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Decision No. 12,706

Appeal of ANNA ROSE BRIDY from action of Robert F. Heller, superintendent of the LaFayette Central School District, relating to a personnel file.

Decision No. 12,706

(May 26, 1992)

Robert D. Clearfield, Esq., attorney for petitioner, Harold G. Beyer, Jr., Esq., of counsel

Hancock & Estabrook, Esqs., attorneys for respondent, Renee L. James, Esq., of counsel

SOBOL, Commissioner.—Petitioner seeks an order compelling the removal from her personnel file of a memorandum from respondent, which is critical of remarks made by petitioner at a board of education meeting. The appeal must be dismissed.

During the public participation section of a December 8, 1991 meeting of the Board of Education of the LaFayette Central School District, there was a discussion about a proposal to shorten the Christmas vacation by two days to make up for instructional time lost as a result of construction work done at the high school. At that meeting, petitioner, who is a teacher at the high school and president of the Teachers' Association of the LaFayette Central School District, spoke in opposition to the decision to shorten the Christmas vacation. Petitioner stated that in her opinion, the lost days should be made up later in the school year because parents, students, and teachers had insufficient time to rearrange previously scheduled travel plans for Christmas vacation; therefore, making up the lost classes at that time would result in low student attendance.

On December 23, 1991, respondent wrote to petitioner stating that student attendance is an important educational concern of the district and all educators have a responsibility to promote student attendance. Respondent's memorandum further stated that in his opinion, petitioner's prediction of low student attendance on the days in question was less than supportive of the district's concern to promote student attendance. Respondent also acknowledged petitioner's right to express her opposition publicly to the district's decision to reschedule the lost days during Christmas break, but indicated that he felt petitioner could have stated the Teachers' Association's opposition to the rescheduled days while also encouraging normal student attendance on those dates. A copy of the memorandum was placed in petitioner's personnel file and a copy was sent to the board.

In this appeal, petitioner requests that the memo be removed from her personnel file, and all copies destroyed because it violates her right to free speech guaranteed under the First Amendment of the Constitution and was issued with the intent of having a chilling effect on future speech by petitioner. Local school authorities have broad discretion in the management of school affairs. (Board of Education, Island Trees UFSD v. Pico, 457 US 853; Meyer v. Nebraska, 262 US 390). The discretion of school officials must be exercised in a manner that does not violate the First Amendment, and teachers may not be compelled to relinquish First Amendment rights they would otherwise enjoy merely because they are teachers (Tinker v. Des Moines School District, 393 US 503). However, a teacher's free speech rights are not absolute (Givhan v. Western Line Consolidated School District, 439 US 410). When those rights are at issue, the interests of the teacher, as a citizen, in commenting on matters of public concern must be balanced against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees (Pickering v. Board of Education, 391 US 563, 568).

To establish a violation of First Amendment rights, an individual must prove that the governmental action taken was motivated by an intention to deny access to certain ideas and that this intent was a decisive factor in the taking of the action (Board of Education, Island Trees UFSD, supra at 871). Where there is no direct prohibition against speech, a violation of First Amendment rights will not be found unless there is the threat of sanctions (NAACP v. Button, 371 US 415).

In my view, respondent's memorandum to petitioner does not violate her First Amendment rights. It does not prohibit petitioner from stating her opposition to the district's decision, nor does it prohibit her from speaking on any topic. Nor does the memorandum threaten any sanction against petitioner. In fact, the memorandum acknowledges petitioner's right to state her opinions publicly.

Petitioner also maintains that the memorandum is a disciplinary reprimand and seeks its removal on the ground that she was not afforded the procedural protections of Education Law "3020-a. It is both the right and duty of school district supervisory personnel to make written comments evaluating the performance of district employees. (Holt v. Board of Educ., Webutuch CSD, 52 NY2d 625, 439 NYS2d 839; Appeal of O'Connor, 29 Ed Dept Rep 48; Matter of Hirsch, 17 id. 237). As the Court of Appeals has stated, a broad range of administrative review of a teacher's performance is necessary to the efficient management of a school system (Holt v. Board of Educ., Webutuch CSD, supra at 632-633). Critical written evaluations, therefore, do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish (id. at 633). Further, the submission of a letter by a single administrator is significantly less damaging to an employee than a formal reprimand issued by the board of education following a determination of misconduct (id.).

In this case, I find that respondent's memorandum, while critical of petitioner, constitutes a written evaluation and not a disciplinary reprimand. Moreover, as the letter was not issued by the board of education, it cannot be construed as a disciplinary measure authorized by Education Law "3020-a (Matter of Leber, 19 Ed Dept Rep 592). Petitioner's claims must, therefore, be dismissed.

I have reviewed petitioner's other contentions and find them to be without merit.