Petitioner Richard Downes (Downes) commenced this proceeding pursuant to CPLR Article 78 seeking to overturn a decision of the respondent New York City Department of Education (DOE) which resulted in the termination of Downes's license as a school bus driver, after a disciplinary conference. DOE has cross-moved to dismiss the petition.

The petition alleges that Downes is the holder of a Commercial Driver's License (CDL), issued by the New York City Board of Education (the Board). Downes's CDL contains an "S" endorsement which qualifies him to drive a school bus. Downes alleges that he also held a certification, issued by the Board (now known as the Office of Pupil Transportation, or "OPT") in 1993, which was required of all bus drivers employed as school bus drivers in New York City.

In August 2005, Downes was hired by Varsity Transit (Varsity) to transport students in the New York City schools, pursuant to a contract which Varsity had entered into with the Board.

On August 21, 2005, Downes was arrested in Suffolk County and charged with rape in the first degree, in violation of Criminal Procedure Law § 130.35, a class B felony. The OPT immediately suspended Downes's certification, and notified Varsity that Downes was temporarily ineligible to drive a school bus in the New York City school system.

The felony charges against Downes were never presented to a grand jury and Downes was never indicted. On February 17, 2006, Downes pled guilty to disorderly conduct, CPL 240.20, as a violation.

Downes alleges that he only entered the plea after being informed by an OPT investigator that the plea would not stand in the way of his returning to work.

Thereafter, on February 28, 2006, the Board notified Downes that his OPT certification [*2]was revoked.

On March 9, 2006, Downes invoked his right to a "disciplinary conference" pursuant to Chancellor's Regulation C-100. An administrative notice of complaint and summons, sent to Downes, stated:

YOU ARE HEREBY NOTIFIED that you are the subject of an investigation due to allegations that you have violated certain rules and procedure [sic] of performance and conduct required of all drivers and escorts who work in the New York City Department of Education school bus service.

The disciplinary conference was held on April 26, 2006. According to the petitioner, the Board's only witnesses at the conference were the OPT investigator, Dennis Harrington (Harrington), and a representative from Varsity. Harrington testified that he based his entire investigation on a story that appeared in the local newspapers shortly after petitioner's arrest. Two newspaper clippings were offered into evidence as part of the OPT investigative file. Varsity's witness testified as to how he learned of petitioner's arrest, but had no knowledge as to the circumstances leading to Downes's arrest. Admitted into evidence was Exhibit 10, a certificate of disposition evidencing Plaintiff's arrestfor rape and his subsequent plea to disorderly conduct.The decision of the disciplinary conference committee stated:

While criminal charges may be pled down for a variety of reasons, it is the responsibility of the Department of Education to ensure the safety of every child in its care. To that end, employees are held to a higher standard than criminal court, and the fact that the Appellant was charged with rape indicates that, at the very least, he was engaging in conduct unbecoming the service. The Appellant never made any attempt to inform the company of his arrest, and the violation of Chancellor's Regulation C-105 coupled with the seriousness of the original charge were the basis for the revocation of the Appellant's certification.

Mr. Downes testified, but, counsel permitted him only to testify as to his inability to comply with the written notice requirements of Regulation C-105. Questions of guilt or innocence of the underlying charges were deftly deflected by Mr. Downes' attorney.

On May 30, 2006, the Board notified Downes that it was upholding the permanent revocation of his OPT certificate which had been imposed by the disciplinary conference committee.

Petitioner moves to vacate the finding of the Board, alleging a lack of due process and a failure to conduct the hearing in accordance with law. Downes argues that respondent failed to give petitioner notice of the nature of the misconduct that he was being charged with or the rules and procedures that had been violated. Further, petitioner claims that respondent failed to offer any evidence of misconduct, other than proof of an arrest for rape and a plea to a violation. Mr. Downes claims that the disciplinary conference committee's decision and the Board's decision to uphold it were arbitrary and capricious. Mr. Downes claims that the punishment, a permanent revocation of petitioner's means of earning his livelihood, was so severe as to be "shocking to one's sense of fairness."

Respondent cross-moves to dismiss arguing that the decision to revoke the petitioner's OPT certification was neither arbitrary nor capricious and that petitioner received adequate notice of the issues that were determined at the disciplinary conference. [*3]

Respondent argues that hearings conducted pursuant to Chancellor's Regulation C-100 are not "compelled by law," and thus not subject to the substantial evidence standard of review. Downes's conviction for disorderly conduct, stemming from a rape complaint by a 17 year-old girl, is an offense that posed a great concern for the safety of the school children transported by petitioner, as well as the safety of the employees of the DOE.

