgment, at p.6. If the failure of most members of
the putative class of nearly 3,000 plaintiffs to avail
themselves of state administrative remedies under CSL
§219.2(h) would bar them from participating in the present
action, the number of the potential class would be greatly
reduced and fulfillment of the numerosity prerequisite would
become Less apparent.

Such a result is not warranted here. Although the
exhaustion requirement applies to class actions just as it
does to individual actions, “it is not necessary for each
member of an alleged class to exhaust administrative
remedies in order for a class action to be maintained.”

Barlow v. Marion Cty. Hospital Dist., 495 F.Supp. 682, 693

(M.D. Fla. 1980). ‘The rule, rather, is “that exhaustion

by at least one member seeking to represent the class is a
necessary prerequisite for a class action.” Ibid., citing
Swain v. Hoffman, 547 F.2d 921 (Sth Cir. 1977), and Phillips
v. Klassen, 502 F.2d 362 (D.C. Cir, 1974). Inasmuch as it is

25A

apparent from the defendants’ own representations that many
of the class here have exhausted the state administrative
remedies, with six of them actually proceeding to state
judicial review of the administrative determinations, no
exhaustion problem arises in this case to obstruct certi-
fication of the proposed class.

Other grounds also support this conclusion. The United
States Court of Appeals for the Second Circuit has recently
indicated that exhaustion of state administrative remedies
is not required where a plaintiff's federal civil rights
claim is that the available state administrative remedies
cannot afford due process of the law, so that “the adequacy
of the remedy is ‘for all practical purposes coextensive
with the merits of the plaintiff's constitutional claim.'"
Swan v. Stoneman, 635 F.2d 97, 103-04 (1980). Plaintiffs
here, like the plaintiff in Svan v. Stoneman, have directly
challenged the sufficiency of the state remedies so that "it
would be pointless to require [plaintiffs] to exhaust those
remedics." Id. at 104. Also arguing for this result is the
unavailability of the desired class relief in the state
administrative procedures. Sec, id., at 104-05. It should
be additionally noted that "[i]t is well settled that ex-
haustion of state judicial remedies is not « prerequisite to
«ljudication of (42 U.S.C.) §1983 claims in federal court."

I conclude, then, that the exhaustion doctrine poses no

obstacle to inclusion of the entire class argued for by

26h

plaintiffs, and that a class numbering nearly 3,000 satis-~-
fies the numerosity requirement of Ped.R.Civ.P. rule 23(a) (1).
The fourth prorequisite under rule 23(a), that the

individual plaintiffs will adequately represent the in-
terests of the class, presents a subtler question. As the
United States Court of Appeals for the Second Circuit has
put it,

“an essential concomitant of adequate repre-

sentation is that the party's attorney be

qualified, experienced and generally able

to conduct the proposed litigation. Addi-

tionally, it is necessary to eliminate so

far as possible the likelihood that the

litigants are involved in a collusive suit

or that plaintiff has interests antagonistic
to those of the remainder of the class.”

Eisen v. Carlisle & Jacquelin, 391 F.2d 555
562 (1968).

Nothing has appeared to suggest to me that plaintiffs’

counsel is not competent to conduct the present litigation.
Neitner has there been any indication that this is a collu-
sive lawsuit or that the individual plaintiffs’ interests
conflict with those of the class they seek to represent.
However, in recent years the financial resources of
individual plaintiffs have become a significant factor in
assessing ability to conduct the proposed litigation, num-
erous courts having denied class certification to financially

woak plaintiffs. See, e.g., National Auto Brokers Corp. v.

General Motors Corp., 376 F.Supp. 620, 637-38 (S.D.N.¥.

1974) (weak financial condition); Held v. Missouri Pacific

Railroad Company, 64 F.R.D. 346, 350 (S.D, Texas 1974)

(plaintiff lacked resources to notify other members of the

class and meet other expenses); Ralston v. Volkswagenwerk,

A.G., 61 F.R.D. 427 (W.D. Mo. 1973). The question of indi-
vidual plaintiffs’ financial ability to well represent an
entire class should not be dealt with lightly, especially
where, a6 here, the issues directly touch the rights of many
more than the members of the class.

Plaintiffs have the burden of proving that they will
adequately represent the interests of the class. See,

— ee

65, 68 (E.D.N.Y. 1974). The Plaintiffs' “Motion for Certi-

fication Under F.R.C.P. 23" and supporting affidavit and
memorandum of law establish in the main that the individual
plaintiffs will adequately represent the proposed class
insofar as commonality of interest is concerned, but also
raise the question whether it is proper to permit plain-
tiffs' financial capability to be bolstered by the resources
of organizations who are not and cannot be parties to this
lawsuit. Plaintiffs' papers clearly indicate that such
organizations will bear the brunt, if not the entirety, of
the costs of this litigation, If this arrangement is not
proper, then plaintiffs will have failed to meet their
burden of proving adequacy of representation. However, I
think that in all the circumstances of this case it is not
improper.

The allegations in plaintiffa' moving papers clearly
establish that it is with the resources of the Buffalo

Teachers Federation, Inc. and its state affiliate, the

28A

-9-
New York Educators Association (whose employees plaintiffs’
lawyers are), that plaintiffs are able to conduct this
litigation.

A recent decision of the United States District Court

for the Northern District of New York, Brane v. Ray Bills
Finance Corp., 85 F.R.D. 568 (1979), considered the pro-

priety, in terms of both financial and ethical adequacy of
representation, of permitting an organization that provides
free legal services to indigents to advance and be ulti-
mately responsible for the costs of a class suit. The
individual plaintiff£ was not indigent but was nonetheless
unable to finance the litigation. The court saw no obstacle
to finding that this arrangement rendered the plaintiff a
financially adequate representative. Id., at 576. As to
the ethical objections of the defendants, the court found
that, because “public or charitable funds, and not the
personal funds of plaintiffs' attorneys,” were supporting
the Litigation, such attorneys did not have interests in
conflict with the named plaintiffs or the class, such as may
arise where an attorney acquires a financial interest in the
outcome of the litigation. Id., at 578-79.

