Jacobs v. Board of Education of East Meadow Union Free School District

Martuscello, J. P. (dissenting).

I disagree with the majority and would affirm for the reasons set forth in the opinion of Mr. Justice Young at Special Term and the additional grounds advanced by Federal District Judge Morris E. Lasker in a similar case (Board of Educ. v Califano, Docket No. 77 Civ 1609, SDNY).

Petitioner Sharon Jacobs, a physical education teacher, was dismissed for budgetary reasons after two years of probationary service which began September 1, 1974. Represented by counsel on the staff of the New York State United Teachers (NYSUT) union, she commenced this article 78 proceeding against the respondent board of education seeking reinstatement. She alleged that one Paul Dreska had been retained in the same tenure area although he was less senior to her. It was asserted that prior to September 1, 1975 he had been employed by the board as a director of recreation. In its answer and supporting affidavit, the board responded that Dreska was appointed on October 1, 1953 as a teacher of recreation, which is in the same tenure area as physical education; that he has been regarded and paid a salary as a teacher; that he has received the benefits to which teachers are entitled and that he has not received any benefits as an administrator.

Dreska moved to intervene, stating that he was appointed as a probationary teacher in 1953, was approved for tenure as a teacher in 1956 and has always been a teacher. His supporting papers include various school reports and forms in which he is referred to as a "teacher”. For example, the teacher’s application form, in which he stated that at the termination of his military service in 1945 he completed his education and was employed as a high school physical education teacher and coach and as a play street director and director of the youth center of the New York Police Athletic League, and letters written by the superintendent of schools informing him that *161he was a successful candidate for a teaching position and including him in the list of teachers recommended for probation. His proposed answer is a general denial.

In her reply, the petitioner requested that the court determine whether Dreska was employed as a supervisor/administrator or as a teacher "in either the physical education/recreation tenure area, whether considered separate or combined”. She contended that if he served as a supervisor/administrator, his "seniority is irrelevant in determining the least senior teacher in the tenure area of the position abolished pursuant to § 2510 of the Education Law”. Special Term (Gibbons, J.) granted Dreska’s motion for leave to intervene and directed a hearing on the nature of his employment prior to September, 1975.

Thereafter, Dreska moved by order to show cause to have the petitioner’s attorneys discharged or to have the union either assign an attorney to represent him or pay his counsel fees. In his opposing affidavit, petitioner’s counsel, James E. Sandner, inter alia, répeated petitioner’s contention that Dreska was employed in a position of an administrative-supervisory nature prior to October, 1975.

Special Term (Young, J.) granted Dreska’s motion and directed counsel, employed by NYSUT to represent the petitioner, to withdraw unless NYSUT would provide independent legal counsel for Dreska or would agree to pay the reasonable legal fees incurred by Dreska in this proceeding. In his decision, Mr. Justice Young (94 Mise 2d 659, 662, 663) conceded that a "union has the right to take a good faith position opposing some of its members in grievance proceedings or matters of general concern to members”, but observed that "[nevertheless it seems incongruous for a union to sponsor or to support the attack of one member against the job security of another member in what can be termed a 'one on one’ dispute * * * If this conduct is permissible and becomes a regular practice it holds the possibility of a proliferation of lawsuits sponsored by the union on behalf of some of its members against the other members. This could lead to serious intra-union dissension and fragmentation of the union.” He ooncluded that a member of a union has "the right * * * to anticipate that in a crucial contest for job survival, if the power of the union is not available to support him, at least it will not be used to support his opponent with free legal representation”, but added: "However, that does not mean *162that the union must remain mute when a bad policy is put forward. It does not preclude a stand by the union in matters of principle. In such a situation the union can make application to appear amicus curiae and the court can then decide whether it be appropriate for the union to so appear in that cáse. Thus the union would fulfill its function of supporting the principle it regards as meritorious without providing legal representation for the actual prosecution of a lawsuit against a member. If the union’s position is taken in good faith, the member whose stand the union opposes amicus curiae cannot, in my view, reasonably complain.”

In Board of Educ. v Califano (Docket No. 77 Civ 1609, SDNY, supra), Judge Marvin Lasker found Mr. Justice Young’s decision at bar to be "exhaustive” and "persuasive”. In Califano, the male physical education teachers supported the merger of seniority lists for male and female teachers and the female teachers opposed the merger. The same union involved here (NYSUT) furnished counsel to the male teachers. Judge Lasker granted the motion by the female teachers to disqualify counsel for the male teachers or, in the alternative, to require that the union furnish counsel for the female teachers. In his decision he stated, inter alia:

"In sum, the female teachers are paying, in part, for their opponents’ legal expenses.
"We believe that whatever its justification within the NY-SUT structure or otherwise, NYSUT’s representation of the male teachers against the female teachers, financed by funds to which the females contribute as well as the males, violates at least the spirit, if not the letter, of Canon 9 of the Code of Professional Responsibility that 'A lawyer should avoid even the appearance of impropriety.’ * * * As is apparent from Canon 9 (see, especially, EC 9-1, EC 9-2), the Code places great weight on maintaining public confidence both in the legal profession and the legal system, see, also, Emle Industries, Inc. v Patentex, Inc., 478 F2d 562, 571 (2d Cir. 1973), and in avoiding conduct which may appear unethical when viewed by a layman. Where doubts arise, they are to be resolved with the public trust in mind: * * * 'When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.’ Ethical Consideration 9-2, ABA Code of Professional Responsibility.
*163"Having said this, we conclude that a layman’s faith would be severely troubled were we to countenance the continuing representation by NYSUT counsel, who is being provided at the expense of the very party against whom his expertise is being used. An order of disqualification is appropriate: 'The dynamics of litigation are far too subtle, the attorney’s role in that process is far too critical, and the public’s interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer’s representation in a given case.’ Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 571.”

