Pauk v. Board of Higher Ed. of City of New York

• Decision Date: 06 June 1978
• Citation: 406 N.Y.S.2d 46,62 A.D.2d 660
• Court: New York Supreme Court — Appellate Division
• Parties: Edgar PAUK, Petitioner-Respondent, v. BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, Respondent-Appellant.

Page 46

406 N.Y.S.2d 46

62 A.D.2d 660

Edgar PAUK, Petitioner-Respondent, v. BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK Respondent-Appellant.

Supreme Court, Appellate Division,First Department.

June 6, 1978.

Ronald E. Sternberg, New York City (L. Kevin Sheridan, New York City, with him on the brief; Allen G. Schwartz, Corp. Counsel, New York City), for respondent-appellant.

Frederick E. Sherman, New York City, of counsel (Daniel J. Brooks, New York City, with him on the brief; Layton & Sherman, New York City, attorneys), for petitioner-respondent.

Before KUPFERMAN, J. P., and LUPIANO, BIRNS, EVANS and SULLIVAN, JJ.

LUPIANO, Justice:

Petitioner was a member of the teaching staff of Queens College for nine years. Throughout that period he was employed on a year-to-year basis. He served the first three years (academic years 1967-68, 1968-69 and 1969-70) as a lecturer. Reappointed for academic year 1970-71, petitioner was subsequently upgraded to the position of assistant professor for that year upon receipt of his Ph.D. degree. His second year as assistant professor was during academic year 1971-72. He was reappointed to that position for the following year. During the Fall 1971 semester he was granted a half-time schedule (reduced teaching load) so that he could participate in activities for the Legislative Conference, the former collective negotiating representative for part of the instructional staff at City University. The Conference reimbursed the respondent Board of Higher Education for one-half of petitioner's salary during this semester. The following Spring 1972 semester, petitioner was granted a leave of absence without pay, authorized under Article XI of the agreement between respondent and the Legislative Conference, to enable petitioner to engage in duties for the Conference. Petitioner was assured that his leave of absence would not jeopardize his increment credit toward salary increases nor his recommendation for retirement credit. During that semester petitioner, as a member of the Romance Languages Department at the college, voted on departmental and academic senate matters, but undertook no teaching duties.

Petitioner was reappointed to the position of assistant professor for the academic year 1972-73. In a letter dated February 5, 1973 to petitioner, Dr. Reilly, Chairman of the Department of Romance Languages, indicated that although the absence during the previous year would not be considered as a break in the continuous service required for award of tenure, such absence would cause a delay of one year in the consideration for award of tenure. In other words, instead of becoming eligible for tenure with the Fall 1975 term, the absence during the 1971-72 academic year would delay the procedure by one year so that petitioner would not be eligible for appointment with tenure until the Fall 1976 semester (with notice to be given on December 1, 1975, and preparation for consideration to commence during the Spring semester 1975). Petitioner was reappointed for the 1973-74 academic year (a fourth year) and the 1974-75 academic year (his fifth year) as assistant professor. Reappointed to his sixth year (academic year 1975-76) as an assistant professor, petitioner was informed by the Department Chairman on September 24, 1975 that the Personnel and Budget Committee of the Department had recommended petitioner for reappointment with tenure beginning 1976. However, on October 24, 1975, petitioner was informed by the college president that said Committee had made a negative recommendation on tenure. After his administrative appeal was rejected and subsequent to notification that his appointment to the faculty would terminate August 31, 1976, petitioner initiated this Article 78 proceeding.

Education Law § 6206(3) provides in pertinent part as follows:

"The permanent instructional staffs shall consist of: . . . b. All other persons employed on an annual salary basis of the educational units governed and administered by the board in the grades of . . . assistant professor . . . who, after serving on an annual salary in any of the grades or positions enumerated or provided for in this paragraph for five full years continuously, have been appointed or shall be appointed for a sixth full year, except as provided in subdivisions four and five of this section; the membership of such persons on the permanent instructional staffs shall become effective on the first day of September following their reappointment for the sixth full year. . . ." (Emphasis supplied). ¹

The statute requires that an individual actually serve in the enumerated grade or position and the mere fact of appointment without such actual service does not comport with the self-evident intent of the statute. "Although statutory tenure systems vary from State to State and private tenure programs differ between private institutions, in all forms tenure encompasses a basic continuity of service . . . ." (New York Institute of Technology v. State Division of Human Rights, 40 N.Y.2d 316, 323, 386 N.Y.S.2d 685, 689, 353 N.E.2d 598, 602 (1976)) (Emphasis supplied). Although petitioner points out that during his leave of absence he continued to vote on faculty committees, conducted research and counseled students, it is conceded that he undertook no classroom duties. Reason and common sense dictate that qualification for tenure in a teaching position is based primarily on teaching time during the qualification period.

Regarding petitioner's argument that he was misled into believing his leave of absence year would be credited toward his earning of tenure, we note that respondent simply granted petitioner consideration of his leave of absence in computing salary increments and retirement credits. Petitioner fails to cite any statutory authority, any section of the respondent's by-laws or the negotiating agreement in support of his entitlement to consideration of his leave of absence in determining his eligibility for tenure. Despite the fact that the Education Law requires five consecutive years in the position before tenure can be awarded, petitioner was advised and, in effect, acknowledged that respondent would consider him for tenure after completion of five years of teaching service within a six-year period. Pertinently there is a statutory qualifying requirement for tenure that the person be appointed for a sixth year. Even though petitioner may have served five full years as an assistant professor within a six-year period, nevertheless at the end of his fifth full year of actual service as an assistant professor within that period, he was not reappointed for a sixth year. Thus, even assuming the validity of a commitment to ignore the requirement of five continuous full years by considering five full years of non-continuous service within a six-year period, petitioner failed to meet the crucial element requisite for tenure of appointment for a sixth full year. ²". . . (t)he exercise of 'academic judgment' alone governs the conferring of tenure. The statutes give the various boards of education, such as the respondent, the exclusive power to make the initial appointments and to determine whether an appointee is qualified academically so as to permit an appointee to continue long enough to obtain tenure" (Legislative Conference of The City University of New York v. Board of Higher Education, 38 A.D.2d 478, 480, 330 N.Y.S.2d 688, 690 (1st Dept. 1972), affd. 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92 (1972)).

This power must be exercised by respondent (the Board of Higher Education in the City of New York) in conformance with the statutory mandate applicable to it (Article 125 of the Education Law). Therefore, even assuming that officials of the college erred in permitting petitioner to exercise certain faculty privileges while on leave status or that the Chairman of the Romance Languages Department represented to petitioner respecting tenure that the requirement of continuous five full years of service in the grade of assistant professor mandated by the statute would be waived, petitioner's leave status was not thereby changed. Clearly, no official of the college had the power to alter the explicit statutory requirements for tenure.

"A long, impressive line of cases beginning with McDonald v. Mayor (68 N.Y. 23) has firmly established as fundamental the principle that one dealing with a municipality through its officials must take great care to learn the true nature and extent of their power and authority. One relies on the self-asserted, naked representation of an official's power and authority to bind the municipality at one's peril. It is recognized that this principle has worked hardship in the past and may in the future, but it is a rule of necessity that moral obligations alone cannot bind the municipality 'since no legal obligation arose.' (Seif v. City of...