The situation confronting us compares favorably to that
in Brame v. Ray Bills Finance Corp., supra. The funds
involved are not public or charitable, but neither are they
those of plaintiffs’ lawyers; the funds are those of organi-

zations whose interests are presumably coextensive with

29A
° 10 -

plaintiffs’ interests. Such a voluntary assumption of
litigation costs, by organizations which are benign from an
ethical point of view, should pose no problem for class
action certification,

Comparison with the reasoning and decision in Ralston

v. Volkswagenwerk, A.G., supra, where plaintiffs were denied

certification, further supports this result. The court in
Ralston inquired closely into the financial resources of the
individual plaintiffs, observing that in order to be con-
Sidered adequate representatives they “must sustain the
burden of showing that their resources are adequate to
pursue this lawsuit to completion, even in the absence of

any additional financial contributions from members of the

purported class." 61 F.R.D. at 433. (Emphasis added.)

This stricture against relianve upon contributions from the
class was made because of the uncertainty in that case that
such support was forthcoming, the court noting that the
“very heavy responsibility” of a class lawsuit “should never
be undertaken in the hope that at some future date the
existence of a class will aid the plaintiffs, because nobody
knows whether other unidentified members of the class are
able or willing to finance the action.” Id., at 434. The
court further observed: “All of this is not to say that
large numbers of persons should not coalesce their finances
in supporting a clase action.” Ibid. In the case before me

there is apparently no uncertainty that the necessary funds

JOA
« ij -

to support this action will proceed from groups comprised

—E—EeEeEeEeeEeEeEeEeEeEeEEEEer SSS mr et”~<‘

of persons who are either members of the class or whose

interests are directly aligned with the clasa members.

Finally, the policy expressed in Fed.R.Civ.P. rule 23.2
seems to support allowing organizations that themselves lack
standing to finance a class action suit. The Advisory
Committee's Notes to this rule, which was added in 1966,
indicate that the purpose of viewing an action by or against

members of an unincorporated association as a class action

“has been to give ‘entity treatment’ to the association when
for formal reasons it cannot sue or be sued as a jural
person.” The rule itself clearly states that a class action
may be brought “by *** the members of an unincorporated
association by naming certain members as representative
parties.” This language clearly implies that the resources
of a group that lacks standing may support a class action in
the name of representative parties.

The Buffalo Teachers Federation lacks standing, even
though incorporated, because of the personal nature of the
rights involved. The policy of rule 23.2 and the reasoning
in the cases discussed above nonetheless argue that the
backing of the Buffalo Teachers Federation and its state
affiliate may constitute plaintiffs financially adequate
class repriusentatives, and I so find them.

The rule 23(a) prerequisites to a class action having
been found satisfied, it remains only to determine whether

or not this action is maintainable as a class action under

g1A
“12 «

rule 23(b). Plaintiffs arque that, if individual actions
were brought by the aqqrieved parties, there is a risk of
inconsistent and varying adjudications which aould bring the
case within rule 23(b)(L) (A). However, I do not think that
such i& 4 great risk where the primary relief sought is a
declaration that 4 statutory scheme is constitutionally
defective Similarly, there is small risk that “adjudi-
cations with respect to individual members of the class ***
would 4% 4 practical matter be dispositive of the interests
of the other members not parties to the adjudications or
Substantially impair or impede their ability to protect
their interests,” the test of rule 23(b) (1) (B).

Thus, neither clause (A) or (B) of rule 23{b) (1) is
Clearly applicable here, Wowever, both oaraqgraph (2) and
paragraph (3) of rule 23(b) seem quite relevant. Rule
Z23(b) (2) provides that a class action may be maintained
where “the party opposing the class has acted or refused to
act on grounds gencrally applicable to the class, thereby
marina appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole.”
Defendants applied the challenged statutory sanctions to
each of the memoercs of the proposed class, and thus “nalvel
actod *** on grounds generally applicable to the class.”
This paragraph so plainly applies to the instant proceeding
that I find it unnecessary to deal with the applicability of
peragraph (3), which, having considered the matter, I none~

theless find to apply here.

32h
° 13 «

Thus I grant plaintiffs’ motion for class action certi-
fication. The class of persons is to consist of all persons
who were penalized by defendants acting pursuant to CSL §210,
owing to their involvement in the teachers’ strike that

occurred in Buffalo between September 7th and 24th, 1976.

Plaintiffs' Motion for Summary Judgment

In June, 1979 I deniec defendants’ motion to dismiss the
Complaint, finding that plaintiffs had stated a claim regard-
ing the potential bias of both Reville in his role as ad-
judicator and of any hearing officer appointed by Reville to
hear plaintiffs' objections to Reville's determinations of
Strike participation. I also held that neither party had yet
sufficiently delineated the precise interests or facts in-
volved in plaintiffs' claim regarding the lack of a pre-
deduction hearing to permit the application of due process
principles. Today, I find it necessary to deny plaintiffs’
motion for summary judgment and to grant summary judgment to
defendants as to all plaintiffs’ claims, for the reasons and

upon the analysis hereafter stated.

Lack of Initial Impartial Hearing Due to Bias of Reville

—_—- tne

The Statutory procedural provisions of CSL §210.2
under which plaintiffs claim they were not afforded an
impartial initial hearing as to whether they participated in

the 1976 strike read in relevant part as follows:

33A
ol@-

"“(d) Determination. In the event that
it appears that a violation of this subdivision
may have occurred, the chief executive officer
of the government involved shall, on the basis
of such investigation and affidavits as he may
deem appropriate, determine whether or not such
violation has occurred and the date or dates of
such violation. If the chief executive officer
determines that such violation has occurred, he
shall further determine, on the basis of such
further investigation and affidavits as he may
deem appropriate, the names of employees who
committed such violation and the date or dates
thereof. Such determination shall not be
deemed to be final until the completion of the
procedures provided for in this subdivision.

"(n) Objections and restoration. Any em-
ployce determined to have violated this sub-
division may object to such determination by
filing with the chief executive officer,
(within twenty days of the date on which notice
was served or mailed to him ***) his sworn affi-
davit, supported by available documentary proof,
containing a short and plain statement of the
facts upon which he relies to show that such
determination was incorrect. *** If the chief
executive officer shall determine that the
affidavit and supporting proof fails to estab-
lish that the employee did not violate this
Subdivision, he shall sustain the objection.

