Anderson v. Board of Ed. of City of Yonkers

• Decision Date: 30 December 1974
• Citation: 362 N.Y.S.2d 536,46 A.D.2d 360
• Parties: In the Matter of Nedra ANDERSON et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF YONKERS and Robert F. Alioto, Superintendent, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 536

362 N.Y.S.2d 536

46 A.D.2d 360

In the Matter of Nedra ANDERSON et al., Respondents, v. BOARD OF EDUCATION OF the CITY OF YONKERS and Robert F.

Alioto, Superintendent, Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 30, 1974.

Eugene J. Fox, Corp. Counsel, Yonkers (Robert E. Sapir, New York City, of counsel), for appellants.

Eugene M. Kaufman, New York City (Paul H. Janis, New York City, of counsel), for respondents.

Robert D. Stone, Albany (John P. Jehu and Lawrence W. Reich, Albany, of counsel), for Ewald B. Nyquist, State Commissioner of Education, amicus curiae.

Before GULOTTA, P.J., and HOPKINS, MARTUSCELLO, LATHAM and SHAPIRO, JJ.

GULOTTA, Presiding Justice.

This is an appeal from a judgment of the Supreme Court, Westchester County, entered in a proceeding pursuant to article 78 of the CPLR, which (1) granted the petition to annul a determination of appellant Board of Education terminating the petitioners' employment and (2) remitted the matter to the board for review pursuant to section 3031 of the Education Law.

The petitioners are five of seven teachers from a group of 235 who were not granted tenure by the Yonkers City School District in 1973. Apparently all the petitioners were hired in September, 1970 for a three-year probationary period (Education Law, § 2573, subd. 1 (as then in effect)).

On April 30, 1973 each petitioner received a letter from respondent Dr. Alioto, the Superintendent of Schools, indicating that he or she would not be recommended for tenure. The letter further stated that his or her services would be terminated, effective June 30, 1973, and that upon request he or she would be entitled, pursuant to a collective bargaining agreement, to an informal hearing with the Superintendent and a formal observation and written evaluation of his or her teaching performance prior to a final decision. Thereafter, each demanded these rights and Dr. Alioto designated persons to observe and evaluate them and he accorded each an informal hearing. By letter dated June 27, 1973 Dr. Alioto notified each petitioner that he was adhering to his original determination not to recommend tenure.

On June 29, 1973 each petitioner requested, in writing, that he or she be supplied with written reasons for the termination. The Superintendent responded on July 10, 1973 and, on or before August 20, 1973, each petitioner filed written responses addressed to the Board of Education. The board met on August 23, 1973 and passed a resolution terminating their services. The minutes of that resolution indicate that Mr. Tice, the President of the Yonkers Federation of Teachers, urged the board to review the matter 'once more'; that Mr. Jacobson, the President of the Board of Education, stated that each case had been reviewed by the board members and was also discussed with the Superintendent; and that Dr. Alioto stated that the board could not grant tenure 'unless the Superintendent recommends it.'

On December 7, 1973 the petitioners commenced the instant article 78 proceeding to annul the above-mentioned determination and to reinstate them, with back pay from the date of their dismissal. The Special Term, in an exhaustive opinion by Mr. Justice Gagliardi, granted the petition on the grounds that section 3031 of the Education Law authorized the board to grant tenure in the absence of a positive recommendation by the Superintendent and that the board's apparent misapprehension of the law vitiated its prior review, and accordingly remanded the matter to the board for further consideration. We respectfully disagree with the Special Term's reading of the statute and therefore reverse the judgment and dismiss the proceeding on the merits. Permission for the taking of the appeal is granted (see CPLR 5701, subd. (b), par. 1).

Prior to the passage in 1972 of section 3031 of the Education Law (added by L.1972, ch. 866) it was well established that while a board of education could, in the face of a positive recommendation by its superintendent of schools, deny tenure to a probationary teacher, it could not, in the absence of such recommendation, bestow it (Matter of McMaster v. Owens, 275 App.Div. 506, 508, 90 N.Y.S.2d 491, 494; Matter of Gunthorpe v. Board of Educ. of Union Free School Dist. No. 5, Town of Babylon, 41 Misc.2d 757, 758, 246 N.Y.S.2d 462, 464; Matter of High v. Board of Educ. of Union Free School Dist. No. 7 of Town of North Hempstead, 169 Misc. 98, 100, 6 N.Y.S.2d 928, 930, affd. 256 App.Div. 1074, 11 N.Y.S.2d 669, affd. 281 N.Y. 815, 24 N.E.2d 486; Matter of Meehan, 11 Ed.Dept.Rep. 34; Matter of Marino, 11 Ed.Dept.Rep. 336; Matter of Downey, 72 St.Dept.Rep. 29), the apparent rationale being that 'the Superintendent's recommendation is a screening device which brings before the Board of Education all those who are qualified by objective standards' (Matter of Tischler v. Board of Educ. of Monroe Woodbury Cent. School Dist. No. 1, 37 A.D.2d 261, 263, 323 N.Y.S.2d 508, 512). Now, by virtue of the enactment of section 3031, it is contended that the balance of power has shifted and that a board of education may appoint a teacher on tenure despite its superintendent's failure to recommend. We believe that neither the wording of the statute nor its apparent purpose justifies this construction.

Section 3031 of the Education Law, which is instructively entitled 'Procedure when tenure not to be granted at conclusion of probationary period or when services to be discontinued' (emphasis supplied), provides, Inter alia, that 'notwithstanding any other provision of this chapter and except in cities having a population of one million or more,' boards of education 'shall review' all decisions of their superintendent Not to appoint a teacher to tenure, and to this end further provides that 'at least thirty days prior to the board meeting at which such recommendation is to be considered, (such teacher shall) be notified of such intended recommendation and the date of the board meeting at which it is to be considered' (bracketed matter supplied). Thereafter, the affected teacher has until 21 days prior to the date of the meeting to request in writing that he be furnished with written reasons for the recommendation, and that statement must be supplied within seven days. A written response to the reasons given may then be filed by the teacher 'not later than seven days prior to the date of the board meeting.' The final sentence of the section, which is particularly important, provides as follows: 'This section shall not be construed as modifying existing law with respect to the rights of probationary teachers or the Powers and duties of boards of education * * * with respect to the discontinuance of services of teachers or Appointments on tenure of teachers' (emphasis supplied).

Upon reading the statute and paying particular heed to its caption and final sentence, it is apparent that no change in existing substantive law was intended. Rather, the inequity sought to be redressed was the procedural anomaly whereby probationary teachers could be terminated on notice, without a hearing and without specification of reasons (Central School Dist. No. 1 of Towns of Brookhaven & Smithtown v. Three Vil. Teachers Assn., 39 A.D.2d 466, 467, 336 N.Y.S.2d 656, 657; Matter of Pinto v. Wynstra, 22 A.D.2d 914, 915, 255 N.Y.S.2d 536, 538; Matter of Grace v. Board of Educ. of City of N.Y., 19 A.D.2d 637, 241 N.Y.S.2d 429; Matter of High v. Board...