THE TEACHER'S LAWYER: New Changes to 3020-a effective April 1, 2012

Monday, April 9, 2012

New Changes to 3020-a effective April 1, 2012

http://www.highered.nysed.gov/tcert/pdf/memo04042012.pdf

Education Law §3020-a Changes (Effective April 1, 2012)

Date:	April 4, 2012
To:	District Superintendents School Superintendents New York City Department of Education New York State Council of School Superintendents New York State School Boards Association United Federation of Teachers New York State United Teachers School Administrators Association of New York State Council of School Supervisors & Administrators New York State Association of School Personnel Administrators New York State Association of School Attorneys New York State Association of Management Advocates for School Labor Affairs American Arbitration Association
From:	Valerie Grey, Executive Deputy Commissioner
Subject:	Education Law §3020-a Changes (Effective April 1, 2012)
	Education Law §3020-a Changes (Effective April 1, 2012) (375KB)

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time to conduct hearings. This legislation was introduced in the Assembly and Senate. The Governor’s proposed 2012-13 State Budget included some of these reforms and the State Budget as adopted by the Legislature included a number of important programmatic and fiscal reforms. The purpose of this memorandum is to clarify and provide guidance on the major changes set forth in Education Law §3020-a. The Department is reviewing these changes and will make conforming amendments to the regulations to implement the law. The Department will also be updating TEACH (a web-based data information system) to allow for greater access to case information and relevant dates. During this transitional period, the Department thanks all affected parties in advance for their patience and cooperation as we work together to ensure successful implementation of the new Education Law §3020-a reform measures.

Below is a summary of the major Education Law §3020-a revisions. For specific guidance, please refer to the actual statutory language, a copy of which has been attached to this memo.

Effective Date

The change set forth in the amendments to Education Law §3020-a take place immediately and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012.

All affected parties should be aware of this effective date and are strongly advised to carefully review these changes and how they may affect any cases currently in progress or those that are anticipated.
The parties are strongly encouraged to develop the necessary tracking systems to ensure that responsibilities are carried out in a timely and professional manner, so that no party is unduly penalized by the very stringent timelines set forth in the statute.

Prohibition on Introduction of Evidence After 125 days

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). Proceedings under §3020-a have traditionally taken far too long to resolve and this provision is designed to ensure timely resolution by prohibiting the introduction of evidence beyond a certain point in the proceeding. This means that once the charges are filed, all parties should work expeditiously and cooperatively to complete the case in a timely manner so that cases are resolved within the statutory timeline of 125 days after the filing of charges. After 125 days no additional evidence shall be accepted unless there are extraordinary circumstances beyond control of the parties. The “extraordinary circumstances” rule was meant to provide for that rare occasion when evidence truly could not be introduced in a timely manner.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates. Until that time, arbitrators are expected to closely monitor the relevant dates and ensure adherence.

Department Selects Arbitrator When Parties Can Not Agree

The new amendments also modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list. Education Law §3020-a(3)(b)(iii) states that “[i]f the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list.” This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree by the 15th day. It does not apply to NYC where there is an alternative procedure.

Historically, the Department only intervened when notified of the failure to agree, however, the amended language does not require the Commissioner to wait until notification of the failure to agree. The Commissioner will be authorized to select an arbitrator if no selection is affirmatively made by the 15th day.
To ensure that all parties get proper notice of the list, the Department will continue its current practice of emailing the list of potential arbitrators to the school attorney and the employee attorney, if one has been designated by the employee. Where no attorney is provided by the employee, the list will be sent directly to the employee.
A hearing officer selection will be considered timely, if it is emailed to the dedicated tenure email box (TENURE@mail.nysed.gov) by the close of business on 15th calendar day.
To minimize any potential delays that may occur at the school district level, the American Arbitration Association (“AAA”) has agreed to directly bill the school district for the production of the arbitrator list. Schools are strongly encouraged to send the charges to the Department immediately without a check to AAA and make payment arrangements directly with AAA after the compilation of the list. AAA will take payment in the form of check or credit card for the $150 fee.

Department Can Establish Maximum Arbitrator Rates and Study Hours

An amendment to Education Law §3020-a(3)(b)(i)(B) requires the Commissioner to establish a schedule for “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added). The purpose of this amendment was to give the Commissioner the authority to control costs.