If the chief executive officer shall determine
that the affidavit and supporting proof fails
to establish that the employee did not violate
this subdivision, he shall dismiss the objec-
tion and so notify the employee. If the chief
executive officer shall determine that the
affidavit and supporting proof raises [sic] a
question of fact which, if resolved in favor of
the employee, would establish that the employee
did not violate this subdivision, he shall
appoint a hearing officer to determine whether
in fact the employee did violate this sub-
division after a hearing at which such employee
shall bear the burden of proof. *** If the
chief executive officer sustains an objection
or the hearing officer determines on a prepond-
erance of the evidence that such employee did
not violate this subdivision, the chief execu-
tive officer shall forthwith restore to the

34A
- 156

employee the tenure suspended pursuant to para~

graph (f) of this subdivision, and notify the

chief fiscal officer who shall thereupon cease

all further deductions and refund any deductions

previously made pursuant to this subdivision.

The determinations provided in this paragraph

shall be reviewable pursuant to article seventy~-

eight uf the civil practice law and rules.”

This procedure thus places on the chief executive officer
the responsibility to determine in the first instance who
has engaged in an illegal strike, and thereafter to deter-
mine the correctness of those determinations regarding
employees who file objections to the initial determination
in their cases. This subsequent determination, should it
be against the objecting employee, is not reviewable de
novo, either by a hearing officer or court, but is subject
to review only to determine whether it was arbitrary and
capricious, as provided by Article 78 of the CPLR for
determinations other than those made upon evidence taken at
a lawful hearing (CPLR §7803.3).

Plaintiffs complain that Reville, the “chief executive
officer” here, has a potential personal interest in these
determinations great enough so that plaintiffs were not
accorded due process of law in being subjected to his judg-
ment. Plaintiffs rely for this conclusion chiefly on Tumey
v. Ohio, 273 U.S. 510 (1927) (wherein it was held that due
process required reversal of convictions by the mayor of a
town when the mayor's salary was paid in part by fines and

costs that he levied in his judicial role) and on Ward v.

- 16 -

Village of Monroeville, 409 U.S. 57 (1972) (wherein a
procedure by which sums produced from a mayor's court
accounted for a substantial portion of a village's total
revenues was invalidated under the due process clause, even
though the mayor's salary was not augmented by those sums).
I note that, even apart from the “job considerations”
which plaintiffs say created an impermissible risk of bias,
a statutory provision whereby an adjudicator of rights
reviews his own initial finding is, at best, inherently
suspect on due process grounds. See, Withrow v. Larkin,
421 U.S. 35, 58, n.25 (1975), citing Morrissey v. Brewer,
404 U.S. 471 (1972), wherein it is observed that “the officer
directly involved in making recommendations cannot “lways
have complete objectivity in evaluating them." (408 U.S. at
186). In Morrissey the Court premised its analysis on the
issumption that the parole officer's review of his own
recommendation for parole revocation was final (408 U.S. at
476-77), whereas in this case Reville's rejection of objec-
tions to his initial determination of strike participants was
reviewable in a judicial article 78 proceeding, for the
employees choosing to seek review. However, as I have
noted, article 78 review is not de novo but will lead to
affirmance if Reville's decision is not arbitrary or capri-

cious -- an exacting standard that can cover 4 multitude of

36h

© i7«
2
mindeterminations. Moreover, the procedure for parole

revocation that the Court prescribed in Morrissey called for
@ review of the revocation recommendation by an independent
decision maker as a preliminary to # full hearing de novo.
408 U.S. at 485-86. This is in line with the oft-enunciated
principle that an accused “is entitled to a neutral and
detached judge in the first instance” (Ward v. Village of
Monroeville, supra, 409 U.8. at 61-62), the non-observance
of which is not excused by the availability of review de
novo (ibid.), which review was unavailable here.
Notwithstanding these tentative criticisms of the sec-
tion 210 procedure, I discern a Aiatinction between this
case and Morrinsey that, with other considerations, leads me

to refrain from pronouncing the inetant procedure constitu-

tionally defective under Morriasey. It appears that the United

States Supreme Court's criticiem of the procedure at issue

in Morrissey was evoked not only by the “double adjudication”
by a Mingle individual -- @ parole officer's revocation
recommendation followed by a self-affirmance of that recom-

mendution =« but @lso in part by the extent of the parole

2 Gf.. Santora v. sgshetedier 25 W.¥.26 547, 573-76,
364 N.Y.S.24 450, 471- 1 (dissenting opinion of
Judge Wachtler), suggesting that the “substantial evidence”
standard of CPLR $78603.4 applies to the superintendent's
determinations, but concluding nonetheless as to article 78
as a whole that “(1]f a procedure te conetitutionally
defective at the adminietrative level, article 78 cannot
rectify tt,” because “article 78 te not designed to supply
due process; it te not en evidentiary hearing but merely
an evaluation of what hae gone before.”

- oe

37A

- 18 -

3
officer's pre-involvement in the parolee's case. Under

this view the legality of the superintendent's role under

’ “Parole agents are human, and it 19 possible that iric-
tion between the agent and parolee may have influenced the
agent's Judgment." 408 U.S. at 4860.14. In the absence of
countervailing considerations, I would declare any such pos-
sible distinction as either overcome by Reville's pre-
involvement in the failed collective bargaining process and
in the superintendence of teacher conduct in general pursuant
to N.¥. Education Law $2566 (see note 6 infra), or else
counterbalanced by the complete absence of de novo review.
Neither the cases nor the constitution support distinguishing
Morrissey on the grounds that the porolee's interest in
physical Liberty 1s greater than an employee's interest in
his or her earnings; the utmost circumspection required of
our government when it acts to diminish its subjects’ pos-
sessions of whatever form does not require full procedural
protections in all cases, but an impartial initial adjudi-
cation is an irreducible minimum (Cf., Ward v. Village of
Monroeville, Supra). Here, as much as in Morrissey, it can
be said that "“[a] State could certainly choose some other
independent decision maker to perform thie preliminary function."
408 U.S. at 4A6.

