
    Jon Holt, Appellant, v Board of Education of the Webutuck Central School District et al, Respondents. In the Matter of Wayne Doyle, Respondent, v Board of Education of the Ten Broeck Academy et al., Appellants.
    Argued April 1, 1981;
    decided May 7, 1981
    
      POINTS OF COUNSEL
    
      Gerard John De Wolf and Bernard F. Ashe for appellant in the first above-entitled proceeding.
    In summarily issuing to appellant the February 13, 1979 and June 15, 1978 letters, respondents have violated appellant’s rights under section 3020-a of the Education Law. (Matter of Boyd v Collins, 11 NY2d 228; People ex rel. Callahan v Board of Educ., 174 NY 169; Matter of Monan v Board of Educ., 280 App Div 14; Matter of Abramovich v Board of Educ., 46 NY2d 450; Ricca v Board of Educ., 47 NY2d 385; Board of Educ. v Gootnick, 65 AD2d 940, 49 NY2d 683; Matter of Adrian v Board of Educ., 60 AD2d 840; Matter of Schneider v Board of Educ., 61 AD2d 797; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279; Matter of Baer v Nyquist, 34 NY2d 291; Brooklyn Union Gas Co. v New York State Human Rights Appeals Bd., 41 NY2d 84; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.)
    
      Raymond G. Kuntz for respondents in the first above-entitled proceeding.
    I. Section 3020-a of the Education Law has no applicability to administrative criticisms, warnings or reprimands. (Matter of Abramovich v Board of Educ., 46 NY2d 450.) II. The letters issued by respondents O’Connell and Rindsberg were not designed to evade the requirements of section 3020-a. III. Adoption of appellant’s construction of the law would effectively preclude school districts from utilizing section 3020-a procedures.
    
      Donald J. Swanz for appellants in the second above-entitled proceeding.
    I. A school administrator has the authority, in fact the responsibility, to make written comments concerning the evaluation of an employee’s performance. II. An administrator’s written comment is not equivalent to discipline, nor is it a penalty contemplated by section 3020-a of the Education Law. III. The teacher’s personnel files are the proper depository for administrative criticism of job performance. (Board of Educ. v Areman, 41 NY2d 527.)
    
      Emanuel Tabachnick, Bernard F. Ashe and Rocco A. Solimando for respondent in the second above-entitled proceeding.
    I. The Education Law provides for statutory due process protections for tenured teachers prior to being disciplined by way of either a reprimand, a fine, a suspension without pay, or a discharge. (Matter of Moritz v Board of Educ., 60 AD2d 161; Matter of Boyd v Collins, 11 NY2d 228; People ex rel. Callahan v Board of Educ., 174 NY 169; Monan v Board of Educ., 280 App Div 14; Matter of Adrian v Board of Educ., 60 AD2d 840; Matter of Schneider v Board of Educ., 61 AD2d 797; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279.) II. The March 15, 1978 letter to respondent constituted a reprimand, and its issuance deprived respondent of the protections granted by the Legislature to a tenured teacher. (Matter of Baer v Nyquist, 34 NY2d 291; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Holt v Board of Educ., 74 AD2d 839.) III. The minority of the court below did not realistically gauge the effects of the placement of the March 15, 1978 letter into the teacher’s personnel file. (Matter of Waterhouse v Hastings, 73 AD2d 1034.)
    
      Henry F. Sobota for New York State School Boards Association amicus curiae.
    
