5-Any other officers exercising supervising powers in the schools under their charge 6-Teachers. Holders of temporary licenses may be dropped without trial if the city superintendent refuses to make the license permanent' Procedure on removal-Before board of education Charges may be made to and tried by the board of education or made to and tried by a local school board. Charges may be preferred to the board of education by a-a local school board b- -a member of a local school board c-the city superintendent d-an associate city superintendent e a district superintendent against a member of the teaching staff in any of the schools under their charge. Trial The board must immediately proceed to try and determine the case. The trial may be held by the board or by a committee of the board. The usual practice is to have the trial held by committee. Except when otherwise ordered by the board, the committee on elementary schools conducts all trials of principals and teachers in elementary schools, and the committee on high schools and training schools conducts all trials of principals and teachers in high schools and training schools". Testimony must be taken under oath. The report of a committee holding a trial is subject to final action by the board, which may reject, confirm or modify the conclusions of the committee. Punishment The penalty or punishment shall consist of: 2-Suspension for a fixed time without pay 1 Charter sec. 1089 2 By-laws, secs. 20, 21 Review The decision of the board shall be final except that an appeal may be taken to the state commissioner of education1. If the charge preferred was not one for which the accused could be removed the action of the board is a nullity and the member can be reinstated by mandamus'. A member removed without any hearing can be reinstated by mandamus2. Causes for removal The only causes for removal are: 1-Gross misconduct 2-Insubordination 4-General inefficiency. The board of education has no power to adopt a by-law providing that if a female teacher marries her position shall become vacant3. Procedure of removal-Before a local school board The local school board has jurisdiction of certain offenses arising within its district. It hears and determines two classes of offenses. 1-Matters relating to discipline, corporal punishment and matters affecting administration 2-Charges of gross misconduct, insubordination, neglect of duty or inefficiency. Discipline, corporal punishment, etc.-Charges Complaints against teachers or principals made by pupils, teachers or guardians must be tried. No such complaint against a teacher shall be passed on until after the matter has been referred to the principal of the school in which the teacher is employed, and he has made a report. Punishment It may impose such penalties as the by-laws of the board of education prescribe, namely: 1 Peo. ex rel. Peixotto v. Board of Education, 160 A. D. 557, 562 (1914) affd. 212 N. Y. 463 (1914) 2 Peo. ex rel. Callahan v. Board of Education, 174 N. Y. 169 (1903) 3 Peo. ex rel. Murphy v. Maxwell, 177 N. Y. 494 (1904) 4 Charter sec. 1088 1--Reprimand 2-Deduction of pay for not more than 30 days 3-Suspension without pay for a period not exceeding one month 4-Dismissal1. Gross misconduct, insubordination, neglect of duty, etc.2-Charges Charges by a principal, district superintendent or by any parent or guardian within the district may be tried. Copy of charges with specifications must be served on the accused at least three days before trial3. Trial On receiving charges it must immediately proceed to try and determine them. Punishment It shall fix the penalty: fine, suspension for a fixed time without pay, or dismissal. Review Its findings must be reported immediately to the board of education. The board of education may reject, confirm or modify its findings, except as to matters in relation to which, under the general school laws of the state, an appeal may be taken to the state commissioner of education. 1 By-laws sec. 59 REMOVALS CHAPTER XIII MADE NECESSARY BY ABOLISHING POSITION, LACK OF FUNDS OR FOR ECONOMY In Chapter V it was shown that the restrictions as to trial and opportunity for explanation did not apply to removals caused by the abolishment of positions or by lack of funds or made necessary for reasons of economy. It is to removals of this sort that the provisions discussed in this chapter apply; but for the sake of clearness it may be well to touch briefly on some matters already taken up in Chapter V. NATURE OF THE REMOVAL Question may arise as to when a position is abolished. An office can be abolished only by the legislature which created it. When the act creating it is repealed the office comes to an end and the incumbent drops out. An employment is abolished when the authority for paying a salary is withdrawn, or, for all practical purposes, when the employee is dismissed and the services he performed are dispensed with. As used in this chapter, the expression "abolishing a position" includes laying off the employee because there is no money with which to pay him, because the services are unnecessary, because economy is desired, or because the work can be performed more advantageously at another time. While the action of the board of estimate and the board of aldermen in fixing a salary does not create a position', their failure to fix a salary may prevent the creation of a position. Whether failure to appropriate automatically abolishes the position or whether some additional affirmative action on the part of the department head is also necessary may be an open question. It has been held that the mere transfer of a budget item for salary automatically puts the incumbent who received that salary out 1 Matter of Barton v. Brannan, 141 A. D. 295 (1910) Matter of Sullivan v. McAneny, 145 A. D. 413 (1911) But see Peo. ex rel. Kenehan v. Higgins, 159 A. D. 226 (1913) 2 See page 159 et seq. of the department without any further affirmative action by the department head'. The department head is certainly required to take affirmative action after the position is abolished and it is not misleading to say that he is the one who abolishes the position, although it is the action of the board of estimate and of the board of aldermen which compels him to do so. Such abolishment must be in good faith; and if not made in good faith but as a sham and pretense for the sake of avoiding a trial and with intent to employ some other person to perform the same work the removal may be set aside and the former incumbent reinstated by mandamus2. If the position is abolished by the legislature, or by the department head because there are no funds to pay salaries there can be little chance to question the good faith of the department head. Where there is lack of appropriation the appointing officer may select some of his subordinates for dismissal and retain others at their original salary. He is not required to scale down the salaries so as to retain them all3. Indeed, since he has no power to fix salaries such a course would generally be impossible until the board of aldermen had acted. In the labor class some readjustment of wages, or at least of the hours of employment, can be made where assented to by the employees1. Such questions of good faith arise chiefly where the department head determines that the work is unnecessary or can be done more economically at another time. To warrant a finding of bad faith the jury must find that the abolishment was not real and that some other person or persons had been appointed to perform all or part of the same duties. The fact that other persons were subsequently appointed to perform the duties which the dismissed employee performed, or could have performed, and that such appointment was in consequence of his removal, is sufficient to justify a finding that the abolishment was in bad faith". But the fact that there were appointments to other places or that there were promotions and some few 1 Peo. ex rel. Colihan v. Miller, 72 Misc. 140 (1911) See Peo. ex rel. Kenehan v. Higgins. 2 Peò, ex rel. Hart v. La Grange, 7 A. D. 311 (1896) Peo. ex rel. Shields v. Scannell, 48 A. D. 69 (1900) Peo. ex rel. Steers v. Department of Health, 86 A. D. 521 (1903) Matter of Lazenby, 76 A. D. 171 (1902) 4 Driscoll v. City of New York, 78 A. D. 52 (1903) Collins v. City of N. Y., 151 A. D. 618 (1912) Peo. ex rel. Vineing v. Hayes, 135 A. D. 19 (1909) Peo. ex rel. Hart v. La Grange, 7 A. D. 311 (1896) Peo. ex rel. Shields v. Scannell, 48 A. D. 69 (1900) |