32 N.Y.2d 126 | NY | 1973
In this article 78 proceeding brought to compel the respondent Comptroller of the City of New York to comply with a grievance settlement between the respondent Board of Higher Education of the City of New York and the petitioner United Federation of College Teachers, Local 1460, AFL-CIO [UFCT], the question presented is whether the payment of public moneys pursuant to a grievance settlement awarding back salary for a period when concededly no services were rendered would constitute a gift of public funds in violation of article VIII (§1) of the New York State Constitution.
Petitioner Antonopoulou was employed for several years by Queens College as a full-time lecturer, the terms of her employment being governed by a collective bargaining agreement between the UFTC and the respondent Board of Higher Education of the City of New York.
Step One of the three-step grievance procedure having failed, the UFCT, on April 27, 1970, filed a Step Two Grievance with
In dismissing the petition, Special Term upheld the Comptroller’s determination that payment would constitute a proscribed gift. ‘ ‘ In essence ’ ’, the court reasoned, ‘1 her right to compensation depends upon work performed and she cannot recover against the Board of Higher Education except for services actually rendered. It would, according to the general rule as applied in favor of a municipal corporation, be against public policy and sound morals to pay for constructive services (Warner v. Board of Educ. of City of N. Y., 14 A D 2d 300). Payment of such public money falls within the prohibition of the Constitution (see Mullane v. McKenzie, 269 N. Y. 369) ” (67 Misc 2d 851, 852-853). As noted above, the majority at the Appellate Division agreed, stating that ‘‘ the satisfaction of individual objections by a gift of public funds is counter to the provisions of section 1 of .article VIII of the New York State Constitution ” (39 A D 2d 685, 686).
The dissenters, Justices Mabkewich and Nunez, rejected the í i gift ’ ’ theory, finding instead that the grievance award was a bargained-for, contractual right, ‘ ‘ as binding as though set forth in the contract itself ’ ’. As such, they concluded, it “is no more a 1 gift ’ than any other award of damages for unlawful deprivation of an opportunity afforded by contract ” (39 A D 2d 685, 686). We agree.
In support of its conclusion that payment of back salary as required by the Step Two Grievance Decision would constitute an unconstitutional gift of public funds, Special Term relied upon Matter of Mullane v. McKenzie (269 N. Y. 369) and Warner v. Board of Educ. (14 A D 2d 300, affd. 12 N Y 2d 924) for the proposition that actual services must be rendered before a claim for compensation may constitutionally be honored. Neither of these cases so holds. Far from requiring a rendition of actual services, Mullane and Warner merely expound upon the general principle that there must be a legal obligation on the part of the State or municipality before public funds can be paid to individuals. Impliedly, in each of these cases, such a legal obligation might be either statutory or contractual; neither would require actual services as a constitutional prerequisite where a legal obligation to pay compensation otherwise exists.
Similarly, Warner v. Board of Educ. (14 A D 2d 300, affd. 12 N Y 2d 924, supra) turned on the failure of a legal obligation in a limited factual setting. There the right of a substitute teacher to compensation upon reinstatement after wrongful termination was in issue. Emphasizing the lack of contractual
Moreover, in Matter of Boyd v. Collins (11 N Y 2d 228), this court expressly upheld the right of a tenured teacher to back pay upon reinstatement. Finding invalid an agreement whereby the petitioning teacher gave up her tenured status without the-requisite hearing and in return for the payment of a year’s salary, the lower courts reinstated the petitioner at the end of the year without requiring the return of the salary for that period during which no services were rendered. Writing for the majority, Chief Judge Desmond affirmed the entitlement to back pay, noting that after she was told to stop teaching the petitioner was under no obligation to present herself each morning for work “ since she had a valid permanent contract of employment ” (11 N Y 2d 228, 234-235). The payment of salary for the period during which no services were rendered was, therefore, pursuant to a contractual obligation and was not an unconstitutional gift.
In the instant case, the collective bargaining agreement, contemplating as it does a continuing process of grievance resolution through the prescribed grievance procedures, created an enforceable contractual right in the subsequent settlement. Absent a showing, not here present, that the grievance did not relate to the terms or conditions of employment, the settlement is as binding as any other arbitration award (Truck Drivers Union v. Riss & Co., 372 U. S. 517). Consequently, there was a legal obligation on the part of the municipality to comply with the settlement decision, and a payment thereunder cannot be considered a “ gift ”.
Accordingly, the order of the Appellate Division is reversed, the petition reinstated, and the matter remitted to Special Term for further proceedings not inconsistent with our determination.
Order .reversed, with costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.
. Article VIII ( § 1) of the New York State Constitution provides: “No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual ”,
. Article XXXI (§ 31.1) of the agreement dealing with duration indicates an August 31,1972 expiration date. Expiration of the agreement would, of course, have no bearing on the contractual rights underlying this litigation since the grievance settlement was reached during the effective term of the agreement.
. Article VI of the parties’ collective bargaining agreement sets forth grievance procedures, section 6.1 specifying the general intent: “ The Board and the Union agree that they will use their best efforts to encourage the informal and prompt settlement of complaints and grievances which may arise between the Union, the employees and the Board. The orderly processes hereinafter set forth will be the sole method used for resolution of all complaints and grievances.” The procedures take the form of three successive steps, section 6.4 providing for resort first to the president of the college (Step 1) and then to the Chancellor (Step 2); and section 6.5 providing for arbitration (Step 3). Final settlement may take place at any step.
. A Step One or Step Two grievance settlement is as binding as a Step Three arbitration award (see Truck Drivers Union v. Riss & Co., 372 U. S. 517).