Kahn v. Becker

Eager, J. (dissenting).

The determination of the majority to reverse the order and judgment rendered at Special Term tends to infringe upon the powers of the Board of Higher Education as an autonomous body. The board is created as a “ separate and distinct body corporate ” (Education Law, § 6202, subd. 1) and is expressly vested with the authority to u govern and administer that part of the public school system within the city [of New York] which is of collegiate grade and which leads to academic, technical and professional degrees.” (Education Law, § 6201.) Except as is expressly provided by statute, the board is entitled to exercise its powers and carry out its responsibilities in this connection without interference by the city authorities. (See Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11; Matter of Fuhrmann v. Graves, 235 N. Y. 77; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125.) As long as the board keeps within the total budget appropriated by the city for its use, it is vested with the exclusive authority in the matter of the establishing of positions to carry out its purposes and the fixing of the salaries therefor (Education Law, § 6202, subd. 5).

It is clear that Special Term was correct in holding that section 6214 of the Education Law does not apply to require approval by the Mayor of the petitioner’s salary once it is fixed by the board. By its terms, said section is limited to cover *439salaries of specified positions “ [i]n any public institution of higher learning ” under the jurisdiction of the board; and the particular titles and positions listed therein are those which are commonly found in such institutions as distinguished from those employees engaged generally by the board in the over-all supervision and management of the entire system. Furthermore, insofar as certain professional or other nonadministrative employees were intended to be brought within said section 6214, provision was expressly made to cover them (see subds. 1 to 15), and subdivision 16 by its terms embraces only Administrative employees ’ ’ in colleges. In fact, groups I to III of said subdivision 16 specify college positions which are clearly administrative in nature, and consequently group IV referring to such other administrative positions ” now existing and hereafter established may not be enlarged to include noncollege positions and postions which are not admini strative in nature. So, plainly, under the subdivision, as it reads and as fairly construed, the position of the petitioner as law assistant and counsel to the Board of Higher Education is not within the category of “ administrative positions ” covered thereby. In addition, the legislative history indicates that the particular subdivision was intended to refer only to clerical personnel and not to professional or other key officials appointed by the board.

There is no merit to the respondent-appellant’s position, not urged below, but taken on this appeal, that subdivision a of section 123 of the New York City Charter applies to require mayoral approval of the petitioner’s salary. The Board of Higher Education may not be deemed to be an agency of the city within the terms of said subdivision a of section 123. It is a public agency created by the State Legislature; “ [i]ts administration of the city colleges is a State function and the board itself is a State agency. ” (Matter of Bd of Higher Educ. v. Carter, 14 N Y 2d 138,146.) Furthermore, said subdivision a of section 123 may not be given the effect of superseding the general provisions of the Education Law vesting the authority in the Board of Higher Education to establish proper positions and fix salaries. (See Municipal Home Rule Law, § 11, subd. 1, par. c.) The right of the Board of Higher Education to work freely within the budgetary appropriations for its purposes is not limited by general provisions in the local charter. (See N. Y. Const., art. IX, § 2, subd [c]; Matter of Reuss v. Katz, 43 Misc 2d 921, affd. 21 A D 2d 968.)

Inasmuch as the unrestrained power of the board to fix petitioner’s salary (Education Law, § 6202, subd. 5) does not appear *440to have been unlawfully or unreasonably exercised, the order and judgment of Special Term should be affirmed.

Stevens, J. P., Steuer and McGtvern, JJ., concur in Per Curiam opinion; Eager, J., dissents in opinion, in which Capozzoli, J., concurs.

Order and judgment (one paper) reversed, on the law, without costs or disbursements to any party as against the other, and the petition dismissed.