Zaner v. Board of Education

Proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated August 24, 1976 and made after a hearing, that found that petitioner had violated subdivision 1 of section 210 of the Civil Service Law. Determination confirmed, and proceeding dismissed, on the merits, without costs or disbursements. In choosing to remain absent from work to avoid the pressures preceding an impending strike and to avoid deciding which side to support, petitioner effectively yielded to the interests of the strikers. The distinction between remaining home in support of a strike and remaining home to avoid any commitment on the issue is one without substance, for in either case the ends of the strikers are served. Consequently, whether presumed to be engaged in the strike pursuant to section 210 (subd 2, par [b]) of the Civil Service Law or whether simply condoning the strike by his absence, petitioner was in violation of subdivision 1 of section 210 of the 930 Civil Service Law. Though petitioner produced the testimony of a psychologist with whom petitioner was in therapy for depression and anxiety to the effect that petitioner was placed by the strike under "additional anxiety that warranted his absence from school”, the weight and credibility of that testimony were for the hearing officer to evaluate along with the presumption arising under the statute by reason of petitioner’s absence (Civil Service Law, § 210, subd 2, par [b]; see note, 23 NYU L Q Rev 455, 464). The hearing officer found that petitioner had been in therapy before and during the strike, and concluded that the absence was not "involuntary”. We cannot say on this record that the determination made by the hearing officer was not based on substantial evidence, or that it was arbitrary or irrational. The record, indeed, indicates that the petitioner taught while in therapy before and after the strike, and that his absence coincided with the strike. That is not to say that there are not cases where the presumption alone may not serve as a ground for the statutory sanction, e.g., where the documentary proof and medical testimony adduced by the employee establish illness which convincingly explains the employee’s absence (cf. Matter of Pasaric v Board of Educ., 46 AD2d 922). This is not such a case. Hopkins, J. P., Lazer and Rabin, JJ., concur.