Over the next several weeks, the Department will be conducting an analysis to determine both the appropriate rates and the maximum number of study hours for these types of proceedings. Once the analysis is complete, the Commissioner will be establishing guidelines for arbitrator fees and study hours.
All new arbitrator appointments will be contingent upon accepting the new maximum fee and study hour rates established by the Commissioner.
It is anticipated that the new TEACH modifications will incorporate changes in the manner in which arbitrator invoices are filed with the Department, to permit online filing to ensure accuracy, and improve the time it takes to process payments.

Department Can Exclude Arbitrators For Untimeliness

Pursuant to Education Law §3020-a(3)(c)(i)(B) the Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute. The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates. Until that time, the Department will monitor manually.

New Technology for Recording Hearings is Allowed

Education Law §3020-a(3)(c)(i)(D) continues the requirement that an accurate “record” of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education. The statutory changes, however, permit the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner.

The Department will explore other cost-effective alternatives to recording and producing transcripts for these proceedings, however, there will be no immediate change to the manner in which these hearings are recorded.

Appropriation For New Cases

In order to ensure that the new reforms are successful, the law provides that any claims for cases in which charges were filed after April 1, 2012 be paid first out of the funds appropriated for the 2012-13 fiscal year pursuant to Education Law §3020-a(3)(b)(i)(A). Total spending for 2012-13 is limited to $3.8 million.

This amendment will ensure that the Department is able to make timely payments for services rendered for new cases under the new system during 2012-13. Thus arbitrators who accept cases under the new system with the new time constraints will be reimbursed for their services in a timely manner. Any funds remaining will be used to pay for claims on cases that had charges filed prior to April 1, 2012.

One Year limitation on Claims

Education Law §3020-a(3)(d) imposes a one-year limitation, following the final disposition of the hearing, for the submission of claims for reimbursement for services rendered. The purpose of this amendment was to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time.

New Forms The Education Law §3020-a forms are in the process of being updated. It is imperative that schools use the updated forms for any cases commenced under the new system because they will reflect the new changes and provide critical information necessary to expedite the administrative steps for opening of cases and the appointment of the hearing officer. It is anticipated that the new forms will be available within a week. Please refer to: Teacher Tenure Hearing (3020a) for further information.

Questions

If you have any questions please contact Deborah A. Marriott, Director, Office of School Personnel Review and Accountability at 518-474-3021 or send an email to her attention atTENURE@mail.nysed.gov.

c: Deborah A. Marriott

Final Enacted Budget 2012-13 – TTH Article VII Language (375KB)

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Polayes v City of New York 2014 NY Slip Op 03958 Decided on June 3, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2014 Tom, J.P., Renwick, Andrias, Freedman, Clark, JJ. 12649 156710/12 [*1] In re Jonathan Polayes, Petitioner-Appellant, v City of New York, at al., Respondents-Respondents. Glass Krakower LLC, New York (John Hogrogian of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents. Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 18, 2013, which denied the petition to vacate an arbitration award imposed pursuant to Education Law § 3020-a, finding petitioner guilty of teacher misconduct and terminating his employment with respondent New York City Department of Education, and granted respondents' cross motion to dismiss the proceeding and confirm the award, unanimously reversed, on the law, without costs, the petition granted, the cross motion denied, and the arbitration award vacated. The evidence presented at the arbitration hearing established that petitioner, while acting as a substitute teacher covering a double-period class for high school senior students, participated in conversation with a group of the students concerning their college choices and post-graduation internship plans. The class took place during the height of the college application process, and right before the winter break. During the conversation, petitioner offered to serve as a contact point for a potential internship at a media company for a female student who had expressed an interest in film and media. The student testified that she appreciated this and was not offended by the offer. When a male student then indicated that he did not want to do an internship or work during the summer after graduation, petitioner whispered to the female student something to the effect of "watch how they react to this," and proceeded to tell the students about a valuable internship experience he had before he went to college. The female student also was not offended by this. When another male student expressed his interest in attending a college that was widely reported to be a "party school," petitioner asked him something to the effect of, "so you're the type to party with," or "you want to go to school to party." The student testified that he was "not offended in any way" by the comment. Rather, the several students who testified generally indicated that they enjoyed the class and found it to have been more interesting than expected from a substitute. Respondent has not identified any rule or statute that classifies such statements and action as teacher misconduct. Under all the circumstances, the finding that petitioner's actions constituted teacher misconduct is not supported by adequate evidence, and is arbitrary and capricious (see Lackow v Department of Educ. [or "Board"]; of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). We note that petitioner had a disciplinary history including findings of non-sexual touching of students, and that two prior disciplinary awards expressly warned him not to touch his students again. However, it is undisputed that petitioner did not touch any of his students in the case at bar. Thus, contrary to the arbitrator's finding, the evidence did not indicate that petitioner failed to heed prior warnings (cf. Matter of Forte v Mills, 250 AD2d 882. 884 [3d Dept 1998]; Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 50 AD2d 149, 157 [4th Dept 1975], appeal dismissed 39 NY2d 1057 [1976]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 3, 2014 CLERK

