Placing counseling memoranda in an individual’s personnelfile does not constitute a disciplinary action for the purposes of EducationLaw §3020-aBoard of Educ. of Dundee Cent. School Dist. (Coleman), 2012NY Slip Op 04849, Appellate Division, Fourth Department
The Dundee Central School District filed two disciplinarycharges, setting out 16 specifications against a teacher. The teacher asked thedisciplinary hearing officer to dismiss six specifications on the ground thatthe conduct encompassed by those specifications had been the subject ofcounseling memoranda placed in teacher's personnel file. The memoranda had warnedthe teacher "of the serious consequences of any future incident[s] . . .."
The Hearing Officer granted the teacher's motion, concludingthat "it would be both improper and unfair under the just cause protocolto permit and entertain formal charges, identical in nature to those at issuein the foregoing counseling memoranda, [because], by all accounts, the mattershave not repeated." Ultimately the hearing officer found the teacherguilty of certain specifications and imposed a penalty of a six-monthsuspension without pay "but with continued medical insurancebenefits."
Dundee commenced this proceeding pursuant toEducation Law § 3020-a (5) and CPLR §7511 challenging the penalty, thecontinuation of health benefits during the period of the teacher’s suspensionwithout pay and the dismissal of the six specifications. The district alsocontended that the penalty of a six-month suspension was "excessivelylenient."
Supreme Court remanded the matter to the hearing officer, concludingthat” the Hearing Officer erred in dismissing the six specifications and lackedstatutory authority to direct [the school district] to pay for [the teacher’s]health insurance* during the period ofsuspension.”
The Hearing Officer subsequently sustained, in whole or inpart, three of the six specifications, but he reimposed the same penalty,finding that the teacher had previously been disciplined for the conduct atissue in those specifications through the counseling memoranda, explaining that"[i]t would be inherently unfair and totally contrary to the just causeprotocol to issue further discipline to the [teacher] for actions thatwere never repeated."
The school district then commenced a second proceedingpursuant to Education Law §3020-a and CPLR §7511 to vacate the HearingOfficer's decision to the extent that the Hearing Officer determined that thepenalty of a six-month suspension was appropriate and failed to comply with theprior judgment. Supreme Court agreed and vacated the penalty and remitted thematter 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 thespecifications by the hearing officer, the Appellate Division said that “weconclude that the Hearing Officer's decision to grant the motion of [theteacher’s] to dismiss six of the specifications was arbitrary and capricious. Thecourt pointed out that “It is well settled that counseling memoranda such asthose 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 specificallystated that such memoranda may "be used to support a formal charge ofmisconduct within three years of the occurrence which the evaluation addresses."
As to the issue of the hearing officer exceeding hisauthority, the Appellate Division ruled that Supreme Court “properly determinedthat the Hearing Officer exceeded his statutory authority in directing [theschool district] to pay for [the teacher’s] health insurance benefits duringthe period of suspension. The court explained that "In recommending apenalty under [section] 3020-a of the Education Law, a hearing [officer] islimited to one of the penalties set forth in that section, i.e., areprimand, a fine, suspension for a fixed time without pay or dismissal'" [emphasis in the decision].
As, said the court, “[an employer’s] contribution toward anemployee's health insurance is a form of compensation … the Hearing Officerimproperly imposed what amounted to ‘a penalty of suspension at reduced pay’” [emphasis supplied].
Noting that the hearing officer refused to impose anyadditional penalty after sustaining some of the remitted six specificationsbased on his continuing belief that the counseling memoranda constituted a formof discipline, the Appellate Division again pointed out that “it is wellestablished that counseling memoranda are not disciplinary measures underEducation Law §3020-a” and that the hearing officer's conclusion that theteacher had previously been disciplined for the conduct encompassed by thosespecifications is arbitrary and capricious. Accordingly, the court concludedthat Supreme Court had properly vacated the penalty imposed by the hearing officerand remitted the matter to a different hearing officer for imposition of apenalty.
* The court ordered theteacher to reimburse the Dundee Central School District for any such costs that had beenpreviously paid by it of behalf of the teacher.
The decision is posted on the Internetat:
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