    I. Section 3020-a should not be construed so as to entitle a tenured teacher to a section 3020-a hearing prior to the issuance of a critical letter. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of McAulay v Board of Educ., 61 AD2d 1048; Farrell v Village Bd. of Trustees of Vil. of Johnson City, 83 Misc 2d 125; Paul v Davis, 424 US 693; Codd v Velger, 429 US 624; Russell v Hodges, 470 F2d 212; Gentile v Wallen, 562 F2d 193; Green v Kinsella, 36 AD2d 677.) II. Sections 3012 and 3020-a of the Education Law do not grant to tenured teachers a right to a hearing prior to reprimand. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Abramovich v Board of Educ., 46 NY2d 450; Matter of Jerry v Board of Educ., 35 NY2d 534; Humphrey’s Executor v United States, 295 US 602; Matter of Brewer v Board of Educ., 51 NY2d 855.) III. The tenure laws should be construed so as to advance the public’s interest in the education of our youth. (Matter of Moritz v Board of Educ., 60 AD2d 161; Ricca v Board of Educ., 47 NY2d 385; Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Matter of Feinerman v Board 
      
      of Coop. Educational Servs. of Nassau County, 48 NY2d 491; Ambach v Norwich, 441 US 68.)
    
      Roy Moskowitz for Frank J. Macchiarola, Chancellor of the City School District of the City of New York, amicus curiae.
    
   OPINION OF THE COURT

Jasen, J.

The issue on this appeal is whether a written communication from a school administrator to a tenured teacher which criticizes the latter’s performance or conduct may be made a part of the teacher’s permanent personnel file without affording him an opportunity for a hearing pursuant to section 3020-a of the Education Law.

Two of the proceedings before us involve Jon Holt, a tenured teacher in the Webutuck Central School System, who received two letters from school administrators which were critical of his performance on the job. The first was written by Stephen O’Connell, principal of the Webutuck Junior-Senior High School and Mr. Holt’s immediate supervisor. This letter, dated February 13, 1978, detailed O’Connell’s observation of Holt’s supervision of a “study hall” at the school and stated that Holt had failed to discharge his responsibility to maintain order in the classroom and had disregarded the principal’s request that he correct the problem. The letter concluded by stating that Holt’s actions indicated “incompetence and insubordination” and admonished Holt to make a greater effort in the future. This letter was made a part of Holt’s permanent personnel file.

On March 1, 1978, Holt responded in writing to O’Connell. He indicated his belief that certain statements in the O’Connell letter were factually incorrect, that the February 13, 1978 letter was disciplinary in nature and that such disciplinary action could not be taken without full compliance with both section 3020-a of the Education Law and the applicable provisions of the collective bargaining agreement between the school district and the teachers’ association. He requested that the letter be removed from his personnel file immediately. The letter was not removed, and on May 3, 1978 Holt commenced the first of two CPLR article 78 proceedings challenging the authority of the school district to retain a critical letter in his file.

The second proceeding commenced by petitioner Holt involves a letter written by District Principal Myron Rinds-berg on June 15, 1978. This letter describes Rindsberg’s observation of Holt on June 13, 1978, at which time Holt allegedly interrupted the class of another teacher in disregard of a prior warning not to do so. The letter characterized Holt’s behavior as “unbecoming of a teacher” and “insubordinate”. Holt made no response to this letter, although he apparently had a contractual right to do so. Instead, he commenced a second CPLR article 78 proceeding in the nature of mandamus to compel removal of the letter from his personnel file upon the ground that it constituted an improper reprimand within the meaning of the Education Law.

Both of Holt’s petitions were dismissed by Special Term. The court found in both cases that the school administrators were acting “well within the framework of [their] administrative responsibility in evaluating the performance” of petitioner and held that section 3020-a of the Education Law had no application to such administrative evaluations. On appeal, the Appellate Division, Second Department, affirmed the dismissal of both petitions. This court granted leave to appeal.

The remaining case before us involves Wayne Doyle, a tenured teacher in the Franklinville Central School System. In a letter dated March 15, 1978, William Schubeck, Secondary Principal of the Ten Broeck Academy and Franklin-ville Central Schools, sent a letter to Doyle setting forth several occasions on which Doyle was allegedly absent from his assigned duty station. The letter noted that such absences were in apparent disregard of a prior oral admonition from the principal and urged Doyle to “direct [his] efforts” toward the resolution of the problem. This letter was made a part of Doyle’s permanent personnel file. Doyle later requested that the letter be removed from his file. This request was not honored. As a result, Doyle commenced the instant proceeding seeking an order that the letter be expunged from the file.

