79 N.Y.S. 624 | N.Y. App. Div. | 1903
This appeal presents two questions: (1) Whether a reduction in the rank and pay of a public school teacher in the city of New York is equivalent to a removal from the position held by the teacher prior to such reduction; and (2) whether a public school teacher, under the law as it now stands, is subject to
“All superintendents, assistant or associate superintendents, and all principals, teachers and other members of the educational staff in the public school system of any part of the city of New York as constituted by this act, shall continue to hold their respective positions and to be entitled to such compensation as is now provided or may hereafter be provided by the various school boards, subject to the limitations of this act, and to reassignment or to removal for cause, as may be provided by law.’’
This provision took effect on January 1, 1898, prior to any appointment of the relator as a teacher. Section 1117 of the original charter was re-enacted, with additions and amendments, as section 1101 of the revised charter of 1901. The provision which I have quoted from the former section 1117 appears as amended and re-enacted in the present section 1101, as follows:
“Except as herein otherwise provided, the city superintendent, the members of the board of examiners, the supervisors, the directors, and all principals, teachers and other members of the educational staff in the public school system of any part of the city of New York, and all school officers or other employés appointed by the board of education before this act takes effect, including the secretary of the board, the city superintendent of schools, the superintendent of school buildings, the superintendent of school supplies, the auditors, and all deputies, clerks and other employés in their respective offices, shall continue to hold their respective positions and to be entitled to such compensation as is now provided or may hereafter be provided by the lawful authority subject to change of title, to reassignment or to removal for cause, as may be provided by law, and subject to the right of the said board to abolish unnecessary positions.”
The act of the legislature which substitutes the revised charter for the original charter of 1897, declares that the provisions of the act, “so far as they are substantially the same as those of laws existing on December thirty-first, nineteen hundred and one, shall be construed as a continuation of said laws, modified or amended according to the language employed in this act, and not as new enactments.” Laws 1901, c. 466, § 2 (3 Sess. Laws 1901, p. 656). The new section 1101, like the old section 1117, in terms continues teachers in their respective positions, and protects them against removal except for cause. The sections being substantially the same in this respect, it
Two entirely different views may be taken of the scope and effect of section 1117 as substantially continued by section 1101 of the revision. One is that the section was designed to establish a general rule applicable to all teachers and other public school officers mentioned therein, whether they were in office at the time when the enactment took effect or should be appointed thereafter, making their tenure permanent, and protecting them against removal except for cause. If this be the correct construction, the relator, although appointed after section 1117 took effect, is entitled to its protection; and the only question remaining for consideration in the case is whether she was in fact removed from her original position as a teacher by being reduced in rank and pay. The other view of section xi 17 is that it was limited in its operation solely to the teachers who were actually members of the educational force in any part of the consolidated city at the time when the original charter went into effect. As to such teachers it was provided that they should continue to hold their respective positions subject to the limitations of the charter and to reassignment or to removal for cause as might be provided by law. Assuming that the operative force of the section was thus limited, it created a class of teachers who could be removed only for cause, which class comprised only such persons as were teachers already. Upon this assumption, in order to ascertain the tenure of other teachers who were subsequently appointed, as was this relator, it is necessary to look elsewhere in the law. Counsel do not appear to have discovered any section of the Greater New York charter, or any other statute now in force, which ex-pr'essly defines the tenure of public school teachers employed by this municipality. At all events, they have not referred us to any. In my opinion, however, the provisions of the Greater New York charter relative to proceedings for the removal of teachers, when considered in connection with the provisions of section 1117, which have already been discussed, manifest by the clearest implication the intention of the legislature that a public school teacher once appointed here should continue to occupy his or her position as such during good behavior and competency. Section 1093 of the revised charter, enacted as a substitute for section 114 of the original charter, provides that charges may be preferred to the board of education against a teacher in any of the schools “for gross misconduct, insubordination, neglect of duty or general inefficiency.” Provision is made for the trial of charges by the board of education, or a committee thereof, and for the punishment of the teacher, in the event of an adverse determination, by fine, suspension, or dismissal. In case the teacher is acquitted, he is entitled to restoration to his position, with full pay for the period of suspension, if he has been suspended from exercising his functions pending trial. We have here prescribed the causes which shall be deemed sufficient to warrant the removal of a
Final order affirmed, with $10 costs and disbursements. All concur; GOODRICH, P. J., in result.