Know your rights
Letter in the file
Feb 28, 2008 1:12 PM
Like employers in other workplaces, the Department of Education maintains a personnel file for each of its employees. Every UFT member has an official file at school that contains the administration’s observation reports, annual evaluation sheets, licensing or salary documents, and other materials. There is only one official file maintained in your school; if a supervisor keeps private notes or reports about you in his or her possession, they may not be used as official records against you. If you transfer to a new school, your file (but not any private notes) will follow you there.
Before any material is placed in your file, you must be given an opportunity to read it and acknowledge its receipt by signing it. Your signature does not mean that you agree or disagree with its contents, only that you have seen them. Nothing positive is accomplished by refusing to sign such a letter. All that happens is that the principal gets a witness to attest that you saw the letter and declined to sign it, and the letter goes in the file anyway.
By the way, if you file a grievance, no record of that grievance or the grievance decision can be placed in your file.
Give your response
If material in your file is negative, you should write a response, detailing why you disagree with its contents. You should speak with your chapter leader, your district rep and/or borough office. They can help you write an appropriate response and advise you on any other possible course of action, including procedural matters (such as no pre- or post-observation conference) that you may be able to grieve. The response should be attached to the original letter in your file; your supervisor cannot respond to your response.
Teachers used to have the right to file a grievance seeking to change words in a letter if the words were “unfair and/or inaccurate.” Since 2005, they have a superior right: the right to remove negative material in their files after three years if it has not been used in any disciplinary action against them (such as in a U-rating, discontinuance of service or 3020-a termination procedure). If a letter in the file leads to disciplinary action against you, you can challenge that letter at the time of your hearing. The three years are counted from the date of the letter. The removal of old negative material won’t happen automatically. It’s up to you to request that it be taken out.
In addition, if you are denied a teaching assignment, a per-session job or a transfer based on a letter in the file, the letter can be challenged as part of the grievance of the denial. You cannot get a letter for the format of bulletin boards, the arrangement of classroom furniture and/or the exact duration of lesson units.
You always can examine and make a copy of your official file. We recommend that you review your file once a year to be sure that it does not contain any inappropriate material, including outdated or unsigned documents. It’s a good idea to ask your chapter leader or a colleague to go with you when you review the file. You shouldn’t be fearful about asking to see your file. It won’t be deemed an adversarial action if you make the request in a professional manner and follow any procedural guidelines for file reviews established with your principal by your chapter leader.
Counseling memos
On occasion, a principal may write you a memorandum to make you aware of a specific rule, regulation, policy, procedure or school practice. The memo cannot include any disciplinary action or threat of disciplinary action. It must be labeled “Counseling Memo” at the top and in bold letters. It cannot refer to any incident more than four months earlier than the date of the memo. It also must be given to you within one month of the latest incident it mentions. The counseling memo cannot be used in any evaluation of you (yearly rating or per-session rating) and must be removed from your file three years after the latest incident stated in the memo.
A legal victory
Three State Supreme Court judges recently ruled that the city Department of Education cannot place purely disciplinary letters in educators’ files without providing them the due process required by Article 3020-a of the state Education Law. The city is appealing these rulings, but if they stand, they will serve as a strong precedent ensuring the presumption of innocence.
Finally, in October 2005, city Labor Relations Commissioner James F. Hanley agreed in writing that if there was “a disproportionate increase in the number of letters to the file” as a result of changes in the 2005 contract, the parties “will negotiate the impact of that issue.” In light of recent anecdotal reports that the increasing pressure on principals to ratchet up test scores has led to an increase in letters in the file, the UFT Delegate Assembly in February voted to investigate. If the union finds evidence of an increase, it will use the procedure negotiated with the labor relations commissioner to go after such abuses.
