Teacher’s receipt of counseling memo does not prevent disciplinary action |
On Board Online • July 30, 2012
By Patricia H. Gould
Associate Counsel
A school board is not barred from pursuing disciplinary charges against a tenured teacher who previously had been issued counseling letters for the same misconduct less than three years earlier, a state appellate court has recently ruled.
In Board of Education of the Dundee Central School District v. Coleman, the teacher was accused of a variety of improper behaviors. After a Section 3020-a hearing, a hearing officer found the teacher guilty of some disciplinary charges, but dismissed a number of other charges because the school district had already addressed the alleged misconduct in counseling letters issued to the teacher and the teacher had not repeated that specific conduct. The school district appealed, and, as previously reported in On Board, a state Supreme Court ruled the district was not precluded from bringing 3020–a charges based upon the same conduct that gave rise to the counseling letters.
The case was sent back, or remanded, to the same hearing officer. The hearing officer found the teacher guilty of some of the previously dismissed charges, which included improperly re-using an exam that tested at the wrong level and contained suggestive vocabulary. He was also found guilty of inappropriately referring to a special education student on an exam, although without malicious intent. Despite finding the teacher guilty of these additional charges, the hearing officer still recommended the same penalty – a six-month unpaid suspension.
In considering whether any further penalty was appropriate, the hearing officer specifically noted that there was no proof any of the warned offenses were repeated by Coleman and said it would be inherently unfair to further discipline him for actions that were not repeated.
The school district again appealed on the grounds the unaltered penalty was excessively lenient, against public policy and irrational.
The lower state court agreed with the district and this was affirmed by the Appellate Division, Fourth Department. Even after placing a counseling letter in a teacher’s file regarding an incident it is within the discretion of the school district to subsequently consider the same incident now serious enough to form the basis for formal discipline.
While several incidents of the teacher’s misconduct had initially been addressed by the district through memos, the Fourth Department said that after additional misconduct occurred, it was only logical for the district to bring formal charges regarding all underlying incidents, and to request a penalty based upon the totality of the circumstances.
According to the Fourth Department, it is “well settled that counseling memoranda such as those placed in respondent’s personnel file are not considered disciplinary actions,” citing to a previous decision of New York’s highest court in Holt v. Board of Educ. of Webutuck Central School District. In Holt, the court ruled that such memoranda are just administrative evaluations which a school district’s supervisory personnel have the right and duty to make as part of their responsibility to supervise the faculty. As such, the court in Holt court ruled, counseling memoranda do not constitute professional discipline and thus, “conduct addressed in a nondisciplinary counseling memorandum may be used to support formal disciplinary charges at a later date not to exceed three years.”
The Fourth Department also agreed with the lower court that the hearing officer erred in directing the district to pay for the teacher’s health insurance benefits during his suspension. Section 3020-a hearing officers can only impose a penalty set forth in that law, which is either a reprimand, fine, unpaid suspension, or dismissal. The court said that paying for health insurance benefits is a form of compensation, and Section 3020-a only authorizes unpaid suspensions.