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September 22, 2010

Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing

Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.

Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:

1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and

2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.

A copy of the letter was placed in Ozol's personnel file.

According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.

The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."

In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.

The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.

The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."

The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."

The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.

Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.

Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.

In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.

Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.

Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.

Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.

Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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