Constructive criticism or discipline?

Constructive criticism or discipline?
Matter of Fusco, Comm. of Ed. Decision 14,396
Matter of Irving, Comm. of Ed. Decision 14,373

Sometimes it may be difficult to determine the location of that thin line that separates lawful constructive criticism of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature.

As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a counseling memorandum that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In other words, comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

In the opinion of the Commissioner of Education, the employers crossed the line in both the Fusco and Irving situations.

The Fusco Case

Two questions were raised by Esther Fusco, a tenured Jefferson Central School District school principal, in her appeal to the Commissioner of Education challenging her 1998 performance evaluation that was prepared by the school board itself.

1. Is a school board authorized to conduct performance evaluations of school district administrators?

2. If a school board may undertake such evaluations, did the board’s 1998 performance evaluation of her work constitute disciplinary action?

First Fusco contended that only a school superintendent was authorized to undertake a performance evaluation of school administrators and teachers. Her second complaint: her 1998 was evaluation by the board was unlawful because it constituted disciplinary action within the meaning of Section 3020-a of the Education Law and she was not served with charges or given a hearing.

According to the ruling, Jefferson’s superintendent, Dr. Wayne Jones, prior to his leaving the district in October 1997, had evaluated school administrators. Fusco was not evaluated by any of the district’s acting superintendents who served following Jones’ departure.

On July 29, 1998, the school board gave Fusco a memorandum entitled Board Evaluation of Principal Work Performance in which the board characterized Fusco’s performance during both academic 1996-1997 and 1997-1998 as unsatisfactory. The board’s examples of Fusco’s unsatisfactory performance set out in the evaluation included allegations that Fusco:

1. Demonstrated unsuitable judgment;

2. Exhibited unsuitable behavior;

3. Engaged in insubordinate and disrespectful behavior; and

4. Exhibited poor leadership.

The board placed a copy of its evaluation in Fusco’s personnel file and Fusco appealed to the Commissioner. Fusco argued that:

1. Only the superintendent of schools is authorized to evaluate her performance and thus the board’s action constituted a violation 8 NYCRR 100.2(o); and

2. Assuming that board could conduct such evaluations, the evaluation, when placed in her personnel file, constituted an impermissible disciplinary reprimand, issued without complying with the procedural protections of Education Law Section 3020-a.

The board defended its action, contending that (1) it did, in fact, have authority to evaluate Fusco’s performance and (2) its action was constructive criticism of Fusco’s performance permitted by law and thus did not constitute disciplinary action within the meaning of Section 3020-a.

The Commissioner agreed with the board in part.

First he pointed out that while 8 NYCRR 100.2(o) requires that the superintendent develop formal procedures for the review of the performance of all personnel of the district, there is nothing in the regulation that requires the superintendent to conduct the evaluation.

Accordingly, the Commissioner ruled that in the absence of a provision that would prohibit a board of education from doing so, a school board may itself conduct such an evaluation.

What of Fusco’s second claim -- that the evaluation constituted unlawful disciplinary action and thus must be removed from her personnel file?

The Commissioner said that while the general rule is that personnel given critical administrative evaluations by a supervisor is not entitled to Section 3020-a protections, a disciplinary reprimand may not be issued without a finding of misconduct pursuant to Section 3020-a.

Did Fusco’s evaluation constitute disciplinary action without the benefit of the protections of Section 3020-a? Yes, ruled the Commissioner, it did.

The Commissioner said that contents of the memorandum did not fall within the parameters of a permissible evaluation and despite the board’s representation that it was intended to encourage positive change in Fusco’s performance, it contains no constructive criticism or a single suggestion for improvement. Rather, said the Commissioner, the memorandum focused on castigating [Fusco] for prior alleged misconduct.

Instead of constructive criticism, the Commissioner concluded that the evaluation chastised [Fusco] for serious misconduct, including improper release of confidential information, harassment of staff members, damaging district/union relationships...and poor leadership.

The district was directed to remove the evaluation from Fusco’s personnel file as it does not constitute a performance evaluation but rather an impermissible reprimand.

Two other procedural points were considered by the Commissioner.

The district had also argued that portions of Fusco’s appeal concerned Taylor Law* matters and thus the Commissioner should defer to the Public Employment Relations Board. The district argued that PERB had exclusive jurisdiction over such issues.

The Commissioner ruled that his disposition of the appeal considered matters unrelated to the Taylor Law and thus his dismissal of Fusco’s appeal and deferral to PERB was not required.

