Friday, March 23, 2007

You, with the umbrella, off the bus!

Q. What is the proper standard for judicial review of an administrative agency's decision when neither the constitution nor a statute is implicated?

A. "Arbitrary and capricious," as applied by the First Department in Duncan v. Klein, decided on March 22, 2007. After determining that a school bus escort had hit a student with her umbrella, the City's Office of Pupil Transportation had recommended revocation of the escort's certification. In a disciplinary hearing, it was recommended that the penalty be reduced to a suspension for time already served with no back-pay. The Chancellor opted for revocation, and the escort petitioned for judicial review. The court said, "Since the disciplinary conference was not conducted pursuant to the constitution or any statute, it was properly reviewed under the arbitrary and capricious rather than substantial evidence standard. Applying that standard, the record provides a rational basis for disbelieving petitioner's version of the facts, and finding instead that she actively hit the student and was not merely defending herself. The penalty of revocation does not shock our conscience."