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Monday, June 25, 2012

Placing counseling memoranda in an individual’s personnel file does not constitute a disciplinary action for the purposes of Education Law §3020-a


Placing counseling memoranda in an individual’s personnel file does not constitute a disciplinary action for the purposes of Education Law §3020-a
Board of Educ. of Dundee Cent. School Dist. (Coleman), 2012 NY Slip Op 04849, Appellate Division, Fourth Department

The Dundee Central School District filed two disciplinary charges, setting out 16 specifications against a teacher. The teacher asked the disciplinary hearing officer to dismiss six specifications on the ground that the conduct encompassed by those specifications had been the subject of counseling memoranda placed in teacher's personnel file. The memoranda had warned the teacher "of the serious consequences of any future incident[s] . . . ."

The Hearing Officer granted the teacher's motion, concluding that "it would be both improper and unfair under the just cause protocol to permit and entertain formal charges, identical in nature to those at issue in the foregoing counseling memoranda, [because], by all accounts, the matters have not repeated." Ultimately the hearing officer found the teacher guilty of certain specifications and imposed a penalty of a six-month suspension without pay "but with continued medical insurance benefits."

Dundee commenced this proceeding pursuant to Education Law § 3020-a (5) and CPLR §7511 challenging the penalty, the continuation of health benefits during the period of the teacher’s suspension without pay and the dismissal of the six specifications. The district also contended that the penalty of a six-month suspension was "excessively lenient."

Supreme Court remanded the matter to the hearing officer, concluding that” the Hearing Officer erred in dismissing the six specifications and lacked statutory authority to direct [the school district] to pay for [the teacher’s] health insurance* during the period of suspension.”

The Hearing Officer subsequently sustained, in whole or in part, three of the six specifications, but he reimposed the same penalty, finding that the teacher had previously been disciplined for the conduct at issue in those specifications through the counseling memoranda, explaining that "[i]t would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to the [teacher] for actions that were never repeated."

The school district then commenced a second proceeding pursuant to Education Law §3020-a and CPLR §7511 to vacate the Hearing Officer's decision to the extent that the Hearing Officer determined that the penalty of a six-month suspension was appropriate and failed to comply with the prior judgment. Supreme Court agreed and vacated the penalty and remitted the matter to a different hearing officer regarding only the issue of the penalty.

The Appellate Division affirmed each of the Supreme Court's.prior judgments.

With respect to the issue of the dismissal of certain of the specifications by the hearing officer, the Appellate Division said that “we conclude that the Hearing Officer's decision to grant the motion of [the teacher’s] to dismiss six of the specifications was arbitrary and capricious. The court pointed out that “It is well settled that counseling memoranda such as those placed in [the teacher’s] personnel file are not considered disciplinary actions, citing Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625. In Holt, said the Appellate Division, the Court of Appeals specifically stated that such memoranda may "be used to support a formal charge of misconduct within three years of the occurrence which the evaluation addresses."

As to the issue of the hearing officer exceeding his authority, the Appellate Division ruled that Supreme Court “properly determined that the Hearing Officer exceeded his statutory authority in directing [the school district] to pay for [the teacher’s] health insurance benefits during the period of suspension. The court explained that "In recommending a penalty under [section] 3020-a of the Education Law, a hearing [officer] is limited to one of the penalties set forth in that section, i.e., a reprimand, a fine, suspension for a fixed time without pay or dismissal'" [emphasis in the decision].

As, said the court, “[an employer’s] contribution toward an employee's health insurance is a form of compensation … the Hearing Officer improperly imposed what amounted to ‘a penalty of suspension at reduced pay’” [emphasis supplied].

Addressing Supreme Court’s remanding the matter to a different hearing officer with respect to the issue of the penalty to be imposed, the Appellate Division held that Supreme Court “properly determined that the Hearing Officer's decision on remittal to impose the same penalty was arbitrary and capricious inasmuch the Hearing Officer based his decision on an erroneous interpretation of the law”

Noting that the hearing officer refused to impose any additional penalty after sustaining some of the remitted six specifications based on his continuing belief that the counseling memoranda constituted a form of discipline, the Appellate Division again pointed out that “it is well established that counseling memoranda are not disciplinary measures under Education Law §3020-a” and that the hearing officer's conclusion that the teacher had previously been disciplined for the conduct encompassed by those specifications is arbitrary and capricious. Accordingly, the court concluded that Supreme Court had properly vacated the penalty imposed by the hearing officer and remitted the matter to a different hearing officer for imposition of a penalty.

* The court ordered the teacher to reimburse the Dundee Central School District for any such costs that had been previously paid by it of behalf of the teacher.



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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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