Kubisa v. Ambach

Yesawich, Jr., and Levine, JJ.,

dissent and vote to reverse in a memorandum by Levine, J. Levine, J. (dissenting). We respectfully disagree with the majority’s reading of Matter of Jerry v Board of Educ. (35 NY2d 534) to mandate that a teacher who has not been suspended pending a hearing of disciplinary charges under Education Law § 3020-a be paid for absences while attending the hearing. Jerry, in our view, deals exclusively with the statutory authority of a school board under Education Law § 3020-a to impose sanctions for a *693tenured teacher’s misconduct while a hearing on the charges is pending and unresolved. The Court of Appeals held that since compensation is a "matter of such substantive right on the part of the teacher”, the right to forfeit compensation, in addition to the express right to suspend, must also be explicit before such an additional sanction may be imposed (supra, at 541-542).

Here, however, the Board determined not to impose the preliminary sanction of suspension nor indeed any sanction upon petitioner pending the hearing. Petitioner was not docked salary because of the filing of disciplinary charges against her, but because of her absence from school on a date when apparently she was otherwise legally obligated to perform her teaching duties. It appears to us self-evident that unless a particular absence from a duly scheduled school session is authorized with^pay by statute or collective bargaining agreement, a teacher’s absence, no matter how bona fide or personally compelling the reason therefor, justifies a school board in deducting the appropriate amount from the absent teacher’s salary. That is why paid leave time is considered a term and condition of employment of teachers for collective bargaining purposes (see, Civil Service Law § 204; Syracuse Teachers Assn. v Board of Educ., 42 AD2d 73, 76, affd 35 NY2d 743). Moreover, the Education Law contains certain express provisions mandating or authorizing certain kinds of paid or unpaid leaves of absence (see, Education Law §§ 3005, 3005-a, 3005-b), none of which is applicable to petitioner’s claim here. The inclusion in the law of these specific instances of leaves of absence is inconsistent with any general legal right of a teacher to compensation during absences unless there is specific statutory authority for the deduction, as the majority interprets Jerry (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

There being no specific statutory or contractual right of petitioner to be paid for an absence while attending a hearing held pursuant to Education Law § 3020-a, it was entirely rational for the Commissioner to conclude that petitioner had no greater right to her salary in that case than she would have had for being absent while participating in any other litigation in which she was a party. The hearing itself was initiated at petitioner’s request (Education Law § 3020-a [2]). Support for the reasonableness of the Commissioner’s ruling can be found in the State Civil Service regulations, under which a State employee is granted paid leave for absences necessitated by jury service or appearance as a witness, pursu*694ant to subpoena, before a court or body, but not when the absence is "occasioned by such an appearance as a party” (4 NYCRR 28-1.9 [emphasis supplied]).

The incongruity alluded to by the majority, that petitioner, if she had been suspended, would have received her salary while attending the hearing, is more apparent than real. If petitioner had been suspended from her teaching duties under Education Law § 3020-a, she could have been required to accept and attend other nonteaching assignments (see, Matter of Adlerstein v Board of Educ., 64 NY2d 90, 100). In such an event, petitioner’s absence from the nonteaching assignment in order to be present at the hearing pursuant to Education Law § 3020-a would equally have justified the appropriate deduction from her salary.

For the foregoing reasons, we would reverse Supreme Court’s judgment and confirm the Commissioner’s determination.