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Decision No. 14,396

Appeal of ESTHER FUSCO from action of the Board of Education of the Jefferson Union Free School District relating to an evaluation.

Decision No. 14,396

(June 27, 2000)

Beverly R. Hackett, Esq., Bracken and Margolin, LLP, attorneys for petitioner, Peter L. Verdon, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, John H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner, a tenured elementary school principal, seeks the removal of an evaluation placed in her personnel file by respondent Board of Education of the Jefferson Union Free School District ("respondent"). The appeal must be sustained.

Petitioner is employed as an elementary school principal in respondent's school district. She received tenure in 1995. Until 1997, Dr. Wayne Jones was employed by respondent as its superintendent of schools and conducted performance evaluations of the school district administrators, including petitioner. Dr. Jones left his position as superintendent of schools in October 1997. Respondent appointed its business administrator as acting superintendent for several weeks and, in November 1997, appointed Frank Carasiti as acting superintendent of schools. Mr. Carasiti served as acting superintendent for nine months until July 31, 1998. During this time, Mr. Carasiti did not evaluate petitioner. On July 29, 1998, respondent issued a memorandum to petitioner entitled "Board Evaluation of Principal Work Performance." The memorandum summarized respondent's assessment of certain aspects of petitioner's performance during the 1996-97 and 1997-98 school years. In the memorandum, respondent criticized petitioner's performance as unsatisfactory, setting forth a number of complaints (i.e., unsuitable judgment, exhibiting unacceptable behavior, engaging in insubordinate and disrespectful behavior and exhibiting poor leadership). Respondent placed the memorandum in petitioner's personnel file, and this appeal ensued.

Petitioner challenges the July 29, 1998 memorandum issued by respondent on several grounds. First, she asserts that only the superintendent of schools is authorized to evaluate her and that, by directly evaluating her, respondent violated 8 NYCRR "100.2(o), as well as respondent's own policies. Petitioner also claims that the evaluation placed in her personnel folder constitutes an impermissible disciplinary reprimand, issued without complying with the procedural protections of Education Law "3020-a. Petitioner also claims the evaluation was issued in retaliation for voicing opinions contrary to respondent's position on certain educational issues. Finally, petitioner claims respondent's evaluation of her performance was arbitrary and capricious, alleging respondent failed to provide her with notice of the evaluation prior to conducting it, failed to provide her with the criteria on which she was to be evaluated, failed to apprise her of the review process, and failed to inform petitioner that it was deviating from board policy by conducting the evaluation itself.

Respondent asserts petitioner's appeal is, in part, improperly before the Commissioner of Education, claiming appropriate jurisdiction lies with the Public Employment Relations Board. Respondent also argues that its actions were in compliance with applicable regulations, as well as board policy. Respondent asserts that the evaluation does not constitute a disciplinary reprimand, was not conducted in an arbitrary and capricious manner and was not conducted in retaliation for petitioner's exercise of her right to free speech.

As a procedural matter, I note that, subsequent to the filing of its answer in this appeal on October 2, 1998, respondent requested permission pursuant to 8 NYCRR "276.5 to submit an additional affidavit by Suzette Smookler dated October 13, 1998, and an affirmation by John H. Gross, Esq., dated October 29, 1998. The additional submissions related to documents respondent did not receive until after filing of its answer. The documents concern substantive issues relating to petitioner's conduct. Because that information was not available to respondent prior to submission of its answer, the additional affidavit and affirmation submitted by respondent are accepted pursuant to 8 NYCRR "276.5.

I will next address the jurisdictional challenge raised by respondent. Specifically, respondent asserts that three paragraphs of the petition set forth allegations relating to provisions of the Taylor Law (Civil Service Law, Article 14), and that adjudication of alleged violations of the Taylor Law are within the exclusive jurisdiction of the Public Employment Relations Board. Respondent contests that, therefore, the Commissioner of Education lacks jurisdiction to decide those allegations in an appeal brought pursuant to Education Law "310. A determination of appropriate jurisdiction over the allegations set forth in those paragraphs is not, however, dispositive of this appeal. Petitioner's statements contained in the three contested paragraphs are offered as factual background to the appeal, and petitioner does not seek resolution in this appeal of the issues described in those paragraphs. Respondent's jurisdictional defense relating to the three paragraphs, thus, does not require dismissal of the appeal. Moreover, disposition of the appeal, as set forth below, is upon grounds unrelated to the Taylor Law.

Turning to the merits, petitioner alleges that respondent lacks authority to evaluate her performance as principal of its elementary school, and that such authority rests only with the superintendent of schools. Petitioner cites 8 NYCRR "100.2(o) in support of this assertion and claims that, by directly evaluating petitioner, respondent violated that regulation as well as respondent's own policies. Respondent maintains that neither the regulation nor its policies prohibit a board of education from evaluating an administrator in its employ. In an appeal before the Commissioner of Education, petitioner has the burden of establishing a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Mayer, 39 Ed Dept Rep 195, Decision No. 14,212; Appeal of Ogbunugafor, 38 id. 105, Decision No. 13,994). In this instance, petitioner failed to meet her burden.

