Tuesday, October 9, 2018

New York State Education Law 3020-a + Memos To The Field

The 3020-a hearing process in New York City is a bizarre mix of personalities, character assassinations, lawless opinions and actions, lies, fake news, and truth.

The way to win any hearing, in my opinion,  is to meet the challenge of being in outer space by keeping a focus of putting facts first and supporting the facts with humongously terrific arguments.

Anyway, below are the rules and laws that could be helpful to someone who wanted to know more about the 3020-a in principle.

However, a law is only as good as it's implementation.

None of the laws or rules are honored unless you want them to be. Just reading the law wont help you.

That's the problem. Have someone in your hearing who supports you and who knows the fight and can use the rules to win the argument. Remember Reese's pieces in the movie E.T.?


That 's what you need to do. Find E.T.

Betsy Combier
 betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption

New York State Education Law 3020-a Procedures


Occasionally, there is a need to issue memoranda to the field to clarify information pertaining to the various regulatory and administrative responsibilities of OSPRA. Copies of important memoranda may be obtained by following the relevant links below.
DateSubject
February 2016Fingerprinting Fee Increase
September 2015Education Law §3020-a Hearing Officer Rates
August 2015Teacher Tenure Hearing Changes
July 2015Fingerprinting Changes – Important Dates and Escrow Accounts
May 2015Fingerprinting Rejection Report
May 2015Fingerprinting Changes – Transition Timelines
April 2015Fingerprinting Changes
March 2013Teacher Tenure Hearings – New Online Tenure Case Management System
December 2012Hearing Officer Voucher Guidelines
May 2012Education Law Section 3020-a Hearing Officer Rates (effective April 1, 2012 through March 31, 2013)
April 2012Education Law §3020-a Changes (Effective April 1, 2012)
September 2011Fingerprinting Sports Officials
October 2009Conditional Clearances

Wednesday, August 8, 2018

If Charged With 3020-a and You Retire, Your Teaching License is Permanently Terminated


Termination is the Penalty If a Charged Employee Retires While Proceeding With 3020-a Arbitration

The point I would like to make is: if you retire after receiving 3020-a charges, you will be terminated.

See Jefferson v NYC DOE, below:
"the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a."

Supreme Court of the State of New York Appellate Division: Second Judicial Department 
D50816 N/ct AD3d Submitted - November 3, 2016 

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. 2015-11195 

DECISION & ORDER

In the Matter of Wayne Crawford Jefferson, appellant, v New York City Board of Education, respondent. (Index No. 6002/15)

Wayne Crawford Jefferson, Hazleton, PA, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the respondent to reinstate the petitioner’s New York City teaching license, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Butler J.), entered August 3, 2015, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was employed by the New York City Department of Education, sued herein as the New York City Board of Education (hereinafter the DOE), as a teacher until he retired on October 27, 2014.

At the time he retired, charges were pending against him pursuant to Education Law § 3020-a.

Pursuant to paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205, the petitioner’s New York City teaching license was permanently terminated since charges were pending against him pursuant to Education Law § 3020-a at the time he retired. The petitioner was apprised of the termination of his license by an attorney from his union. The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the DOE to reinstate his teaching license. The DOE moved to dismiss the petition.

The Supreme Court, in effect, denied the petition and dismissed the proceeding, and denied the motion as academic.

The petitioner appeals.

“A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government” (Matter of Gottlieb v City of New York, 129 AD3d 724, 725; see Matter of Hollander v Suffolk County Dept. of Social Servs., Child Support Enforcement Bur., 140 AD3d 1064, 1065).

When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (see CPLR 7803[3]; Matter of Gottlieb v City of New York, 129 AD3d at 725; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Gottlieb v City of New York, 129 AD3d at 725).

“Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations ‘necessary or convenient’ to the administration of the public school system” (Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102, 106). “The tenets of statutory construction apply equally to administrative rules and regulations” (id.). Such regulations should be construed in accordance with their plain language (see id. at 107; see also Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612; Matter of Brennan v City of New York, 123 AD3d 607).

Here, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding since the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a. The petitioner’s contention that he was unaware of this regulation, which was issued on September 5, 2000, and posted online on the DOE’s website, is unavailing, as he was “deemed to be on notice of the DOE Chancellor regulation[s]” (Matter of Benjamin v New York City Dept. of Educ., 119 AD3d 440, 441; see Salamino v Board of Educ. of the City School Dist. of the City of N.Y., 85 AD3d 617, 619).

The petitioner’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court
               January 11, 2017

129 A.D.3d 724 (2015)
10 N.Y.S.3d 542
2015 NY Slip Op 04645

In the Matter of CRAIG GOTTLIEB, Appellant,
v.
CITY OF NEW YORK, Respondents.

2014-01086
Appellate Division of the Supreme Court of New York, Second Department.
Decided June 3, 2015.
Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

Ordered that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was "additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009," and directed the petitioner to pay the sum of $8,440. The SCU was directed to "[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount."

In March 2012, the petitioner admittedly withheld payment 725*725 and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a "Mistake of Fact" form to the SCU, claiming that his account was not in arrears and, instead, that he was "due a credit of $18.08." On November 14, 2012, the OCSE denied the petitioner's claim that the SCU "has made an error in the amount of child support debt that is owed," and determined that "there is an amount past-due and owing."

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v Bortnik, 91 AD3d 872, 873 [2012]). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739 [2014]). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, 726*726 and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the "Mistake of Fact" form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v Wambua, 117 AD3d 739, 740 [2014]Ford v Department of Social Servs., 41 Misc 3d 1237[A], 2013 NY Slip Op 52045[U], *7-8 [Sup Ct, NY County 2013]; Ward v NYC Human Resources Admin., 2011 NY Slip Op 33162[U] [Sup Ct, NY County 2011]; Matter of Ovalles v New York City Human Resources Admin., 2008 NY Slip Op 33635[U], *2-4 [Sup Ct, NY County 2008]). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111-t; 18 NYCRR 346.11), and offset any refund of income tax by the amount of overdue support owed by him (see 42 USC § 666 [a] [3] [A]; Social Services Law § 111-b [7], [8]; 18 NYCRR 346.9). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

The Supreme Court also properly granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging violations of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction. On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

The substance of the cause of action alleging a violation of the Fair Credit Reporting Act was, in essence, a challenge to the determination by the OCSE that the petitioner's account was in arrears, which authorized the OCSE, pursuant to Social Services Law §§ 111-b, 111-c and 111-t, to take enforcement action and report his arrears to the credit reporting agencies. This cause of action essentially constituted a request for relief pursuant to CPLR article 78, regardless of the form in which it was pleaded and, thus, was properly dismissed (see Hertzel v Town of Putnam Val., 121 AD3d 641, 643-644 [2014]Kickertz v New York Univ., 110 AD3d 268, 272 [2013]).

