306 N.Y. 532 | NY | 1954
Lead Opinion
Petitioners who are teachers — the first group in public schools, the second group in public colleges — were subpoenaed and appeared in September and October of 1952 before Senator Homer Ferguson, sitting in New York as a subcommittee of the Committee on the Judiciary of the Senate of the United States to investigate the administration of the Internal Security Act and other internal security laws.
Among other questions each of the petitioners was asked whether he or she was presently or had ever been a member of the Communist party. Each of them refused to answer, basing the refusal upon the privilege against self incrimination granted by the Fifth Amendment to the United States Constitution.
The board of education and the board of higher education received certified copies of the transcript of the minutes of the hearing. Each of these boards was advised by the corporation counsel of the City of New York that the refusal to answer questions on the only ground which was sustained, viz., the privilege granted by the Fifth Amendment, constituted a refusal to answer the respective questions on the ground that the answer would tend to incriminate within the meaning of section 903 of the New York City Charter and that questions directed to employees of the boards concerning past or present membership in the Communist party constituted an inquiry into the employees’ official conduct within the purview of the same section. Thereupon, the boards adopted resolutions terminating the employment of petitioners and declaring their positions vacant pursuant to the provisions of section 903. There is no claim by petitioners that their refusal to answer the questions based upon the privilege granted them by the Fifth Amendment does not constitute a refusal to answer upon the ground that the answer would tend to incriminate them within the meaning of Charter section 903, but only that the section, for various reasons to be discussed, is not applicable.
In this proceeding we are required to and do accept as truthful petitioners’ assertion that answers to the questions propounded might have tended to incriminate them since that is the only
Section 903 reads: “ If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or .having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.” (Emphasis supplied.)
Section 903 is inoperative if the teacher gives either an affirmative or negative answer to the question posed — even though the answer be false. The effect of the answer on the teacher’s fitness to continue teaching is for the board of education or of higher education, and those bodies only, to say. Section 903 becomes applicable only if the teacher witness refuses to answer upon the ground that the answer would tend to incriminate him or her. The teacher alone possesses the power to bring the statute into play. The assertion of the privilege against self incrimination is equivalent to a resignation (Matter of Koral v. Board, of Educ. of City of N. Y., 197 Misc. 221). As the Supreme Court said in Adler v. Board of Educ. (342 U. S. 485, 492, affg. sub nom. Thompson v. Wallin, 301 N. Y. 476): “It is equally
There is nothing novel about such a statute. Other statutes provide for the vacatur of, or forfeiture of, an office or employment upon the happening of an event specified therein. (See, e.g., Greater New York Charter, § 1549, now New York City Charter, § 895; Matter of Hulbert v. Craig, 124 Misc. 273, affd. 213 App. Div. 865, affd. 241 N. Y. 525; Metzger v. Swift, 231 App. Div. 598; Metzger v. Swift, 258 N. Y. 440; Public Officers Law, § 30; Matter of Buhler, 43 Misc. 140; Ginsberg v. City of Long Beach, 286 N. Y. 400.) The people have similarly provided in our State Constitution as to all public officers who refuse to sign waivers of immunity under certain circumstances (art. I, § 6, and see Cantaline v. McClellan, 282 N. Y. 166, and cases cited therein).
There is no conflict between section 903 of the Charter and equally valid though differing procedures under the Feinberg Law (L. 1949, ch. 360) and under sections 2554, 2573 and 6206 of the Education Law which guarantee to teachers the right to hold their respective positions during good behavior and efficient and competent service and not to be removed except for cause after a hearing by the affirmative vote of a majority of the board. Section 903 of the Charter, the Feinberg Law and sections 2554, 2573 and 6206 of the Education Law are legislative enactments of equal dignity. The sections in the Education Law govern the removal of teachers for cause gen-
Following the adoption of the resolutions of the boards terminating the employment of petitioners, they commenced these two article 78 proceedings. Special Term concluded that section 903 applied and had been violated by petitioners. The petitions were dismissed. The Appellate Division, Second Department, affirmed, two Justices dissenting. The majority held that teachers in Hew York City public schools and colleges are city employees within the meaning of Charter section 903; that the Charter section is applicable to a hearing before a Federal legislative committee; that an inquiry into past or present membership in the Communist party is an inquiry regarding official conduct of a city officer or employee; that such inquiry is not barred by the provisions of sections 25 and 26-a of the Civil Service Law; that the Charter is not a local law within the meaning of section 2 of the City Home Buie Law and that the Charter provisions do not abridge the constitutional privilege against self incrimination. The dissenting Justices agreed with the majority that section 903 is applicable to a hearing before a Federal legislative committee; that an inquiry into past or present membership in the Communist party is an inquiry regarding official conduct of a city officer or employee and that the Charter is not a local law within the meaning of the City Home Buie Law. They were at variance, however, with the conclusion of the majority that petitioners were employees of the City of Hew York within the meaning of section 903.
