Education Law §3020-a Update, TEACH and Related

Teacher Discipline IssuesDeborah Glasbrener Marriott

MASLAHigh Peaks Resort

Lake PlacidJuly 22, 2014

Teacher Tenure Changes TEACH Teacher Discipline Part 83 Top 10 Selected Education Law and SAPA Provisions

Agenda

Tenured educators have the right to retain their positions and may only be terminated if there is “just cause” pursuant to Education Law §3020. The rules specifying the process for terminating a tenured educator are set forth in Education Law §3020-a. This process was significantly modified effective April 1, 2012, by Chapter 57 of the Laws of 2012.*

* Education Law §3020(3) permits the NYCDOE to modify the provisions of Education Law §3020-a through the collective bargaining process. As a result many of the timeframes set forth in the statute do not apply to NYCDOE.

Teacher Tenure Hearings

Overview of 3020-a Process Charges

Voted on by school board at a regular board meeting Served upon the employee Filed with SED

Hearing Request/Waiver Employee has 10 days to request hearing If no hearing requested, deemed a waiver School board must meet within 15 days to determine the case

Hearing Officer Selection AAA creates list Parties must select within 15 days

Hearings Pre-hearing conference within 10-15 days Must be concluded within 60 days of pre-hearing conference

Decision Issued in 30 days Implemented by school board within 15 days

Appeal Within 10 days CPLR Art. 75 Review

No Changein 2012

Serve Charges1st Day

1st Day Serve

Charges

Request Hearing10 Days

10 Days Request Hearing

Select Arbitrator45 Days

109 DaysSelect

Arbitrator

Pre-Hearing Conference65 Days

279 Days Pre-Hearing Conference

Final Hearing Date

125 Days

529 DaysFinal Hearing

Date

Issue Decision155 Days

653 Days Issue

Decision

Statute Reality

Reality = Current Statewide Average (2011)

Days Elapsed

§3020-aTimelines a/k/a Fuzzy Math§3020-aTimelines a/k/a Fuzzy Math

April 1, 2012 Two goals

Reduce Length of Time for Cases Reduce Costs

3020-a Reform Legislation

Reduce TimeSignificant Changes

Hearing Officer Selection: 15th day (from list creation) Evidence: 125th day (from Board vote) Decision: 30 days (from last hearing date)

Parties must choose the hearing officer within 15 days from the date the list is created - Education Law §3020-a(3)(b)(ii).

TEACH facilitates this by making the list instantly available. Each party must make the same selection within 15 days. If selections do not match by the 15th day, the Commissioner

chooses - Ed.Law §3020-a(3)(b)(iii). Commissioner choice is driven by cost.

First Criteria: least expensive Hearing Officer Second Criteria: if two Hearing Officers share the same rate, then

the choice is the one that is geographically closest

15 Day Rule Hearing Officer Selection

A significant change is the prohibition on the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties set forth in Education Law §3020-a(3)(c)(vii).

Still no litigation on this issue yet What is “evidence?”

125 Day RuleProhibition on Evidence

The Hearing Officer must issue a decision within 30 days of the last day of the hearing

Failure to comply with the timelines may be grounds for removal from the list of hearing officers - Ed. Law §3020-a(3)(c)(i)(B)

The 30 day time period is not extended for the submission of post hearing briefs Reminder: post hearing briefs are not evidence and are

therefore unaffected by 125 day rule

30 Day RuleIssuance of Decision

Establish maximum rates of compensation for arbitrators (Ed.Law §3020-a(3)(b)(i)(B)) Commissioner set maximum rates in a field memo Issued billing guidelines for travel and other expenses

Utilize new recording methodology and no longer has to produce a transcript (Ed.Law §3020-a(3)(c)(i)(D))

Pay new claims first (Ed.Law §3020-a(3)(b)(i)(A)

Reduce CostsSignificant Changes

Assist in managing new requirements Business process reconfigured Eliminate delays caused by manual process Design paperless system Keep track of tight timelines Accommodate need for reports on success of changes

Goal of TEACH Modifications

Multiple users Automated emails to trigger the next step in the process All parties can upload relevant documents (charges,

transcripts, decisions) Greatly reduces manual SED processes Eliminates paper files Online voucher creation Online voucher auditing Future – can accommodate transcript changes

How Do TEACH Changes Help?