The provisions of 8 NYCRR "100.2(o), on which petitioner relies, which were in effect during the relevant time of this appeal provide:

Annual professional performance review. The governing body of each school district and board of cooperative educational services shall ensure that the performance of all professional personnel, except evening school teachers of nonacademic, vocational subjects, will be reviewed annually.

(1) Each superintendent, in consultation with teachers, administrators and other school service professionals, selected by the superintendent with the advice of their respective peers, shall develop formal procedures for the review of the performance of all such personnel in the district. Such procedures shall be approved by the governing body of the district, filed in the district office, and available for review by any individual no later than August 1st of each year. Formal procedures for the review of the performance of all such personnel shall include:

(i) criteria by which all such personnel shall be reviewed, and a description of the review procedures;

(ii) a description of review activities, including:

(a) the minimum number of observations;

(b) the frequency of observation; and

(c) provisions for a follow-up meeting for the reviewer to commend strengths of performance and discuss the need for improvement, if necessary, with the staff person being reviewed;

(iii) methods used to record review results; and

(iv) procedures used to:

(a) ensure that all such personnel are acquainted with the performance review procedures; and

(b) ensure that each individual who is reviewed in accordance with the provisions of this subdivision has the opportunity to provide written comment on his or her performance review.

Thus, the plain language of the regulation indicates that, although it requires that the superintendent of schools develop formal procedures for the review of the performance of all personnel of the district, with the approval of the governing body of the school district, there is no express requirement that the superintendent of schools conduct the evaluation, nor does the regulation expressly prohibit a board of education from doing so. Indeed the opening provision of the regulation states, "[t]he governing body of each school district … shall ensure that the performance of all professional personnel … will be reviewed annually" (emphasis supplied).

In addition, examination of applicable statutes supports the conclusion that, under certain circumstances, a board of education may reserve to itself the authority to evaluate district employees. Education Law "1709(33) vests in the board of education "superintendence, management and control of the educational affairs of the district." Education Law "1711(2) [formerly subdivision 5] which sets forth the powers and duties of a superintendent of schools, including the supervision of teachers, administrators and other persons employed in the management of the schools, expressly permits a board of education to limit such powers and duties in its bylaws (Appeal of Hagen, 17 Ed Dept Rep 400, Decision No. 9667) (See, also, Sweet Home Central School District v. Sweet Home Education Association, 90 AD2d 683, affd, 58 NY2d 912). Consequently, reading Education Law "1711(2) together with 8 NYCRR "100.2(o), I am unable to conclude that exclusive authority for evaluation of staff is vested in the superintendent of schools or, conversely, that such statute and regulation expressly prohibit a board of education from conducting such evaluations. It is clear that a board of education may, through its by-laws, alter the superintendent's duties and responsibilities and retain to itself authority to evaluate district staff.

Petitioner asserts that respondent did not limit its superintendent's authority to evaluate district administrators. She also claims that the superintendent of schools’ contract provides for such evaluations. As noted above, in an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which she seeks relief (Appeal of Mayer, supra; Appeal of Ogbunugafor, supra). Here, petitioner does not offer respondent's by-laws to support her claims. With respect to her assertions regarding the superintendent's contract, petitioner makes her allegations solely on information and belief. Thus, on this record petitioner has not carried her burden with respect to her challenge to respondent's legal authority to conduct evaluations in this instance.

Petitioner also relies upon two of respondent's policies to support her contention that respondent lacked authority to evaluate her. The Commissioner of Education has authority to enforce a board policy (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740). However, the Commissioner will exercise this authority only when petitioner establishes a policy has clearly been violated (Appeal of Pulvermacher, supra; Appeal of Marek, 35 id. 314, Decision No. 13,554). Respondent's Policy #0330 is entitled "Evaluation of Professional Staff". However, despite its title, the policy appears to address only teacher evaluations. Even if such policy is applicable to administrators, it contains no express provision vesting exclusive authority to conduct evaluations in the superintendent of schools. Nor does it expressly prohibit the board of education from conducting such evaluations.

The second policy advanced by petitioner - Policy #0700 - is entitled "Line and Staff Relations". The policy sets forth the superintendent's general responsibility for overseeing the district educational programs, indicates that responsibility "shall flow from the Board of Education, to the Superintendent, to Building Principals, to teachers" and further indicates "Each employee in the school system shall be responsible to the Board through the Superintendent." The policy addresses lines of responsibility generally, and is silent as to specific functions, such as the duty to conduct evaluations. Consequently, there is nothing in Policy #0700 vesting sole authority to conduct such evaluations in the superintendent, nor prohibiting the board from exercising such authority. Petitioner, therefore, has not established that her evaluation by respondent is in clear violation of the board policies on which she relies.

Petitioner also claims that respondent's July 29, 1998 memorandum is improper and must be removed from her file because, she asserts, such memorandum constitutes an impermissible disciplinary reprimand which can only be issued as a result of a proceeding brought pursuant to Education Law "3020-a. Respondent denies that the evaluation constitutes a reprimand and contends that it is, instead, solely an evaluative document which, albeit critical of certain aspects of petitioner's performance, is intended to assist her in improving such performance.