In addition, the district asked the Commissioner for permission to submit two additional documents it claimed addressed substantive issues related to Fusco’s conduct after it had filed its answer to Fusco’s petition:

1. An affidavit by an individual; and

2. [A]n affirmation by an attorney.

The Commissioner agreed to accept both documents because that information was not available to the district prior to its submission of its answer.

The Irving Case

Troy City School District Superintendent Armand Reo, after discussing letters of complaint received from parents and other concerns with the school board and Elementary School Principal Mozella Irving, gave Irving a letter of counseling in which he, among other things, said:

You are hereby counseled that in future dealings with the parents of our students you must avoid a confrontational attitude ... avoid making rude or inappropriate comments to parents and you should generally make every attempt to accommodate reasonable requests [received from] parents.

A copy of this letter was placed in Irving’s personnel file.

The next day, October 8, 1999, Reo gave Irving a second letter in which he told her that she was transferred to a different school, where she would serve as assistant principal effective October 14, 1999 and that such action was being taken in the best interest of the school district.

Protesting that her involuntary reassignment and demotion was disciplinary in nature and illegally deprived her of her rights to due process as set out in Section 3020-a of the Education Law, Irving appealed Reo’s action to the Commissioner of Education.

The Commissioner sustained Irving’s appeal, holding that:

The record convinces me that disciplinary action was taken and that Irving was deprived of her rights under Education Law Section 3020-a.

Conceding that Sections 1711 and 2508 of the Education Law authorize a superintendent to transfer personnel, the problem here, said the Commissioner, was that Irving’s alleged staff mistreatment and parental mistreatment were the only reasons for reassigning and demoting Irving set out in the record.

The Commissioner pointed out that the several meetings between Reo and Irving, and Reo and the board, and the two letters given to Irving by Reo, are all part of a single process, and it is inescapable that the sole reason for [Irving’s] transfer was her alleged misconduct as a principal.

Considering all of these circumstances as a whole, the Commissioner concluded that Irving was entitled to the protections of Section 3020-a, including the right to contest formal charges, and those rights have been violated here.

Another consideration that the Commissioner found persuasive: all of the materials submitted by the board in responding to Irving’s appeal were directed toward demonstrating misconduct on the part of [Irving]. This, the Commissioner pointed out, was exactly the type of proof that the district would have been expected to introduce in a Section 3020-a disciplinary hearing.

Rejecting the district’s argument that Irving’s transfer was for the good of the district and thus not disciplinary in nature, the Commissioner said this theory misses the mark. He observed that one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district.

The Commissioner annulled Irving’s reassignment from her position as principal of School 2 to assistant principal of School 14 without prejudice to any further action, which may be appropriate under the terms of this decision. The standard used by the Commissioner in formulating his ruling:

A superior may issue a letter critical of an individual’s performance and place a copy of such a letter in the individual’s personnel file without initiating disciplinary action pursuant to Section 3020-a where the document deals with a relatively minor shortcoming and urges or directs better performance on the part of the individual in the future.

Had Reo’s letter of October 7, 1999 been the only action taken by the district, said the Commissioner, a plausible argument that Irving had not been subjected to disciplinary action could have been made. However, this letter, coupled with the letter of October 8, 1999 demoting and transferring Irving to another school, together with the discussions of the matter by the board, persuaded the Commissioner that Irving had been disciplined within the meaning of Holt.

Another concern: A counseling memorandum is placed in an individual’s personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including the events set out in the counseling memorandum in the charges constitute double jeopardy?

No, according to the Court of Appeal’s ruling in Patterson v Smith, 53 NY2d 98.

In Patterson, the court said that including charges concerning performance that were addressed in a counseling memorandum was not double jeopardy. The court’s rationale: as a proper counseling memoranda contains a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.

Clearly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event and the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty.

* As to Taylor Law considerations, PERB has recognized the difference between criticism of employee performance and disciplinary action. In Port Jefferson Union Free School District v United Aides and Assistants, U-5713, PERB rejected a union’s claim that every written criticism of an employee was a reprimand.

Determining the issue in arbitration

Determining the issue in arbitration
Matter of the Schenectady Federation of Teachers, Jeffrey M. Selchick, Esq., Arbitrator

In most instances, the parties are able to agree on the issue to be resolved by the arbitrator among themselves or with the assistance of the arbitrator. This was not the case in the Matter of the Arbitration between the Schenectady Federation of Teachers and the Schenectady City School District. Here the parties simply could not agree on the issue to be decided by Arbitrator Jeffrey M. Selchick.

Did this mean that the matter could not be submitted to the arbitrator?

