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MATTER COUNCIL SUPERVISORY ASSOCIATIONS PUBLIC SCHOOLS NEW YORK CITY ET AL. v. BOARD EDUCATION CITY NEW YORK ET AL. (11/15/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 1968.NY.43536 <http://www.versuslaw.com>; 295 N.Y.S.2d 88; 31 A.D.2d 34 November 15, 1968 IN THE MATTER OF COUNCIL OF SUPERVISORY ASSOCIATIONS OF THE PUBLIC SCHOOLS OF NEW YORK CITY ET AL., RESPONDENTS-APPELLANTS,v.BOARD OF EDUCATION OF THE CITY OF NEW YORK ET AL., APPELLANTS-RESPONDENTS, AND EDNA GORDON ET AL., INTERVENORS Matter of Council of Supervisory Assns. of Public Schools v. Board of Educ. of City of N. Y., 56 Misc. 2d 32, affirmed. J. Lee Rankin, Corporation Counsel (Stanley Buchsbaum, Sanford I. Freedman and Lawrence Cherkis of counsel), for appellants-respondents. Vladeck, Elias, Frankle, Vladeck & Lewis (Max H. Frankle, Everett E. Lewis and Bernard Yaker of counsel), for respondents-appellants. Jack Greenberg, Conrad K. Harper and William Bennett Turner for Edna Gordon and another, intervenors. Harold J. Rothwax (Robert Sugarman of counsel), for Parent Development Program of the Two Bridges Neighborhood Council, Inc., intervenor. Beldock, P. J. Rabin and Brennan, JJ., concur with Beldock, P. J.; Christ, J., dissents from so much of the determination herewith as affirms the third and fourth paragraphs of the judgment, which adjudge that four certain appointments to the position of principal are invalid and that the positions held under those appointments are vacant; and votes to modify the judgment so as to provide that the creation of the positions in question was valid and otherwise to affirm the judgment and order insofar as appealed from, with an opinion, in which Hopkins, J., concurs. Author: Beldock


Matter of Council of Supervisory Assns. of Public Schools v. Board of Educ. of City of N. Y., 56 Misc. 2d 32, affirmed.

Beldock, P. J. Rabin and Brennan, JJ., concur with Beldock, P. J.; Christ, J., dissents from so much of the determination herewith as affirms the third and fourth paragraphs of the judgment, which adjudge that four certain appointments to the position of principal are invalid and that the positions held under those appointments are vacant; and votes to modify the judgment so as to provide that the creation of the positions in question was valid and otherwise to affirm the judgment and order insofar as appealed from, with an opinion, in which Hopkins, J., concurs.

Author: Beldock

 This is a proceeding pursuant to article 78 of the CPLR which, inter alia, now seeks to review the appointment of four Principals of four designated "Demonstration Elementary Schools" in the Ocean Hill-Brownsville Demonstration Project. Originally there was also involved the appointment of Rhody A. McCoy as Administrator, Demonstration District, Ocean Hill-Brownsville Decentralization Project, and a Mrs. Gordon, appointed as Principal of Public School 36-125, Manhattan. The appeal as to Rhody A. McCoy has been withdrawn. The appointment of Mrs. Gordon was held to be valid, although she was No. 204 on the eligible list for Principal. As found by Special Term, all those on the list above her, except two, had waived their right to appointment or failed to answer letters canvassing them within the five-day limit stated in the letters. Special Term held Mrs. Gordon's appointment valid. These findings and the judgment based thereon are affirmed.

There remains for our consideration the validity of the appointment of Irving Gerber, William H. Harris and Louis Fuentes as Acting Principals of three designated Demonstration Elementary Schools, by the Board of Education upon the recommendation of the local governing board and Acting Administrator McCoy on September 1, 1967, effective September 9, 1967, and a similar appointment of Ralph Hugo Rogers as Acting Principal of a fourth Demonstration Elementary School in the Ocean Hill-Brownsville Demonstration Project on November 15, 1967, effective November 6, 1967.

On March 17, 1964 an eligible list of 321 persons for Principal, Day Elementary School, was promulgated by the Board of Examiners in accordance with the provisions of statute (Education Law, § 2569, subd. 1). This list does not expire until March 17, 1972. The Legislature has provided that in the City of New York appointments as Principal, Day Elementary School, must be from the first three persons on eligible lists prepared by the Board of Examiners (Education Law, § 2573, subd. 10).

On September 27, 1967, the Board of Education created a new position under the title of "Principal, Demonstration Elementary School", effective September 5, 1967. The four individuals here involved were appointed under the title stated. The record discloses, and it is conceded, that, except for Gerber (as to whom the appeal has become academic), none were appointed from, nor was resort made to, the competitive eligible list then in existence. Nor did they possess the professional or academic qualifications of principals of day elementary schools.