It is true that in Hortonville Dist. v. Hortonville Ed.
Ason., 426 U.S. 482 (1976), the argument that the prior role
as negotiator of the Board in that case disqualified it,
under Morrissey, from deciding to fire the striking teachers
wae rejected. However, im Hortonville only the particular
decision of the petitioner there had been assailed on due
process grounds, not the constitutional sufficiency of the
state statute involved, It is clear that the Court found
that the prior negotiations did not disqualify the Board
from {mposing the sanction of discharge because (1) “there
was NO possibility of an erroneous factual determination on
[the] critical threshold tssue" of who had engaged in the
strike, Inasmuch as all the discharged teachers had admitted
their participation (426 U.S. at 494); and (2) “[t]he Board's
decision whether to dismiss striking teachers involves broad
considerations,” its decision "was only incidentally a
disctplinary decision; it had significant governmental and
public policy dimensions as well.” 426 U.S. at 482. Here,
by contrast, the plaintiffs’ clase members have not all
admitted engaging in the 1976 strike and it is precisely
this “critical threshold determination" that Reville was
charged with and is in iesue here. The imposition of penalties
is here at issue only to the extent that it flowed from Reville's
findings as to who were strike participants, because the sec-
tion 210 penalties involved are automatic and inflexible.

3BA
- 19 -
section 210 may become bound up with plaintiffs' claim that
his responsibility for collective bargaining with teachers,

plus his primary role in arranging the school district's

budget, rendered him unfit under the principles of Ward v.

Village of Monroeville, supra, to determine who had partici-
pated in the strike, especially where his determinations
appreciably augmented the school district's daigs As
explained hereafter, I find it necessary to reject plaintiffs’
challenge under Ward, and so also decline to invalidate the
challenged procedures under Morrissey.

The section 210 procedures have in recent years been
challenged for failure to provide impartial adjudication in
several cases brought by teachers in the district courts of

New York. In Kornit v. Board of Ed., Plainview-Old Bethpage

Schoo! District, Civ. No. 75-518 (E.D.N.¥., July 22, 1975),
remanded (for lack of subject matter jurisdiction) 542 F.2d

593 (2d Cir. 1976), remanded (for further consideration)

According to the factual stipulation of the parties,
about 325 of the nearly 3,000 clase members here, over
one-tenth, were denied hearings by Reville on their ob-
jections to his preliminary determination that they had
participated in the etrike, on the ground that their
objections raised no issue of fact regarding this ques-
tion. The stipulation indicates that about $6,000,000
was deducted from the wages of all the class members in
this action and thereafter used to defray school dis-
trict expenses, suggesting that about $600,000 was de-
rived from penalties imposed upon those to whom Reville
denied hearings alone. This sum, although perhaps not
great in relation to the total Buffalo Board of Education
budget for 1976-77 (see text infra) nonetheless quite
certainly would have paid the saleries of at least thirty
teachers or about one-tenth of the total force at that
time. Further evaluation of the significance of the
penalty amounts appear in the text, infre.

39A
° 20 «

436 U.S. 902, aff'd (without aaibaaes 591 F.2d 1330 (2d Cir.
1978), cert. denied, 440 U.S, 936 (1979), the first of

these cases, the district court judge rejected the charge of
bias due to pecuniary interest in augmenting the school
district budget:

"There 16 no indication that any school
official had a personal pecuniary interest
which would be affected by whether plain-
tiff's absence from work was authorized

or excusable, as was the case in Gibson v.
Berryhill, 411 U.S. 564, 93 S.Ct. 1689 (1973).
In the second place, the provision for judicial
review of any administrative decision under
Article 78 of the New York Civil Practice

Law and Rules would permit determination of
this point.” Slip Opinion at p.6.

I have already indicated my perception that article 78

review, which is not de novo, could not possibly make up for
a failure to provide an impartial adjudication in the first
instance <= which i6 in any case a constitutional entitle-
ment regardless of subsequent provisions of procedure. The
United States Court of Appeals for the Second Circuit

evidently concluded that the plaintiff in Kornit had failed

to establish a significant potential for bias in the first
instance adjudication, for the court ultimately affirmed
the district court's judgment “substantially for the reasons

stated by the [district court judge).”

“ Tie appellate order adopting a portion of Judge Judd's
fotthal deciaton did however explicitly aee forth that
"Ttjhe sehoul officials involved did not have a sufficient

and B to the Memorandum of Law on Behalf of the Attorney Gen-
eral of the State of New York, Intervenor.

4OA

« 21 -
Three district courts have, since Kornit, turned back
claims like that advanced in Kornit and in the instant case

that hearings were biased, mainly on the strength of the

affirmance in Kornit. Starrs v. Bock, Civ. No. 77-5435

(S.D.N.¥., December 21, 1978), 12 P.E.R.B. 7501; Tepper v.
Galloway, 441 F.Supp. 1211 (E.D.N.¥%. 1979); O'Brien v.
Board of Ed. of City Sch. Dist., Etc., 498 F.Supp. 1933

6
(S.O0.N.¥. 1980). While the earnest challenges of New York

6

“chet the courte fe Tepper, Starrs and Kornit neglected
to give due weight to the Supreme Court's decision in
Ward v. Monroeville,” the court in O'Brien noted that:

"The Court in Ward distinguished the case of Dugan

v. Obho, 277 U, S$. 61, 48 S.Ce. 439, 72 Lied. ae
(1928), in which a mayor who shared legislative and
executive authority with four other persons was

found to have a suffictently remote relationship to

the finances of the city to warrant leaving undis~
turbed the presumption that the mayor would act
impartially when he sat as judge." 498 F.Supp. at 1035.

