Adlerstein v. Board of Educ. of City of New York

Decision Date18 December 1984
Citation485 N.Y.S.2d 1,64 N.Y.2d 90,474 N.E.2d 209
Parties, 474 N.E.2d 209, 22 Ed. Law Rep. 1220 In the Matter of Isidore ADLERSTEIN, Appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent. In the Matter of Jack RADOFF, Appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent.
CourtNew York Court of Appeals Court of Appeals
Ronald J. Koerner, Brooklyn, for appellant in the first above-entitled matter
OPINION OF THE COURT

MEYER, Judge.

The refusal by a tenured teacher to accept assignment in his or her tenure area but in a different school than that in which previously employed, or during suspension from duty pending a disciplinary hearing to perform the duties of the staff position to which he or she is assigned, constituted insubordination warranting dismissal. In Adlerstein there should, therefore, be an affirmance, with costs, of the Appellate Division order, 96 A.D.2d 1077, 466 N.Y.S.2d 973, denying petitioner's motion for renewal, and in Radoff there should be an affirmance, with costs, of the Appellate Division judgment, 99 A.D.2d 840, 472 N.Y.S.2d 444, confirming the determination of the Board of Education dismissing petitioner from his position.

I

In Adlerstein, petitioner was the most senior teacher in the Art Department of New Utrecht High School in Brooklyn, having taught in that position for approximately 20 years. On October 3, 1979, he was suspended, effective September 27, 1979, upon charges that he was unable to render adequate classroom instruction or to maintain a classroom environment conducive to learning, that he failed to maintain adequate records and that he had demonstrated a disregard for authority. Petitioner was directed to report to the Superintendent of Brooklyn High Schools for reassignment and was assigned to, but never reported for, work in the office of the Executive Director of the Division of High Schools.

The hearing panel sustained 5 of the 13 specifications, but deemed the charges sustained insufficient to warrant dismissal. It recommended, however, that petitioner be assigned to a different school in view of the apparent conflict with the New Utrecht principal. The Board restored petitioner to classroom teaching, effective November 24, 1980, but at Susan Wagner High School on Staten Island rather than New Utrecht. It also appealed the panel's decision to the Commissioner of Education.

Petitioner refused to report to Susan Wagner High School, demanded that he be returned to his former position and, when that demand was not met, began the article 78 proceeding out of which this appeal arises, seeking reinstatement to that position, back pay and pension contributions. While that action was pending the Commissioner, on November 17, 1981, decided the appeal. Concluding that petitioner's classroom performance was seriously deficient, he authorized the Board either to suspend petitioner without pay for up to one semester or impose a fine of up to $5,000. The Board then suspended petitioner for one semester, effective February 1, 1982. That suspension is not before us on this appeal.

By decision dated December 7, 1981, Special Term denied the article 78 petition without prejudice to renewal after exhaustion of administrative remedies. On April 6, 1982, however, it granted renewal and, concluding that petitioner had waived his right to utilize the contract grievance procedure but that the Commissioner's determination did not take into consideration petitioner's request for interim relief, awarded him back pay for the period September 27, 1979 to November 17, 1981, inclusive.

On the Board's appeal to the Appellate Division, that court reversed. It held that both the assignment to the office of the Director of High Schools and the assignment to Susan Wagner High School were within the power of the Board and that petitioner's failure timely to utilize the contract grievance procedure and failure to file a notice of claim as required by section 3813 of the Education Law barred petitioner's right to redress for the period awarded. Petitioner appeals to this court pursuant to CPLR 5601 (subd. par. ).

Petitioner Radoff, a tenured social studies teacher at Bronx High School of Science for 18 years, was suspended on May 9, 1980. Pending hearing on the charges involved, he was directed to report to the Board's personnel office and by it was assigned specific tasks, first in the Bureau of Science, then in the Curriculum Division and then in the Industrial Arts office. A hearing panel ultimately found him guilty of several of the charges for which he was suspended and recommended a one-year suspension. While the original charges were pending, however, a second set was filed predicated on Radoff's failure to report to the Board office for a period of approximately nine months and his refusal to complete assigned tasks. On the second set of charges the hearing panel found petitioner guilty and recommended dismissal. The Board dismissed petitioner and he then began the instant article 78 proceeding to annul the determination and obtain reinstatement to his former position. The petition having been referred to the Appellate Division pursuant to CPLR 7804 (subd. ), that court, citing the decision in Adlerstein and finding the determination supported by substantial evidence and the penalty not excessive, confirmed the determination and dismissed the petition. The appeal is before us by our leave (62 N.Y.2d 604, 467 N.E.2d 532).

The issue common to the two appeals is whether the Board of Education may require a suspended teacher to perform nonteaching assignments. Adlerstein also involves the Board's power to transfer a teacher from one school to another after reinstatement at the conclusion of a disciplinary proceeding. Petitioners argue that the power to suspend from a tenured teaching position does not encompass the power to assign to any other tasks during suspension. Adlerstein argues also that his reassignment to Susan Wagner High School was penal in nature and not an authorized form of discipline. In both cases we affirm. 1

II

It is now well settled that except as authorized by a collective bargaining agreement or by express statutory authorization the pay of a teacher suspended pursuant to subdivision 2 of section 3020-a of the Education Law pending hearing and determination of disciplinary charges may not be withheld and that the reference in subdivision 4 of that section to reinstatement of an acquitted employee "with full pay for any period of suspension" is too oblique to constitute such an authorization (Matter of Jerry v. Board of Educ., 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106; Matter of Board of Educ. v. Nyquist, 48 N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365). And although Matter of Jerry made clear that the Legislature was free to grant specifically defined authority to withhold compensation during suspension (35 N.Y.2d, at p. 543, 364 N.Y.S.2d 440, 324 N.E.2d 106), there has been no amendment to that effect in the intervening years.

Starting from that premise petitioners conclude that though they must be paid during suspension they cannot be assigned during suspension to Board headquarters work because such an assignment is inconsistent with the meaning of the word "suspension", because such an assignment is penal in nature and because a tenured teacher may not be assigned outside his or her tenure area without his or her consent (Matter of Bornstein, 17 Ed.Dept.Rep. 236). We disagree.

As defined in Black's Law Dictionary (5th ed., p. 1297), "suspend" means "to interrupt; to cause to cease for a time * * * As a form of censure or discipline, to forbid a public officer, attorney, employee * * * from performing his duties or exercising his function for a more or less definite interval of time." The argument overlooks that what subdivision 2 of section 3020-a of the Education Law authorizes is suspension "pending a hearing on the charges and the final determination thereof", which is neither censure nor discipline but "for the protection of the pupils in certain circumstances, for the protection of the teacher in other circumstances, and in many situations for the promotion of the best interests of the public" (Matter of Jerry v. Board of Educ., 35 N.Y.2d, at p. 541, 364 N.Y.S.2d 440, 324 N.E.2d 106, supra ). Nothing in the statutory language or in the Black's definition necessarily implies that an employee suspended from performing his duties but being paid his salary may not be asked to perform other duties or functions.

For like reason, no penalty is involved in a predetermination suspension. The concept that it may be turns on the in terrorem suggestion that a Board may order a suspended teacher "to attend a job function, no matter how undignified, menial or disparate from his tenure area" (Adlerstein brief, p. 20). That has not been shown to have happened here and, indeed, as the tenure discussion below makes clear, could not happen.

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