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

Will the failure of the DOE to follow the UFT contract’s requirement to reduce OSI investigations to writing within 6 months prevent a teacher from being disciplined under 3020-a?

Article 21, C(4) of the UFT contract provides that when an investigation of a teacher is conducted any report must be reduced in writing, given to the teacher with an opportunity to respond in writing within 6 months of the date of the incident investigated or the date that the DOE should have discovered it.

Phyllis Nuchman, a 29 year veteran special education teacher was charged with 3 specification dealing with her responsibilities with maintaining special education records and IEP conferences. The charges resulted from an SCI/OSI investigation which took longer than six months to complete. It was undisputed that neither Nuchman or her UFT rep were given written copies of the investigation or given a chance to respond before charges were lodged against her.

Arbitrator Jay Siegel denied Nuchman’s motion to dismiss the charges based on the DOE’s failure to comply with the UFT contract. After a hearing Nuchman was suspended for 4 months.

On appeal to State Supreme Court Nuchman reargued the motion to dismiss claiming that the provisions of the contract required that the investigation be completed within 6 months. Justice Cynthia Kern found that there was nothing in the contract which specifically prevented the DOE from bringing charges that were not reduced to writing within six months. Justice Kern found that the arbitrator correctly weighed Nuchman’s 29 years of service and rejected the DOE’s attempt to terminate her. Justice Kern found that the 4 month suspension was reasonable.

Observation: The contract language is pretty strong. It provides that “The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.” Given this strong language it is hard to imagine how charges can be sustained if is not part of an employees file.
In the Matter of the Application of PHYLLIS NUCHMAN, Petitioner, -against- JOEL I. KLEIN, CHANCELLOR, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. Index No. 111217/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30694U; 2011 N.Y. Misc. LEXIS 1215, March 10, 2011

Is a request for medical arbitration necessary before going to Court to challenge a Line of Duty Injury request?

Anna Carter, a teacher assigned to the Reassignment Center, claimed a line of duty injury. She claimed that the injury occurred when “My knees were giving me pain I stood to go to the bathroom, and I tripped over two chair legs that were  straddling one another. ”

She completed the necessary paperwork and took an extended time before she was able to return to work.

Her OP-198 was not properly signed by the Superintendent and she was unable to produce a proper approval. Nevertheless the matter was heard by the Medical Board where Line of Duty status was denied. Carter then received a bill for a payroll overpayment of almost $34,000. No demand for medical arbitration was ever made by Carter or by the Union on her behalf.

Carter brought a petition in Supreme Court seeking the Line of Duty Injury status and the cancellation of the DOE recoupment of the alleged overpayment.

Justice Stallman found that the Court was powerless to review Carter claim because the Union contract permitted only medical arbitration as the exclusive remedy to challenge the Medical Board’s denial of LODI status.
In the Matter of the Application of ANNA CARTER, Petitioner, – against – Board of Education/Leaves Admin./HR Connect, Respondents. Index No. 401498/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31061U; 2011 N.Y. Misc. LEXIS 1941, April 22, 2011