The O'Brien court concluded that the role of the chief execu-
tive of a school district im New York is sufficiently like
that approved in Dugan to shield him or her from criticism
upon Ward principles when fulfilling the role assigned by

CSL $210 (id. at 1036). However, the Court in Dugan empha-
sized that

"(t]he mayor has himself aa such no executive but
only judicial duttes. Hie relation under the
(City of) Kenia charter, as one of five members of
the city commission, to the fund contributed to by

1A

= 22 «

teachers to the Taylor Law procedures on the grounds of bias
inherent in the procedures merit a thorough and authoritative
reexamination, I too shall defer to our Court of Appeals on
this question, addressed by that court in its affirmance of

Kornit. Marshall v. Jerrico, Inc., 446 U.S. 238 (1979), has

created good grounds for reexamining the relevance of the

decision in Hortonville Dist. v. Hortonville Ed. Assn., supra,

which plaintiffs tenably urge is distinguishable on several

Significant grounds from the case of New York teachers

his fines a6 judge, or to the executive or financial
policy of the city, ie remote." 277 U.S., at 65.

Keville as superintendent has a direct relation to the
executive and financial policy, as well as broad powers
"lt]o enforce all provisions of law and all rules and
regulations relating to the management of the schoolr
(N.Y. Education L. §2566.2.) He prepared the school cis-
trict budget and submitted it to the Board of Education.
He wos responsible for the disciplining of teachers, being
authorized "to report to [the] board of education viola-
tions of regulations and cases of insubordination, and to
suspend [a] *** teacher **#* until the next regular meeting
of the boord" (N.Y. Pducation L. $2566.6.) ere whe-
ther a teacher whom the superintendent had naturally come
in the course of his duties to regard as a troublemaker
or misfit can feel assured of due process as the super-
intendent reviews hia or hee objections to the determi-
nation of strike partictpation? The superintendent was
also responsible for collective negotiations with the
teachers’ union. This role ig not like that of the de-
tached adjudicator approved in Dugan, but ore like that
of the excessively involved adjudicators condemned in
Morrissey and in Ward,

under the Taylor Law.

In Marshall v. Jerrico an Assistant Regional Adminis-

trator of the Employment Standards Administration ("the

ESA") of the United States Department of Labor had assessed
fines against the appellee for employing child labor in
restaurants. Under section 16(e) of the Fair Labor Standards
Act (29 U.S.C. §216(e)), such gums are returned to the BSA

to reimburse the costs of determining violations and asseas~
ing penalties and may be allocated to ESA regional offices.
The appellee had brought suit in federal district court,
urging that this arrangement. “created an impermissible risk
and appearance of bias by encouraging the Assistant Regional

Administrator to make unduly numerous an4 large assensments

, For example, in Hortonville no pecuniary penalties were
wsacted, 90 there can have been no incentive to add to the
Board's operating budget. And, as T have already pointed
out, supra note 2, there was no question in Hortonville as
to how many and which teachers had atruck. Moreover, the
challenged decision to discharge 86 teachers was made
jolotly by 4 seven-member elected school board, whereas
veville wae a Gingle individual retained on @ contractual
busta by the Buffalo Board of Education, The public, the
employers of the Hortonville decision makers, wight be seen
is lous Adkely to recognize and be grateful for a decision
that redounded to the benefit of the Board in relation to
the diecharye of tts duties, than would the Buffalo Board
of Education be to appreciate the difference made by the
$6,000,000 accruing to ite budget as @ result of Reville's
determinations. ‘

Recognition of these distinctions suggests that, in the
situation of the instant case, more than that in Hortonville,
there 16 @ Significant danger, if not to the reality then to
the appearance of fatrnens, which "[genergtes) the feeling,
so Important to & popular government, that justice has been
done." Marahall v. pee. eupra, 446 U.S. at 242,
from Joint Anti-Fasciat ttae v. McGrath, 341 U.S. ’
172 (1951) (Prankfurter, J., concurring).

“UA
- 24 -

of civil penalties.” 446 U.S. at 241, The district court
judqe, acknowledging that the de novo review of the original
ansesament by an administrative law judge was unaffected by
any interest in the amounts of penalties, nonetheless granted
summary judgment for the appellee because the section lé(e)
reimbursement arrangement “could distort the administrator's
objectivity in assessing penalties.” Id. at 241-42.

Although the plaintiffs’ claims here of potential bias
are Siqnificantly broader than that Reville had a personal
interest in adding to the school district's funds, this in
an important part of their claim; consequentiy, the United
States Supreme Court's treatment of the analogous claim in

Marshall v. Jerrico may shed Light on the merits of plaintiffs’

argument on this qround,
The United States Supreme Court reversed the district
court in Marshall essentially upon three considerations:

(1) The Assistant Regional Administrator
“performs no judicial or quasi-judicial functions.
lie *** rules on no disputed factual or legal ques-
tions. The function of assessing @ violation is
akin to that of a prosecutor or civil plaintiff.”
Id. at 247;

(2) “If the employer excepts to a penalty *** he
is entitled to a de novo hearing before an admin-
intrative law judge.” Ybid.;

(3) Upon close analysis of the dollar amounts
involved, the Court concluded that “[iJn all three
years (in question) the sums collected as child
labor penalties amounted to substantially less than
lt of ESA's budget. And in each of those years,
ESA did not spend the full amount appropriated to
it ***, The amounts returned to the Treasury ***
substantially exceeded the sums collected under
$ié(e) in all three years, The challenged provi-
pions have not, therefore, resulted in any increase

uA
= 2$ -

in the funds available to ESA over the amount

appropriated by Congress.” Id., at 245-46,

The absence of the firet two considerations (which
relate to the appliceble substantive etandard) in the present
case is patent. Reville clearly made judicial or quasi-
judicial determinations on disputed factual or legal ques-
tions when he determined initially that plaintiffs and their
Glass had atruck, and subsequently that hundreds of the
objections filed with him raised no question of fact re-
Tirding Strike participation. These determinations moreover
were not subject to de novo review, but only to limited
article 78 review, Thus “([t)he rigid requirements of Tumey
Iv. Ohio, Supra) and Ward (v. Village of Monroeville, supra),
designed for officials performing judicial or quasi-judicial
functions” (446 U.S. at 248), found inapplicable in Marshall,
fully apply here.