Significantly, no standards or qualifications have as yet been set forth by the Board of Education for the new titled position of Principal, Demonstration Elementary School. However, there was testimony at the Special Term hearing that the principal of a demonstration school was required to have a knowledge of, and relationship with, disadvantaged communities and the methods of securing increased community involvement; and the ability to stimulate the members of the community; and would be required to operate a community-centered school during and after school hours.

The basic question on this appeal is whether the duties and qualifications of Principal, Day Elementary School, for which there is an outstanding civil service eligible list, are the same in essence as the duties and qualifications of the alleged new position of Principal, Demonstration Elementary School, created by the Board of Education in its resolution of September 27, 1967.

Whether the duties and qualifications of the two positions are the same is a question of fact (People ex rel. Sweeney v. Rice, 279 N. Y. 70). Special Term held (56 Misc. 2d 32, 39) that the duties were the same; that the qualifications of Principal, Day Elementary School, were "at least equal" to those required of Principal, Demonstration Elementary School; and that a change in title did not render the latter in fact a new position but only a "labeling of the position of elementary school principal with a new name." Accordingly, Special Term concluded that these appointments were invalid. I agree with the findings and conclusions below.

Neither in the legislative mandate to the Mayor of the City of New York to prepare a report and plan for school decentralization (L. 1967, ch. 484), nor in the statute approving the decentralization demonstration projects existing on April 1, 1968 as local school board districts (L. 1968, ch. 568), is there any evidence that the Legislature gave approval to the Board of Education to relax the legislative requirement that Principals of Elementary Schools be appointed from a duly promulgated eligible list. Subdivision 10 of section 2573 of the Education Law was amended many times in 1966, 1967 and 1968, before, during and after the time when decentralization legislation was under intense discussion and later enacted. In every single amendment the provision that a Principal of an elementary school in New York City shall be recommended for appointment from an eligible list prepared by the Board of Examiners was retained, with full knowledge of the creation of the decentralized demonstration projects and the demonstration elementary schools. At no time was any exception included in the statute which would permit the appointment of a Principal of a Demonstration Elementary School from other than an eligible list.

Thus, it must be concluded that the Board of Education, in creating the new position of Principal, Demonstration Elementary School, and in the appointment of Principals, Demonstration Elementary Schools, without regard to the outstanding and unexpired eligible list, acted in direct contravention of the protective guarantees afforded petitioners by the Constitution and implementing statutes; and that its action cannot be sustained.

I am fully aware that, as Ocean Hill-Brownsville is an experimental project, the Board of Education should be given some flexibility during the period of the experiment to assure the effectiveness thereof. However, it is illegal for the Board of Education, without legislative authority and without standards and qualifications for the alleged new titled position, to delegate (as was done here) to a lay governing board the power to determine the professional and educational qualifications of Principals of the schools in this community without regard to existing eligible lists and without regard to civil service examinations. The Board of Education recognized that such a procedure was not in accordance with law in its own statement of policy of April 19, 1967 when it specifically provided that Principals of the schools in the decentralized areas would be chosen from the established eligible lists. The decentralization plan may make provisions with respect to control of budgetary funds, curriculum or control over maintenance and building needs. However, there may be no interference with the prescribed legislative procedure for the examination and appointment of supervisory or teaching personnel until the Legislature so mandates. The Legislature has not yet so provided. Even in the statute deeming decentralized demonstration projects in existence on April 1, 1968 to be local school board districts (L. 1968, ch. 568), the local board was given the power only to employ a local Superintendent of Schools, but not teaching or other supervisory personnel. If the Board of Education could provide that in this experimental district of eight schools the existing eligible list for Principal may be disregarded, there is nothing to prevent the Board of Education from saying that it will experiment with all the 650 elementary schools in the City of New York and thus disregard all existing eligible lists. No such result was intended by the Legislature and the courts may not be made the instrument to legislate such an untoward result.

I recognize the legislative mandate to implement the concept of decentralization with a plan which could reasonably be deemed to include a system of selection of personnel best qualified to stimulate and achieve community participation to the ultimate benefit of the student. However, I find nothing in this mandate or the applicable legislation enacted thus far which suggests anything even remotely permissive of a system such as is sought to be approved at bar. Absent specific legislation to that effect, I consider it the function of the court to preserve the orderly administration of the civil service system, to which preservation the determination and action of the Board of Education now under review is not conducive.

The judgment should be affirmed, without costs, except with respect to McCoy, as to whom ...


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