Frasier v. Board of Educ. of City School Dist. of City of New York

• Decision Date: 07 June 1988
• Citation: 525 N.E.2d 725,530 N.Y.S.2d 79,71 N.Y.2d 763
• Parties: , 525 N.E.2d 725, 48 Ed. Law Rep. 273 In the Matter of Richard FRASIER, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 79

530 N.Y.S.2d 79

71 N.Y.2d 763, 525 N.E.2d 725, 48 Ed.

Law Rep. 273

In the Matter of Richard FRASIER, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

June 7, 1988.

Peter L. Zimroth, Corp. Counsel (Fay S. Ng and Stephen J. McGrath, New York City, of counsel), for appellants

Richard A. Shane and James R. Sandner, New York City, for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Petitioner, a probationary teacher in the New York City school system, was notified by a letter from the Chancellor dated June 28, 1984 that his probationary appointment was terminated as of September 4, 1984. Subsequently--after a review, as afforded by the collective bargaining agreement, under the procedures established in the Board bylaws--the Chancellor reversed his earlier determination and reinstated petitioner to probationary status.

The issue in this appeal by respondent Board of Education is whether the Chancellor's original action terminated petitioner's rights as a probationary appointee under Education Law § 2573(1)(a) as of September 4, 1984, or whether, as petitioner claims in his CPLR article 78 proceeding, that action was nonfinal and ineffective until completion of the review procedure. The Appellate Division, 130 A.D.2d 746, 516 N.Y.S.2d 44, affirming Supreme Court's judgment in favor of petitioner, held that the Chancellor's original determination was not final and that, therefore, from September 4, 1984 until March 25, 1985, when the review was complete, petitioner was illegally deprived of his position. Accordingly, it directed that petitioner's reinstatement be retroactive with back pay and full benefits from September 4, 1984. We granted leave to appeal and, for reasons which follow, now reverse.

I

Unquestionably, a Board of Education, under Education Law § 2573(1)(a), has the right to terminate the employment of a probationary teacher at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith ( see, Matter of Venes v. Community School Bd., 43 N.Y.2d 520, 525, 402 N.Y.S.2d 807, 373 N.E.2d 987; James v. Board of Educ., 37 N.Y.2d 891, 892, 378 N.Y.S.2d 371, 340 N.E.2d 735). In the City of New York, the Chancellor, as the Board's designee, may properly make the determination to discontinue a probationer ( see, Matter of Brown v. Board of Educ., 42 A.D.2d 702, 345 N.Y.S.2d 595 lv. denied 34 N.Y.2d 519, 359 N.Y.S.2d 1026, 316 N.E.2d 884). A teacher who has been discontinued, however, may ask the Chancellor to review his decision and, in effect, reverse himself pursuant to section 5.3.4 of the Board of Education bylaws. ^* Under this procedure, a hearing is held before a committee appointed by the Chancellor and selected in accordance with the collective bargaining agreement. After the hearing, the committee submits its advisory findings and recommendations to the Chancellor who makes the ultimate decision ( see, Matter of Kaufman v. Anker, 42 N.Y.2d 835, 837, 397 N.Y.S.2d 376, 366 N.E.2d 77).

It is a basic policy underlying Education Law § 2573(1)(a) that the responsibility for selecting probationary teachers and evaluating them for appointment on tenure should lie with the Board of Education upon appropriate recommendation of its professional administrators ( see, Honeoye Falls-Lima Cent. School Dist. v. Honeoye Falls-Lima Educ. Assn., 49 N.Y.2d 732, 734, 426 N.Y.S.2d 263, 402 N.E.2d 1165; Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 777, 778, 390 N.Y.S.2d 353, 358 N.E.2d 878), and that the Board should have broad discretion in making such decisions (see, Matter of Venes v. Community School Bd., supra; Bergstein v. Board of Educ., 34 N.Y.2d 318, 323, 357 N.Y.S.2d 465, 313 N.E.2d 737). From the language of Education Law § 2573(1)(a), it is evident that a decision not to grant tenure to a probationary teacher, once made, is intended to be final. The statute contains no provision for reconsideration or review or for reinstatement of a discontinued probationary appointee. Except for the requirement that a person who is not being recommended for tenure be notified in writing no later than 60 days before the expiration of the probationary term, the authority of the Board to discontinue the services of a probationer is without temporal limitation. Indeed, the Board is specifically authorized to exercise its power to discontinue "at any time during such probationary period" (Education Law § 2573).

The question remains, however, whether anything in the review procedure established in the bylaws (see, Education Law § 2590-d Matter of Lehman v. Board of Educ., 82 A.D.2d 832, 833, 439 N.Y.S.2d 670; Matter of Jacobs v. Board of Educ., 73 A.D.2d 623, 624, 422 N.Y.S.2d 466) makes the Chancellor's original decision on discontinuance nonfinal. We think not. Section 5.3.4 of the bylaws in no way pertains to the finality of the Chancellor's decision. The section is procedural only, contains no provision concerning reinstatement or back pay, and does not purport to affect the teacher's substantive rights under the statute.

Probationary teachers have no constitutional or statutory right to a review of the Chancellor's decisions to discontinue their services and to deny tenure ( see, Matter of Ahrens v. Board of Educ., 57 A.D.2d 925, 395 N.Y.S.2d 44; Matter of Clausen v. Board of Educ., 39 A.D.2d 708, 331 N.Y.S.2d 855). Their right to a review stems solely from the collective bargaining agreement. Section 5.3.4 does no more than establish an optional procedure under which a teacher may ask the Chancellor to reconsider and reverse his initial decision, a decision which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573(1)(a). To adopt petitioner's position that a section 5.3.4 review postpones the effective date of the Chancellor's action until completion of the review procedure would have anomalous consequences. A probationary teacher could, although validly removed from the teaching rolls by action of the...