Can a written communication from a school administrator to a tenured teacher which criticizes the teacher be made a part of the teacher’s personnel file without affording the teacher an opportunity for a due process hearing?

Yes, according to a June 2, 2011 decision of the Court of Appeals, our state’s highest court. And you can thank our crack negotiating team for supplying the legal justification.

Back in June 2005 a fact-finding panel concluded that a teacher’s right to grieve letters in the file should be given up in exchange for the right of the teacher to append a response to the letter and have the letter removed from their file if no disciplinary charges were preferred after 3 years.

The UFT contract negotiators extolled the value of giving up this important right and it was incorporated into the contract for 2003 to 2007. There was (and still is) no right to deal with inaccurate letters, including those concluding teacher misconduct, unless and until there was a disciplinary hearing.

A small crack seemed to open in several cases brought about in response to letters that concluded there was teacher misconduct and the teacher given no ability to confront the allegations except with a written, attached response. On its face this seemed to fly in the face of the due process requirements of 3020-a and several lower court judges agreed.

The case of Rachel Cohn is illustrative. Cohn, a tenured Kindergarten teacher at P.S. 7Q, got into a discussion about paraprofessionals with her principal, Sara Tucci. During the discussion Cohn allegedly said that Tucci should watch “her Latin temper.”

Tucci took offense at the remark and commenced an OEO investigation. At the conclusion of the OEO investigation, the OEO found a probable violation of Chancellor’s Regulation A-830 and referred the matter back to Tucci for possible corrective action. Tucci placed a letter in Cohn’s file substantiating her own complaint and warning that the matter could lead to charges and ultimate termination.

Helen Hickey is a tenured physical education teacher at P.S. 41R with almost 30 years’ experience. When a field day was scheduled for the end of the school year the principal gave her certain instructions. When the day arrived there was inclement weather and a change in plans was required to move the field day indoors. The field day started 20 minutes late and the principal took no time to place a letter in Hickey’s file. The letter stated that Hickey was incompetent and may be subject to disciplinary charges.

Both Hickey and Cohn brought proceedings in Supreme Court and following other lower court precedent the Court’s ordered both letters expunged from their files. The lower court found that characterizing the alleged improper action made the letter subject to the due process requirements of 3020-a and were no longer instructive or cautionary in nature but rather disciplinary to which each teacher had a right to a hearing to contest.

The DOE appealed and the Appellate Division, First Department found that when the contract was changed to prevent letters in file grievances the parties waived any right to expunge the letters whether they were characterized as disciplinary or not.

Hickey and Cohn appealed to the Court of Appeals which decided, unanimously, that the UFT had bargained away their right to a hearing.

The Court of Appeals wrote:

“Article 21A is a broad provision that clearly encompasses written reprimands and the disciplinary letters at issue here fell within the purview of Article 21A. Comparison of the statute and the CBA provision reveals that the procedure in Article 21A is significantly different than, and incompatible with, the procedure in Education Law § 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicates, with respect to the placement of written materials in tenured teacher’s files, petitioners’ union was well aware that, by adopting Article 21A, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law § 3020-a in this limited arena. Because the letters at issue are not subject to 3020-a procedures, petitioners are not entitled to have them expunged.”

In the Matter of Helen Hickey, Appellant, v. New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v. Board of Education of the City School District of the City of New York, et al., Respondents., No. 101, No.102, COURT OF APPEALS OF NEW YORK, 2011 NY Slip Op 4541; 2011 N.Y. LEXIS 1339, June 2, 2011

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