Special Term dismissed the petition, relying in part on the decision of Supreme Court, Dutchess County, in the proceedings involving appellant Holt. On appeal, however, the Appellate Division, Fourth Department, reversed. The court stated that “the letter is more a statement of charges than it is an evaluation report” and concluded that the inclusion of the letter in the teacher’s record was a disciplinary act which could only be properly accomplished by resort to the statutory procedures set forth in section 3020-a of the Education Law.

Two Justices of the Appellate Division dissented, agreeing with the reasoning of Special Term in both the Holt and Doyle cases and of the Appellate Division, Second Department, in the Holt case. The dissenters were of the view that the school administrators should be allowed to make critical evaluations of a teacher’s performance without judicial interference. They noted also that if such evaluations were subsequently used against the teacher in a formal disciplinary proceeding, the teacher would then be entitled to the protection of the statutory procedures set forth in section 3020-a of the Education Law. In the absence of such formal disciplinary proceedings, however, the dissenters deemed court review of such critical evaluations to be inappropriate.

In both of the cases before us, the thrust of the teachers’ argument is that the written communications which have become a permanent part of their personnel files are the equivalent of a disciplinary “reprimand” and that such a reprimand can only be issued after formal charges have been preferred against them and after a finding of misconduct has been made in accordance with section 3020-a of the Education Law. We disagree. The documents in issue, critical as they may be of the respective teacher’s job performance, amount to nothing more than administrative evaluations which the supervisory personnel of the school district have the right and the duty to make as an adjunct to their responsibility to supervise the faculty of the schools. In our view, section 3020-a of the Education Law was not intended by the Legislature to apply to such evaluations and does not require a formal hearing as a prerequisite to the inclusion of such documents in the teachers’ personnel file.

At one time, teachers in this State had only so much job security as could be bargained for in their contract of employment. When that contract expired, the decision as to whether or not to continue the teacher’s employment was completely within the discretion of the school district. The Legislature, recognizing a need for permanence and stability in the employment relationship between teachers and the school districts which employ them, enacted a comprehensive statutory tenure system, the purpose of which was to provide some measure of security for competent teachers who had rendered adequate service for a number of years. One of the bulwarks of that tenure system is section 3020-a of the Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as “a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice”. (Matter of Abramovich v Board of Educ., 46 NY2d 450, 454.)

However, while the protection afforded teachers by section 3020-a is quite broad, it should not, in our opinion, be read as insulating tenured teachers from all written critical comment from their supervisors. The purpose of the statute is to protect teachers from arbitrary imposition of formal discipline. It was not intended to interfere with the day-today operation of the educational system in which administrative evaluation of a teacher’s performance plays in important part. Indeed, the interpretation urged by the teachers would result in leaving the school administration with only a choice between oral admonition of a teacher and the initiation of formal disciplinary proceedings. Such an interpretation would provide the administrator with no way of correcting what may be perceived as inadequate performance of the teacher which does not rise to the level of misconduct requiring formal discipline. We believe a broader range of administrative review of a teacher’s performance is both necessary to the efficient management of a modern school system and consistent with the letter and spirit of section 3020-a of the Education Law.

The critical evaluations in issue fall within this permissible range of administrative evaluation. While the language of the administrators’ letters may appear to some to be in the nature of a “reprimand” within the literal meaning of that word, it falls far short of the sort of formal reprimand contemplated by the statute. Although the sharply critical content of the letters is unmistakable, the purpose of such communications — 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. The purpose is to warn, and hopefully to instruct —not to punish. Further, the documents in question are issued by a single administrator. While the inclusion of such letters in the teacher’s permanent file may have some effect on his future advancement or potential employability elsewhere, it is by no means as damaging as a formal reprimand issued by the board of education as the result of a determination of misconduct made by an impartial hearing panel. Each letter represents one administrator’s view, not a formal finding of misconduct.

