Jerry v. Board of Ed. of City School Dist. of City of Syracuse
| Citation | 35 N.Y.2d 534,324 N.E.2d 106,364 N.Y.S.2d 440 |
| Parties | , 324 N.E.2d 106 In the Matter of William JERRY, Respondent-Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT the CITY OF SYRACUSE et al., Appellants-Respondents, and Arnold T. Dettor, Respondent. Gary GOLDIN, Appellant-Respondent, v. BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF BROOKHAVEN AND SMITHTOWN, Respondent-Appellant. |
| Decision Date | 20 December 1974 |
| Court | New York Court of Appeals |
Bernard F. Ashe, Albany (Ira Paul Rubtchinsky, Albany, of counsel), for respondent-appellant in the first above-entitled proceeding.
David W. Larrison, Buffalo, for appellant-respondent in the first above-entitled proceeding.
Frederic Block, Centereach, for appellant-respondent in the second above-entitled action.
Peter V. Snyder, Patchogue, for respondent-appellant in the second above-entitled action.
Louis J. Lefkowitz, Atty. Gen. (Jesse J. Fine and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law.
In the context of these two cases we hold that section 3020--a of the Education Law, Consol.Laws, c. 16 as presently drafted, does not authorize suspension of a tenured teacher without pay.
In Jerry, after investigation and the filing of initial charges and confronted with continuing parent complaint, the Board of Education, finding probable cause for both the initial and additional charges, suspended a physical education teacher without pay in June, 1973. The charges involved allegations that the teacher had subjected pupils to 'unreasonable and excessive physical force', had used 'inappropriate and profane language in the presence of pupils', and in both respects had been guilty of insubordination since specific orders had previously been issued to him to desist from such conduct. The charges were filed with the Commissioner of Education for a hearing under section 3020--a. The hearing was begun in July, 1973 and then adjourned by agreement to September of that year.
On August 31, 1973 the teacher instituted the present proceeding to declare section 3020--a unconstitutional as applied to him, to rescind his suspension without pay, to be reinstated with back pay, and for associated procedural and other relief. Supreme Court's dismissal of the teacher's petition was modified at the Appellate Division by directions that the teacher be paid back and continuing pay and that the matter be remitted for a hearing on the charges as directed.
In Goldin, the Board of Education instituted disciplinary proceedings against a tenured guidance counselor based on two charges. The first and principal charge was: 'That on or about the night of August 8 and the early morning of August 9, 1973 * * * (the teacher) spent the night at a residence * * * in said school district, and slept with an 18-year old female, a member of the 1973 graduating class of said school district, and a student for whom * * * (the teacher) was a guidance counsellor, * * * (the teacher) not being married to said student, and the parents of said student not being then in residence.' The second charge was that the teacher had falsely denied the allegations of the first charge. Pending the resolution of these charges the teacher was suspended without pay pursuant to section 3020--a.
The teacher thereupon instituted the present action for a declaration of his rights and appropriate associated injunctive relief, and obtained a supporting stay of the disciplinary proceedings pending the resolution of the action. Supreme Court permanently enjoined prosecution with respect to the first charge, but upheld the teacher's suspension without pay pending the disposition of the second charge. The Appellate Division modified by striking the injunction with respect to the first charge and by limiting withholding of the teacher's pay to a period of 30 days from the date suspension was imposed.
In Goldin the teacher argues that to permit the first charge to be used as the basis for disciplinary proceedings against him would be to violate his constitutional right to privacy and challenges the withholding of his pay on both statutory and constitutional grounds; the board opposes these contentions and asserts that it may suspend the teacher without pay pending the disposition of the disciplinary proceedings under section 3020--a. In Jerry, also on cross appeals, the teacher mounts a broad assault on section 3020--a, 1 including a specific challenge to his suspension without pay; the board urges that it has authority to suspend the teacher without pay pending the outcome of the section 3020--a proceedings, and in any event that the teacher should be required to deduct earnings from outside employment in mitigation of damages.