727*727 "[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v City of New York, 240 AD2d 543, 544 [1997]see Dillon v City of New York, 261 AD2d 34, 41 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.

Finally, the Supreme Court properly granted those branches of the respondents' motion which were to dismiss causes of action alleging gross negligence and for injunctive relief. Even if the allegations contained in the petition are assumed to be true, they do not state a cause of action to recover damages for gross negligence or supporting the issuance of a permanent injunction (see Vilella v AT&T, 35 Misc 3d 1224[A], 2012 NY Slip Op 50853[U], *10 [Sup Ct, NY County 2012]; Josey v Sallie Mae, Inc., 2009 WL 2518643, *8, 2009 US Dist LEXIS 72157, *24-25 [SD NY, Aug. 17, 2009, No. 09 Civ. 4403 (SHS) (AJP)]).

Sunday, August 5, 2018

DeWitt Clinton High School Principal Charges Teachers With 3020-a If They Don't Change Students' Failing Grades



We now know that Principal Pierre Orbe demanded that 23 teachers meet with him who had, in the September 2016-January 2017 school semester, students with failing grades. He wanted to see their gradebooks. Then, they got packets with transcript update forms to change grades, along with the student name and grade to be changed. He then "suggested" that students who failed in the third marking period (January 2017) have their grades averaged so that they would pass.

When the UFT heard about this, the Chapter Leader told Orbe to immediately stop. Orbe said no.

A source told me that when former Chancellor Carmen Farina heard about these 'gradebook' meetings, she ordered Orbe to stop. Orbe said no, he was the principal. But he finally stopped after seeing 11 teachers.

Out of these 11 teachers, two told Orbe that they felt that the grades given were fair, and they would not change them. Both these teachers were charged with 3020-a.
 
Ridiculous. Orbe's charging these two teachers shows how flimsy an excuse principals need to bring an employee to 3020-a.
 
This has to change.
 
Betsy Combier
betsy.combier@gmail.com
betsy@advocatz.com

The NY POST published a story online on June 16, 2018, and in the paper on June 17, 2018, about DeWitt Clinton High School Principal Pierre Orbe and his handing out "mastery packets" to students so that students can gain passing grades in courses which they never attended, or missed tests, homework, and/or did not "master" the content.

In my opinion, there is alot more to this story, namely that Principal Pierre Orbe had meetings with teachers who he felt did not grade their students "correctly" in order to force these teachers to pass the students who had failed. And he disciplined the two teachers who said "no" to his "request", with 3020-a arbitration. Only two teachers said no to changing the students' grades and both hired me and Attorney David Barrett to represent them at their 3020-a.
Pierre Orbe


All principals change grades or, try to. It is the right thing to do, if the grade is unfair to the student or needs to be changed because it is a misprint or whatever. I have completed more than 60 3020-a cases, and I do massive research into all the actions of the principal, Superintendent, teachers, para, anyone who participates in the charging process. Changing grades of students and credit recovery are standard in all schools. Principals are supposed to change grades unless there is some kind of media attention to the way they do it, which occurred in the case of the previous Principal of DeWitt Clinton, who was Santiago Taveras. He was given another job at the NYC Department of Education, with a high salary after he was "punished" for changing 900+ grades without the teacher's approval.

I am the parent of four daughters, and I understand that stuff happens.

But Orbe is wrong to charge teachers with 3020-a if they dont think the student merits a grade change and will not change a grade for that reason.

The UFT Collective Bargaining Agreement states in Article 8J that a teacher's grades must be respected. In other words, the teacher must sign off on the grade change. But Pierre Orbe was brought in to DeWitt Clinton to make the school, a failing Renewal School, look good. He did not want to get any teacher's approval, he wanted to order teachers to do what he wanted.

Pierre Orbe started as Principal at DeWitt Clinton Feb 6, 2017.

He spent the month of January at the Superintendent’s office, studying what Santiago Taveras had done at DeWitt Clinton. He saw that HE, Pierre Orbe, had to collaborate with teachers in order to change failing grades to passing grades. But he was hired to make DeWitt Clinton, a Renewal School, look good, and support Carmen farina, the Chancellor, who pushed through the program. The program was failing (and Carmen was NOT happy).

What is clear to me having completed one of the 3020-a hearings, is that Pierre Orbe despises teachers and their right, in the Collective Bargaining Agreement, to have autonomy in grading as they see necessary. Here is a quote from of Orbe’s testimony, on February 7, 2018:

"To any lack of transparency, to
9 not sharing anything, but in a school where it's
10 75% stricken with below the poverty line, or
11 maybe the parent involvement is a little bit
12 lower, and they've gotten used to not having
13 transparency, to having what you would consider
14 a second or third rate level of treatment, this
15 is what I would expect. The impact is dramatic.
16 There is a sense of learned helplessness that
17 overcomes a community. You start to become--you
18 accept this, but you become angry. You accept
19 it, but you're really annoyed that no matter how
20 angry you get, you're still at the mercy of the
21 grade creators."

So, one month after entering DWC, he set up “Gradebook meetings” for all the teachers who failed students “too much”. This is the scholarship report, or “failure report”. At the 3020-a we were handed 52 pages of students, their names, classes, teacher, and grades for the September 2016-January 2017 Fall semester.

Orbe called 23 teachers to a “gradebook meeting” in March-April 2017, after Taveras left. But Orbe was able to meet with only 10 teachers before the UFT and/or the DOE stopped the meetings.These meetings were stopped because he was using his power and authority to force teachers to change grades or be disciplined. He could not do this.

Each teacher left the meeting with the names and grades that were supposed to be changed upward. Each teacher was given a packet with a Transcript Update Form to fill out and sign. As you can see, the Transcript Update Form must be signed off on by the teacher and principal. The two 3020-a charged teachers filled his out, but did not agree with Orbe that these students’ grades should be changed, so never handed the Form in.

The other teachers all, evidently, changed the grades as requested., and were not charged with 3020-a at that time. I am not blaming them, or anyone. Teachers must do as told and grieve later.

Both teachers who would not change the students' grades (they felt that the students should not be given passing grades for not showing up) were given 3020-a charges and reassigned to a Bronx rubber room. What is shocking is that both teachers were charged in the same OSI investigation, and the OSI Investigator was not given the right information about grading policy (he was not told about the school approving a grade of 60 which had been in place for many years). The investigator nevertheless UNSUBSTANTIATED the charges and found both teachers not guilty of misconduct.

