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Decision No. 13,734

Appeal of CAROL CRAFT and RUTH DWORKIN from action of Ellis Cousens and Elaine Tsu, as members of the Board of Education of the City School District of the City of Yonkers.

Decision No. 13,734

(February 19, 1997)

James R. Sandner, Esq., attorney for petitioners, Katherine A. Levine, Esq., of counsel

Anderson, Banks, Curran & Donoghue, attorneys for respondents, Lawrence W. Thomas, Esq., of Counsel

MILLS, Commissioner.--Petitioners appeal respondents=abstention from a vote by the Board of Education of the City School District of the City of Yonkers ("board") on whether to grant tenure to a probationary teacher. The appeal must be dismissed.

On March 20, 1996 the board was scheduled to vote on the recommendation of its superintendent of schools to grant tenure to a teacher who was about to complete her three year probationary term. At that time, respondent board members Ellis Cousens and Elaine Tsu indicated to the board that they would abstain from voting on the tenure recommendation, not because of the merits of the particular teacher involved, but because of their objections to the tenure system as practiced in this State. The board proceeded by a vote of seven in favor, none opposed and two abstentions, to grant tenure to the teacher.

Petitioners contend that respondents, by voting to abstain on the tenure matter on the basis of their philosophical objection to the current system for granting tenure, violated their oath of office and acted in contravention of the State Constitution and Education Law. Petitioners request that I order respondents to henceforth exercise their duty to vote on tenure in accordance with the law.

Respondents contend that their abstention votes were lawful actions taken in their capacity as board of education members and are therefore entitled to absolute immunity. Respondents further contend that their abstention votes were symbolic speech intended to spur public debate on the issue of tenure reform and thus constitute protected speech under the First Amendment to the United States Constitution. Respondents also contend that petitioners lack standing to bring this appeal and that the petition must be dismissed for failure to join the teacher who was the subject of the tenure vote as a necessary party to this appeal. Respondents request that I certify pursuant to Education Law 3811(1) that they appear to have acted in good faith with respect to the performance of their official duties.

With regard to standing, an individual may not maintain an appeal pursuant to Education Law '310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Garwood, 35 Ed Dept Rep 297, 298; Appeal of Shabot, 35 id. 289, 290). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Matter of Lubell and Faraone, 4 Ed Dept Rep 71).

Petitioners have failed to establish that they are directly aggrieved by respondents' actions. Petitioners describe themselves as "taxpayers and residents" of the Yonkers City School District. In addition, petitioner Craft is the parent of a district high school student. Status as a resident of a school district or as a parent of a student does not, in and of itself, confer standing to seek review of the action of a board of education with respect to its employees (Appeal of Siracusa and Montana, 33 Ed Dept Rep 563, 565). Petitioners contend that if respondents' conduct is allowed to persist, probationary teachers will fear being denied tenure, the school district will be hampered in attracting and retaining qualified and competent teachers and suffer a decline in its reputation, and thus affect petitioners' property values as families move out of the school district and new families are deterred from moving in. Petitioners' scenario of "injury," however, is entirely speculative. A decline in property values is not the inevitable result of respondents' actions and is instead dependent upon many intervening contingent events. Such "injury" thus does not provide a basis for standing.

While the appeal must be dismissed for petitioners' lack of standing, the importance of the issue presented in this appeal merits further discussion. In addition, respondents' request for a certificate of good faith pursuant to Education Law '3811(1) requires me to examine the propriety of respondents' actions.

Respondents, as members of the board, are public officers within the meaning of Public Officers Law '2 (Wong v. New York State Board of Elections, 82 Misc.2d 521; Komyathy v. Board of Ed. of Wappinger Central School Dist. No. 1, 75 Misc.2d 859; 1971 Opns.Atty.Gen.7) and before assuming office are required to take an oath to support the Federal and State Constitutions and faithfully discharge their duties as members of the board (Public Officers Law '10; NY State Constitution Art. XIII, '1; 23 Op.State Compt. 891). As members of the board, respondents are obligated to perform any duty imposed by law upon boards of education or trustees of common schools [Education Law ''2550 and 2554(1)]. One of the principal duties of a board of education is the appointment of teachers [see Ed.L. '2554(2)]. Pursuant to the authority delegated to it under Article XI, '1 of the State Constitution, the Legislature has established a statutory system of tenure providing for the permanent appointment, upon the recommendation of the superintendent of schools, of teachers who have served a full probationary period and who have been found "competent, efficient and satisfactory". Accordingly, it is the duty of the board, and respondents as members thereof, to determine whether the individual recommended for tenure by the superintendent possesses those qualifications, and to appoint such individual, if found qualified, to tenure. In Matter of Conetta v Bd. of Educ., 165 Misc2d 329, it was held that a board of education may not withhold tenure at the end of a probationary period for fiscal reasons unrelated to the qualifications of those seeking tenure. Citing NY State Constitution Article V, '6, the court found that the board's refusal to determine tenure upon merit to be a violation of its duty to make appointments to public employment upon a determination of merit and fitness. Similarly, respondents, by abstaining on the tenure vote on the basis of their personal opinions concerning the current tenure system rather than upon their assessment of the merit of the particular teacher recommended for tenure, could be found to have violated their oath of office and to be in neglect of their duty as members of the board. Accordingly, respondents are not entitled to a certification of good faith pursuant to Education Law '3811(1).

I find no merit to respondents' claim that their abstention votes, as expressions of their position on the need for tenure reform, constitute protected speech under the First Amendment to the United States Constitution. Where, as here, "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in placing restrictions on the nonspeech element can justify incidental limitations on First Amendment freedoms (United States v. O'Brien, 391 U.S. 367). The State has an interest "in promoting the efficiency of the public services it performs through its employees" (Pickering v. Board of Education, 391 U.S. 563). This requires full consideration of the government's interest in preventing interference to "the effective and efficient fulfillment of its responsibilities to the public" (Connick v. Myers, 461 U.S. 138, 150). In this context, such interference entails "impairing employer discipline, causing disharmony among co-workers, disrupting close working relationships where loyalty and confidence are essential, failing to perform one's duties, or frustrating the regular operation of the government enterprise in question" (Jeffries v. Harleston, 21 F.3d 1238, 1246, vacated U.S. , 130 L.Ed.2d 411, 115 S.Ct.502, rev'd on other grounds and remanded 52 F.3d 9). Accordingly, I find that the State has an important, substantial interest in ensuring that members of boards of education fulfill their constitutional oath of office and carry out their official duties in accordance with the law, by requiring a board member to base his or her vote, whether that be a vote in favor, against or an abstention, solely upon such board member's assessment of the individual merit of each teacher recommended for tenure. The State's interest directly relates to the "effective and efficient fulfillment of its responsibilities to the public" (Connick, supra) and outweighs any interest a board member may have in expressing his or her opposition to the State tenure system by abstaining on all tenure recommendations regardless of the merit of the particular individual so recommended.

Since the appeal must be dismissed for lack of standing, I will not address respondents' immunity and necessary party defenses.