The time to appeal a termination is immediately following the Chancellor's original decision, not after a review of the decision.
Don't forfeit your rights to pursue justice because you do not meet a legal deadline! (Called the "Statute of Limitations")
Betsy Combier
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Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
MATTER FRASIER v. BD. EDUC.
Attorney(s) appearing for the Case
71 N.Y.2d 763 (1988)
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 the State of New York.
Argued April 25, 1988.
Decided June 7, 1988.
Peter L. Zimroth,
Corporation Counsel (Fay S. Ng and Stephen J. McGrath of
counsel), for appellants.
Richard A. Shane and James
R. Sandner for respondent.
Chief Judge WACHTLER
and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.
[71 N.Y.2d 765]
HANCOCK, JR., J.
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, 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; James v Board of Educ., 37
N.Y.2d 891, 892). 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 lv denied 34 N.Y.2d 519). 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
[71 N.Y.2d 766]
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).
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; Matter of Cohoes City School Dist. v Cohoes
Teachers Assn., 40 N.Y.2d 774, 777, 778), 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). 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 [1] [a] [emphasis supplied]).
The question remains, however, whether
anything in the review procedure established in the bylaws (see,
Education Law § 2590-d [1]; Matter of Lehman v Board of Educ., 82
A.D.2d 832, 833; Matter of Jacobs v Board of Educ., 73
A.D.2d 623, 624) 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 Aherns v Board
of Educ., 57 A.D.2d 925; Matter of Clausen v
Board of Educ., 39 A.D.2d 708). 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 Chancellor under Education Law § 2573 (1) (a)
and performing no services for the school system, become entitled to full
salary during the review process, regardless of its eventual outcome. To obtain
such entitlement, a discontinued teacher would have only to institute review
under section 5.3.4. We need not consider the constitutional implications of
such a construction, for it was clearly never intended.
II
In this case, petitioner had a probationary
appointment as a teacher of English as a second language at the Adlai Stevenson
High School. The Chancellor, upon the recommendation of the Superintendent of
the Bronx High Schools, advised petitioner by letter on June 28, 1984 that his
service as a teacher was "terminated as of the close of business on
September 4, 1984" and that pursuant to the collective bargaining
agreement petitioner was "entitled to the review procedures under Section
5.3.4 of the Bylaws". In a letter to petitioner dated March 25, 1985, the
Chancellor stated: "After careful consideration
[71 N.Y.2d 768]
of your case, I have determined to reverse the recommendation to
discontinue your probationary service as a Teacher of English as a Second
Language which was effective at the close of business September 4,
1984" (emphasis added).
Petitioner does not contend that the
Chancellor's initial action in discontinuing his services was unlawful in the
sense that the Chancellor lacked authority or that it was in violation of
petitioner's constitutional or statutory rights. Matter of Golomb v
Board of Educ. (92 A.D.2d 256), relied on by petitioner and
the Appellate Division, is, therefore, not on point. In that case, the
probationary status of a teacher in the New York City system was improperly
terminated by her high school principal rather than, as required, by the Chancellor.
Thus, unlike the case at bar, the ouster in Golomb was
patently unlawful (id., at 258). Nor does petitioner contend that his
discontinuance was procedurally defective (cf., Matter of Pascal
v Board of Educ., 100
A.D.2d 622 [probationary teacher not given 60 days' prior
notice of discontinuance required by Education Law § 2573 (1) (a)]). There is
no question that the Chancellor's June 28, 1984 letter was within the
probationary period, that it gave petitioner more than the required 60 days'
notice of the effective date of the termination, and that the action was taken
on recommendation of the Superintendent (Education Law § 2573 (1) (a); see, Matter
of Brown v Board of Educ., 42 AD2d, supra, at 703). Petitioner
argues only that the Chancellor's original action, as recited in the June 28,
1984 letter, was incomplete and, for that reason, ineffective. We disagree.
There is nothing tentative or conditional
about the letter. The message is simple and direct: that petitioner's
"probationary service as a teacher of ESL is terminated as
of the close of business on September 4, 1984" (emphasis supplied). The
Chancellor's June 28, 1984 letter met all the statutory requirements.
Accordingly, the order should be reversed,
with costs, and the proceeding dismissed.
Order reversed, etc.
FootNotes
* Section 5.3.4C pertaining to review of decisions on continuance of services is as follows:Review Committee in Recommendation for Discontinuance of Service
Any person in the employ of the board of education who is summoned to appear before the chancellor, or a committee designated by the chancellor, in respect of the discontinuance of service during the probationary term, or at the expiration thereof, shall have a review of the matter before a committee which shall be designated in accordance with contractual agreements covering employees or by regulations of the chancellor, as appropriate.After the review, the committee shall forward its advisory recommendation to the community school board or to the chancellor in accordance with contractual agreements.
Record on Appeal to the Court of Appeals
New York Court of Appeals Records and Briefs2
New York Court of Appeals Records and Briefs3