Such an informal warning serves, we believe, as a useful tool to help the administrator correct minor problems before they grow into major ones. Should the school administrator be deprived of this informal means of policy enforcement, one of two situations will ultimately prevail. The school administration must either overlook all minor infractions and allow them to go unremedied if an oral admonition had yielded no results or must initiate a formal disciplinary action to remedy each such infraction. In the first case, a tenured teacher would be allowed free reign to disregard supervisory directives so long as his infraction does not rise to the level of conduct which could result in a formal disciplinary proceeding. In the latter, the teacher would be faced with the spectre of formal proceedings upon any breach of school policy, however small. Surely, the Legislature has not expressly limited a school district to a policy choice between these extremes of permissiveness and strictness. Common sense dictates that another, more moderate, option should be available.

It should be noted that the Commissioner of Education has long recognized the existence of such an option. While the commissioner has expressed the view that summary-discipline such as salary reduction is. improper (Matter of Cadicamo, 15 Educ Dept Rep 274; Matter of Trono, 18 Educ Dept Rep 344), he has consistently held that an administrator may critically comment in writing on a teacher’s performance and that such an evaluation may be included in the teacher’s personnel file without resort to the statutory procedures set forth in section 3020-a of the Education Law. (See, e.g., Matter of Leber, — Educ Dept Rep — [No. 10269, decided May 23, 1980]; Matter of Hirsch, 17 Educ Dept Rep 237.) This interpretation of the scope of a school administrator’s supervisory power is eminently reasonable, and is adopted by this court.

It is argued that the inclusion of critical evaluations in the permanent record of a teacher will lead to abuses which the teacher will be powerless to remedy. We disagree. First, subdivision 7 of section 310 of the Education Law would allow an appeal to the Commissioner of Education should an abusive practice occur. Also, the teachers’ union can negotiate in the collective bargaining process to obtain the right to respond to a critical letter or to have an unfair or inaccurate document removed from a teacher’s file if an arbitrator finds an abuse to have occurred. Finally, as was noted by the dissenters in the Doyle proceeding, no formal disciplinary use can be made of these documents unless and until a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled.

In sum, we believe that the critical evaluations in issue here were well within the scope of permissible administrative evaluation and were properly included in the personnel files of petitioners without resort to the formal procedures set forth in section 3020-a of the Education Law. Hence, the petitions of John Holt and Wayne Doyle, challenging the authority of school administrators to make and retain such evaluations, should be dismissed.

Accordingly, the order of the Appellate Division in Holt v Board of Educ. should be affirmed and the order of Appellate Division in Doyle v Board of Educ. should be reversed and the judgment of Supreme Court, Cattaraugus County, reinstated.

Chief Judge Cooke

(dissenting). Because I believe that both petitioners are entitled to the protections of section 3020-a of the Education Law against the action taken here, I am unable to concur with the majority or join fully in Judge Wachtler’s partial dissent and am constrained to dissent separately.

In my view, both Mr. Holt and Mr. Doyle have been subjected to disciplinary action sufficient to invoke the procedural protections of section 3020-a. As the partial dissent recognizes, the letters to Mr. Holt unequivocally charged him with incompetence and insubordination. The letter to Mr. Doyle, although not expressly characterizing his performance as misconduct, specified particular occasions on which he was not at his assigned duty station, referred to an earlier oral admonition and made clear that it was “necessary to remind [Mr. Doyle] of [his] lack of attention to assigned duties by letter”. Clearly, this letter was more than merely a matter of internal administration or supervision and not simply informational. The letter effectively accused Mr. Doyle of neglect of duty and a copy was sent to the president of the board of education. The letters to the teachers were made part of their personnel files. Under these circumstances, both Mr. Doyle and Mr. Holt were entitled to procedural safeguards.

