A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law
Decisions of the Commissioner of Education, Decision 10933
A §3020-a disciplinary panel found a teacher guilty of insubordination as the result of her refusal to act as a chaperone at a school event. The penalty imposed by the panel: “… a reprimand, to be expunged from (the teacher’s personnel) records if for the next two years there are no further disciplinary problems of a similar nature”.
The District appealed the penalty imposed by the panel to the Commissioner of Education, contending that such a penalty was not authorized by §3020-a of the Education Law.
The Commissioner agreed, finding that although the penalty to be imposed, a reprimand, was authorized by §3020-a, the disciplinary panel lacked any authority to direct the District to later expunge the reprimand from the teacher’s file for “good behavior.” The Commissioner then exercised his authority to impose an appropriate disciplinary penalty on the employee and ruled that a reprimand would be appropriate under the circumstances.
The Attorney General has considered the question of an employer to remove a reprimand from an employee’s personnel file. In Opinion of the Attorney General 81-28, the Attorney General said that an appointing authority that wishes to clear the record of an employee who had in the past misbehaved but who has since performed well should have that option, observing that “public policy is not served by forever blighting the employee’s personnel file.”
Accordingly, although a §3020-a disciplinary panel may not direct the appointing authority to “remove” any reference to the penalty from the individual’s personnel file, the appointing authority, in the exercise of its discretion, may elect to do so.
Presumably the same rationale would be applied with respect to penalties set out in other statutes providing for initiating disciplinary action against an employee for alleged misconduct such as §75 of the Civil Service Law, §155 of the Town Law, §137 of the Second Class Cities Law and §8-804 of the Village Law.
However, no such limitation would apply with respect to penalties imposed by an arbitrator pursuant to a negotiated alternative to a statutory disciplinary procedure as the arbitrator is generally permitted to impose such penalty as he or she deems appropriate under the circumstances.
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