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Decision No. 15,623

Appeal of M.D. from action of the Board of Education of the Ramapo Central School District and Robert MacNaughton, Superintendent, regarding a personnel matter.

Decision No. 15,623

(August 13, 2007)

Arfine & D’Ambrozio, LLP, attorneys for petitioner, Stephen Arfine, Esq., of counsel

Greenberg, Wanderman & Fromson, Esqs., attorneys for respondents, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Ramapo Central School District and its superintendent (“respondents”) regarding the placement of a counseling letter in his personnel file.  The appeal must be dismissed.

During the 2005-2006 school year, petitioner was employed as a guidance counselor in respondents’ district.  Petitioner had been employed by the district since 1978, receiving tenure as a teacher in 1981 and as a school counselor in 1984.  Since 1978, petitioner has also served as a wrestling and football coach.  By letter dated July 12, 2006, the superintendent issued a counseling letter to petitioner, addressing petitioner’s alleged inappropriate behavior on three separate occasions.  The superintendent placed the letter in petitioner’s personnel file and this appeal ensued.

Petitioner alleges that the counseling letter was a reprimand and was placed in his personnel file without the procedural protections of Education Law §3020-a and requests that it be removed.  Petitioner also alleges that the superintendent shared the letter with the president of the district’s teachers’ association and requests a name-clearing hearing on the grounds that the allegations in the letter are false and defamatory, causing irreparable injury to his good name and reputation.  Petitioner further alleges that as a result of such allegations, he was notified that he would no longer be considered for any coaching positions in the district, causing him to lose approximately $15,000 of compensation per year.  He requests that he be returned to his terminated coaching positions with full back pay.

Respondents allege that the appeal is untimely and fails to state a cause of action.  Respondents further allege that petitioner failed to serve the petition on the superintendent and, therefore, the appeal against the superintendent must be dismissed.  Respondents also contend that petitioner resigned from his coaching assignments.

Before reaching the merits, I will address respondents’ procedural defenses.  First, respondents contend that the appeal should be dismissed against the superintendent because he was not personally served, as is required by §275.8(a) of the Commissioner’s regulations.  Petitioner submits an affidavit from the process server who executed the affidavit of service.  The affidavit states that on September 14, 2006, at approximately 3:45 p.m., the process server handed a copy of the petition to the superintendent.   The superintendent submitted an affidavit stating that he was not served.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  In light of the conflicting affidavits, I cannot conclude there was valid service on the superintendent.  Accordingly, I will dismiss the appeal as against the superintendent. 

Next, respondents allege that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  The parties dispute whether petitioner intentionally refused to accept mail delivery of the July 12 counseling letter.  In any event, the record reveals that petitioner did not receive the counseling letter until August 17, 2006, when it was hand-delivered.  The appeal was commenced within 30 days of receipt.  Under these circumstances, I decline to dismiss the appeal as untimely.

Turning to the merits, petitioner claims that the counseling letter must be removed from his personnel file because he was not afforded the procedural protections of Education Law §3020-a.  In Holt v. Bd. of Educ., Webutuck Cent. School Dist., 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 need not be afforded such procedural protections.  In reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications was to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future.  The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish (Holt v. Bd. of Educ., Wetubuck Cent. School Dist. et al., 52 NY2d 625).

However, “the Court of Appeals has [also] recognized a somewhat tenuous but nevertheless real distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement in performance, and disciplinary determinations of a punitive nature” (Appeal of Richardson, 24 Ed Dept Rep 104, 106, Decision No. 11,333). In Richardson, 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.  In that case, the petitioner was removed from her position and administratively transferred to a different school.  The decision set forth the following factors to be considered in determining whether a letter constitutes an impermissible reprimand: 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.  “The language of the letter and the circumstances in which it was issued must be considered as a whole, and a determination made whether it is a corrective admonition or a disciplinary reprimand” (Appeal of Richardson, 24 Ed Dept Rep 104, 106, Decision No. 11,333; seealsoAppeal of Fusco, 39 id. 836, Decision No. 14,396).

Applying these factors to respondents’ letter, I find that the document at issue, although critical of petitioner’s job performance, amounts to nothing more than an administrative evaluation.  Supervisory personnel of a school district have the right and duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the schools (Holt v. Bd. of Educ., Wetubuck Cent. School Dist. et al., 52 NY2d 625).  While the language in the superintendent’s letter is critical, I believe the purpose of the letter is to call petitioner’s attention to breaches of school policy and encourage compliance with such policies in the future.

First, the document in question was issued by a single administrator and not the board of education.  Secondly, in the letter at issue, the superintendent calls petitioner’s attention to three specific instances of misconduct and instructs petitioner to comply with school policy in the future.  Specifically, the letter provides:

As a professional, you are expected to treat students appropriately at all times, notwithstanding their race, ethnicity, gender or sexual orientation.  As a guidance counselor ... you are in a position of dispensing advice and guidance to students on a daily basis and you cannot do so properly if you are not treating them with proper respect.  

The superintendent further instructs petitioner that “you are to treat students appropriately at all times and ... refrain from any conduct or comment that would be inconsistent with your role as a professional educator.”  This language appears to be an administrative effort to achieve an improvement in petitioner’s performance.

To the extent that petitioner alleges that this letter was a reprimand and not an evaluation because he was terminated from his position as the high school football coach as a result of such misconduct, I find this claim to be without merit.  Petitioner was not terminated from his tenured position as a guidance counselor at the school nor was he transferred to a different position at the school.    Instead, petitioner was not selected as the football coach for the fall 2007 season.  As I have stated previously, an individual selected to serve as an interscholastic coach holds a position of high visibility in a school district (Appeal of Brown, 39 Ed Dept Rep 343, Decision No. 14,255). In considering a case of prior misconduct, the board of education must consider the possible consequences to the school district, the district’s reputation, and its student athletes in making a judgment about the appointment of a coach (Appeal of Brown, 39 Ed Dept Rep 343, Decision No. 14,255).  Since the record contains several allegations against petitioner involving improper conduct with students, I find that petitioner has not demonstrated that respondents acted arbitrarily or capriciously in not allowing petitioner to coach in the district (seeAppeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286; Appeal of Brown, 39 id. 343, Decision No. 14,255).  Therefore, this claim must be dismissed.

Petitioner also requests the right to a name-clearing hearing.  A public employee is entitled to a due process hearing to clear his or her name only when dissemination of the charges has implicated the employee’s good name, reputation, honor or integrity thereby foreclosing the employee’s freedom to take advantage of other employment opportunities (Board of Regents v. Roth, 408 US 564, 573; Lentlie v. Egan, 61 NY2d 874).  A name-clearing is required when the charges “denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively put a significant roadblock in that employee’s continued ability to practice his or her profession” (Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 630-631).  Since petitioner was not terminated from his position as a guidance counselor in respondents’ school, he has failed to demonstrate that his employment opportunities have been foreclosed upon.  Therefore, I find that petitioner is not entitled to a name-clearing hearing.

In light of the above disposition, I need not address petitioner’s remaining claims.