Anderson v. Board of Ed. of City of Yonkers

• Decision Date: 19 March 1974
• Citation: 77 Misc.2d 904,354 N.Y.S.2d 521
• Parties: Application of Nedra ANDERSON et al., Petitioners, v. BOARD OF EDUCATION OF the CITY OF YONKERS, and Robert F. Alioto, Superintendent, Respondents.
• Court: New York Supreme Court

Page 521

354 N.Y.S.2d 521

77 Misc.2d 904

Application of Nedra ANDERSON et al., Petitioners, v. BOARD OF EDUCATION OF the CITY OF YONKERS, and Robert F Alioto, Superintendent, Respondents.

Supreme Court, Westchester County.

March 19, 1974.

Eugene M. Kaufman, New York City, for petitioners.

Eugene J. Fox, Corp. Counsel, Yonkers, for respondents.

JOSEPH F. GAGLIARDI, Justice.

In an Article 78 proceeding petitioners seek reinstatement to their positions as teachers. Petitioners are five teachers formerly employed in the school system of the City of Yonkers. Their claims raise two important issues in the area of academic freedom (1) whether probationary teachers are entitled to a full plenary hearing at the administrative level prior to termination of their services; and (2) whether the respondent Board of Education has the power under section 3031 of the Education Law to grant tenure in the absence of a positive recommendation by the school superintendent.

Factual Background

Petitioners are five of seven teachers out of a group of two-hundred and thirty-five who were not granted tenure in the Yonkers School District in 1973. Apparently all petitioners were hired in September 1970 for a three year probationary period which expired on June 30, 1973. ¹ On April 30, 1973 each petitioner received a letter from respondent Alioto, the Superintendent of Schools, which stated that their names would not be 'included in the resolution recommending tenure that will be presented to the Board of Education'. The letter further stated that the services of each petitioner would terminate on June 30, 1973. The letter also advised that, pursuant to their collective bargaining agreement with the Board, the petitioners were entitled, upon request, to an informal hearing with the Superintendent and a written evaluation prior to final decision. Thereafter, respondent Alioto designated persons to observe and evaluate the petitioners. Subsequently, on June 20, and 21, 1973 each petitioner received an informal hearing before the Superintendent which was attended by the petitioner, petitioner's school principal (with the exception of petitioner Ramos who was given the opportunity to submit a supplemental report) and a member of the Yonkers Federation of Teachers. On June 27, 1973 Dr. Alioto notified each petitioner in writing that he was adhering to his original decision. Two days later each petitioner by letter requested reasons for the termination. On July 10, 1973 Dr. Alioto responded by letter setting forth his reasons. On or before August 20, 1973 each petitioner filed written responses addressed to the Board. On August 23, 1973 the Board passed a resolution which Inter alia terminated the services of seven teachers, including petitioners. The minutes of the resolution indicate that Mr. Tice, President of the Yonkers Federation of Teachers, urged the Board to review the matter 'once more'; that Mr. Jacobson, President of the Board of Education, stated that each case had been reviewed by the Board members and was discussed with the Superintendent; and that Dr. Alioto stated that the Board cannot grant tenure 'unless the Superintendent recommends it'.

Probationary Teachers; Functions of Boards of Education and Superintendents; Judicial Review

The issues raised herein require a brief discussion regarding tenure and the respective functions of the Board of Education and School Superintendent. The primary purpose of tenure is to afford security to competent members of the education system (Mtr. of Boyd v. Collins, 11 N.Y.2d 228, 228 N.Y.S.2d 228, 182 N.E.2d 610). The tenure statutes as presently extant (Education Law §§ 2509, 2573, 3012, 3013) were enacted to impose conditions on the Board of Education's exercise of power in regard to hiring (Mtr. of McMaster v. Owens, 275 App.Div. 506, 90 N.Y.S.2d 491). Prior thereto, Boards had unlimited power to hire or refuse to hire teachers or renew their contracts (ibid.). The cited sections are located in different articles of the Education Law and, while each section relates to a specific type of school system, they are comparable and receive uniform construction. Article 52 of the Education Law applies to the city school district in Yonkers (Education Law § 2550). Former section 2573, subdivision (1) provided that teachers shall be appointed by the Board upon recommendation of the Superintendent for a probationary period of three years (now five years, see footnote 1 supra). Section 2573, subdivision (5) of the Education Law provides that 'at the expiration of the probationary term of any persons appointed for such term, the superintendent of schools shall make a written report to the board of education recommending for permanent appointment those persons who have been found competent, efficient and satisfactory'. Persons not recommended for appointment on tenure must be notified of that fact by the Superintendent no later than sixty days prior to the expiration of the probationary period (Education Law § 2573(1)). The statute also provides that a probationary teacher's services may be discontinued at any time upon recommendation of the Superintendent and majority vote of the Board (ibid.). The ultimate power of appointing teachers and superintendents resides in the Board (Education Law § 2554(1), (2), (15, par. a)). Upon receipt of tenure a teacher may not be discharged except as provided in section 3020--a of the Education Law, which gives him the right to receive the charges against him and the right to a hearing.

