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.
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.
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.
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.
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
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:
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
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.
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).
