10 Misc. 2d 895 | N.Y. Sup. Ct. | 1958
In this proceeding instituted pursuant to the provisions of article 78 of the Civil Practice Act petitioner seeks to review and annul respondent commissioner’s determination which dismissed her appeal from the respondent Board of Education’s action in terminating her employment as a teacher of instrumental music in a union free school district under its supervision at the expiration of the term specified in her employment contract. Her reinstatement with back pay is also sought. Concededly, the problem which the proceeding poses concerns the interpretation of the tenure provisions of section 3013 of the Education Law and presents no issues of fact.
Petitioner’s employment commenced in 1948 under a one-year contract with the board as a teacher of instrumental music for two days each week. The contract was regularly renewed for a similar term, with appropriate increments in salary, until
The petitioner contends that her employment by the board under eight successive written contracts of one year each for the consecutive school years beginning in 1948 and ending in 1956 equated the maximum probationary period prescribed by the statute and thereafter by acquiescence of the board entitled her to the benefits of permanent tenure in the full-time position from which she could be removed only for cause. She argues that the commissioner’s contrary interpretation of the statute is arbitrary in a legal sense.
In pertinent part section 3013 reads as follows: “ 1. Teachers * * * and all other members of the teaching- and supervising staff, of school districts employing eight or more teachers * * * shall be appointed by a majority vote of the board of education or trustees upon recommendation of the district superintendent of schools from lists submitted to such district superintendent by the principal of the district in which they are to be employed for a probationary period of not to exceed five years. * * * 2. On or before the expiration of the probationary term of a person appointed for such term * * * the district superintendent of schools shall make a written report to the board of education or trustees recommending for appointment on tenure, from lists and reports furnished by the principal of the district, those persons who have been found competent, efficient and satisfactory. * * * By a majority vote the board of education or trustees may then appoint on tenure any or all of the persons recommended by the district superintendent of schools.”
The tenure granted teachers by these provisions is “ in derogation of the common-law right of contract on the part of public authorities in engaging public servants of this character, and should be strictly construed.” (Matter of O’Connor v. Emerson, 196 App. Div. 807, 813, affd. 232 N. Y. 561; Matter of McMaster v. Owens, 275 App. Div. 506, 508.) Probationary tenure is granted and permanent tenure assured only to those persons who obtain their positions in the school system in the manner prescribed by the Education Law. (§§ 3012, 3013,
The cases cited by petitioner are not in point. Not the right of a teacher to attain permanent tenure in the manner claimed here but the right to achieve or to retain its benefits after appropriate appointment in compliance with the applicable statutes was the issue presented in those in which the provisions of the Education Law were construed. (Hughes v. Board of Educ. of City of N. Y., 249 App. Div. 158; Strum v. Board of Educ. of City of N. Y., 194 Misc. 182, affd. 277 App. Div. 855, affd. 301 N. Y. 803; Matter of Cohen v. Board of Educ. of City of N. Y., 163 Misc. 638, affd. 252 App. Div. 722, affd. 277 N. Y. 519.)
The determination of the respondent commissioner was neither factually nor legally arbitrary and hence is not subject to review in the courts, (Education Law, § 310.)
Accordingly, the petition is dismissed on the merits, without costs.
Submit order.