The majority agrees with Mr. Justice Young that the cases which the petitioner relies on are not controlling as they involve situations in which "a statutorily-certified union engages in collective bargaining with the employer”. However, it concludes: "In sum, we see nothing improper in a union’s decision to back, with legal support, the position of one of its discharged members who, upon investigation, it concludes was senior in her tenure area to another, even though the latter is also a member of that union. Whether the union’s opinion ultimately becomes that of the court is an entirely different matter.”

To arrive at this conclusion, the majority sees the issue as: "whether the court should interfere with the exercise of the 'business judgment’ of union management that one of its members should be provided the legal services of its counsel when it believes, in good faith, that such member has been deprived of his seniority rights”.

The majority then finds that, on the facts at bar, the union acted reasonably and in good faith. Included in its findings is the following: "On the record, the factual allegations supporting petitioner’s claim, that she had been employed as a teacher before Mr. Dreska was so employed, have been uncontroverted. Also uncontroverted is petitioner’s implicit legal contention that employment as a recreation director is not included in computing seniority within the teaching tenure area.” (Emphasis in original.)

The issue in this article 78 proceeding, as presented by the pleadings and supporting papers, is whether, Dreska’s employment prior to October, 1975 was in the tenure area of the position abolished. Special Term (Gibbons, J.) ordered a hearing and determination with respect to this issue. The subject of this appeal is Dreska’s motion as to counsel at that hearing. *164The majority, however, has made a determination on the merits in the main proceeding to support its determination on the subject motion. Further, the majority’s finding that the petitioner’s factual allegations and legal contention are "uncontroverted” ignores the answers submitted by Dreska and the board, and the supporting papers on Dreska’s motion to intervene, all of which have been omitted from the majority’s statement of facts.

The majority expresses concern lest the union be compelled to remain "barrenly impassive”, but ignores Mr. Justice Young’s statement that the union may apply to appear as amicus curiae. The majority states that "[i]t is the court that should not become involved where the union has in good faith concluded that it should become involved” (emphasis in original). It draws an analogy with the courts’ refusal to intervene in corporate management decisions. The majority errs. It is not the conduct of the union which is involved here, or its internal affairs, but the conduct of counsel at a judicial proceeding. Dreska is a member of NYSUT. In my opinion, NYSUT’s counsel owes him the duty not to represent another member of NYSUT against him in a seniority dispute. As stated by Judge Lasker in Board of Educ. v Califano (supra): "This is not a case in which a member complains of a contract which, though bargained for by a union in good faith, favors some members over others; neither is this a case in which a union, suing in its own name, takes a good faith position opposed to that of some of its members—in either circumstance, disadvantaged union members have an opportunity, prior to the union’s adoption of a position, to influence the union’s stand. Rather, this is a case in which an unincorporated membership association is sponsoring the attack of one group of members against another.”

Although the majority attempts to distinguish Califano on its facts, Judge Lasker’s determination that an order of disqualification was appropriate, was based on the fact that NYSUT counsel was "being provided at the expense of the very party against whom his expertise is being used.”

I add that it is not necessary that the court have jurisdiction over the union since Special Term’s order of disqualification is directed to the petitioner’s counsel as an attorney and member of the Bar. The alternative direction is merely a condition, compliance with which would permit counsel to continue to represent the petitioner. The Legislature has not *165conferred upon the Public Employees Relations Board exclusive nondelegable power to regulate the appearance of attorneys in an action or proceeding instituted before a court (cf. Matter of Jefferson County Bd. of Supervisors v New York State Public Employment Relations Bd., 36 NY2d 534, 538; Civil Service Law, § 205, subd 5, par [d]).

In support of its determination, the majority found that: "The interests of the intervenor and the board are virtually identical, so that the intervenor’s legal interests will be protected by the attorneys for the board. Thus, in a most practical sense, the intervenor is getting 'free counsel’. Therefore, there is no particular imbalance if the union provides 'free counsel’ for the petitioner.”

The majority concluded its opinion with the statement: "It is important to note that if Mr. Dreska obtains the relief that he primarily seeks, * * * petitioner will be paying for her own counsel while Mr. Dreska will still be obtaining the essentially free legal services provided by the board.”

There is nothing in the order appealed from which bars the union from providing the petitioner with counsel. It provides only that the union must not deny Dreska representation by counsel who will present his case without any possibility of conflict of interest.

The order under review should be affirmed.

Gulotta, Cohalan and Margett, JJ., concur with Shapiro, J.; Martuscello, J. P., dissents and votes to affirm the order, with an opinion.

Order of the Supreme Court, Nassau County, dated September 6, 1977, reversed, without costs or disbursements, and the intervenor’s motion is denied.