The superintendent's primary function in regard to personnel is to screen all the candidates eligible for tenure and recommend the appointment of those who qualify by objective standards (Mtr. of Tischler v. Bd. of Educ., Monroe, 37 A.D.2d 261, 323 N.Y.S.2d 508). Prior to 1972 it was well recognized that the Board could not grant tenure in the absence of the positive recommendation of the Superintendent (Mtr. of McMaster v. Owens, 275 App.Div. 506, 90 N.Y.S.2d 491, Supra; Mtr. of Gunthorpe v. Board of Educ.,41 Misc.2d 757, 246 N.Y.S.2d 462; Mtr. of High v. Bd. of Education, N. Hempstead, 169 Misc. 98, 6 N.Y.S.2d 928, affd. 256 App.Div. 1074, 11 N.Y.S.2d 669, affd. 281 N.Y. 815, 24 N.E.2d 486; Mtr of Meehan, 11 Ed.Dept.Rep. 34; Mtr. of Marino, 11 Ed.Dept.Rep. 336; Mtr. of Porteous, 50 St.Dept.Rep. 20; see Mtr. Sechrest v. Board of Educ., 7 Misc.2d 297 163 N.Y.S.2d 852 (Christ, J.)) ² even where the Board so desires (Mtr. of Bd. of Ed., Tn. of Alexandria, 78 St.Dept.Rep. 78). On the other hand, the Board may deny tenure despite the positive recommendation of the Superintendent (Legis. Conference v. Bd. of Higher Educ., 38 A.D.2d 478, 330 N.Y.S.2d 688, affd. 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92; Cent. Sch. Dist. No. 1 (Mahopac Teachers), 72 Misc.2d 503, 339 N.Y.S.2d 790; Mtr. of Gunthorpe v. Bd. of Educ., 41 Misc.2d 757, 246 N.Y.S.2d 462, Supra; Mtr. of Solominski, 5 Ed.Dept.Rep. 120; Mtr. of Downey, 72 St.Dept.Rep. 29). Thus, tenure could be acquired by any one of two methods: (1) upon the recommendation of the Superintendent and concurrence of the Board; or (2) by estoppel where the teacher continues to perform services beyond the probationary period with the knowledge and consent of the Superintendent and the Board (Mtr. of Gunthorpe v. Bd. of Educ., Supra; Mtr. of Downey, Supra). The Board may Dismiss a probationary teacher prior to the expiration of the probationary period but only upon the recommendation of the Superintendent (Matter of Bd. of Educ. Ellicottville, etc. v. Allen, 283 App.Div. 376, 128 N.Y.S.2d 155; Matter of Graves v. Barber, 193 Misc. 326, 83 N.Y.S.2d 520). Until recent developments in the law it was settled that a probationary teacher acquired no vested rights and his services could be discontinued without a hearing and without giving reasons therefor (Mtr. of Clausen v. Bd. of Educ., 39 A.D.2d 708, 331 N.Y.S.2d 855; Legis. Conference v. Bd. of Higher Educ., 38 A.D.2d 478, 330 N.Y.S.2d 688, affd. 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92, Supra; Mtr. of Board of Educ. of City of Albany v. State Div. of Human Rights, 38 A.D.2d 657, 327 N.Y.S.2d 110, affd. 30 N.Y.2d 925, 335 N.Y.S.2d 681, 287 N.E.2d 376; Mtr. of Butler v. Allen, 29 A.D.2d 799, 287 N.Y.S.2d 150; Pinto v. Wynstra, 22 A.D.2d 914, 255 N.Y.S.2d 536).

In Matters regarding the discontinuance of a probationary teacher's services the Commissioner of Education initially took the view that the Board had vast discretion which was not subject to his review (Mtr. of Williams, 53 St.Dept.Rep. 164; Mtr. of Silver, 50 St.Dept.Rep. 194). Similarly, the Commissioner has refused to review the Superintendent's decision not to certify a probationary teacher for tenure (Mtr. of Payne, 42 St.Dept.Rep. 382). However, it has been held that the courts in an Article 78 proceeding will review the Board's denial of tenure upon claims of malevolent factors (Mtr. of Fallon v. Board of Higher Educ., 14 Misc.2d 9, 178 N.Y.S.2d 459 (Shapiro, J.), affd. 9 A.D.2d 766, 192 N.Y.S.2d 239; see Hickey v Carey, Sup., 86 N.Y.S.2d 813, affd. 275 App.Div. 949, 89 N.Y.S.2d 610; People ex rel. Graves v. Barber, Sup., 86 N.Y.S.2d 532) where for example, it is alleged that discontinuance was motivated by exercise of the teacher's constitutional rights, such as freedom of speech (Mtr. of Bergstein v. Bd. of Ed., 42 A.D.2d 591, 344 N.Y.S.2d 732; Mtr. of Tischler v. Bd. of Educ., Monroe, 37 A.D.2d 261, 323 N.Y.S.2d 508, Supra; Mtr. of Brown v. Bd. of Educ., 76 Misc.2d 923, 352 N.Y.S.2d 378 (dec. Feb. 4, 1974)). The Commissioner of Education has recently ruled that such claims are reviewable by his office (Mtr. of Marino, 11 Ed.Dept.Rep. 336; Mtr. of James, 10 Ed.Dept.Rep. 58). The courts will also entertain an Article 78 proceeding to compel a Princiopal to forward the names of probationary teachers to the Superintendent for inclusion in the list from which he recommends persons for tenure (Brown v. Union Free...