This was not ok with Orbe. Quickly, OSI Supervisor Francine Campbell substantiated the charges against the two teachers who did not change the grades of their students. Ms. Campbell, an Attorney, did not do her own investigation, changed the "unsubstantiated" to "substantiated, then left her job at OSI. See p. 1 of the OSI report, last entry dated 7/21/17.She no longer works at OSI.

We wanted Ms. Campbell to come in to tell us why she changed the conclusion but the DOE refused to bring her in or give us her address to serve the subpoena SIGNED BY the ARBITRATOR.

I found her address and email from the Attorney Grievance Committee in Albany and called Joanne Vargo to confirm. Vargo told me to stop immediately from looking into her – Campbell – because she no longer worked for the DOE . She added, “her employment with us did not end well”.

Francine Campbell refused to come in:

From: Francine Campbell [mailto: ]
Sent: Friday, April 13, 2018 1:14 PM
To: David Barrett, Esq.
Subject: Re: Subpoena in 3020a Hearing

Mr. Barrett,

I have made it abundantly clear that I do not wish to appear at this hearing, and that there are other current DOE employees who can speak to the content of the report and the investigation as a whole. My current work schedule would not permit me to appear at the hearing. Moreover, there is nothing more that I can add to the reasoning behind the decision made in the investigation that is not already in the case file or that can be explained by the Executive Director or the Deputy Director of OSI. Please do not waste your time or money serving me with a subpoena, as I know that you will not glean any more information from my testimony that you do not already know.

~~~~~~~~~~~~~~~~~~~

Francine A. Campbell, Esq.

~~~~~~~~~~~~~~~~~~~

Here is the NY POST's article published June 17, 2018:

Principal lets students pass even if they never went to class
by Susan Edelman and Sara Dorn, June 16, 2018

This high school is a hooky player’s dream.

At DeWitt Clinton HS in the Bronx, kids who have cut class all semester can still snag a 65 passing grade — and course credit — if they complete a quickie “mastery packet.”

Insisting that students can pass “regardless of absence,” Principal Pierre Orbe has ordered English, science, social studies and math teachers to give “make up” work to hundreds of kids who didn’t show up or failed the courses, whistleblowers said.

“This is crazy!” a teacher told The Post. “A student can pass without going to class!”

The 1,200-student Clinton HS is one of 78 struggling schools in Mayor deBlasio’s “Renewal” program. Last year, 50 percent of seniors graduated, but only 28 percent of the grads had test scores high enough to enroll at CUNY without remedial help.

The DOE’s academic-policy guide says students “may not be denied credit based on lack of seat time alone.” Passing must be based “primarily on how well students master the subject matter.”

Orbe has taken the policy to a absurd extreme, teachers charge.

“We’re kind of being forced to pass students who don’t deserve to pass,” one said.

Another said, “It’s unfair to the students who made every effort to come to class, complete assignments — and earn the credit.”

In a meeting, Orbe dismissed their concerns, teachers said. They also complained he gave no written guidance on what to put in the packets, which were handed out starting June 12 — after the last day of classes. Kids have until June 26, the last day of school, to turn them in.

One girl never attended a single class during the whole spring term — Jan. 30 to June 11, a teacher said. Another came one day. Both skipped homework, classroom writing tasks, group discussion, quizzes, and essay assignments or exams. Another kid showed up but failed tests and “didn’t do any assignments or participate in class.”

Their packets require only completion of tests. One student who has returned the packet “did not demonstrate mastery” — and will fail, the teacher said.

Since the work can be done at home, teachers said, kids can copy off the Web, or otherwise cheat.

Students had mixed feelings about the packets. “I’m grateful for it,” said junior Ronny Ravelo, 17. “Let’s say you’ve been absent a lot or you don’t really understand the course. It gives you a chance to get your grade back up instead of going to summer school.”

Freshman Jeremy Bautista, 14, disagreed, saying a packet did a pal no favors because he’ll likely flunk the Regents exam: “In the long run it’s going to mess him up.”

CUNY education professor David Bloomfield said the DOE make-up policy leaves room for abuse. “These packets may not reflect subject mastery. If so, they’re a scam and shouldn’t be allowed.”

Phil Weinberg, deputy chancellor for teaching and learning, said, “We’re reviewing this matter to see if the concern is valid and are prepared to take follow-up action if necessary.”

Orbe did not return a message seeking comment.

*********************************
"Mastery packets", credit recovery, social promotion, or whatever you call allowing students to pass by doing alternative work to the required test or homework, is nothing new, as we all know. Parents like it, because their little angels can graduate with their friends. Principals and Superintendents want it, because the more kids that graduate the better.

Teachers who know that kids are not learning and not making an effort usually try to work with these kids, and give them second and third chances to make up what has been left undone. But simply changing a grade from F to P(failure to pass) without earning the change and missing all the classes, does not help the student at all.

Mayor Bloomberg fought social promotion. But kids are promoted to the higher grade or graduated throughout NYC today, because this makes Mayor Bill DeBlasio and now Chancellor Richard Carranza look good.

See this article published in 2008:
Lacking Credits, Some Students Learn a Shortcut
By ELISSA GOOTMAN and SHARONA COUTTSAPRIL 11, 2008

Dennis Bunyan showed up for his first-semester senior English class at Wadleigh Secondary School in Harlem so rarely that, as he put it, “I basically didn’t attend.”

But despite his sustained absence, Mr. Bunyan got the credit he needed to graduate last June by completing just three essay assignments, which he said took about 10 hours.

“I’m grateful for it, but it also just seems kind of, you know, outrageous,” Mr. Bunyan said. “There’s no way three essays can possibly cover a semester of work.”

Mr. Bunyan was able to graduate through what is known as credit recovery — letting those who lack credits make them up by means other than retaking a class or attending traditional summer school. Although his principal said the makeup assignments were as rigorous as regular course work, Mr. Bunyan’s English teacher, Charan Morris, was so troubled that she boycotted the graduation ceremony, writing in an e-mail message to students that she believed some were “being pushed through the system regardless of whether they have done the work to earn their diploma.”

Throughout the city, an ad hoc system of helping students like Mr. Bunyan over the hump is taking root in public high schools, sometimes over the protests of teachers, who call credit recovery programs a poor substitute for classroom learning and say they ultimately devalue the diploma. In interviews, teachers or principals at more than a dozen schools said the programs ranged from five-day crunch sessions over school breaks, to interactive computer programs culminating in an online test, to independent study packets — and varied in quality.

Top officials with the city’s Education Department say good principals have always found creative ways to help struggling students make up missed work, describing such efforts as a lifeline for students who might otherwise never earn their diplomas. And across the country, school systems confronting abysmal graduation rates are turning to online credit recovery courses, which roughly a third of states have either developed or endorsed in recent years, according to the National Dropout Prevention Center at Clemson University.