In this court we are all agreed that the Communist party is a continuing conspiracy against our Government. (See, Communications Assn. v. Douds, 339 U. S. 382, 425 et seq.; Dennis v. United States, 341 U. S. 494, 564; Preamble to the Feinberg Law (L. 1949, ch. 360, § 1.) We are also all in agreement that an inquiry into past or present membership in the Communist
We are in disagreement in this court only as to two questions. They are (a) whether the Charter section is applicable to a hearing before a Federal legislative committee and (b) whether the petitioners are employees of the City of New York. All of the six Justices below were in accord in answering (a) in the affirmative.
As to (a), we, the majority, agree with all of the Justices below that section 903 is applicable to a hearing before a Federal legislative committee. The language in section 903 is: “ any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry * * We cannot say that that language excepted a legislative committee of our National Government for we read “ any ” to mean “ any
As to (b), when the Legislature adopted the Charter of the City of New York and the Administrative Code it declared that it intended “ to provide an administrative code for the city of New York harmonizing with the provisions of the New York city charter ” (Administrative Code, § 982-1.0) and directed that the code was to be “ construed liberally ”. (Administrative Code, § 982-2.0.) In section 981-1.0 of the Administrative Code the Legislature defined an employee as “ Any person whose salary in whole or in part is paid out of the city treasury ”. This language cannot be misread. Petitioners are paid by check signed by the city treasurer with funds from the city treasury.
The Education Law (§§ 2553, 6201) empowers the Mayor of the City of New York to appoint the members of 'the board of education and to appoint and remove the members of the board of higher education. The City Charter (§ 522) requires the board of education to submit an annual written report to the
The State has the power to determine what shall constitute a vacatur of public office or employment and, in enacting statutes, to define the terms used therein as in its wisdom it sees fit. Thus, it may define who are employees of the City of New York and we must accept, the legislative definition as binding upon us. (Matter of Bronson, 150 N. Y. 1; McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 75; People ex rel. Champlin v. Gray, 185 N. Y. 196, 200.) It has made the source of the compensation the determinant factor..
Petitioners are in reality asking us to take the words used to frame concepts affecting the administration of education in matters strictly educational and pedagogic and to enlarge and expand their meaning so as to include something which transcends matters that are strictly educational and pedagogic, on the one hand, and then rewrite the Administrative Code (§ 981-1.0, subd. 7) so that the words “ Any person whose salary in whole or in part is paid out of the city treasury ” as used to define an employee of the city shall not mean that teachers are employees of the city, although their salaries are paid by check of the city treasurer from the city treasury. This we may not do but must take clear, simple and unambiguous words of the Legislature as we find them. (Meltzer v. Koenigsberg, 302 N. Y. 523, 525; Matter of Rathscheck, 300 N. Y. 346, 350, 353; Matter of Tishman v. Sprague, 293 N. Y. 42, 50.)
Finally, it is urged that at the time the Charter was approved and when it became effective in 1938 the Legislature did not have in mind the specific purpose for which section 903 is now being used. Whether or not that be true is doubtful indeed since the Supreme Court of the United States has upheld the deportation of legally resident aliens because of membership in the Communist party for periods between 1925 and 1939 in
The orders appealed from should be affirmed, without costs.