In Holt v. Board of Education, Webatuck Central School District, et al., 52 NY2d 625, the Court of Appeals held that, although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law "3020-a, critical administrative evaluations by a teacher's supervisor need not be afforded such procedural protections. In reviewing the letters placed in the teacher's file in Holt, the court found that "[a]lthough the sharply critical content of the letter is unmistakable, the purpose of the communication -- to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future -- is also clear" (Id., at 633). The Court held that 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.). The Court also found it significant that the letters were issued by a single administrator rather than by the board of education after a formal finding of misconduct (Id.).

In Appeal of Richardson (24 Ed Dept Rep 104, Decision No. 11,333) the Commissioner applied the Court's analysis in Holt to sustain the appeal of a tenured teacher who had served as the school nurse and direct the removal of a critical letter from her personnel file. The decision set forth the following factors to be considered in determining whether a letter constitutes an impermissible reprimand:

Those factors include whether the letter is from the teacher’s immediate supervisor or from the board of education; whether the letter is directed towards an improvement in performance or is a formal reprimand for prior misconduct; whether the letter is in the nature of a performance evaluation or a castigation for misconduct; and the severity of the misconduct and of the admonition or reprimand. Also relevant, but not by themselves determinative, are such factors as whether or not the letter uses the word "reprimand" and whether or not it uses the accusatory language of formal charges in describing the teacher’s conduct. Id. At 106

After careful review of respondent’s July 29, 1998 memorandum in light of the aforementioned, I find the memorandum constitutes an impermissible reprimand which must be removed from petitioner's file.

The memorandum was formally issued by respondent board of education setting forth its findings with respect to a number of incidents involving petitioner during the 1996-97 and 1997-98 school years. Affidavits submitted on behalf of petitioner by two former presidents of respondent board of education attest that, from 1991 to 1997, the board of education never conducted any evaluations of any school district administrator, excepting its superintendent of schools. Indeed, respondent characterizes its July 29, 1998 memorandum as "extraordinary". The issuance of the memorandum directly from respondent board of education is a significant factor in determining whether such constitutes an impermissible reprimand (Appeal of Richardson, supra; Appeal of Leber, 19 id. 592, Decision No. 10,269).

By way of explanation, respondent claims that it was required to directly conduct an evaluation of petitioner’s performance "over the past two school years" due to the turnover in its superintendents of schools. However, the record indicates that respondent’s former superintendent of schools, Dr. Jones, had already conducted a complete performance evaluation in August 1997 for the 1996-97 school year - one of the years covered by respondent’s memorandum. Moreover, despite respondent's characterization of the memorandum as petitioner's annual performance evaluation, required by 8 NYCRR "100.2(o), respondent specifically acknowledged that its memorandum does not address curricular and programmatic aspects of petitioner’s performance - significant aspects of petitioner's responsibilities as principal which were addressed in all prior evaluations. Respondent indicates that evaluation of those duties must be left to the "educational leadership" of the district. The above factors contravene respondent’s position that it was required to evaluate petitioner in the absence of a permanent superintendent of schools and underscore the extraordinary issuance of the memorandum directly by the board of education.

The contents of the memorandum also do not fall within the parameters of a permissible evaluation, as articulated in Holt, supra, and Appeal of Richardson, supra (See, also, Appeal of Irving, 39 Ed Dept Rep ___, Decision No. 14,373). Despite an introductory statement that the memorandum is intended to encourage positive change in petitioner's behavior, the memorandum contains no constructive criticism nor a single suggestion for improvement. Instead, it focuses exclusively on castigating petitioner for prior alleged misconduct. One entire section of the memorandum is identified as "Insubordinate Behavior" and sets forth four incidents wherein respondent determined petitioner was insubordinate. Moreover, respondent cites "significant anecdotal evidence" as the basis of one insubordination determination relating to petitioner’s conduct in connection with an elementary reading presentation. Finally, unlike the letters issued to the teacher in Holt, the July 29, 1998 memorandum issued by respondent to petitioner herein, did not address minor breaches of school policy, but chastised petitioner for serious misconduct (i.e., wholly unsuitable judgment, improper release of confidential information, harassment of staff members, damaging district/union relationships, insubordination and poor leadership). (See, Civil Service Employees Association, Inc. v. Southold Union Free School District, 204 AD2d 445).

Upon consideration of the contents of the memorandum and in view of the fact that it is both inconsistent with respondent’s characterization as an annual performance evaluation and overlaps respondent's prior superintendent’s 1996-97 evaluation of petitioner, I find that the memorandum does not constitute a performance evaluation. It is clear from the record that the July 29, 1998 memorandum is, instead, an impermissible reprimand. As such, respondent must remove it from petitioner’s personnel file.

In view of the above disposition, it is not necessary for me to address petitioner’s remaining claims.


IT IS ORDERED that respondent immediately remove its July 29, 1998 memorandum from petitioner’s file.