Schools Chancellor Joel I. Klein, in a statement, called credit recovery “a legitimate and important strategy for working with high school students.” He said there was “no indication” that the practice “has been abused more in recent years.”

“If credit recovery is not conducted properly, just as with any other required course, we will take appropriate action,” he added. “We do students no favors by giving them credit they haven’t earned.”

But city officials acknowledged that credit recovery programs are neither centrally monitored nor tracked.

The State Education Department, after seeing a copy of “independent study” guidelines in use at Wadleigh and a number of other schools, said it was examining whether the practice met its standards. State law requires students to earn credits by completing set hours of “seat time” — essentially, showing up for class — and demonstrating subject mastery. To graduate, they must also pass Regents exams.

“We are looking into this situation very carefully,” said Johanna Duncan-Poitier, the senior deputy state education commissioner. “We want to make sure that the student is getting what they deserve.”

Critics say the practice is poised to become more prevalent as principals enjoy greater freedom from supervision at the same time as they are held more accountable for student performance, two hallmarks of Mayor Michael R. Bloomberg’s plan to overhaul city schools. Last fall, schools received letter grades based on student performance, with principals at D or F schools in danger of losing their jobs.

Diane Ravitch, a historian of the city’s public schools who has been a frequent critic of the mayor’s efforts, says the practice of credit recovery could raise questions about the validity of gains in the city’s graduation rate. According to the state, the city had a 50 percent four-year graduation rate in 2006, the most recent year for which data was available, up from 44 percent in 2004.

“I think when it’s used correctly, it might be a good thing,” Ms. Ravitch said of credit recovery, “but when used incorrectly it’s a way of gaming the system.”

But Mr. Klein said there was “no basis to suggest that improper credit recovery has affected graduation rates.” Saying that 39,000 students received Regents or local diplomas last year, 8,000 more than in 2002, when the mayor took control of the schools, he added, “A few anecdotes don’t materially affect this rise.”

Randi Weingarten, president of the United Federation of Teachers, said that the union had received “enough complaints about it that we are really concerned,” but that without hard numbers on the prevalence of credit recovery, she could not say whether the graduation rate was suspect.

“It clearly raises questions about the graduation statistics, but I can’t tell you right now as I sit here how widespread it is,” she said. “I don’t know if it raises questions about a statistically significant number of kids.”

Elizabeth Dougherty, a social studies teacher and teachers’ union chapter chairwoman at the Pelham Preparatory Academy, a small public school in the Bronx, said her school offered several credit recovery programs. “The pressure is so overwhelming now for graduation rates,” she said. “The principals are getting pressure, and the pressure gets put on the teachers.”

One Manhattan principal who has worked in the school system for more than a decade and, like many educators, requested anonymity for fear of retribution by the department, said: “I think that credit recovery and the related topic independent study is in lots of ways the dirty little secret of high schools. There’s very little oversight and there are very few standards.”

Mónica Ortiz-Ureña, the principal of Evander Childs High School in the Bronx, a large school scheduled to close in June after years of poor performance, said its credit recovery programs were developed after the city cut its centrally run summer and evening schools. She said many teachers did not like the practice, which at her school includes online programs in which students complete some work at home and some at school, because “they feel that you’re taking away their jobs.”

“I think credit recovery, as long as it’s done properly and is done according to state law, I think it’s a wonderful opportunity for students who have experienced failure before to experience success,” she said.

At Franklin K. Lane, a large high school in Brooklyn, an advertisement for credit recovery programs offered last year urged students: “If you failed a class, don’t despair ... turnaround your 55 into a 65 in 6 weeks!!! Ask your teacher for details!!!”

Adam Bergstein, a teacher who is head of the school’s union chapter, said the six-week program, which consisted of six classes, had troubled teachers.

“A 55 could be indicative of anything from a 1 to literally a 55 average,” he said. “It’s not a mere nudge ahead; it could be an astronomical leap.”

“It undermines the whole concept of teaching and grading,” Mr. Bergstein continued.

At Lafayette High School in Brooklyn, a February memorandum from two assistant principals described “our first five-day Intensive Program for Credit Recovery” for English classes, consisting of “two days of full instruction from 9-2 p.m. and three days of classroom instruction and field trip experiences.”

Credit recovery programs generally take place on school grounds; teachers who lead them can receive overtime pay.

At Wings Academy in the Bronx, several teachers, all of whom requested anonymity, said credit recovery programs shortchanged students because they may never acquire the discipline and work habits to succeed beyond high school. The programs include crunch sessions after classes end for the semester and independent study packets.

At the Felisa Rincón de Gautier Institute for Law and Public Policy, also in the Bronx, Natasha Ramos, a top student, said she was dismayed by a new “term extension program,” in which seniors could make up missing credits during the week when classes stop for Regents exams.

“I didn’t think that that was fair to the kids who had to go to class during the whole semester,” she said. “It takes away from an actual learning environment.”

A teacher at another Bronx school, who did not want the name of his school published for fear of retribution, said a program there let students earn a year’s worth of science credits by responding to 19 questions on 5 topics. “Research and list all the global environmental issues that science focuses on,” read one, under the “environmental studies” category. “What are some ways that you, as an individual, can help?” read another.

Ms. Morris, the teacher who boycotted the Wadleigh graduation, declined to comment; her e-mail message was provided by a recipient. Wadleigh’s former principal, Karen Watts, was rewarded in January for the school’s performance by being named the city’s first “executive principal.” She was reassigned to a troubled school, in exchange for a $25,000 yearly bonus.

In an interview, Ms. Watts said she believed that no more than five of the more than 100 graduates last June had benefited from the credit-recovery work packets, which were meant to take 54 hours and were “just as rigorous as courses they would have taken sitting in the classroom every day with a teacher, or even more rigorous.” She said she believed she had been following “standard practice.”

Saturday, June 20, 2015

New York State Education Law 3020-a Procedures

New York State Education Law Section 3020-a Disciplinary procedures and penalties.

1.      Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section two thousand five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

2.      (a) Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee`s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.

(b)   The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.

(c)   Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel. All other charges shall be heard by a single hearing officer. (d) The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee`s notice or request for a hearing, notify the commissioner of education of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of        all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.

Education Law §3020-a. Disciplinary procedures and penalties.