Dissenting Opinion
(dissenting). That communism in the United States is a conspiracy against our Government, and that participation in such a conspiracy is entirely inconsistent with the loyalty required from a schoolteacher, are undisputed propositions which do not decide this case. Our duty, on this appeal, as on any other, is to apply the laws of this State as we find them, to communists, noncommunists, and everyone else. No purpose, however high or urgent, suspends the salutary rule not to be stretched to cover situations having no real or reason-that “ statutes, directed against known and stated evils, are
Section 903 is inapplicable to these appellants in this situation for at least two separate reasons: first, no appellant is an “ employee of the city ” within the meaning of the law; and, second, the United States Senate group whose questions appellants refused to answer was not authorized to conduct an inquiry into the property, affairs and government of the city or the official conduct of its officers and employees.
First, as to whether these teachers are “ employees of the city ”, section 1 of article XI of our State Constitution makes public education a State function, and the policy of this State for a century “ has been to separate public education from all other municipal functions and intrust it to independent corporate agencies ” such as boards of education (Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11, 23). “ The board of education is a corporation separate and distinct from the city of New York ” (Titusville Iron Co. v. City of New York, 207 N. Y. 203, 208). Matters of appointment of teachers and permanency of their employment have been, by the State Education Law, taken away from the municipalities and given to the education boards (Matter of Emerson v. Buck, 230 N. Y. 380, 385). The grants of authority to the boards to administer public education within New York City are exclusive, and negative any authority in the city itself to exercise like powers (People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125, 135). The long struggle between the Buffalo board of education and the City of Buffalo, described in Matter of Emerson v. Buck (supra), was ended by this court’s declaration thirty years ago, in Matter of Fuhrmann v. Graves (235 N. Y. 77, 82, 83), that, while the city controls the total amount to be expended for education, it has no control whatever over the manner of its spending (see, also, Matter of Brennan v. Board of Educ. of City of N. Y., 245 N. Y. 8, 14). There followed an impressive train of cases holding that public schoolteachers, in the cities of the State, were employees, not of those cities but of the
It is, therefore, indisputable, not only that the State Constitution and judicially declared State policy bar New York City from the role of “ employer ” of teachers, but, also, that, as between the City of New York and these teachers, there are none of the marks of an employer-employee relationship, since it is not the city, but the separate boards of education, which select and hire the teachers, pay them, control their teaching work, and are empowered to remove them for cause after hearing (see Education Law, § 2, subd. 14; and §§ 2550, 2551, 2573, 3012, 3022, 6206). Statutes and decisions (cited in great numbers in respondent’s brief) relating to other than pedagogical matters or pedagogical personnel have nothing to do with the present problem. The question here is as to whether teachers are “ employees of the city ”. Actually, the only ground suggested for an affirmative answer to that question is the definition in section 981-1.0 of the New York City Administrative Code (a statute separate from, but complementary to, the Charter) of “ employee ” as “ any person whose salary in whole or in part is paid out of the city treasury.” The salaries of teachers are “ paid out of the city treasury ” from funds there on deposit to the credit of the board of education, but we refuse to believe that this sixteen-word definition, in a general statute not concerned with education, destroys the whole public policy of this State, worked out in more than a century of struggle, of seeing to it that public schoolteachers are definitely not employees of the cities of this State. Until now, there has never been a decision of this court holding any teacher to be an “ employee ” of a city.
A second, and separate, reason why section 903 has no application to this situation is that this Senate subcommittee was not authorized to, and disclaimed any purpose to, conduct an inquiry into New York City’s governmental affairs or the “ official conduct” of any “ employee ” of the city or of the board of education. It may be possible, grammatically, to
What section 903 means is that a city officer or employee must answer the question of a qualified investigating body concerning the city’s affairs, or concerning the conduct of city business by the questioned city officer or employee, or by any other city officer or employee, or forfeit his employment. When, in 1949, the Legislature determined (see findings attached to L. 1949, ch. 360) that the Communist party had been infiltrating into public employment in the public schools, it passed the appropriate (Feinberg) Act to deal with that situation (Education Law, § 3022). But the 1938 City Charter of New York dealt with something else entirely, that is, with facilitating
In each case, the order should be reversed and the petition granted, with costs in all courts.
Lewis, Ch. J., Froessel and Van Voorhis, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.
Orders affirmed.