We proceed first to the resolution of the issue common to both cases--when a tenured teacher has been suspended may the Board of Education withhold his salary pending the determination of disciplinary proceedings under section 3020--a? All of the members of the court are of the view that suspension of a tenured teacher without pay pending the final determination of section 3020--a disciplinary proceedings, provided such determination is not unreasonably delayed, would involve no infringement of the teacher's constitutional rights (Sanford v. Rockefeller, 35 N.Y.2d 547, 364 N.Y.S.2d 450, 324 N.E.2d 113; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; cf. Mitchell v. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406; Pordum v. Board of Regents of State of New York, 2 Cir., 491 F.2d 1281, cert. den. 419 U.S. 843, 95 S.Ct. 74, 42 L.Ed.2d 71). A majority of the court, however, holds that section 3020--a as now worded does not authorize withholding of pay during a period of suspension.
The power of suspension is essential to the sound administration of the public school system--for the protection of the pupils in certain circumstances, for the protection of the teacher in other circumstances, and in many situations for the promotion of the best interests of the public. This authority is expressly granted to the Board of Education under subdivision 2 of section 3020--a--'The employee may be suspended pending a hearing on the charges and the final determination thereof.'
It does not follow, however, that to accomplish the legitimate objectives of suspension there must be an accompanying withholding of pay. Compensation is a matter of such substantive right on the part of the teacher that we conclude that it cannot be taken away from him except pursuant to explicit statutory authorization. We do not find such predetermination authorization in section 3020--a as now worded.
We are not unaware that a sufficient predicate for withholding has been found by some in the indirect reference to suspension without pay contained in subdivision 4 that '(i)f the employee is acquitted he shall be restored to his position With full pay for any period of suspension' (emphasis added) (see the dissent herein; Goldin v. Board of Educ., 45 A.D.2d 870, 357 N.Y.S.2d 867; cf. Matter of Mitchell v. Board of Educ., 252 App.Div. 873, 300 N.Y.S. 285). To the assertion that one should infer from this phrase an intention on the part of the Legislature to confer authority to withhold, we rejoin that had there been such an intention the easy and normal manner of its expression would have been to include an explicit, appropriate provision therefor in subdivision 2. We find the absence of an explicit provision more significant than the inclusion of the oblique reference, particularly in the face of the conceded fact that the existence of such authority is not necessary to the achievement of the primary objective for which we conceive the power of suspension was granted. 2
The dissenters in this instance would in reality call for judicial amendment of the statute rather than its judicial construction. This conclusion appears evident from the fact that all who would find authority to withhold pay in the statute is now worded would also require the imposition of some limitation of time. They differ widely, however, as to what time limit should be supplied. The dissenters in our court would conclude that the statute imposes no more specific a time limit than that the section 3020--a proceeding be completed without unreasonable delay. The majority in the Appellate Division reads the statute to impose a 30-day time limit. The Attorney-General invites us to find a 90-day limit. The statute itself, of course, by neither direct provision nor oblique intimation suggests any time limitation at all.
There being no constitutional impediment, in the view of all of us, to a statutory grant of explicit authority to withhold pay pending final determination of section 3020--a proceedings promptly conducted, we leave it to legislative determination, if the Legislature be so minded, to grant specifically defined authority to withhold compensation during suspension. 3
Accordingly we hold that the Board of Education in neither Jerry nor Goldin had authority to withhold compensation during the period of suspension of the teacher involved.
As we recently held in Matter of Lezette v. Board of Educ., Hudson City School Dist., 35 N.Y.2d 272, 360 N.Y.S.2d 869, 319 N.E.2d 189, in circumstances similar to those presented here, the boards in both Jerry and Goldin are entitled to credit against the teacher's entitlement to back salary all earnings which the teachers may have had from other employment during their periods of suspension.
There remains for brief consideration in Goldin the teacher's contention that constitutional protection of his right of privacy precludes use of the first charge as a predicate for disciplinary proceedings against him (cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510). We reject his contention in the circumstances of this case. 4
We cannot accept the proposition that the Constitution confers an absolute...
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