Abramovich v. Board of Ed. of Central School Dist. No. 1 of Towns of Brookhaven and Smithtown

• Decision Date: 13 February 1979
• Docket Number: No. 1,R,1
• Parties: , 386 N.E.2d 1077 In the Matter of David ABRAMOVICH, Appellant, v. BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF BROOKHAVEN AND SMITHTOWN, also known as Three Village Central School Districtespondent.
• Court: New York Court of Appeals Court of Appeals

Page 109

414 N.Y.S.2d 109

46 N.Y.2d 450, 386 N.E.2d 1077

In the Matter of David ABRAMOVICH, Appellant, v. BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF BROOKHAVEN AND SMITHTOWN, also known as Three Village Central School District No. 1, Respondent.

Court of Appeals of New York.

Feb. 13, 1979.

Francis M. Neary, P. C., and Jeffrey Michael Conforte, Huntington, for appellant

Peter V. Snyder and Kevin A. Seaman, Patchogue, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

We hold that, in appropriate circumstances such as exist in this case, a tenured teacher may, as part of a stipulation in settlement of a disciplinary proceeding brought against him, waive his or her continued right to the protections afforded by section 3020-a of the Education Law.

In this article 78 proceeding, petitioner, David Abramovich, an elementary school teacher, challenged such a stipulation as violative of public policy, a view with which Special Term agreed. Following appeal, the Appellate Division entered a unanimous order of reversal. On further appeal to this court by petitioner pursuant to CPLR 5601 (subd. (a), par. (ii)), we now uphold that determination.

In May, 1975, the petitioner was charged with 49 specific counts of insubordination, incompetency and neglect of his teaching duties. In due course, a hearing on the charges as required by section 3020-a got underway. Petitioner was not only represented by counsel but advised as well by a union field representative and the president of the teachers' association of which he was a member. On the third day of the hearing, after the board of education had presented written and oral testimony in support of the charges and after consultation between the petitioner and those representing him, the parties, with the concurrence of their representatives, entered into the settlement in question.

The stipulation of settlement, in essence, provided that Abramovich was to continue as a teacher, thus avoiding the substantial risk of dismissal that was entailed in allowing the hearing to go to decision, but left him subject to future dismissal, if, after a designated period of employment, his work was not found satisfactory. In implementation of the stipulation the board was to withdraw all of its charges with prejudice, thereby surrendering its right to have tried him on any of the 49 charges that had been brought against him. For his part, petitioner was to take an unpaid leave of absence until the commencement of the 1976 fall school term, when he would be re-employed, but at a different school and under a new principal. Moreover, to reinforce the likelihood that his future teaching skills would show improvement, it was agreed that, at least nine months prior to the commencement of petitioner's re-employment, the board would provide him with a written list of areas in which he was considered deficient and the new school principal would supply written criteria setting forth the standards by which his future performance was to be judged. During his leave of absence, in order to improve his capabilities, the board also undertook to utilize this time to afford him instruction in specialty teaching areas such as remedial reading along with the opportunity to observe the teaching techniques utilized by other members of his new school's faculty. After all this, at the conclusion of the four-month term starting with the teacher's September, 1976 reassignment and ending that Christmas, the new principal was to appraise petitioner's performance and determine whether his services were to be retained. This decision was to be unappealable by either the petitioner or the board.

It is not disputed that the board carried out its part of the bargain. But, when, in December, 1976, the evaluation made by the principal of the new school was unfavorable to the teacher and he was dismissed, he thereafter instituted the present proceeding. Emphasizing that section 3020-a establishes the exclusive means for the dismissal of a tenured teacher and relying largely on Matter of Boyd v. Collins, 11 N.Y.2d 228, 228 N.Y.S.2d 228, 182 N.E.2d 610, he contends that, no matter the circumstances under which it may be arrived at, even the most voluntary of agreements between the parties waiving the protections of the section is an impermissible bypass of the very thing the statute is intended to secure. It is in this claimed circumvention that he would have us find public policy is offended.

Clearly, the statute does form a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice (see People ex rel. Callahan v. Board of Educ., 174 N.Y. 169, 178, 66 N.E. 674, 677; Matter of Monan v. Board of Educ., 280 App.Div. 14, 18, 111 N.Y.S.2d 797, 800). To that end, section 3020-a and the regulations promulgated thereunder by the Commissioner of Education (8 NYCRR 82.10, 82.11) attempt to harmonize the method of removing tenured teachers with the dictates of procedural due process (see Matter of Amos v. Board of Educ., 54 A.D.2d 297, 304, 388 N.Y.S.2d 435, 440, affd. 43 N.Y.2d 706, 401 N.Y.S.2d 207, 372 N.E.2d 41; Hodgkins v. Central School Dist. No. 1, 48 A.D.2d 302, 304-305, 368 N.Y.S.2d 891, 893). These regulations are specific. Among other things, they require that all charges be in writing; that a determination that probable cause exists be made by a vote of a majority of all the members of the employing board before a formal written notice specifying the charges in detail and outlining the accused employee's rights is served upon him; and that an opportunity be provided for a hearing at which the teacher has the right to be represented by counsel, to testify and to subpoena and cross-examine witnesses (Education Law, § 3020-a, subds. 1-3). Indisputably, up to the point at which a mutually agreeable disposition was reached between the parties in the case before us, each of these steps had been followed faultlessly.

We do not gainsay the importance of these standards both in terms of their role in protecting the rights of individual teachers whose years of satisfactory service have earned them this security and in fostering an independent and professional corps of teachers. It follows that the shield of section 3020-a is not lightly to be put aside. But that does not mean that it is never waivable. For, when a waiver is freely, knowingly and openly arrived at, without taint of coercion or duress, the sturdy public policy underpinnings of section 3020-a are not undermined.

Indeed, the contention that public policy absolutely forbids waiver of section 3020-a rights is negated by examination of the statute itself. In that connection, we first observe that the statute contains no express provision preventing a teacher from waiving its benefits (cf. Estro Chem. Co. v. Falk, 303 N.Y. 83, 86-87, 100 N.E.2d 146, 148). At least somewhat to the contrary, subdivision 2 expressly conditions waiver of the right to a hearing upon the teacher's "unexcused failure" to notify the board of the desire for such a hearing within 10 days of receipt of the charges; having authorized waiver by simple neglect, the statute need not be so broadly read as to prohibit the petitioner from doing so of his own free will, particularly when acting with the assistance of counsel. Especially is this so when the waiver serves as the quid pro quo for countervailing benefits, here the dismissal of the flood of charges for which the teacher was already on trial, so that he might have what he apparently regarded as a better opportunity, albeit on mutually and carefully delineated terms, to retain his position. And, as petitioner himself concedes, obviously a tenured teacher always has the option to resign,...