Although no one would argue that the process for removal of a tenured teacher pursuant to §3020-a of the Education Law of New York is optimal, the amendments to the this statutory provision that apply to all charges against tenured educators filed on or after April 1, 2012, have had a positive impact on districts’ ability to manage their employees in the two years since the amendments took effect. The revisions appear to have had some of the Board of Regent’s desired effect – to address spiraling costs and the extraordinary length of time to conduct hearings.
Once a teacher has been charged, the law now prohibits 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). This encourages hearing officers and legal counsel to move quickly in scheduling pre-hearing and hearing dates, and has significantly reduced the time that districts have to pay both the charged employee and a possible substitute employee. The motivation to proceed through the hearing process, without overly burdensome information requests and other delay tactics, did not exist in the past for an employee’s counsel since his or her client was on paid administrative leave pending the outcome of the hearing.
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 (see Education Law §3020-a(3)(b)(iii)). Except in NYC, where there are different rules, this provision authorizes the Commissioner of Education to select the arbitrator if the parties fail to agree by the 15th day. Pursuant to Education Law §3020-a(3)(c)(i)(B), the State Education Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute. The Commissioner of Education may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute. These changes also ensure that the hearing moves forward more efficiently than in the past.
Overall, it appears that the amendments have reduced the time before a district is able to get a decision from perhaps two years down to approximately six months. However, these developments do not change certain of the basic best practices that a district and its personnel staff must be mindful of in managing employees:
- Remember that there is a three-year statute of limitations, so be mindful of when chargeable conduct occurred and the limitations on the timeframe in which a district may charge an employee pursuant to §3020-a.
- Remember that the burden of proof in a §3020-a will be on the district. Accordingly, it is important to document performance-related issues that may form the specifications of a charge. Counseling memoranda, reviews, internal complaint investigations – document, document, document!!!
- Again, remember that the burden of proof in a §3020-a will be on the district, so ensure consistent application of policies and procedures to all employees.