Bacon v. BD. OF EDUC., CITY OF NY

• Decision Date: 15 April 1953
• Citation: 205 Misc. 73
• Parties: Carleton Bacon et al., Plaintiffs,<BR>v.<BR>Board of Education of the City of New York, Defendant.
• Court: New York Supreme Court

205 Misc. 73

Carleton Bacon et al., Plaintiffs,

v.Board of Education of the City of New York, Defendant.

April 15, 1953.

Sidney A. Fine and Morris Weisberg for plaintiffs.

Denis M. Hurley, Corporation Counsel (Sidney P. Nadel, Edward J. McLaughlin and Louis Montelione of counsel), for defendant.

MATTHEW M. LEVY, J.

Some years ago, the board of education of the City of New York created the position of chairman of department (originally called "first assistant") in a number of different subjects in the academic and vocational high schools in the city, and designated the licenses and qualifications required for appointment thereto. There are presently forty-three of such positions. He who is a chairman of department of a specified subject is required by the by-laws of the board of education to have a license as such chairman — separate and distinct from his license as a high school teacher — and to be appointed, after a competitive examination, from an eligible list promulgated for the position as chairman by the board of examiners of the board of education. The by-laws of the board of education provided for two salary schedules: Schedule II-a for teachers and Schedule II-b for chairmen of departments. The chairman's salary was and is greater than that of the teacher. Subdivision 6 of section 82 of the board's by-laws provides for such licensed and appointed chairmen, specifies that they shall be in charge of departments of instruction of five or more teachers in subjects in which they are licensed, and, further, that "In departments in which there are no chairmen or in which the chairman is relieved of his post, a teacher may be assigned by the principal, subject to the approval of the superintendent of schools, to serve as chairman, without increase in rank or pay." Pursuant to this provision, some of the principals organized certain departments of instruction in their schools, a number of them in subjects additional to the forty-three designated by the board. The routine procedure would be for the principal to inform the superintendent of schools of the organization of the specific department of instruction, and each year to report the name of the teacher serving as chairman thereof, together with his license as acting chairman — or as teacher if he were merely assigned as chairman.

The plaintiffs, fifty-four in number, hold permanent appointments as licensed high school teachers in the city of New York. Each of the plaintiffs was assigned by the principal of the high school (to which that plaintiff was then attached as a teacher) to serve for a one-term period as a chairman of a department of instruction. Thereafter, the time-to-time designations of the plaintiffs were, on renewed assignments, for a total of varying periods ranging from one year to thirty years. Thirty-two plaintiffs were assigned as acting chairmen of departments comprised of five or more teachers (including the plaintiff); twenty-two of the plaintiffs, of departments of no more than four teachers (including the plaintiff); and one of the latter group of plaintiffs, Weingarten, also supervised two teachers from other departments who taught classes in his. None of the plaintiffs (except the plaintiff Kraemer, whose status will be separately considered) holds a license as chairman, and in fact some of the plaintiffs took and failed examinations for the prescribed license. Some of the assignments were nevertheless continued, because, in the exercise of administrative discretion, the board appointed eligibles to other vacant chairman-of-department positions where, in its judgment, the services of a licensed and appointed chairman were more urgently required; and many of the assignments were renewed because the board did not have any eligibles available for appointment to the respective positions of chairmen of departments filled by the plaintiffs in certain specific areas of instruction. While the superintendent of schools was apprised of the assignments of the plaintiffs to serve as chairmen, the board did not take any action with respect thereto. The board paid to each of the plaintiffs — and each of them accepted through the years — the lower salary of a teacher under Schedule II-a and not the salary of a chairman of department under Schedule II-b. There is no claim before me that any of the plaintiffs was compelled to accept the assignments against his will, over his objection, under protest or in fear of reprisal. On the contrary, the proof is undisputed that as an acting chairman, a teacher had certain assumed advantages, such as reduction of normally required class-work duties, some authoritative responsibility, higher standing among his fellows, sought-after associations in the school system, and practical experience deemed helpful in qualifying for licenses as chairmen or in allied fields of endeavor, pedagogic and otherwise.