3.      Hearings. a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner of education shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to


provide to the commissioner forthwith a list of names of persons chosen by the association from the association`s panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner of education shall forthwith send a copy of both simultaneously to the employing board and the employee.

b.  (i) Hearing officers. All hearings pursuant to this section shall be conducted before and by a single hearing officer selected as provided for in this section. A hearing officer shall not be eligible to serve as such if he or she is a resident of the school district, other than the city of New York, under the jurisdiction of the employing board, an employee, agent or representative of the employing board or of any labor organization representing employees of such employing board, has served as such agent or representative within two years of the date of the scheduled hearing, or if he or she is then serving as a mediator or fact finder in the same school district. Notwithstanding any other provision of law, the hearing officer shall be compensated by the department with the customary fee paid for service as an arbitrator under the auspices of the association for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties. All other expenses of the disciplinary proceedings shall be paid in accordance with rules promulgated by the commissioner of education.

(ii)   Not later than ten days after the date the commissioner mails to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.

(iii)   If the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from said list and so notify the commissioner within ten days after receiving the list from the commissioner, the commissioner shall request the association to appoint a hearing officer from said list.

(iv)   In those cases in which the employee elects to have the charges heard by a hearing panel, the hearing panel shall consist of the hearing officer, selected in accordance with this subdivision, and two additional persons, one selected by the employee and one selected by the employing board, from a list maintained for such purpose by the commissioner of education. The list shall be composed of professional personnel with administrative or supervisory responsibility, professional personnel without administrative or supervisory responsibility, chief school administrators, members of employing boards and others selected from lists of nominees submitted to the commissioner by statewide organizations representing teachers, school administrators and supervisors and the employing boards. Hearing panel members other than the hearing officer shall be compensated by the department of education at the rate of one hundred dollars for each day of actual service plus necessary travel and subsistence expenses.

Education Law §3020-a. Disciplinary procedures and penalties.


The hearing officer shall be compensated as set forth in this subdivision. The hearing officer shall be the chairman of the hearing panel.

c.  Hearing procedures. (i) The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under this section. Such rules shall not require compliance with technical rules of evidence. Hearings shall be conducted by the hearing officer selected pursuant to paragraph b of this subdivision with full and fair disclosure of the nature of the case and evidence against the employee by the employing board and shall be public or private at the discretion of the employee. The employee shall have a reasonable opportunity to defend himself or herself and an opportunity to testify in his or her own behalf. The employee shall not be required to testify. Each party shall have the right to be represented by counsel, to subpoena witnesses, and to cross-examine witnesses. All testimony taken shall be under oath which the hearing officer is hereby authorized to administer. A


competent stenographer, designated by the commissioner of education and compensated by the state education department, shall keep and transcribe a record of the proceedings at each such hearing. A copy of the transcript of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved.

(ii)   The hearing officer selected to conduct a hearing under this section shall, within ten to fifteen days of agreeing to serve as such, hold a pre-hearing conference which shall be held in the school district or county seat of the county, or any county, wherein the employing school board is located. The pre-hearing conference shall be limited in length to one day except that the hearing officer, in his or her discretion, may allow one additional day for good cause shown.

(iii)   At the pre-hearing conference the hearing officer shall have the power to:

(A)  issue subpoenas;
(B)   hear and decide all motions, including but not limited to motions to dismiss the charges;
(C)   hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements), investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee`s defense.

(iv)   Any pre-hearing motion or application relative to the sufficiency of the charges, application or amendment thereof, or any preliminary matters shall be made upon written notice to the hearing officer and the adverse party no less than five days prior to the date of the pre-hearing conference. Any pre- hearing motions or applications not made as provided for herein shall be deemed waived except for good cause as determined by the hearing officer.

(v)   In the event that at the pre-hearing conference the employing board presents evidence that the professional license of the employee has been revoked and all judicial and administrative remedies have been exhausted or foreclosed, the hearing officer shall schedule the date, time and place for an expedited hearing, which hearing shall commence not more than seven days after the pre-hearing conference and which shall be limited to one day. The expedited hearing shall be held in the local school district or county seat of the county or any county, wherein the said employing board is located. The expedited hearing shall not be postponed except upon the request of a party and then only for good cause as determined by the hearing officer. At such hearing, each party shall have equal time in which to present its case.

(vi)   During the pre-hearing conference, the hearing officer shall determine the reasonable amount of time necessary for a final hearing on the charge or charges and shall schedule the location, time(s) and date(s) for the final hearing. The final hearing shall be held in the local school district or county seat of the county, or any county, wherein the said employing school board is located. In the event that the hearing officer determines that the nature of the case requires the final hearing to last more than one day, the days that are scheduled for the final hearing shall be consecutive. The day or days scheduled for the final hearing shall not be postponed except upon the request of a party and then only for good cause shown as determined by the hearing officer. In all cases, the final hearing shall be completed no later than sixty days after the pre-hearing conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension.

4.      Post hearing procedures. (a) The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forthwith forward a copy thereof to the commissioner of education who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer`s findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

(b)   Within fifteen days of receipt of the hearing officer`s decision the employing board shall implement the decision. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph (b) of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his pay and other emoluments restored, for the period from the date of his suspension to the date of the decision.

        
(c)   The hearing officer shall indicate in the decision whether any of the charges brought by the employing board were frivolous as defined in section eight thousand three hundred three-a of the civil practice law and rules. If the hearing officers finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the state education department the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys` fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the state education department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys` fees, the employee incurred in defending the charges.

5.      Appeal. Not later than ten days after receipt of the hearing officer`s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court`s review shall be limited to the grounds set forth in such section. The hearing panel`s determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

 The University of the State of New York The State Education Department
School District Employer-Employee Relations Unit Education Building Annex, Room 980
Albany, New York 12234


The Rights of Tenured School District Employees
to a Hearing on Charges Provided by Section 3020-a Education Law

Section 3020-a of the Education Law, as amended by Chapter 691 of the Laws of 1994, provides that a tenured school district employee who has been charged with incompetence or misconduct may elect to have a hearing officer review the charges and make findings of fact and recommendations as to penalty or punishment, if warranted, which the board of education must implement within 15 days of their receipt of the recommendations. In cases which involve charges of pedagogical misconduct or issues of pedagogical judgement, the employee may elect to have a three member panel perform this function.

The board of education must first meet to consider the charges. If by a vote of the majority of the board they find probable cause for the charges, the tenured employee must be served with a written copy of the charges by certified mail. The board must also furnish the charged employee with a copy of this document outlining the employee’s rights. The board may suspend the employee pending disposition of the charges with pay. The employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student. In addition, if the charges are based on failure to maintain certification, the employee must be suspended without pay.

Within ten days of receipt of charges, the employee must notify the school district clerk or the secretary of the board of education whether he desires a hearing on the charges. If the employee desires to waive his right to a hearing, he should file a notice of intent to waive his right to a hearing with the school district clerk or with the secretary of the board of education and the Commissioner of Education. If the employee fails to waive his right and takes no action within ten days of the receipt of charges, he shall be deemed to have waived his right to a hearing. If the employee waives or is deemed to have waived his right to a hearing, the board of education shall then meet and determine the case within 15 days of the receipt of the waiver or within 15 days of the date when the waiver shall have been deemed to have occurred.