Tenure Cases Statewide Summary

Statewide Summary (Based on FY Commenced) *As of April 30, 2014

2012-2013 2013-2014

Total Cases 572 525

Total Closed Cases 525 274

Total Open Cases 48 251

Days For Decision (NYC) 288 190

Days for Decision (ROS) 186 177

Days for Settlement (NYC) 143 103

Days for Settlement (ROS) 101 94

Case Outcomes(Based on FY Case Commenced)

(As of April 30, 2014)

Case Outcomes 2012-2013

NYC ROS

Decision 96 21

Settled 255 76

Withdrn/Consol 26 44

Pending 36 12

Waived Hearing 3 4

Total Outcomes 416 157

Case Outcomes 2013-2014

NYC ROS

Decision 33 16

Settled 122 81

Withdrn/Consol 5 11

Pending 199 50

Waived Hearing 0 2

Total Outcomes 359 160

Average Days to Decision By Type

ROS 2012-2013 Decisions

# Days

Termination 7 186

Suspension 7 187

Fine 2 201

Other 1 215

Susp & Fine 1 175

Not Guilty 3 152

21 186

ROS 2013-2014 Decisions

# Days

Termination 9 159

Suspension 3 146

Fine 1 226

Other 2 204

Susp & Fine 1 149

Not Guilty 0 0

16 177

Average Days to Other Outcomes

ROS 2012-2013

# Days

Settled 76 101

Withdrn/Consol 44 113

Waived Hearing 4

Pending 12

Total Other 136

ROS 2013-2014

# Days

Settled 81 94

Withdrn/Consol 11 86

Waived Hearing 2

Pending 51

Total Other 145

Teachers and applicants for certification must possess “good moral character” (8 NYCRR §83.1)

The Commissioner investigates allegations that raise a “reasonable question as to an individual’s moral character” (8 NYCRR §83.2)

Educator Discipline (8 NYCRR Part 83)

Chief School Administrators (Mandatory Reporting Requirement)

General Public/Victims Teacher Certification Applications Fingerprinting Law Enforcement (As of 2008, DA’s have a Mandatory

Reporting Requirement) NASDTEC Educator Clearinghouse Child Abuse in Educational Setting (Education Law

Article 23-B (§1125-1133)) **NEW***Mandatory reporting of test security

violations (8 NYCRR 102.4, eff. 5/14/2014)

Sources of Complaints

NEW

Who must report? Chief school administrators (8 NYCRR § 83.1(a))

What must be reported? Any information that a certified individual: has been convicted of a crime or has committed an act which raises a reasonable question

as to the individual’s moral character (8 NYCRR § 83.1(a))

Mandatory Reporting Requirement

Substantial Question of Moral Character

Inappropriate conduct with students Conviction of serious crimes Misappropriation of school funds (field trip money, club

money, etc.) Viewing pornography on school computers Intimidation, bullying, verbal abuse and assault Substance abuse issues (nexus to school) Falsification of teaching credentials Test fraud on statewide exams

INAPPROPRIATE CONDUCT With STUDENTS

Teachers – Roles models, position of trust, imbalance of power

Developing “special” relationships, giving student extra privileges Sharing personal information and giving advice on non-school related

issues (marriage, boyfriends, sex, mental health, suicide, etc.) Engaging in private communications on non-school related issues (via text,

cell phone, social media, greeting cards, letters, emails, IM’s) Giving and receiving gifts Contact off school grounds for non-school related events (movies, dinner,

shopping) Transporting students in a private vehicle (clandestine v. open and

notorious) Treating student as a “peer” rather than maintaining student-teacher

boundaries Developing relationship with parents to enable greater access to student Secrecy of relationship (encouraging lies) Failure to refer student to resources within school for serious issues

Top Ten (a/k/a 18) Part 83’s Grooming (Mudge, Murray) Failure to Report (Murray) Computer Fraud (D’Amato) Sex with Teen (Drexler) Lewdness (Wiggs) Adult Sex (Hafer, Redman, ECR) Pornography (Stephney, Henery) HO Bias (Moro) Off Duty Conduct (Klinger, Shannahan) Testing (Musto, Jeudy) Lie on Application (Miller) Partners in Crime (Burlison)

  2010 2011 2012 2013 2014

Surrender 79 101 65 73 17

Revoke 41 45 35 55 18

Deny 19 20 10 19 5

Suspend 9 2 9 19 3

Discipline Adverse Outcome

Education Law §215

§ 215. Visitation and reports. The regents, or the commissioner of education, or their representatives, may visit, examine into and inspect, any institution in the university and any school or institution under the educational supervision of the state, and may require, as often as desired, duly verified reports therefrom giving such information and in such form as the regents or the commissioner of education shall prescribe. For refusal or continued neglect on the part of any institution in the university to make any report required, or for violation of any law or any rule of the university, the regents may suspend the charter or any of the rights and privileges of such institution.

SAPA §401(2) provides: when a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court, provided that this subdivision shall not affect any valid agency action then in effect summarily suspending such license.

Selected SAPA Provisions – Stay of Expiration of License

~Questions~