The plaintiffs have sued the board of education of the City of New York in this action for a judgment (1) declaring arbitrary, discriminatory, illegal and void so much of subdivision 6 of section 82 of the defendant's by-laws as permits the assignment of a teacher to serve as acting chairman of department of instruction in an academic or vocational high school "without increase in rank or pay"; (2) declaring that the high school teachers assigned to serve as and doing the work of acting chairmen of departments are each entitled to the higher salary specified in Schedule II-b for a chairman of department; and (3) awarding a money judgment to each of the plaintiffs for the difference between the salary paid to him as a teacher and that which he claims he should have received as a chairman.

In respect of matters pertinent to the present inquiry, the statutory scheme of things is quite comprehensive and easily comprehensible. The Education Law is detailed, explicit and mandatory. A rapid survey of its applicable provisions will aid in a solution of the problem presented in this lawsuit.

The power is vested in the board of education "To create, * * * maintain and consolidate such positions * * * as, in its judgment, may be necessary for the proper and efficient administration of its work; to appoint * * * such * * * supervisors, principals, teachers * * * and other employees * * * as said board shall determine necessary for the efficient management of the schools * * *; and to determine their duties except as otherwise provided" by the statute (§ 2554, subd. 2). It is the board of education (and then only "on the recommendation of the superintendent of schools") which is the body empowered to designate "the kind and grades of licenses which shall be required for service as principal * * * supervisor * * * or * * * head of department * * * or any other position of the teaching staff together with the academic and professional qualifications required for each kind or grade of license" (§ 2573, subd. 10). The board of education alone has the power to make appointments of "supervisors, principals, teachers and all other members of the teaching and supervising staff", and then only "upon the recommendation of the superintendent" (§ 2573, subd. 1). It is the superintendent who has the power to issue licenses "as may be required under the by-laws and regulations of the board", but such licenses may be issued only on the recommendation of the board of examiners (§ 2566, subd. 7). The board of examiners has the duty "to hold examinations whenever necessary, to examine all applicants who are required to be licensed or to have their names placed upon eligible lists for appointment in the schools * * *, and to prepare all necessary eligible lists" (§ 2569, subd. 1). Such appointments "shall be from the first three persons on appropriate eligible lists prepared by the board of examiners" (§ 2573, subd. 10). And, in the concluding sentence of subdivision 10 of section 2573 of the Education Law, the Legislature has unmistakably provided that "No person required to have a license under the provisions of this chapter [Chapter 16 of the Consolidated Laws, being the Education Law] in order to be employed in a position who does not have such license shall have any claim for salary, except that a person who has been assigned to teach in a subject or field not specifically covered in his license but on the same rank or level of service shall be entitled to his salary."

Our courts have unvaryingly adhered to the principle that a teacher who performs the duties of a higher grade until that grade is finally filled as provided by law is not entitled to the tenure of the higher grade or the salary attached to it. Salary and tenure under the law are assured only to those persons who obtain their positions in the manner prescribed by law. An "appointment" by the board of education is as legally necessary for a "probationary period" as for any other term (Education Law, § 2573, subd. 1). One not so appointed is thus merely a de facto holder of the position and is not entitled to recover the salary scheduled for the position. (Hoefling v. Board of Educ. of City of New York, 120 App. Div. 545; Hazen v. Board of Educ. of City of New York, 127 App. Div. 235.) It is the right to the position which determines the right to the salary incident thereto, and not the performance of the duties of the position. (Thomson v. Board of Educ. of City of New York, 201 N.Y. 457; Stetson v. Board of Educ. of City of New York, 218 N.Y. 301.) The statutes so provide in language and effect, and the by-laws of the board of education also leave no room for doubt on this question. Sections 390 through 394 of the by-laws establish the licenses and qualifications requisite for first assistant (now called chairman-of-department) positions in general, academic, special, technical and shop subjects. "Teachers temporarily assigned to higher positions to which they have not been regularly appointed in accordance with law shall not be entitled to a higher...