That the determination of misconduct represents only one administrator’s “view” does not render the letters any less a form of disciplinary action. Indeed, the “view” expressed is now part of petitioners’ permanent files and, as the majority notes, may have some adverse effect on their employment or career prospects or may be used in future disciplinary proceedings. Nor is it sufficient to say that only when formal action by the board of education is contemplated is the section 3020-a procedure available. Such an analysis of section 3020-a ignores that it is the failure to present the charges to the board in the first instance that prevents “formal” action. Quite simply, a school should not be entitled to assert misconduct on the part of a tenured teacher and then avoid the procedures for resolution of such question by refraining from filing “formal” charges. Such action subjects the teacher to the kind of arbitrary decision-making that section 3020-a was designed to avoid.

The statute requires that charges first be referred to the board of education for a determination of probable cause, following which notice of the charges and procedural rights, including the right to a hearing, are to be given to the teacher (Education Law, § 3020-a, subd 2). As the majority recognizes, section 3020-a “form [s] a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice” (Matter of Abramovich v Board of Educ., 46 NY2d 450, 454). Here, there have been charges and what amounts to findings of misconduct — now part of petitioners’ records— that have never been subjected to the statutorily mandated due process mechanism. Because I believe such action is unauthorized and unfair, I respectfully dissent.

Wachtler, J.

(dissenting in part and concurring in part). I agree with the majority that the protection afforded teachers by section 3020-a of the Education Law is quite broad, and that the purpose of the statute is to insulate teachers from “arbitrary imposition of formal discipline”. For this reason, I am compelled to disagree with the majority’s categorization of letters placed in a teacher’s file, however critical, as inherently nondisciplinary.

It must be recognized that the content of a letter is of crucial significance; in the absence of that analysis the impact of a letter simply cannot be assessed.

A letter such as that placed in Mr. Doyle’s file, which is merely informational in nature concerning relatively minor infractions, and which expresses no more than the “wish [that] this problem can be resolved”, is not in my view of a punitive nature and therefore the procedural protections of section 3020-a should not be invoked.

On the other hand, the letters placed in the file of Mr. Holt illustrate that the content of a letter, when couched in the language of reprimand, can insure an impact which is the equivalent of administrative discipline. Thus, the letter by Mr. Eindsberg accusing Mr. Holt of repeated breaches of rules, despite prior warnings, which breaches were explained by a “flimsy excuse”, and which allegedly constituted conduct “unbecoming of a teacher and * * * insubordinate”, can only be viewed as severe in its tone, and qualitatively different from an informational note. Equally excoriating was the letter to Mr. Holt from Mr. 0‘Connell, which described Mr. Holt’s actions as demonstrating “both incompetence and insubordination”. A teacher should not be left without due process protections in the face of such severe accusations, and in this type of situation the procedural safeguards of section 3020-a should be invoked.

Accordingly, for the reasons stated above, I concur with the result reached by the majority in Matter of Doyle. In Holt I dissent and would reverse the order of the Appellate Division.

In Holt v Board of Educ.: Order affirmed, with costs.

Judges Gabrielli, Jones and Meyer concur with Judge Jasen; Chief Judge Cooke dissents and votes to reverse in a separate opinion; Judge Wachtler dissents and votes to reverse in another dissenting opinion in which Judge Fuchsberg concurs.

In Matter of Doyle v Board of Educ.: Order reversed, with costs, and the judgment of Supreme Court, Cattaraugus County, reinstated.

Judges Gabrielli, Jones and Meyer concur with Judge Jasen ; Judge Wachtler concurs in a separate opinion in which Judge Fuchsberg concurs; Chief Judge Cooke dissents and votes to affirm in another opinion. 
      
      . The school district contends that Doyle was subsequently offered an opportunity to discuss the problem with his superiors and to make a written response which would be attached to Mr. Schubeck’s letter.
     
      
      . Of course, such critical evaluations can only be used to support a formal charge of misconduct within three years of the occurrence which the evaluation addresses. (Education Law, § 3020-a, subd 1.) Thereafter, such evaluations can only be used to show that the teacher was given notice of the school district’s dissatisfaction with his performance. This is so because the teacher can be disciplined only for misconduct occurring within the three-year period, and this limitation would be frustrated by the substantive use of such evaluations beyond this time limit.
     