255 A.D. 694 | N.Y. App. Div. | 1939
The petitioners held positions as teachers in the Union Free School District No. 7 in the Town of Cheektowaga. All of the petitioners, except Catherine Quinn, have been continuously employed under contracts as teachers in the district for three or more years previous to July 1, 1937, and Catherine Quinn was likewise employed for two years previous to July 1, 1937. Union Free School District No. 7 has a population of more than 4,500 inhabitants. The Legislature at its 1937 session enacted an amendment to the Education Law (Laws of 1937, chap. 314) which inserted in it a new section (section 312-a), the construction of the first two subdivisions of which is the subject of this appeal. Subdivisions 1 and 2 of section, 312-a of the Education Law as enacted are as follows:
“1. Teachers, principals, supervisors and all other members of the teaching and supervising staff shall be appointed by the board of education of a union free school district having a population of more than forty-five hundred inhabitants and employing a superintendent of schools, upon the recommendation of such superintendent of schools, for a probationary period of three years. Provided, however, that the board of education in any such union free school district, within the provisions of this act, may upon the recommendation of the superintendent of schools, appoint for a probationary period of one year, any teacher, principal, supervisor, or other member of the teaching and supervising staff, who has been employed continuously by said board of education for the three years last preceding the date when this act becomes effective. The service of a person "appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education.
*696 “ 2. At the expiration of the probationary term of a person appointed for such term, subject to the conditions of this act, the superintendent of schools shall make a written report to the board of education recommending for appointment on tenure those persons who have been found competent, efficient, and satisfactory. Such persons, and all others employed in the teaching, examining or supervising service of the schools of such union free school district, who have served the probationary period as provided in this act, shall hold their respective positions during good behavior and efficient and competent service, and shall not be removed except for any of the following causes: (a) insubordination, immoral character or conduct unbecoming a teacher; (b) inefficiency, incompetency, physical or mental disability, or neglect of duty.”
The law became effective on July 1, 1937. At the time the law became effective all of the petitioners held contracts for one year’s teaching service, expiring at the end of June, 1937. On May 3, 1937, the day of the enactment of the law, the board of education held a meeting and adopted a resolution granting “ permanent tenure ” to all of the petitioners, except one, Alice Hyland. On May 8, 1937, after the adoption of this resolution, each of the petitioners received a written contract for service for the school year 1937-1938. The contracts bore the heading, “ Depew Union Schools, Teacher’s Contract with tenure of position.” Previously, on March 15, 1937, the board of education at a meeting adopted a resolution accepting the recommendation of the superintendent of schools relative to the rehiring of teachers, and directed that contracts be issued in accordance therewith. All the petitioners continued under contracts through the school year which terminated June 30, 1938, in the teaching positions which they had previously held. On May 16, 1938, the superintendent of schools reported to the board of education' as to the competency, efficiency and satisfactory work of all the regular teachers, including the petitioners, and recommended that they receive “ appointments on tenure.” Thereupon the board of education adopted a resolution appointing the recommended teachers “ on tenure ” and directed the president and secretary of the board of education to execute notices of permanent tenure to all of the teachers appointed including the petitioners. This was done, the certificates being dated May 17, 1938. On August 8, 1938, there having been by that time a change in the personnel in the board of education, the board of education held a meeting and rescinded the resolution adopted by the board of education on May 16, 1938, made certain appointments on probation but did not include the names of the petitioners in any of its appointing resolutions. On the contrary, the board of education
The petitioners contend that the phrase “ probationary period as provided in this act ” relates to the term of service of the teacher and has nothing to do with the nature of such service — that is, whether “ probationary ” in character or under a contract for a limited term.
The appellants on the other hand contend that the words “ probationary period as provided in this act ” as well as the words “ probationary term ” relate rather to the character of the appointment or employment as probationary, than to the length of service.
To reach a conclusion on these opposing contentions, consideration must be given to both subdivisions 1 and 2 of section 312-a and they must be construed in the light of the purpose sought to be attained, for only in this way can the intention of the Legislature be discovered.
The purpose of the section was to provide for a change in the tenure of teachers and other employees in the schools of the specified districts from a system of tenure by contract terminating automatically at the expiration of the contract, to one of permanence. A system of permanent tenure had already been put into effect in cities by section 872 of the Education Law. That law provided, as does the one here involved, for probationary periods of employment before permanency of tenure resulted. During the probationary period an incumbent of a position in the school service may be discharged by the board of education upon the recommendation of the superintendent without being entitled to a hearing. The discharge is summary. Under section 872, the probationary term was to be fixed by the board of education at not less than one
In the act relating to cities (section 872) there is, in the third subdivision of that section an exception. In that subdivision it is provided that not only the persons who have served the probationary period but also “ all others employed in the teaching, examining or supervising service of the schools of a city who have served the full probationary period, or have rendered satisfactorily an equivalent period of service prior to the time this act goes into effect shall hold their respective positions during good behavior and efficient and competent service, and shall not be removable except for cause after a hearing by the affirmative vote of a majority of the board." Equivalent language does not remain in the section we are examining. The words “ probationary period " or “ probationary term " are used consistently in section 872 as referring to the period served by an incumbent while under an appointment on probation during which the incumbent is subject to summary removal. It is significant that the words “ probationary period ” and “ probationary term " are used in section 312-a. It is significant, too, that in the second subdivision of section 312-a the words relating to an equivalent period of service are entirely omitted. Only those who serve a “ probationary period," or “ probationary term" are by the provisions of the statute eligible to appointment on permanent tenure. If the contention of the petitioners to the effect that “ probationary period ” in the second subdivision of section 312-a refers only to a length of time, one or three years (not definitely stated which), then the term “ probationary period " is given a different interpretation in different parts of this section 312-a. Consistency of phrase is disregarded. Further, the inter
We reach the conclusion, therefore, that the order should be reversed on the law, without costs, and the proceeding dismissed, without costs.
All concur. Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.
Motion to strike out parts of respondents’ brief denied, without costs. Order reversed on the law, without costs, and proceeding dismissed, without costs.