Further, respondent argues that Downes failed to comply with the notice requirements of Chancellor's Regulation C-105 by failing to notify the DOE of his arrest. Regulation C-105 (9a) states:

Requirement to Notify Department of Education of Arrest ... Any person employed by or in the Department of Education, or employed by a Department of Education employee to provide services in Department facilities ... who has been arrested and charged with a felony, misdemeanor or violation must immediately notify the OPI [Office of Personnel Investigation] and his/her building or office supervisor in writing and provide a copy of the criminal court complaint. Notification to a supervisor alone does not satisfy this reporting requirement. OPI must be notified separately in writing ... Failure to notify should be the subject of appropriate disciplinary action.

Notice of Petition dated September 28, 2006, Exh. I'.

At the outset, and in light of the multi faceted challenge to the within determination, it is important to establish the standard of review to be applied. In the absence of a statutory right to the relief sought, the instant case is in the nature of mandamus to review (Arrocha v. Board of Education, 43 NY2d 361 [1999]; Klein v. Levin, 305 AD2d 316 [1st Dept 2003]). As Judge Alexander noted in Scherbyn v. Waynbe Lakes Board of Co. Op., 77 NY2d 752 at 757:

In proceeding in the nature of mandamus to review, however, a court examines an administrative action involving the exercise of discretion. Mandamus to review resembles certiorari, except that in a certiorari proceeding a quasi-judicial hearing normally is required and the reviewing court has the benefit of a full record. The standard of review in a certiorari proceeding is "substantial evidence" (see CPLR 7803 [4]; Matter of 125 Bar Corp. v. State Liq. Auth., 24 NY2d 174). In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity "to be heard" and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law.

(Citations omitted, emphasis added)

Accordingly the ultimate determination is whether the challenged decision has a rational basis. Matter of Sullivan County Harness Racing Association, Inc. v Glasser, 30 NY2d 269 (1972). "Courts should not overturn administrative determinations unless they are made without sound basis in reason and without regard to the facts. Where the court finds any reasonable basis in fact for the administrative action, the court's function is exhausted." Matter of Jamaica Recycling Corp. v City of New York, 12 Misc 3d 276, 283 (Sup Ct, NY County 2006) (citations omitted). [*4]

Due process requires that the petitioner be provided fair notice of the charges so that he may prepare and present an adequate defense and an opportunity to be heard (Matter of Block v. Ambach, 73 NY2d 323 [1989]). In the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to appraise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense. (D'Ambrosio v. Department of Health, 4 NY3d 133 [2005]). From the exchange of materials prior to the hearing, it was clear what the issues were. Indeed it is inconceivable to the court that petitioner, having been charged with a most serious crime impacting directly on the safetyof his charges, should not be prepared to satisfactorily explain the circumstances surrounding his arrest. Additionally, and as to the notice regarding a violation of regulation C-105, Petitioner could have requested an adjournment to provide proof on this issue, but did not do so. Pointedly, the Petitioner never testified to the circumstances surrounding his arrest or the truth of falsity of the underlying charges. In fact, the only concrete statement he made about the charges was that he did not know the complainant. It was his burden to assemble proof upon which the hearing officer could conclude that there was no substance to the charges and, in that regard, he failed miserably.

Petitioner has made much over the fact that the hearing officer permitted submissions in the form of two newspaper articles of Mr. Downes arrest. However, hearsay is admissible at an administrative proceeding, and may constitute substantial evidence where it is relevant and probative. 49th Street Managment Company v New York City Taxi & Limousine Commission, 277 AD2d 103 (1st Dept 2000).

Proof of petitioner's arrest for rape and his conviction for disorderly conduct was also properly admitted as evidence at the hearing. See Matter of Family Liquor Store, Inc. v New York State Liquor Authority, 283 AD2d 191 (1st Dept 2001). Indeed the certificate of disposition, which was presented at the hearing, confirmed many of the same facts alleged, albeit in less detail than the newspaper articles.

Finally, the court is of the opinion that inasmuch as the hearing officer's determination was neither arbitrary or capricious, the revocation of petitioner's certificate was appropriate.

Accordingly, it is

ADJUDGED that the petition is denied; and it is further

ADJUDGED that the cross-petition is granted, and the proceeding is dismissed, with costs and disbursements to respondent.

This constitutes the decision and judgment of this court.

DATED:, 2007

ENTER:____________________________

WALTER B. TOLUB J.S.C.