Fallon, Application of
| Decision Date | 26 August 1958 |
| Citation | 178 N.Y.S.2d 459,14 Misc.2d 9 |
| Parties | Application of Dale G. FALLON, Petitioner, For an Order, under Article 78 of the Civil Practice Act, to review the determination of the Board of Higher Education of The City of New York, Respondent, And that of Thomas V. Garvey, Provost and Acting President of Queens College, Respondent. |
| Court | New York Supreme Court |
Patrick J. O'Shea, Elmhurst, for petitioner (Gerard D. Crosson, Woodside, of counsel).
Peter Campbell Brown, Corp. Counsel, New York City, for respondents (Joseph F. Gibbons, Brooklyn, and Rose Schneph, New York City, of counsel).
J. IRWIN SHAPIRO, Acting Supreme Court Justice.
Application for an order reviewing the determination of the respondent Board of Higher Education of the City of New York (hereinafter called the Board) and adjudging that petitioner is entitled to tenure and reappointment as an instructor in the Department of Political Science for the Fall 1958 term.
Petitioner is an instructor in the Department of Political Science on the faculty of Queens College, which is under the jurisdiction of the respondent Board. He was first appointed to the faculty in September 1955 and has now served three full years. If he were appointed for another full year he would acquire tenure, that is, the right to hold his position during good behaviour and efficient and competent service and not to be removed except for cause. Education Law, § 6206.
On April 17, 1958, at a meeting of the Department of Political Science he was recommended by a majority vote for tenure on the department's staff. This was the first step in the procedure set up by the Queens College authorities for passing upon acquisition of tenure by members of the instructional staff. Thereafter the matter is reviewed by the Division of the College embracing that department, the College Committee on Personnel and Budget, the Administrative Committee, and finally by the respondent Board. Apparently petitioner's case was not processed beyond the initial step. On May 19, 1958, petitioner wrote to the Provost of the college requesting confirmation of his appointment. Upon receipt of that letter the Provost wrote to the chairman of the Political Science Department asking what reports had been made to the Dean and 'what information you may have given to Dr. Fallon.'
The chairman of the Department replied that at a meeting of the voting members of the Department of Political Science, held on May 1, 1958, he had reported a discussion between him and the Provost regarding low registration and limited budget and had moved that the department rescind its action of April 17th, and that said motion was adopted. The minutes of that meeting do not record the proposition put as a formal motion, nor do they indicate that any vote was taken; rather they recite that 'The Chairman reported that the Provost announced that, on the basis of the registration in the Department for the Fall Semester, 1958, the limited budget under which the College will be required to operate during the coming fiscal year will not allow for the appointment' on tenure of Dale G. Fallon. The minutes continue 'In the light of the budgetary restrictions imposed upon the Department, it is, therefore, unable to carry into effect its action taken at the Departmental Meeting, Thursday April 17, 1958 in respect to Drs. Akzin and Fallon.' Presumably the acquiescence of those present in the chairman's informal statement was regarded as the equivalent of a motion. The chairman of the Department further stated, in his letter of reply, that at a sub-committee meeting held on May 13th the motion of another professor that no appointments be made to a part-time program until sections had been assigned to the full-time members of the division failed of adoption. The minutes of that meeting show that said motion was defeated by a vote of four to three.
On June 6, 1958, after petitioner was informed that he would not be reappointed for the Fall, 1958, term, he wrote a letter to the chairlady of the Queens College Administrative Committee requesting favorable action by that committee in respect to his appointment to the permanent instructional staff. Thereafter he received a letter from the respondent Board, dated June 18, 1958, advising him that he would not be granted tenure or reappointment.
Respondent's answering papers allege that on May 1, 1958, the Department of Political Science rescinded its action of April 17, 1958, 'because of the limited budget available' and 'the low registration for courses proposed to be offered in the Political Science Department.' The budget, prepared in November 1957 and approved by the respondent Board in January 1958 and by the Board of Estimate on April 1, 1958, contains the same number of teaching lines as the previous year's budget. The preliminary registration for students for courses in the Department of Political Science for this Fall exceeds that of last year. It is evident, therefore, that the reasons assigned by the respondent for rescinding approval of the petitioner are specious and the real reasons, for some reason, have not been disclosed. Playing hide and seek with a man's livelihood should be beneath the respondents.
The Education Law provides that the respondent Board shall govern the public colleges within the City of New York (§ 6201) and shall appoint the teachers therein (§ 6202). For the purpose of appointments and promotions in the instructional staffs made after April 20, 1940, the legislature has directed that the respondent Board 'shall determine to what extent examinations are practicable to ascertain merit and fitness for each of the positions under its jurisdiction, and, in so far as examinations are deemed practicable, shall determine...
To continue reading
Request your trial
-
Anderson v. Board of Ed. of City of Yonkers
...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. 94......
-
Pauk v. Board of Trustees of City University of New York
...aff'd 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92, McMaster v. Owens, 275 A.D. 506, 90 N.Y.S.2d 491, Matter of Fallon v. Board of Higher Education, 14 Misc.2d 9, 178 N.Y.S.2d 459, aff'd 9 A.D.2d 766, 192 N.Y.S.2d 239, Schlaflander v. Brooklyn College, N.Y.L.J. July 12, 1967, p. 13, col. ......
-
Rosen v. Board of Higher Ed. of City of New York
...deemed to be the equivalent of the affirmative action for reappointment required by the statute (Matter of Fallon v. Board of Higher Educ. of City of New York, 14 Misc.2d 9, 178 N.Y.S.2d 459, aff'd 9 A.D.2d 766, 192 N.Y.S.2d 239; Education Law § 'Tenure' is defined as follows: "Tenure' shal......