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Decision No. 12,928

Appeal of LESLIE LUBIN from action of the Board of Education of the City School District of the City of New York and Joseph A. Fernandez, Chancellor of Schools, with regard to teacher appointment.

Decision No. 12,928

(May 14, 1993)

Eugene M. Kaufman, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondents, Mercedes Colwin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondents' refusal to appoint him to a teaching position. The appeal must be dismissed.

In September 1990, petitioner was licensed by the Board of Examiners as a Teacher Liaison for Adults and a Teacher of Basic Adult Literacy. On June 12 and June 24, 1992, petitioner received notices from the Chancellor's Division of Human Resources, Office of Pedagogical Personnel, that vacancies existed in areas in which he was licensed. In both instances, petitioner was told to report to the Teacher Placement Center, where he was interviewed by a panel along with two other applicants. Following the interviews, the respective panels selected other applicants for the teaching positions and placed petitioner on a qualified eligible list for possible future appointment. This appeal ensued.

Petitioner alleges that respondents' interview process improperly denied him his licenses and subsequent appointment. Petitioner contends that the interview process instituted by respondents' panel was illegal, arbitrary and capricious. Petitioner seeks appointment to one of the positions for which he is licensed.

Respondents contend that although petitioner is licensed for the positions, licensure alone does not guarantee him an appointment. Respondents contend that its decision to refuse to appoint petitioner was rationally based, in good faith, legal and proper.

At the time of the appointments in question, Education Law '2573(10) authorized the appropriate school district to appoint teachers by selecting one of the top three candidates from the qualifying eligible list. This procedure paralleled the "one in three" rule codified in New York Civil Service Law '61(1). As continues to be the case, the fact that an individual is eligible for a position does not create a right to an appointment (Deas v. Levitt, 73 NY2d 525 (1989); Cassidy v. Municipal Civil Service Comm'n, 37 N.Y. 526 (1975)). Consistent with the City's hiring procedures, petitioner received notice from respondent that vacancies existed in areas for which he is licensed. Although petitioner was not appointed to fill one of the vacancies after his interview, he continues to be licensed. Since the notice he received was not a guarantee of employment, but simply notice that positions had opened for which he could interview, respondents were under no obligation, at that point, to appoint him to a teaching position. To the extent petitioner argues that the interview process was used to deny him improperly the licenses previously granted to him by the Board of Examiners, he is in error. In fact, the record indicates that when petitioner failed to be appointed, his name was placed, once again, on the eligible list. As such, the interview process was neither arbitrary nor capricious or otherwise unlawful.

Despite petitioner's characterization of the interview process as an additional "examination" for licensure, the record establishes that it was merely an interview used to decide whether to hire him or other licensed candidates for the position. Based on those interviews, the panel found other candidates more qualified than petitioner and consequently extended appointments to them. In any event, since the process employed by respondents in selecting its candidates was rational, and there is no evidence that the appointments were otherwise made in bad faith, there is no basis to overturn them.

Although this appeal must be dismissed, I note that respondents' notice directing petitioner to report to the Teacher Placement Center is easily misinterpreted. Instead of advising prospective candidates that they are being invited to report for an interview, the notice simply advises them to report to the Center to receive "an assignment or appointment. . ." In fact, the notice does not even suggest that candidates must first be interviewed before a position is offered. Therefore, to avoid confusion in the future, respondents are urged to revise their form notice to clarify that eligible candidates are being extended an opportunity for a job interview only, which may or may not lead to an assignment or appointment.

THE APPEAL IS DISMISSED.

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