The employee who chooses a hearing should carefully follow each step in the timetable supplied by the Education Department to assure compliance with the law.

If the employee chooses to exercise his right to a hearing, he must so notify the board within ten days of receipt of the charges. This notification should advise the board of the


employee’s choice of a single hearing officer or a three member panel, if applicable.

The employee will then receive from the school district clerk or the secretary of the board of education by certified mail, a copy of the Notice of Need for a Hearing. In this notice of need, the employee will find the information regarding the site to be provided for the hearing, the name and address of the attorney who will represent the complainant at the hearing, whether the employee is suspended, with or without pay, an estimate of the number of days required to hear the case, and the name of the panel member, if required.

The Commissioner of Education will then notify the American Arbitration Association (AAA) that a hearing will be held, obtain a list of potential hearing officers, and send a copy of such list to the employing board and the employee, or their attorneys. Not later than ten days from the mailing of the list, the board and employee, or their representatives, shall select, by agreement, a hearing officer and notify the Commissioner thereof.

The Commissioner shall notify the hearing officer and confirm by appointment letter his or her acceptance of such selection. Within ten to fifteen days of receipt of this notice from the Commissioner, the hearing officer shall contact the parties and hold a prehearing conference. If the parties fail to notify the Commissioner of an agreed upon hearing officer within ten days, the Commissioner shall request AAA to select a hearing officer.

Where a three member panel is to hear the proceeding, the employee shall, within five days after receiving the copy of the notification to the commissioner of the need for a panel hearing, in writing by certified mail, notify the board and the Commissioner of the name of his or her selection for the hearing panel. If the employee fails to notify the Commissioner and the board as required, the Commissioner shall select the employee panel member.

The hearing will be conducted by the hearing officer who will have been selected from the list supplied by the American Arbitration Association. Each party may subpoena and cross-examine witnesses. (Copies of any subpoenas served on prospective witnesses must be presented to the chairman of the panel at the start of the hearing.) The employee must have a reasonable opportunity to defend himself and an opportunity to testify on his own behalf. All testimony must be under oath administered by the chairman of the panel.

If the employee or his attorney desires a public hearing, a written demand for such a public hearing must be served upon the hearing officer at least twenty-four hours before the date set for the hearing. The prehearing conference shall be private.

Photographs and recordings may not be made at private hearings. They may be permitted by the hearing officer at public hearings. Representatives of the news media may be present at all public hearings.

At the prehearing conference, the hearing officer decides all motions and objections. He may dismiss any or all of the charges, without prejudice to the filing of more specific charges upon motion of the charged party or his representative, if he determines that the charges as filed are lacking in specificity; he may not, however, dismiss the charges for any other reason without the consent of the complainant or his attorney. The hearing officer shall have the power to consolidate with the pending charges amended or additional charges against an employee as to which the board has found that probable cause exists no later than five days before the hearing, provided that the employee may file a waiver of hearing concerning such amended or additional charges with the hearing officer and provided further that charges involving pedagogical incompetence or issues involving pedagogical judgement may not be consolidated with pending charges unless the employee has previously exercised his or her right to choose between a single hearing officer and a hearing panel in the request for a hearing.

If a hearing panel member is absent and the hearing officer determines the absence will unduly delay the hearing, he must order a replacement. The party who selected the absent panel member then has two days to select a replacement, or the Commissioner will name a replacement. If the hearing officer needs to be replaced and the parties cannot agree on a substitute, the Commissioner shall request the association to select a replacement. In no event shall a panel hearing proceed except in the presence of two panel members and the hearing officer.

At a hearing, no questions may be addressed to the employee unless he has been sworn as a witness with his own consent. The employee is entitled to receive a copy of the hearing transcript upon request without charge. Memoranda of law may be submitted by the employee or the board of education at the conclusion of testimony.

The hearing officer or panel shall make findings of fact on each charge and recommendations as to disciplinary action, or punishment, if any, against the employee on such charge, which findings of fact and recommendations are then to be submitted by the hearing officer to the Commissioner, no later than thirty
days after the last hearing. The findings of the panel on each charge and the recommendations of the panel as to disciplinary action, if any, shall be based solely upon the record of the proceedings before the hearing panel and shall set forth the reasons and the factual basis for the determination. Upon forwarding the findings and recommendations to the Commissioner, the hearing officer declares the hearing concluded.

The Commissioner will immediately forward said findings of fact and the recommendations as to penalty, if any is warranted, to the employee and to the district clerk or the secretary of the employing board. Within 15 days of the receipt of the hearing officer’s decision, the employing board shall implement the recommendations of the panel. If the employee is acquitted of the charges, he or she must be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record.

If an employee who was convicted of a felony crime as specified in paragraph (b) of subdivision two of this section has said conviction reversed, the employee, upon application, shall be entitled to have his pay and other emoluments restored, for the period of time extending from the date of suspension to the date of the decision.

Either the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the hearing officer’s decision under Section 7511 of the Civil Practice Laws and Rules. The filing of the pendency of an appeal shall not delay the implementation of the hearing officer’s decision.
  
The University of the State of New York The State Education Department
School District Employer-Employee Relations Unit Education Building Annex, Room 980
Albany, New York 12234


The Role of the School District Clerk or the Secretary of the Board of Education Under Section 3020-a Education Law


Section 3020-a of the Education Law requires the school district clerk or the secretary of the board of education  to  perform certain  procedural  steps to  implement  its provisions.  This section of the law authorizes hearings on charges brought against tenured school employees, to be held before a single hearing officer or a three member panel.

A copy of the Law and Regulations of the Commissioner of Education dealing with the hearings have been provided to each school district. Also mailed to each school district:
the timetable, a list of panel members nominated by organizations representing school boards, school administrators, and school teachers and sample forms. The rest of this memorandum is intended to provide the district clerk or the secretary of the board of education with an explanation of the steps to be followed in order to comply with the provisions of Section 3020-a. Since the law mandates certain time limits for each step for the board, the district clerk or the secretary of the board as well as the employee, careful study is suggested.

First, the charges against the employee must be filed with the district clerk or the secretary of the board of education. This must be done not more than five days prior to the next regularly scheduled


meeting of the board. The board may, however, in its discretion, waive the five day time requirement. As soon as the charges have been received by the district clerk or the secretary of the board of education, he or she must immediately notify the board of education that they have been filed.

Within five days of receipt of charges, the board of education must meet in executive session to determine whether or not there is probable cause for the charges filed; a majority vote is required if probable cause is to be found by the board.