No, said Selchick, referring to How Arbitration Works by Elkouri and Elkouri, 5th Edition.

Quoting from the text, Selchick said that:

Where the parties cannot agree upon an issue, the arbitrator may arrive at a precise statement of the issue or issues after studying the entire record of the case, including if available, such matters as the original grievance statement and the grievance procedure minutes, the demand for arbitration and any reply of the other party, correspondence of the parties, the transcript of the hearing [or arbitrator’s notes], the parties’ exhibits, and the parties’ briefs.

The collective bargaining agreement provision at issue concerned a requirement that teachers attend meetings, including home school activities -- activities intended to improve students’ achievement levels.

The Federation alleged the District had violated the contract when it gave teachers a schedule setting out the pattern applicable to home school activities under the agreement that required them to perform such activities on Tuesdays and Thursdays.

The issue as formulated by the Federation essentially asked if there was a contractual meeting of the minds. The District, on the other hand, simply assumed that there was such a meeting of the minds and asked the arbitrator to determine if the agreement gave it exclusive authority to schedule home school activities.

Selchick, after reviewing the record, concluded that there was a meeting of the mind and decided that the issue to be resolved was:

Did the District violate ... the Agreement when it established the schedule for home school activities ...?

After considering the contract language, Selchick ruled that the provision was clear -- the District had the right to establish a schedule for all meetings, which includes home school activities ... and, in addition, could require that teachers maintain a professional log recording the activities the teacher performed on a scheduled home school date.

Officials serving without compensation to pay full cost of health insurance coverage

Officials serving without compensation to pay full cost of health insurance coverage
Formal Opinions of the Attorney General, 2007 - F1

The Attorney General has issued an opinion indicating that public authorities, whose board members are State Officers and which members, pursuant to statute, serve without salary or other compensation, may not pay for health insurance coverage for current or retired board members.

With respect to political subdivisions of the State paying employer contributions for health insurance on behalf of unpaid officers and employees, the Regulations of the President of the Civil Service Commission [4 NYCRR 73.1(c)(1)(ii)] provide, in pertinent part that:

….any unpaid local elective official who occupies a position which by statute, local law, ordinance or resolution is expressly prohibited from receiving compensation or school board member electing to participate by reason of such membership shall be required to pay both the employer and the employee contribution for any coverage elected under the [New York State Health Insurance] plan …

The President’s Regulations apply only to State officers and employees and the officers and employees of those political subdivisions of the State that are “participating employers”* in the New York State Health Insurance Plan [NYSHIP].

In this regard, the Department of Civil Service has interpreted §167.2 of the Civil Service Law to permit uncompensated personnel of a public authority that is a participating employer to elect to participate in NYSHIP but bars the authority from making employer contributions for NYSHIP coverage on behalf of those serving without compensation.

Essentially, Opinion F-1 addresses the eligibility of “State Officers” serving without compensation to have employer contributions to NYSHIP made on their behalf.

It is unclear whether the Opinion is intended to apply to a political subdivision of the State that is not a “participating employer” in NYSHIP insofar as its officers and employees serving without compensation are concerned where such contributions are otherwise authorized by the jurisdiction involved.

* §163.4 of the Civil Service Law provides that: “Any public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state, whose employees and retired employees are authorized to be included in the plan as provided by subdivision two, may elect to participate in such plan.” Such entities are referred to as “participating employers.”

Concealing misconduct may result in a hasher penalty than might otherwise be imposed

Concealing misconduct may result in a hasher penalty than might otherwise be imposed
Application of Gonzalez, 273 AD2d 140

The lesson in the Gonzalez case is that an employee’s efforts to suppress his or her misconduct may result in a harsher penalty than might otherwise be imposed.

The Appellate Division, First Department, sustained the dismissal of New York City police officer Antonio Gonzalez after he was found guilty of wrongfully discharged his firearm and thereafter lying about the event and attempting to conceal evidence of his misconduct. Citing Berenhaus v Ward, 70 NY2d 436, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”

In La Chance v Erickson, 522 US 262, the US Supreme Court said that federal employees being investigated for alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for such misconduct.

The court said that “an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”

As to a Fifth Amendment defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator’s questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

Report of the Workforce Reform Task Force created by NYC Mayor Michael Bloomberg

Report of the Workforce Reform Task Force created by NYC Mayor Michael Bloomberg

The Workforce Reform Task Force created by New York City Mayor Michael Bloomberg issued its Report and Recommendations on January 6, 2011.*

Mayor Bloomberg established the Task Force in an effort to address that the Task Force characterizes as a system that has been "codified by a needlessly complex and restrictive set of rules and restrictions." Its mission: to study and develop recommendations "that will give the City the flexibility to empower and manage its workforce while strengthening its talent, skills and diversity."

