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Distinguishing between ?constructive criticism? and a ?reprimand? in the nature of disciplinary action

Distinguishing between ?constructive criticism? and a ?reprimand? in the nature of disciplinary action
Cohn v Board of Educ. of the City School Dist. of the City of New York, 2010 NY Slip Op 04711, Decided on June 3, 2010, Appellate Division, First Department

Hickey v New York City Dept. of Educ., 2010 NY Slip Op 04712, decided on June 3, 2010, Appellate Division, First Department

Typically courts have viewed placing a memorandum in a personnel file that the writer characterizes as a ?reprimand? or uses a phrase such as ?you are hereby reprimanded? constitutes disciplinary action within the meaning of statutory disciplinary procedures, entitling a tenured individual to notice and hearing.

In both of the Cohn and Hinkey cases the Appellate Division concluded that under ?the current collective bargaining agreement? negotiated by the United Federation of Teachers and the New York City Board of Education, letters placed in a teacher's personnel file that do not result in administrative charges or actual disciplinary sanctions are no longer subject to the previously available grievance procedures.*

Further, said the court, that characterizing a writing as a ?letter as a reprimand? in contrast describing it as a counseling memorandum as defined in the collective bargaining agreement, does not convert it into a ?reprimand? in a disciplinary sense,? citing Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625.

In Holt the Court of Appeals said that letters in an employee's personnel file commenting on that employee's conduct or performance that the employer found unsatisfactory did not constitute discipline. The Court of Appeals also indicated that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

The Appellate Division concluded that in the absence of any evidence that the educator was subjected to disciplinary charges, and ?aside from mischaracterizing a critical letter as itself constituting a disciplinary charge,? neither Cohn nor Hickey alleged that their respective employment status was adversely affected as a consequence of the letter, which, by operation of new Article Twenty-One (A)(5), would be automatically removed from their respective personnel files. Accordingly, the Appellate Division concluded that neither educator could avail herself of the hearing procedures set out in Education Law §3020-a.

Further, while a counseling letter is ?active? in a personnel file, the district may subsequently initiate disciplinary action based on the same event and the memorandum itself could be introduced as evidence in the course of the disciplinary proceeding.

On this point, as the Court of Appeal ruled in Patterson v Smith, 53 NY2d 98, should a "counseling memorandum" be placed in an individual's personnel file and disciplinary charges involving the same event(s) subsequently be served upon the individual, such action does not constitute "double jeopardy.?

In contrast, as the Commissioner of Education indicated in Matter of Irving, [Decisions of the Commissioner of Education 14,373], counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

* The Appellate Division noted that there were certain ?narrow exceptions not applicable herein.?

The Cohn decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04711.htm

The Hickley decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04712.htm

Full post as published by New York Public Personnel Law on June 08, 2010 (boomark / email).