If the finding of the school board is that there is probable cause for the charges, the district clerk or the secretary of the board of education must forward to the employee immediately by certified mail:

1.      A copy of the Notice of Determination of Probable Cause on Charges Brought Against Tenured School District Employees (Form 3020-a-i).

2.      A copy of the Rights of Tenured School District Employees to a Hearing on Charges Provided by Section 3020-a of the Education Law.

3.      A copy of the Request by Tenured School District Employee for a Hearing on Charges Brought Against the Employee (Form 3020-a-2).

4.      A copy of the Notice of Waiver of Hearing by Tenured School District Employee (Form 3020-a- 3).

Copies of all enclosed forms may be reproduced locally.

The district clerk or the secretary of the board of education must also forward a copy of each such charge in writing, together with the vote of each member of the board to the Commissioner of Education at once by first class mail.

Within ten days of the receipt of the statement of charges, the employee must notify the district clerk or the secretary of the board of education whether or not he or she desires a hearing on the charges. If the employee desires to waive his right to a hearing, he should file a notice of motion to waive his right to a hearing with the district clerk or the secretary of the board of education, and submit a copy to the Commissioner of Education. If the employee takes no action within ten days of receipt of charges, he shall be deemed to have waived his right to a hearing.

If the employee is deemed to have waived his right to a hearing, the district clerk or the secretary of the board of education shall immediately forward to the Commissioner a Notice of Failure to Request or Waive Hearing (Form 3020-a-4). A copy of this form must also be immediately forwarded by certified mail to the employee.

 If the employee waives or is deemed to have waived his right to a hearing, the board shall determine the case within fifteen days of the receipt of the waiver or within fifteen days of the date when the waiver shall have been deemed to have occurred. The district clerk or the secretary of the board of education shall then forward a report of the board’s determination to both the employee and the Commissioner of Education.

If the employee decides that he would prefer to have a hearing, the district clerk or the secretary of the board of education is required to:


1. Forward to the Commissioner at once by first class mail:


a.       An affidavit of service showing service of a copy of the charges upon the employee.

b.      A copy of the employee’s request for a hearing (3020-a-2)

c.       A notice of the need for a hearing (Form 3020-a-5)

d.      The place to be provided by the board for holding the hearing, within the school district or the county seat; (Form 3020-a-5)

e.       Name, address and telephone number of the attorney, if any, who will represent the complainant at the hearing; (Form 3020-a-5)

f.       The name of the panel member selected by the school board, if applicable; (Form 3020-a6)

g.      Whether an expedited hearing is sought, and whether the employee is suspended, either with or without pay.

h.      An estimate of the number of days needed for the hearing.

2. Forward to the Employee by certified mail, return receipt requested:

a.       The place to be provided by the board for holding the hearing.

b.      The name and address of the attorney, if any, who will represent the complainant at the hearing.

c.       Whether an expedited hearing is sought, and whether the employee is suspended, either with or without pay.

d.      An estimate of the number of days needed for the hearing

e.       The name of the panel member selected by the board of education, if applicable.

 Separate notification of the need for a hearing must be given to the Commissioner of Education with respect to each employee against whom charges have been filed. If the board has indicated that charges involve pedagogical incompetence or issues involving pedagogical judgement and the board fails to name a panel member in this notice, the Commissioner will appoint a panel member for the board. It is essential that a representative of the district contact the board’s selected panel member to ascertain that the panel member will be available for the duration of the hearing. 

 Within five days after receiving the copy of the notice of the need for a hearing which includes charges of pedagogical incompetence or issues involving pedagogical judgement, the employee must notify the Commissioner of Education and the school board in writing by certified mail, of the name of his selection for the hearing panel. If the employee fails to notify the Commissioner, and he has not waived his right to a panel hearing, the Commissioner will appoint a panel member for the employee.

Upon notification of the need for a hearing, the Commissioner will request that the American Arbitration Association provide a list, including a brief biography, of potential hearing officers. The Commissioner will forward a copy of such list to the attorney representing the board and the employee. Not later than ten days from the mailing of the list, the parties or their representatives shall by agreement select a hearing officer and notify the Commissioner of such selection. If the parties fail to notify the Commissioner
within, ten days the Commissioner shall request that the association select a hearing officer.

The district clerk or the secretary of the board of education must maintain on file an up-to-date list of the panel members supplied by the Commissioner, from which list the school board and the employee must make their respective selections. These lists of panel members shall be available for public inspection. Panel members may not be residents in nor employed in the territory under the jurisdiction of the employing school board.

The Commissioner will notify the board, employee and the panel members if applicable of the date, time and place of hearing.

At the conclusion of a hearing, the Commissioner will forward a report of the hearing, including the findings of fact and recommendations of the hearing officer or panel, and the recommendations as to penalty or punishment, if one is warranted, to the employee and to the district clerk or secretary of the board of education. The district clerk or the secretary of the board of education should transmit this hearing report immediately upon his or her receipt of said report, to the board of education.

Within 15 days of receipt of the hearing report from the Commissioner, the board shall implement the recommendations of the panel.

This concludes the school district clerk’s and the secretary of the board of education’s role in the panel hearing procedure. If the district clerk or the secretary of the board of education has need of further information, he or she should immediately contact: The School District Employer-Employee Relations Unit, The State Education Department, Room 980, Education Building Annex, Albany, New York 12234.

The University of the State of New York The State Education Department
School District Employer-Employee Relations Unit Education Building Annex, Room 980
Albany, New York 12234

Timetable--Section 3020-a, Education Law
Hearings on Charges Against Tenured School District Employees


Section 3020-a of the Education Law provides that tenured employees of school districts who are charged with incompetence or misconduct may elect to have a hearing on the charges. If such an election is made by the tenured employee, the law mandates the following schedule for implementation of its provisions by school boards and school employees.


STEP      PROCEDURE

1.                            Filing of written charges against the employee not more than five days before the next scheduled board meeting with the district clerk or the secretary of the board of education, who then must notify the board of the charges immediately (Ed. Law 3020-a, subdivisions 1 and 2).


2.                            Board of education meets in executive session to determine whether there is probable cause for the charges filed within five days of receipt of the charges (Ed. Law 3020-a, subdivision 2; Commissioner’s Regulations 82-1.3 (a)).

3.                            If a majority of the board finds probable cause:

a)                        A written statement of the charges in detail and an outline of the employee’s rights must be forwarded to him or to her by the district clerk or secretary of the board of education immediately by certified mail (Ed. Law 3020-a, subdivision 2).

b)                        In addition, the district clerk or the secretary of the board of education must forward a copy of each such charge, in writing, together with the vote of each member of the board to the Commissioner of Education by first class mail, at once (Commissioner’s Regulation 82-1.3 (b)).