The third consideration, the insignificance of the pen-
altien assensed to the overall budget of the ESA, also is not
present here, Te must, of course, be borne in mind that
Reville had direct responsibilities in formulating the budget
of the fuffalo Noard of Education and in supervising expendi-
tures, During the period in question, there was not the sur-
blusage in the budget for the Buffalo Board of Education that
the BSA had enjoyed in the period relevant in Marshall. Por
the 1975-76 fiseal year, the Board had requested an appropriation
Of $112,609,122, the Mayor of Buffalo had recommended that it
receive $106,926,344, and the Buffalo Common Council had

4A

. 276 al
approved only $10),626,344. 1975 Proceedings of the Buffalo
Common Council [hereinafter “Proceedings”), 1212, 1606. For

1976-1977 the Board had requested $119,213,177, which the
Mayor hed reduced to $91,742,337, and the Boerd wae eventually
allovted only $108,399,337 by the Common Council. 1976 Pro-
ceedings 1119, 1587,

It 18 axiomotio that edminitetrative bodies veually
request more funding than they hope to receive and truly feel
that they neod. However, the indications are that the Buffalo
hoard of Education orobably needed more funde than it re-
ceived during thie period, By @ letter to the Common Council
datud July 17, 1975, the Mayor indicated that the Board of
Education and Reville nad appeared before him seeking 4 supple~
mental budget for tne 1975+76 echool year of $4,975,956 to
provent tonwinatvon of kindergarten, the free echool bua-pase
program, and adult education activities, 1975 Proceedings et 2085.
The Mayor reduced thie request to $4,266,544, which the Council
approved Id. at 2204,

Skipping for the moment the 1976-77 echool year, the
year of the etrike, it eppeere that in 1977 the Board made an
varnost roqucst for an $11,400,000 supplemental budget for
the 1977-78 aunool year, which the Mayor apologetically recom-
mended be allowed only to the extent of $4,000,000, which
amount thy Common Council granted, 1977 Proceedings 3003,
309%. In sacommending thie reduced amount the Mayor wrote of
the “many painful Lut necessary decisions” including “wage
freenen, leyofte and hiring freeses,” by which “lolver the

46A

° 27 «
past few years, the City has successfully regained fiscal
credibility.” Id. at 3004. It is in this financial set-
ting, far different from that depicted for the ESA in

Marshall v. Jerrico, that the importance to the Buffalo Board
of Education and Reville of the $6,000,000 strike penalties

must be assessed.

For the 1976-77 school year, the year in which the
Strike penalties were deducted from plaintiffs’ wages, the
Board evidently had to make a far smaller supplemental budget
request than in either the preceding or subsequent years.
The Board requested only $1,741,508, which the Mayor reduced
to $1,500,000 and put before the Council on December 23, 1976,

not long after the strike penalty deductions were begun.
4

Under these financial circumstances, where the Superin-

tendent was an active part of the budgetary processes, it may

° This factual context, which was disclosed not by pres-

entations of plainciffs but by the investigation of the
court, could perhaps strongly support « claim that the
section 210 procedures are unconstitutional as applied to
plaintiffs. Plainciffa did im fact recite such a claim in
their Compluine, but have never offered either sllegations
or proof of facts to suppore it, compelling the conclusion
that plaintif{s have chosen to preas only thetr claim of
inherent unconstituttonality in the challenged procedures.
In view of the high Likelihood of recurrence of a factual
context similar to this in future strikes of New York
teachers, and the other potentially prejudicing entangle-
ments of the chief executive officer (see note 3, supra),

I conclude as perhaps plaintiffs did aleo that the constitu-
tional suffictency of the section 210 procedures must be
assessed without reference to the facts of « particular
application. The figures in the text are offered only to
demonstrate the stressful financial context in which a chief
executive officer of @ Mew York school district may have

to make decisions pureuant to CSL §210.

“TA

not be possible to find that Reville's personal interest in
the penalty cxactions was so remote that no tenable infer-
ence of bias can reasonably be drawn. The United States

Supreme Court in Marshall v. Jerrico declined to say whether

the tar more remote connections between the decision maker,

the penalties and the fise in that case would support consti-
tutional objections under the standards of Ward and Tumey.

446 U.S. at 252, ety The clear and definite connections here,
where these standards do apply, plus the other entanglements of
Reville in the supervision of teachers and in making the initial
determinations of strike participants for his own subsequent
review, would warrant a full exploration of the relevance of the
Ward, Tumey and Morrissey principles were I not constrained by
Kornit v. Board of Education, supra. I do not find Marshall

v. Jerrico @ sufficiently sure guide to support a decision by

’ In ite concluaton, the Court itn Marshall v. Jerrico
recited five contingencies that would have to occur before
the monetary penaltien aneessed by the ESA's Asstetant
Kexlonel Adminiatrator could benefit his or her operations
s© AS tO become an incentive for unbalanced administration,
and concluded: “'(U)nder @ realistic appraisal of psy-

chological tendencies and human weakness,’ ow v.
Larkin, 421 U.S. 35, 47 (1975), te te exe y improb-

able that the aesiatant regional adeinistrator's enforce-
ment decision would be distorted by some expectation that
all of thease contingencies would eieulteneously come to
fruition” (446 U.S. at 252) and, consequently, that the
challenged procedures did not violate due process standards
of procedural fairness. In contrast, the penalties sssessed
in the inatant case, according to @ stipulation executed by
the parties, were directly and immediately used to augment
the Ruffalo School District operating budget and defray ite
cupenscs.

4BA

me in possible conflict with that in Kornit. Plaintiffs’
motion for summary judgment on their claimed denial of an
impartial hearing must be denied. Because I view Kornit as
effectively foreclosing further argument along this line,
summary judgment against the movants and for defendants is

prover at this time (see, Doe v. United States Civil Serv.

Com'n, 483 F.Supp. 539, 571 n.29 (S.D.N.Y¥. 1980)).

