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: New York Public Personnel Law

By Harvey Randall, Esq.

Counseling memo placed in educator?s personnel file not a disciplinary action
Appeal of M.D. from action of the Board of Education of the Ramapo Central School District, Commissioner of Education Decision No. 15,623

M.D., a school district employee since 1978, complained that in 2006 the school superintendent placed a counseling letter in his personnel file concerning his alleged inappropriate behavior on three separate occasions.

The school district refused to remove the counseling letter from his personnel file. M.D. appealed to the Commissioner of Education, contending that the counseling letter was a reprimand and was placed in his personnel file without the procedural protections of Education Law §3020-a. He asked the Commissioner to direct the school district to remove the offending material.

M.D. also asked the Commissioner to order the school district to provide him with a name-clearing hearing, contending that the superintendent shared the letter with the president of the district?s teachers? association, ?as the allegations in the letter are false and defamatory, causing irreparable injury to his good name and reputation.?

Finally, M.D. asked the Commissioner to overturn the school district?s decision not to continue him in a coaching position, claiming that the allegations in the letter resulted in his being notified that he would no longer be considered for any coaching positions in the district, causing him to lose approximately $15,000 of compensation per year.

Considering the merits of M.D.?s appeal, the Commissioner noted that in Holt v Board of Education, Webutuck Central School District, et al.,(52 NY2d 625), the Court of Appeals held that although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law §3020-a, critical administrative evaluations need not be afforded such procedural protections.

In Holt, the court found that the purpose of the communication was to call to the teacher?s attention a relatively minor breach of school policy and to encourage compliance with that policy in the future. The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish. In contrast, the employer may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate [Fusco v Jefferson County School District, CEd, 14,396 and Irving v Troy City School District, CEd 14,373]. Further, there is no bar to subsequently bringing disciplinary action against the individual based on the same act or omission described in a counseling memorandum. In Patterson v Smith, 53 NY2d 98, the Court of Appeals ruled that a proper counseling memoranda contains a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself and thus disciplinary charges subsequently filed do not constitute ?administrative double jeopardy.?

In the Appeal of Richardson, 24 Ed Dept Rep 104, 106, Decision No. 11,333, the Commissioner applied the court?s analysis in Holt to sustain the appeal of a tenured teacher who had served as the school nurse and directed the removal of a critical letter from her personnel file. Richardson had been removed from her position and administratively reassigned to a different school. The following factors were considered by the Commissioner in determining whether the letter to Richardson constituted ?an impermissible reprimand:?

1. Was the letter from the teacher?s immediate supervisor or from the board of education?

2. Was the letter directed towards an improvement in performance or is a formal reprimand for prior misconduct?

3. Was the letter in the nature of a performance evaluation or a castigation for misconduct? and

4. The severity of the misconduct and of the admonition or reprimand imposed.

In Richardson, the Commissioner said: ?The language of the letter and the circumstances in which it was issued must be considered as a whole, and a determination made whether it is a corrective admonition or a disciplinary reprimand?.

In M.D.?s case, the Commissioner found that although critical of M.D.?s job performance, the letter amounted to ?nothing more than an administrative evaluation.? Although the language in the superintendent?s letter is critical, the Commissioner decided that the purpose of the letter was to call M.D.?s attention to breaches of school policy and encourage compliance with such policies in the future.

Specifically, the letter stated:

As a professional, you are expected to treat students appropriately at all times, notwithstanding their race, ethnicity, gender or sexual orientation. As a guidance counselor, you are in a position of dispensing advice and guidance to students on a daily basis and you cannot do so properly if you are not treating them with proper respect ? ?you are to treat students appropriately at all times and ... refrain from any conduct or comment that would be inconsistent with your role as a professional educator? ?.

This language, said the Commissioner, appears to be an administrative effort to achieve an improvement in M.D.?s performance.

Rejecting M.D.?s allegation that the letter was a reprimand and not an evaluation because he was terminated from his position as the high school football coach as a result of such misconduct, the Commissioner said that M.D. was not terminated from his tenured position as a guidance counselor at the school nor was he reassigned to a different position at the school.

As to M.D.?s request for a name-clearing hearing, the Commissioner observed that a public employee is entitled to a hearing to clear his or her name only when dissemination of the charges has implicated the employee?s good name, reputation, honor or integrity thereby foreclosing the employee?s freedom to take advantage of other employment opportunities. As M.D. was not terminated from his position as a guidance counselor, ?he has failed to demonstrate that his employment opportunities have been foreclosed upon? and thus ?is not entitled to a name-clearing hearing.?

Full post as published by New York Public Personnel Law on April 21, 2008 (boomark / email).