Hawley v. South Orange-town Central School District , 67 N.Y.2d 796 ( 1986 )

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

The only issue presented for our review on this appeal is the correctness of the Appellate Division’s determination that respondent school district could not withhold the salary of petitioner, a tenured teacher, during his period of suspension pursuant to Education Law § 3020-a. We hold that the determination was correct since "[i]t is now well settled that * * * the pay of a teacher suspended pursuant to subdivision 2 of section 3020-a of the Education Law pending hearing and determination of disciplinary charges may not be withheld” (Matter of Adlerstein v Board of Educ., 64 NY2d 90, 98). This is because a tenured teacher’s "[cjompensation is a matter of such substantive right * * * that it cannot be taken away from him except pursuant to explicit statutory authorization” (Matter of Jerry v Board of Educ., 35 NY2d 534, 541-542). Consequently, the compensation paid to the tenured teacher during the period of suspension may not properly be characterized as "damages” to which a common-law duty to mitigate would apply, as the school district argues, and the district may not withhold such compensation by reason of the teacher’s failure to seek other employment. Any seeming detriment to the public fisc is ameliorated by the school district’s authority to assign a suspended teacher to a "nonteaching assignment * * * which bears reasonable relationship to the suspended teacher’s competence and training and is consistent with the dignity of the profession” (Matter of Adlerstein v Board of Educ., 64 NY2d, at p 100, supra).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.