173 Misc. 1050 | N.Y. Sup. Ct. | 1940
Dissatisfied with the intentional innocuous desuetude of the respondents, petitioner brings this proceeding to compel the board of superintendents and the board of education of the city of New York, legal appointing authorities, to fill vacancies existing in the position of teacher of fine arts in the city high schools. The petitioner is employed as a substitute teacher of fine arts in the Abraham Lincoln High School, and is fourth on the men's eligible list for teachers of that subject. There are at present a large number of vacancies in regular positions as teachers of fine arts and such number concededly exceeds the number of names on the two eligible lists. These vacancies are now filled temporarily by the assignment of substitutes. At this point it is not amiss to note that vacancies in the positions under consideration have existed for more than six ^months.
The Education Law, as applicable to this city, provides, by a recent amendment (§ 872, subd. 1-a), that “ Appointments shall be made from appropriate eligible lists to fill all existing vacancies not later than six months from the date of the existence of such vacancy.” This amendment to the statute was effected by chapter 916 of the Laws of 1937 peradventure to convert a situation alluded to in Matter of Jaffe v. Board of Education (265 N. Y. 160).
Respondents argue that the language while mandatory on its face, should be read as discretionary. The difficulty with that proposition is that the interpretation thus advanced makes the section meaningless. It was not necessary to enact legislation in order to give the board of education the power to fill vacancies. That is its natural and obvious duty. Nevertheless, a study of the significance of the statute, in a sense, furnishes a key to the problem raised by the petition. That legislation can be properly understood only in the light of the circumstances which dictates it.
The failure to fill a given number of vacancies or restrict in large measure the number to be appointed might involve a policy of doubtful educational expediency, largely outweighing the small measure of economy accomplished thereby. A matter of this nature the courts have recognized to be more within the purview of the scope of the power to review of the State Commissioner of Education whose prerogative to review educational policy of the school board transcends the powers of the court and indeed, when a similar proceeding for the filling of a vacancy was brought before the Commissioner of Education (Matter of Vanderwoude, 50 St. Dept. Rep. 199), he held that the general practice of assigning substitutes instead of making regular appointments to fill vacancies was improper and ordered it to be discontinued. It may well be noted that this interpretation of the effect of the Jaffe and Vanderwoude decisions (supra) is unqualifiedly conceded by the respondents.
Respondents urge as one of their defenses that the filling of the vacancies involves educational policy the adoption of which by the school authorities was in their discretion and could only be reviewed by the Commissioner of Education. The appeal, they say, should be relegated to the Commissioner of Education, and petitioner, therefore, has mistaken his remedy by resorting to the courts. This argument has been rendered entirely obsolete and futile by the amendment to the Education Law (§ 872, subd. 1-a), which undoubtedly was adopted as a result of the Legislature’s expressed intention to lay down educational policy in the matter of filling vacancies. Before the enactment of the statute adverted to, some weight might have been given to the contentions of the respondents as to the necessity of appealing to the Commissioner of Education. The legislative direction, however, has laid down the educational policy and the courts must recognize this legislative mandate and not wait for the Commissioner to interpret it. The period of six months provided in the statute allows ample leeway to the educational authorities to determine whether an existing vacancy is only of a temporary character or one that is likely to continue diuturnally.
The court recognizes that the registration of the school population is not constant and vacancies might cease to exist by reason of a decrease in such register, a consolidation of classes or an abolition of the subject. The argument for postponing appointments even in the face of statutory direction may affect the fringes or the tail end of an eligible list or the relatively low positions on the list of vacancies. Needless to state in the immediate case, however, no such situation can possibly exist for the petitioner is No. 4 on the eligible list. It is only reasonable to expect that vacancies should be filled at the very least to include persons approximately in his position on such eligible list.
Before rendering a final decision the court assumes the privilege of indulging in certain observations and hopes thereby to establish the ill-advised effect of the alleged money-saving policy attempted herein. Economy is a civic virtue, but no matter how praiseworthy must not be permitted to defeat civic aims. It is hardly conducive
These observations are not intended to serve as a full analysis of the far-reaching implications of the present policy, which if persisted in, cannot but result in serious impairment of the efficiency of the personnel of the school system. Observations of this character should serve for all interested in clarifying the difference between wise economy and prudent expenditure on the one hand and extravagance and waste on the other. A penny wise and a pound foolish policy inexorably leads to universal discontent and what is more experience condemns it.
Motion granted. Settle order.