4.                            The employee must notify the district clerk or the secretary of the board of education within ten days of receipt of the charges whether he or she desires a hearing on the charges. The employee may:

a)                        Elect to have a hearing and so notify the district clerk or the secretary of the board of education; or
b)                        Waive his right to a hearing and so notify the district clerk or the secretary of the board of education; or

Take no action within ten days, in which case a waiver of the hearing right will be deemed to have occurred. (Ed. Law 3020-a, subdivision 2).
c)

5A.           If the tenured employee elects to have a hearing, the district clerk or secretary of the board of education must notify the Commissioner of the need for a hearing. This must be done within three days of receipt of the request for a hearing. A copy of this Notice of the Need for a Hearing must also be forwarded to the employee by certified mail.

The notice to the Commissioner shall include a copy of the charges, an affidavit of service of a copy of the charges on the employee, a copy of the employee’s request for a hearing, an estimate of the number of days that will be required to hear the case, notification as to suspension and whether the suspension is with or without pay, the place to be provided by the board for the hearing, the name and address of the attorney, if any, who will represent the complainant at the hearing, and a check in the amount of
$225.00 made payable to the American Arbitration Association. If the charges concern pedagogical incompetence or issues involving pedagogical judgment, the employee may choose to have the charges heard by a three member panel. In such circumstance, the notice to the Commissioner must also include the name of the panel member selected by the board from the list furnished to the district clerk or the secretary of the board of education by the Commissioner. It is essential that the person selected as panel member by the board be contacted to ascertain that the person selected will be able to serve for the duration of the hearing.

If the board fails to name a panel member in the Notice of the Need for a Hearing, the Commissioner will appoint a panel member for the board (Ed. Law 3020-a, subdivision 2; Commissioner’s Regulations 82-1.8 (b).


5B.           If the employee waives the right to a hearing or is deemed to have waived his or her right to a hearing pursuant to statute, the board, by a majority vote, determines the case and fixes the penalty or punishment, if any, to be imposed, within 15 days of receipt of the waiver of the hearing from the employee or within 15 days from the date when the waiver was deemed to have occurred (Ed. Law 3020-a, subdivision 2). Copies of the board’s determination should be provided to the employee and to the Commissioner of Education.

The following procedures apply when Step 5A has been followed. If Step 5B is selected, no further reference to the timetable is necessary.

6A.           The Commissioner shall notify the American Arbitration Association (AAA) of the need for a hearing and request AAA to provide to the Commissioner a list of names of persons chosen by the AAA from the panel of labor arbitrators to potentially serve as hearing officers, together with relevant biographical information on each arbitrator. The Commissioner shall forthwith forward a copy of the list to the board and to the employee. (Ed. Law 3020-a, subdivision 3).

 Within ten days of receipt of the list of potential hearing officers and biographies, the board and employee, individually or through their attorneys, shall by mutual agreement select a hearing officer and shall notify the Commissioner of their selection. (Commissioner’s Regulations 82-1.6).

6B.           If the board and the employee fail to agree on an arbitrator to serve as hearing officer, they must notify the Commissioner within ten days of receiving the list. The Commissioner shall then request AAA to appoint a hearing officer from said list. The Commissioner shall notify the hearing officer selected and confirm his or her acceptance of such selection.

7.                            The hearing officer shall contact the parties and, within ten to fifteen days of receipt of notice from the Commissioner confirming his or her acceptance of a selection to serve as hearing officer, hold a prehearing conference.

8.                            Within five days after receiving a copy of the Notice of the Need for a Panel Hearing, the employee must notify the Commissioner and the board in writing by Certified Mail of the name of his or her selection for the hearing panel. If the employee fails to notify the board and the Commissioner, and the employee has not waived or been deemed to have waived his or her right to a hearing, the Commissioner shall select the member of the hearing panel for the employee (Commissioner’s Regulation 82.6). It is essential that the employee contact his or her selection for the hearing panel to ascertain if the panel member selected will be able to serve for the duration of the hearing. Where an employee has exercised the option to have the hearing conducted before a hearing panel and the hearing officer determines that the absence of a panel member is likely to delay unduly the prosecution of the hearing, he or she shall order the replacement of the panel member. If the party who selected such panel member fails to select the replacement within two days, the Commissioner will select the replacement. If the hearing officer needs to be replaced, and the Commissioner determines that the parties cannot agree on a replacement, the Commissioner shall request AAA to select a replacement from the list of hearing officers. In no event shall a panel hearing proceed except in the presence of two panel members and the hearing officer (Commissioner’s Regulations 82-1.lOd).


9.                            Unless the employee or his attorney shall have served a written demand for a public hearing upon the hearing officer, at least twenty four hours before the first day of hearing, the employee will be deemed to have waived his or her right to a public hearing and the hearing will be private. The prehearing conference will be private (Commissioner’s Regulations 82-1.9).

At the prehearing conference, the hearing officer shall determine the reasonable amount of time necessary to hear the charges and shall schedule the location, time and date(s). If more than one day is required, the days scheduled shall be consecutive. The final hearing shall be completed no later than sixty days after the prehearing conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension. (Ed. Law 3020-a, subdivision 3 iv).



10.                        At the conclusion of the testimony, the hearing officer may adjourn the hearing to a specified date, to permit preparation of the transcript, submission by the parties of memoranda of law, and deliberation. This date may not be more than sixty days after the prehearing conference unless the hearing officer determines that extraordinary circumstances warrant a later date. The hearing officer shall arrange for the preparation and delivery of one copy of the transcript of the hearing to each party. (Commissioner’s Regulations 82-1.lOf).

11.                        Within thirty days of the final hearing day, the hearing officer or panel shall render a written decision and forward a copy of such decision to the Commissioner. The decision shall include the findings of fact on each charge and its recommendation as to disciplinary action, if such action is warranted. The findings of fact shall set forward the factual basis for its determination. The hearing officer shall, no later than thirty days from the last hearing date, forward the findings of fact and recommendations, together with all copies of the record, to the Commissioner, and shall than declare the hearing concluded (Commissioner’s Regulations 82-1.10(g).

12.                        The Commissioner will immediately forward a copy of the decision, and the recommendations as to penalty, if one is warranted, to the employee and the board of education. (Ed. Law 3020-a, subdivision 4).

13.                        Within fifteen days of receipt of the hearing officer’s decision, the employing board shall implement the decision. If the employee is acquitted, he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the record (Ed. Law 3020-a, subdivision 4).

14.                        Within ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision pursuant to Section 7511 of the Civil Practice Law and Rules (Ed. Law 3020-a, subdivision 5).