282 A.D. 718 | N.Y. App. Div. | 1953
Appeal by six petitioners (two associate professors, three assistant professors, and one instructor, in three municipal colleges) from an order denying their application to annul a resolution, dated October 6, 1952, of respondent board of higher education terminating the employment of three of the petitioners, and a similar resolution, dated November 17,, 1952, terminating the employment of the remaining three petitioners, all pursuant to section 903 of the New York City Charter. Order affirmed, without costs. In our opinion, petitioners are employees of the city within the meaning of section 903 of the New York City Charter. (Matter of Withrow v. Joint Legislative Committee, 176 Mise. 597; Matter of Goldway v. Board of Higher Eduo. of City of N. T., 178 Mise. 1023; Matter of Koral v. Board of Eduo. of City of N. 7., 197 Mise. 221.) The charter section is applicable to a hearing before a legislative committee of the Federal Government, even though that committee is not authorized to conduct an inquiry regarding the property, government or affairs of the city, or regarding the official conduct of an employee of the city. (Matter of Koral v. Board of Eduo. of City of N. 7., supra.) An inquiry into present or past membership in the Communist party is a question regarding the official conduct of a teacher within the meaning of the charter section. Nor is such an inquiry barred by the provisions of sections 25 and 26-a of the Civil Service Law. {Matter of JRahouine v. McNamara, 301 N. Y. 785.) The New York City Charter is not a local law within the meaning of section 2 of the City Home Rule Law, but an emergency local law adopted pursuant to the provisions of the then section 2 of article XII (now art. IX, § 11) of the New York State Constitution {Matter of Mooney v. Cohen, 272 N. Y. 33) and, therefore, provisions of the charter may modify or amend statutes inconsistent therewith, or be supplemental thereto. {Matter of Finegan v. Cohen, 275 N. Y. 432.) The charter provision does not abridge the constitutional privilege against self incrimination. {GanteUne V. McClellan, 282 N. Y. 166; McAuliffe v. Mayor of New Bedford, 155 Mass. 216.) Adel, Schmidt and Beldoek, JJ., concur; Nolan, P. J., and Wenzel, J., dissent and vote to reverse the order and to'grant the application, with the following memorandum: We are in accord with the majority view that section 903 of the New York City Charter is applicable to a hearing before a Federal legislative committee, and that an inquiry into present or past membership in the Communist party is an inquiry regarding official conduct of a city officer or employee. We also agree that the charter is not a local law within the meaning of the provisions of the State Constitution and the City Home Rule Law in effect when the charter was adopted, which prohibited