Hearing Officer Appointed by Reville

Having concluded that it would be improper to invalidate
the section 210 procedure for the initial determination of
strike participation, and the subsequent determination of
possible merit in objections thereto, on the grounds that
Reville is an inappropriate adjudicator of these issues, the
further conclusion is compelled that the mere appointment of
an officer by Reville to hear those objections does not render
the section 210 procedure for hearing objections invalid.
Moreover, this conclusion would be required even if it had
been determined that the role of Reville in making the initial
determination and in initially assessing the merits of objec-
tions does render those procedures defective. In Morrissey
v. Brewer, supra, the Court clearly indicated that the appoint-
ment of “some other independent decisionmaker" (emphasis
added) would satisfy due process where a decision by a
parolee's own parole officer would not, even if the other

officer were merely “someone such as a parole officer other

NGA
@ 30 «

than the one who has made the report of parole violations or
has recommended revocation.” 408 U.S. at 486. The Court
expressly declined to require that the revocetion decision

be made by a “judicial officer” or even by a “'neutral and
detached’ officer." Ibid. In the instant case it is

likewise necessary to conclude that the appointment by

Reville of an officer to hear the objections would sufficiently
attenuate the putative bias of Reville, absent grounds for

disqualification of the particular officer appointed.

Lack of Pre-deduction Hearing

In June, 197% I denied defendant's motion to dismiss
plaintiffs’ Complaint as to the alleged deprivation of due
process by the state's failure to provide a hearing prior
to the deduction of penalty amounts from their salaries. At
that time I noted that dismissa] at that juncture would have
been inappropriate because neither side had sufficiently
delineated and analyzed the competing interests involved in
relation to the requirements of due process and that plain-
tiffs nad not yet introduced evidence from which factual
conclusions could be drawn relevant to their claim that the
statutory procedure is invalid as applied to them. At this
time I note that plaintiffs have not, on their motion for
summary judgment, pressed their argument concerning the
application of the statutory procedures to them. Nor have
plaintiffs yet so much as alleged extreme hardships of the

kind that the court in Cheeseman v. Carey, 485 F.Supp. 203,

50A
°- 31 -

217-20 (S.D.N.¥. 1980), determined justified a preliminary
injunction requiring the state to extend Taylor Law strike
penalty deductions from the salaries of plaintiffs-teachers
in that case over a longer period of time than that prescribed
by the statute. In any case, had plaintiffs here raised
cogent arguments regarding the rate of deductions in relation
to the constitutional validity of the Taylor Law's failure

to provide pre-deduction hearings as applied to them, the
decision of the United States Court of Appeals for the Second
deduction issue *** now lacks one of the requisites of a live
controversy, namely a ‘real and immediate’ threat of injury
faced by any member of the plaintiff classe” (623 7.2d 1387,
1392 (1980)), would apply to bar prosecution of such claims.
Moreover, I conclude that plaintiffs have abandoned the “as
applied” claim of invalidity. Consequently, summary judgment
for defendants is appropriate on plaintiffs’ claim that the
imposition of fines against them without a pre-deduction
hearing is invalid 15 applied.

Thus we are left only with plaintiffs’ broad claim that
the statutory procedures lack due process for the failure to
provide pre-deduction hearings. This claim I now find to be
authoritatively settled at this point in time in favor of
defendants, by the United States Supreme Court's dismissal of
the appeal from Sanford v. Rockefeller, 35 N.¥.2d 547, 364
N.¥.S.24 450 (1974), “for want of a substantial federal ques-

tion” (Sanford v. Carey, 421 U.S. 973 (1975)), as noted in the

51A
e 32 «

decision of our Court of Appeals in Cheeseman v. Carey,

Supra, 623 F.2d at 1390 n.5. Plaintiffs have alleged no
purported distinctions between the present case and Sanford
that were not addressed and rejected in Cheeseman. Thus
summary judgment for defendents on the broader due process
claim regarding the lack of pre-deduction hearings is also
appropriate at this time.

In accordance with the views expressed herein, plain-
tiffs’ motion for class certification is hereby ORDERED
granted. It is further hereby ORDERED that plaintiffs’
motion for summary judgment is denied and summary judgment

for defendants is hereby ORDERED granted.

Dated: Buffalo, N. Y.

January 19, 1982

~, y evil ¢ .

wn ke ee

52a
United States Court of Appeals
essere Queue

oe

At a stated Term of the United States Covrt of Appeals for the Second
Circuit, held ee the United States Courthouse ia the City of New York, on the
eighteenth Boveaber
on nine Gnd sighty-two
Presem.

WOW, WILFRED FEiweeac, cus
WOM MehOY J. PRIGwOLY

wom I8Vinc @. Baurnae

Circuit Judges,

CLORIA WULEENSTEIW, gaTweye SILEES, PHILGP
RUMORE on4 VINCENT BOLa, individuvelly an
ou Dehall of themselves and others eteildriy
ettueted,

v
FUCHME T REVILLE, Individually on@ of 008-7173
Superiotendent of echoolts, CLAUDE 0. CLAMP,
individually and e@ Chtef Piecel Olttcer
of the City of Bulfele Public School Syedes,
tat,
Delendante-Apreilees

Appeal from a Vetted ftates District Court for the Western
District of

This cause came on to be heard on the tranec a af
United States District Court for thee a ery | - -y

Hew York » And was argued by counsel!”
ON CONSIDERATION *
and decreed that the a aoa ow per riet

altivaed tn sccordance with the opinion
ie court whth coats to be taned ageinet the appellence

& Dentel Pusero, Clerk

4%, 4°
* a
en08" °. eae
qi

Gene GT
Gem cere Goutune
Ona exes
A Gane ‘venne cape POSE! aR?
ARE
Melsenst.in v. eville Request Tere, 1982
Ouckhet wo. 62-7173 Geeided Bovenber 18, 1962

Pege 308, Line 2 - delete °44.° end incest °14.° in place therest.

Vege 412, line $ - Gnbote °§4.° and teoert “14.° fia place therest.

Vege 316, line 6 - delete "210.3(R)° and insert °210.2(h)* in
pleece thereef.

arr/eid

1B

42 U.S.C. 1983 provides:

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, Of any State or
Territory, subjects, or causes to be
subjected, any citizen of the United
States or other person within the
jJursidiction thereof to the depriva-
tion of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress.