Clearly many of the problems and the Task Force’s suggested solutions require careful consideration and analysis. NYPPL believes that solutions can be developed that would be consistent with the mandates of the State Constitution. Such solutions, of course, may require amendments to the Civil Service Law as well as modifications of existing procedures and processes. NYPPL believes that with study and imagination, many, if not all, of the difficulties identified by the Task Force will yield to the benefit of the City, its citizens and its employees.

Below are NYPPL’s reactions** to the first 10 of the Task Force's 23 recommendations:

Recommendation 1: Amend State Law to eliminate the State Civil Service Commission’s oversight authority over the City

NYPPL Comments: Many of the “problems” recited in this portion of the Report may well result from that often fatal administrative disease, “hardening of the categories.” Innovation, consistent with the mandates of Article V, Section 6 regarding selection by merit and fitness, rather than the destruction of a system that, when used with imagination, is flexible and responsive, appears to be the better alternative.


Recommendation 2: Empower the New York City Transit Authority and the Triborough Bridge & Tunnel Authority to administer their civil service systems

NYPPL Comments: Certainly doable.


Recommendation 3: Move certain titles out of the competitive class, including all senior management and executive titles

NYPPL Comments: Two court rulings that address many of the issues underlying this portion of the Report are:

[1] Brynien v NYS Department of Civil Service [Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate] NYPPL's summary of the Brynien decision is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2010/12/employees-alleging-that-they-were.html

and

[2] City of Long Beach v Civil Service Employees Association, Inc. [Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate.] NYPPL's summary of the City of Long Beach decision is posted on the Internet at:
http://publicpersonnellaw.blogspot.com/2010/10/contract-provisions-agreed-upon-in.html


Recommendation 4: Broadband and consolidate existing titles

NYPPL Comments: The Civil Service Law currently recognizes the concept of Broadbanding Titles [See CSL §52.6 as an example of such a device.] Similarly, “consolidation of titles” might be appropriate under certain circumstances but essentially this appears to be a “position classification” and “allocation to a salary grade” issue.


Recommendation 5: Increase the use of education and experience exams for competitive titles

NYPPL Comments: The rating of Training and Experience [T&E] is not a new concept. It has been used successfully in many instances. Again, however, where a competitive class position is involved, the T&E examination must likewise be competitive.


Recommendation 6: Adopt band-scoring methodology where possible

NYPPL Comments: This Recommendation appears to advocate the broader use of “Zone Scoring” examination results.


Recommendation 7: Give credit for high performing provisional service on exams

NYPPL Comments: This is a troublesome recommendation as it is, in NYPPL's opinion, inconsistent with basic merit and fitness concepts as it advantages the individual selected for the provisional employment over one not so favored although the latter might be the better candidate. As an example of a prohibition barring so favoring provisional appointees, §52.10 of the Civil Service Law, provides

10. Credit for provisional service. No credit in a promotion examination shall be granted to any person for any time served as a provisional appointee in the position to which promotion is sought or in any similar position, provided, however, such provisional appointee by reason of such provisional appointment shall receive credit in his permanent position from which promotion is sought for such time served in such provisional appointment.


Recommendation 8: Increase the appropriate use of selective certification in hiring

NYPPL Comments: This recommendation, when used in specific and appropriate situations, is doable. The idea underlying the recommendation is well recognized as demonstrated by the use of a parenthetic title such as “Secretary {Spanish Speaking)" and similar “parenthetic titles” in State and municipal service.


Recommendation 9: Eliminate Test Validation Boards and reform the process for challenging competitive civil service exams

NYPPL Comments: At the risk of oversimplification, the genesis of “test validation boards” was to provide the professional support necessary to demonstrate the test was “valid” in the context of rebuffing challenges alleging that the examination unlawfully discriminated against a “protected class” by not being job related, etc.


Recommendation 10: Streamline processes to enable employees to move across functions and use Rule 6.1.9 more effectively to transfer titles and employees between agencies

NYPPL Comments: Suffice it to note that the Task Force Report states that “the flexibility provided by [Rule 6.1.9] appears to be underutilized by agency managers.”
__________________

* The Report is posted on the Internet at: http://www.scribd.com/doc/46469466/Bloomberg-Workforce-Report

** Prepared by Harvey Randall, Editor and General Counsel, Public Employment Law Press.