resources - educators > teacher tenure hearings (3020a)

Rights of Tenured Employees

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 that involve charges of pedagogical misconduct or issues of pedagogical judgment, 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 220 or 221 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.