Several years ago, there were changes made to §3020-a intended to streamline the process of disciplining a tenured teacher/administrator. Effective July 1, 2015, even more significant changes have been made to the statute based on the enactment of a new state budget. The changes also create §3020-b, which establishes procedures related to termination based on ineffective APPR ratings. Many of these changes will be advantageous for school districts.
The amended law eliminates the ability of a tenured teacher or administrator to opt for a three hearing officer panel in cases related to pedagogical concerns. All cases will be heard by a single hearing officer. This will make it easier for districts to move cases along without struggling with the calendars of both parties, their witnesses, and three hearing officers.
Also, discovery will become reciprocal with the hearing officer setting a schedule for disclosure during the pre-hearing conference for “full and fair disclosure of the witnesses and evidence to be offered by the employee.” This beneficial change, that has been sought for years, will help to level the playing field in preparation for a hearing.
Perhaps most importantly, the law has been revised to require a hearing officer to provide significant deference to the penalty sought by a district. The language specifically indicates “that the hearing officer, in exercising his or her discretion, shall give serious consideration to the penalty recommended by the employing board, and if the hearing officer rejects the recommended penalty such rejection must be based on reasons based upon the record as expressed in a written determination.” Although it is yet to be seen how much practical impact this will have on hearing officers, it is certainly a shift in favor of school districts from the current scope of the authority granted by §3020-a.
Note that pursuant to the current §3020-a, a district could suspend a teacher or administrator pending a disciplinary hearing with pay (with very few exceptions). Although it requires certain due process proscribed by the revised law, the revised law will permit a district to suspend an employee without pay for disciplinary charges related to “sexual or physical abuse of a student” for up to 120 days.
On May 11, 2015, John L. D’Agati, the higher education commissioner for the New York State Department of Education, issued a notice that the department is contemplating regulatory amendments to the changes made to the Education Law as part of the 2015-2016 budget, including changes to §3020-a. The memo advises that “[d]epartment staff is currently in the process of developing regulations to implement the changes.”
Elizabeth Carlson is a partner in the Labor & Employment Practice at Hodgson Russ LLP. You can reach her at email@example.com.