Are ‘Holt’ letters a form of discipline? |
On Board Online • March 11, 2013
By the New York State Association of School Attorneys
For years, school districts have been issuing counseling letters to instructional and non-instructional staff members whose conduct fails to conform to expectations but does not necessarily warrant suspension, termination, or other such discipline. This widespread practice has been fundamental in allowing districts to address personnel issues without resorting to the costly and protracted procedures required by section 3020-a of the Education Law, section 75 of the Civil Service Law or contract procedures. A recent decision from New York State’s highest court, however, casts doubt on the extent to which such letters – commonly called “Holt” letters – can be used.
In D’Angelo v. Scoppetta, New York City firefighter Michael D’Angelo received a letter from assistant commissioner of the Fire Department advising him that he had engaged in unprofessional conduct by denigrating an EMT with a racial epithet. The letter informed him that he would be receiving additional training from the department’s Equal Employment Opportunity (EEO) office and was placed in his personnel file. D’Angelo subsequently challenged the department’s determination, arguing that its actions were disciplinary in nature and that he was entitled to a formal hearing.
On appeal, the Court of Appeals found in favor of D’Angelo, holding that the letter was not merely a counseling letter or critical evaluation and that required participation in EEO training was a form of discipline. In its opinion, the court took pains to distinguish D’Angelo from Holt v. Board of Educ. of Webutuck Cent. School Dist., a 1981 case in which it held that counseling letters were not disciplinary in nature and did not trigger the due process protections of a formal hearing.
In doing so, the court noted that the investigation in D’Angelo took two years to complete. The court also noted that the investigation involved top officials within the Fire Department, as a detailed report was prepared for the assistant commissioner and the matter was brought to the attention of the commissioner. Moreover, this extensive process resulted in both a letter and required counseling. In contrast, the letters underlying Holt involved relatively minor breaches of school policy, encouraged future compliance with the same, and were prepared by and reflected the opinions of the teachers’ immediate supervisors.
Despite the court’s attempts to clearly delineate what constitutes a disciplinary reprimand and what is merely a counseling letter or critical evaluation, this case creates considerable confusion. As Judge Robert Smith argued in his dissent, the letter issued to firefighter D’Angelo is no harsher than the letters discussed in the Holt case. The letter issued by the Fire Department also made clear that its purpose was to warn and instruct, not punish. Finally, the training D’Angelo was required to attend supported the Fire Department’s attempts to instruct and educate, and was not intended to be punitive.
In light of the court’s decision, school districts must carefully consider how determinations regarding the possible misconduct of teachers and paraprofessionals are made, as well as how and by whom counseling letters are prepared.
Members of the New York State Association of School Attorneys represent school boards and school districts.
This article was written by Brian Hartmann of the firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C, and originally appeared in the firm’s School Law Matters newsletter.