Guzman v. NYCDOE et al., App. Div. 1st Dept Decided on April 4, 2013 Tom, J.P., Andrias, Saxe, Abdus-Salaam, Gische, JJ. 9727 106140/11 [*1]In re Minerva Guzman, Petitioner-Appellant, v City of New York, et al., Respondents-Respondents. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents. Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 5, 2012, confirming an arbitration award, dated May 4, 2011, which terminated petitioner's employment as a public school teacher upon a finding that she engaged in a fraudulent scheme to enroll her granddaughter in public school using a false address, and dismissing the proceeding brought pursuant to Education Law § 3020-a and CPLR article 75, unanimously modified, on the law, to vacate the finding of guilt as to Specification 1-A-1 (that petitioner engaged in the scheme to avoid payment of non-resident tuition) and vacate the penalty of termination, and to remand the matter for the imposition of an appropriate penalty, and otherwise affirmed, without costs. Respondent Department of Education conceded at the hearing that petitioner's granddaughter was entitled to a tuition-free education in New York City public schools, and the hearing officer made no finding that the child was not a City resident. Nor does the record establish that the child was not a City resident. Thus, there is no rational basis upon which to conclude that petitioner engaged in a scheme with the purpose of defrauding respondent out of non-resident tuition (see Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [1990]; Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). However, as petitioner concedes, substantial evidence supports the charge that she acted in concert to file a false instrument (Specification 1-B), to wit, engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she [*2]improperly obtained the school's services (Specification 1-A-2), since the child should not have been enrolled there. In light of the foregoing, we remand for the imposition of an appropriate lesser penalty. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 4, 2013 CLERK

FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT SECTION 3020-A

Are hearings held before a hearing officer or a panel?

Disciplinary charges brought by an employing board against a tenured employee are heard by a single hearing officer except when the charges concern pedagogical incompetence or issues involving pedagogical judgement. In these cases only, the employee may choose to have the charges heard by either a single hearing officer or a three-member panel.

What types of changes are considered pedagogical?

While the term "pedagogical" is not defined in either the statute or the Commissioner's Regulations, charges that fall into that category include inability to control a class, failure to prepare required lesson plans, failure to maintain certification, and other matters that directly pertain to teaching techniques and issues of this nature.

Who provides the list of Hearing Officers?

The American Arbitration Association (AAA) maintains the panel of potential hearing officers for Section 3020-a proceedings. This association also provides a list for each individual proceeding.

Is there a fee associated with requesting a hearing?

The AAA is a non profit organization which relies on administrative fees to continue providing services. Commissioner's Regulations as amended by the Board of Regents in September 1994 stipulate that the fee for providing the list of potential hearing officers for Section 3020-a proceedings is to be paid by the School District preferring the charges. This fee is $150.00. If the parties are unable to mutually select a hearing officer and request that the AAA make the selection, an additional fee of $50.00 will be required.

When is a hearing commenced?

Under the law, a hearing is commenced when the State Education Department submits a request to AAA for a list of potential hearing officers.

As a taxpayer, don't I have the right to know if a teacher in our school has been brought up on charges?

Section 3020-a provides an avenue for resolving disciplinary issues between an employer and an employing board. Until an individual has been found guilty by a hearing officer or hearing panel, all aspects of the disciplinary proceeding are strictly confidential. If the employee is found to be guilty of one or more of the charges, the record is then available pursuant to the Freedom of Information Law.

Monday, April 9, 2012

New Changes to 3020-a effective April 1, 2012

Education Law §3020-a Changes (Effective April 1, 2012)

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