Counseling memorandum issued to an employee
Decisions of the Commissioner of Education, Decision No. 17,236
The genesis of this appeal to the Commissioner of Education was the placement of a counseling memorandum in the educator's [Petitioner] personnel file.
The seminal decision concerning placing a "counseling memorandum" in an educator's personnel file is Holt v Board of Education, Webutuck Central School District, 52 NY2d 625. In Holt 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 reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications 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.
Turning to the merits of the instant appeal, the Commissioner observed that supervisory personnel of a school district have the right and the duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the school district, citing Holt.
Although the Commissioner found that the language "in the assistant superintendent’s letter is critical," the record supported a finding that the purpose of the memorandum was to call Petitioner’s "attention to breaches of school policy and encourage compliance with such policies in the future." Accordingly, the Commissioner ruled that the assistant superintendent permissibly issued the counseling memorandum without resort to the procedural protections of Education Law §3020-a."
Petitioner also alleged that "the counseling letter is internally inconsistent in that it indicates that its purpose was 'to warn [Petitioner] of the serious consequences of any future incident, and to instruct [him] ...' but also states that it does not rule out formal disciplinary action for this incident."
Petitioner also alleged that "the counseling letter is internally inconsistent in that it indicates that its purpose was 'to warn [Petitioner] of the serious consequences of any future incident, and to instruct [him] ...' but also states that it does not rule out formal disciplinary action for this incident."
The Commissioner acknowledged Petitioner's concerns but explained that the counseling memorandum "correctly recognizes that, so long as 'a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled,' a school district may make 'formal disciplinary use' of counseling memoranda such as the memorandum at issue in this appeal."
On this point, in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470, the court held that an individual's personnel record may be considered in determining the disciplinary penalty to be recommended or imposed in the event the individual is found guilty of one or more disciplinary charges, provided the individual is advised of the personnel records that will be so considered and he or she is given an opportunity to rebut the content of those personnel records that will considered for that purpose.
* See, also, Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373 for a NYPPL summary of decisions of the Commissioner of Education concerning constructive criticism as distinguished from disciplinary action. The URL is https://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html
The decision is posted on the Internet at: