Adlerstein v. Board of Educ. of City of New York
| Citation | 466 N.Y.S.2d 973,96 A.D.2d 1077 |
| Parties | , 13 Ed. Law Rep. 836 In the Matter of Isidore ADLERSTEIN, Respondent, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant. |
| Decision Date | 19 September 1983 |
| Court | New York Supreme Court Appellate Division |
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Richard I. Ellis and Joyce A. Brauer, Brooklyn, of counsel), for appellant.
Rose & Koerner, Brooklyn (Ronald J. Koerner, Brooklyn, of counsel), for respondent.
Before DAMIANI, J.P., and WEINSTEIN, NIEHOFF and BOYERS, JJ.
In a proceeding pursuant to CPLR article 78, the appeal is from an order of the Supreme Court, Kings County, dated April 6, 1982, which, upon renewal of a proceeding which culminated in a judgment dated April 2, 1982, superseded said judgment to the extent of awarding petitioner back pay for his period of suspension from his job.
Order reversed, on the law, without costs or disbursements and motion for renewal denied.
Petitioner, a tenured teacher of fine arts at New Utrecht High School, has been employed by the Board of Education under permanent appointment since September, 1959. On October 3, 1979 the board approved the preference of charges against petitioner pursuant to section 3020-a of the Education Law and he was suspended from employment effective September 27, 1979 without pay pending his acceptance of a reassignment. The charges were based upon petitioner's failure to render adequate instruction to the students in his classes, his inability to maintain a classroom environment conducive to learning, his failure to maintain accurate records and his alleged acts of insubordination.
The decision to suspend petitioner was in accordance with official board of education policy to the effect that a teacher should be suspended from regular classroom duties when the gravamen of the charges tendered is that teacher's unfitness to teach. In the case of teachers who have been suspended, the board of education generally attempts a reassignment to administrative duties for the period of the suspension.
Pursuant to this procedure, petitioner was ordered to report to the office of the Superintendent of High Schools on September 24, 1979. Petitioner was thereupon informed that he was being reassigned to the office of Nathan Quinones, Director of High Schools. He failed to report to said office.
A three-member panel appointed pursuant to section 3020-a of the Education Law conducted extensive hearings which concluded on June 10, 1980. Petitioner's attorney was informed as early as the first hearing that petitioner would receive his wages only if he reported to his reassigned position. Absent any proffered excuse for petitioner's failure to report to work, said failure was deemed intentional.
In a decision dated October 1, 1980, the hearing panel unanimously found that the board had not sustained the burden of proof necessary to support guilty findings as to eight of the thirteen specific charges levelled against petitioner. As per the hearing panel's findings, the board had successfully met its burden of proof with respect to the five remaining charges. However, although the panel deemed this fact sufficient to warrant the issuance of an unsatisfactory rating, it was clearly insufficient to justify dismissing petitioner from his employment. The panel's recommendation was that petitioner be returned to the classroom with the "profound hope" that the board of education would be able to assign him to another school.
By resolution dated October 22, 1980, the board implemented the recommendation of the panel that petitioner be restored to classroom duties. The board further resolved to appeal the findings and recommendation of the panel to the Commissioner of Education pursuant to subdivision 5 of section 3020-a of the Education Law.
In accordance with the aforesaid resolution, the board reassigned petitioner as an art teacher to Susan Wagner High School, effective November 24, 1980. Once again, petitioner refused to accept his reassignment whereupon the board continued to withhold his wages.
By letter dated February 23, 1981, petitioner made demand upon the board for the full payment of wages and benefits due him since September 27, 1979, the effective date of his suspension. Petitioner furthermore expressed his desire to be reassigned as an art teacher to New Utrecht High School or to another school proximate thereto and within the same school district. In response the board noted that subdivision 2 of section 3020-a of the Education Law has not been interpreted so as to allow for a gift of public funds. Moreover, the hearing panel had specifically expressed a preference for reassigning petitioner to a school other than New Utrecht. Consequently, the board's unofficial response to petitioner was that he had no legal claim with respect to either of his demands. Petitioner was directed to take up the matter of his transfer to another school with the Director of the Division of Personnel who has "the ability to address the merits of the issue".
In June, 1981, petitioner commenced the instant article 78 proceeding seeking all back pay and pension contributions since the date of his suspension, as well as an order directing his reinstatement to his former position at New Utrecht High School. The board thereupon moved to dismiss the petition on the ground that petitioner's claims were barred by the...
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