The Doctrine of Primary Jurisdiction explained

The Doctrine of Primary Jurisdiction explained 
Razzano v Remsenburg-Speonk UFSD, 2012 NY Slip Op 04178, Appellate Division, Second Department

The Board of Education of Remsenburg-Speonk UFSD reclassified Janice Razzano’s from a full-time position to a part-time position. Razzano filed a CPLR Article 78 petition seeking a court order compelling Board to reinstate Razzano to her former full-time position.

Razzano alleged that the reclassification of her position from full-time to part-time was undertaken in retaliation for various complaints she had made regarding alleged hazardous health conditions in the school building in which she worked. She also contended that school district improperly attempting to circumvent tenure rules by engaging the services of “an outside contractor to undertake the job responsibilities that she had previously undertaken” when she was employed full-time.*

Supreme Court dismissed Razzano’s on the ground that primary jurisdiction over the dispute lies with the Commissioner of the New York State Department of Education. The Appellate Division reversed the lower court’s ruling and remitted the matter to the Supreme Court, Suffolk County, for further proceedings.

Supreme Court had based its denial of the petition and dismissed the proceeding, pursuant to the doctrine of primary jurisdiction, i.e., (1) the Commissioner has the specialized knowledge and expertise necessary to resolve the factual question of whether an independent contractor assumed some of the responsibilities of Razzano, who held tenure in the position, and (2) whether the school district's conduct in reclassifying Razzano‘s full-time position to a part-time position was undertaken in good faith.

The Appellate Division ruled that Supreme Court erred in dismissing Razzano’s petition on basis of the doctrine of primary jurisdiction. The court explained that "The doctrine of primary jurisdiction provides that [w]here the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 35.

The doctrine, said the court, is applied whenever a claim is originally cognizable in the courts, and comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” In such situations the judicial process is suspended, rather than being dismissed, pending referral of such issues to the administrative body for its views.

In this instance, said the Appellate Division, the crux of Razzano’s threshold claim is that the reclassification and subsequent "excessing" of her employment from her full-time position and her “reinstatement” to a part-time position was undertaken in bad faith in that it was effected in retaliation for her engagement in a protected activity, in violation of the New York State Public Sector Whistleblower Law (see Civil Service Law §75-b).

In addition, Razzano contended that the school district’s "purported rationale was a fiction, and was not an issue within the Commissioner's special competence.”

The Appellate Division agreed, ruling that in light of the nature of Razzano’s allegations, Supreme Court should have retained jurisdiction to decide her claim of retaliation. Thus, said the court, the matter must be remitted to the Supreme Court for further proceedings on that branch of the petition alleging that the reclassification of Razzano’s position was undertaken in bad faith and, thus, constituted an abuse of discretion as a matter of law.

As to next steps, the Appellate Division explained that:

1. If the Supreme Court ultimately determines that Razzano’s employment was reclassified in bad faith, she is entitled to reinstatement.

2. If the Supreme Court ultimately determines that Razzano’s position was not reclassified in bad faith, then it would be proper for the Supreme Court to refer the remaining issues raised by the petition to the Commissioner for determination of questions arising under Education Law §3012, pursuant to the doctrine of primary jurisdiction.

* Razzano had also filed administrative petitions with the Commissioner of the New York State Department of Education pursuant to Education Law §310 challenging the district's decision to reclassify her position as a part-time position.

The decision is posted on the Internet at:

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