§ 201. Definitions ;
As used in this article:

1. The term “board” means the public employment relations
hoard created by section two hundred five of this artichs.

2. The term “membership dues deduction” means the obliga-
tion or practice of a government to deduct from the salary of a
public employee with his consent an amount for the payment of
his membership dues in an employee organization. Such term
also means the obligation or practice of a government to trans-
mit the sums so deducted to an employee organization.

b The term “chief legal officer" megns (a) in the case of
the state of New York or a state public authority, the attorney
general of the state of New York, (b) in the case of a county,
city, town, village or school district, the county attorney, corpo-
ration counsel, town attorney, village atturney or school district
attorney, as the case may be, und (c) in the case of any such
government not having ite own attorney, or any other govern-
ment or public employer, the corporation counsel of the city in
which auch government or public employer has its principal of-
fice, und if such principal office is not located in a city, the
county uttorney of the county in which such government or pub-
lic employer has its principal office.

1. The term “terms and conditions of employment” means

suluries, wages, houra and other terma and conditions of employ-
ment.

5. The term “employee organization” means an organization
of any kind having as its primary purpose the improvement of
terms and conditions of employment of public employees, except
that such term shall not include an organization/(a) membership
in which is prohibited by section one hundred five of this chap-
ter, (b) which discriminates with regard to the terms or condi-
tions of membership because of race, color, creed or national ori-
xin, or (¢) which, in the cane of public employees who hold pos!-
tions by appointment or employment in the service of the bourd
nn who are excluded from the application of this article by
rules and regulutions of the board, admits to membership or is
affiliated directly or indirectly with an organization which ad-
mits to membership persons not in the service of the board, for
purposes of any provision of this article other than sections two
hundred ten and two hundred eleven of this article.

G. (a) The term “government” or “public employer” means
(i) the state of New York, (ii) @ county, city, town, village oF

any other political subdivision or civil division of the state, (tii)
a achool district or any governmental eatity operating a public
school, college or university, (!v) a public imgrovement or epe-
vial district, (v) a public authority, commission, or public bene-
fit corporation, or (vi) any other public agency or
instrumentality or unit of government which exercises govern-
mental powers under the laws of the state.

(bv) Upon the application of any government, the board may
determine that the applicant shall be deemed to be a joint public
employer of public employees in an emplayer-employee negotiat-
ing unit determined pursuant to section twe hundred seven of
this chapter when such determination would best effectuate the
purposes of this chapter.

7. (a) The term “public employee” means any person hold-
ing © position by appointment or employment in the service of a
public employer, except that such term shall not include for the
purjoses of any provision of this article other than sections two
hundred ten and two hundred eleven of this article, persons
holding positions by appoimtment or employment in the organ-
ized militia of the state and persons who may reasonably be des-
ignated from time to time as managerial or confidential upon
upplication of the public employer to the appropriate board in
accordance with procedures established pursuant to section two
hundred five or two hundred twelve of this article, which proce-
dures shall provide that any such designations made during a
period of unchallenged representation pursuant to subdivision
two of section two hundred eight of this chapter shall only be-
come effective upon the termination of such period of unchal-
lenged representation. Employees may be designated as mana-
rerial only if they are persons (i) who formelate policy or (ii)
who may rensonably be required on behalf of the pubiie employ-
er to assist directly in the preparation for and conduct of collec-
Live negotiations or to have a major role in the administration of
ugreements or in personnel administration provided that such
voice is not of a routine or clerical nature and requires the exer-
tine of independent judgment. Employees may be designated as
confidential only if they are persons who aselet and act in a con-

fidentinl capacity to managerial employees ‘described in clause
(ii).

(b) For the purposes of this article, assistant attorneys gen-
eral shall Le designated "ibe Sparta aioe ok confidential
investigators employed in the. abet be desig-
nated confidential employeps,

8 The term ‘state public authority” means a public benefit
corporation or public corporation, a majority of the members of
which are (i) appointed by thé governor or by another state of-
fiver or body, (ii) designated as members by virtue of their
stute office, or (iii) appointed or designated by any combination
of the foregoing.

9. The term “strike” means any strike or other concerted
stoppage of work or slowdown by public employees.

10. The term “chief executive officer” in the case of school
districts, means the superintendent of schools in school districts
employing their own superintendents, and in school districts un-
der the jurisdiction of a district superintendent of schools, shall
mean the principal of the district.

11, The term “legislative body of the governmont,” in the
case of school districts, means the board of education, board of
trustees or sole trustee, as the case may be.

12. The term “agreement” means the result of the exchange
of mutual promises between the chief executive officer of a pub-
lic employer and an employee organization which becomes a
binding contract, for the period set forth therein, except as to
any provisions therein which require approval by a legislative
body, and as to those provisions, shall become binding when the
appropriate legislative body gives its approval,

5B

§210. Prohibition of strikes

1. No public employee or employee
organization shall engage in 4 strike,
and no public employee or employee
organization shall cause, instigate,
encourage, or condone a strike.

2, Violations and penalties; presump~
tion; prohibition against consent to
strike; determination; notice; probation;
payroll deductions; objections; and
restoration. (a) Violations and penal-
ties. A public employee shall violate
this subdivision by engaging in a
strike or violating paragraph (c) of
this subdivision and shall be liable as
provided in this subdivision pursuant
to the procedures contained herein. In
addition, any public employee who
violates subdivision one of this section
may be subject to removal or other
disciplinary action provided by law for
misconduct.

(b) Presumption. For purposes of this
subdivision an employee who is absent
from work without permission, or who
abstains wholly or in part from the
full performance of his duties in his
normal manner without permission, on
the date or dates when a strike occurs,
shall be presumed to have engaged in
such strike on such date or dates.

(c) Prohibition against consent to
strike. No person exercising on

behalf of any public employer any
authority, supervision or direction
over any public employee shall have the
power to authorize, approve, condone or
consent to a strike, or the engaging in
a strike, by one or more public employ~
ees, and such person shall not authorize
approve, condone or consent to such
strike or engagement.

6B

(d) Determination. In the event that it
appears that a violation of this sub-
division may have occurred, the chief
executive officer of the government
involved shall, on the basis of such
investigation and affidavits as he may
deem appropriate, determine whether or
not such violation has occurred and the
date or dates of such violation. if the
chief executive officer determines that
such violation has occurred, he shall
further determine, on the basis of such
further investigation and affidavits as
he may deem appropriate, the names of
employees who committed such violation
and the date or dates thereof. S

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0515%3A1. Public record. Not legal advice.