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.
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