Education Law 3020 -a Update TEACH and

Education Law § 3020 -a Update, TEACH and Related Teacher Discipline Issues Deborah Glasbrener Marriott MASLA High Peaks Resort Lake Placid July 22, 2014

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

Teacher Tenure Hearings 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.

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 Change in 2012

§ 3020 -a. Timelines a/k/a Fuzzy Math Serve Charges 1 st Days Elapsed 1 st Day Serve Charges Request Hearing 10 Days Pre-Hearing Conference 65 Days Select Arbitrator 45 Days Final Hearing Date 125 Days Statute 10 Days Request Hearing 109 Days Select Arbitrator Issue Decision 155 Days Reality 279 Days Pre-Hearing Conference 529 Days Final Hearing Date Reality = Current Statewide Average (2011) 653 Days Issue Decision

3020 -a Reform Legislation April 1, 2012 Two goals Reduce Length of Time for Cases Reduce Costs

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

15 Day Rule Hearing Officer Selection 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 15 th 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

125 Day Rule Prohibition on Evidence 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? ”

30 Day Rule Issuance of Decision 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

Reduce Costs Significant Changes 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)

Goal of TEACH Modifications 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

How Do TEACH Changes Help? 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

Tenure Cases Statewide Summary (Based on FY Commenced) *As of April 30, 2014 2012 -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 Case Outcomes 2013 -2014 NYC ROS Decision 33 16 76 Settled 122 81 26 44 Withdrn/Consol 5 11 36 12 Pending 199 50 Waived Hearing 3 4 Waived Hearing 0 2 Total Outcomes 416 157 Total Outcomes 359 160 NYC ROS Decision 96 21 Settled 255 Withdrn/Consol Pending

Average Days to Decision By Type ROS 2012 -2013 Decisions ROS 2013 -2014 Decisions # Days Termination 7 186 Termination 9 159 Suspension 7 187 Suspension 3 146 Fine 2 201 Fine 1 226 Other 1 215 Other 2 204 Susp & Fine 1 175 Susp & Fine 1 149 Not Guilty 3 152 Not Guilty 0 0 21 186 16 177

Average Days to Other Outcomes ROS 2012 -2013 ROS 2013 -2014 # Days Settled 76 101 Withdrn/Consol 44 113 Waived Hearing 4 Pending Total Other 12 136 # Days Settled 81 94 Withdrn/Consol 11 86 Waived Hearing 2 Pending Total Other 51 145

Educator Discipline (8 NYCRR Part 83) 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)

Sources of Complaints 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) NEW

Mandatory Reporting Requirement 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))

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)

Discipline Adverse Outcome 2010 2011 2012 2013 2014 Surrender 79 101 65 73 17 Revoke 41 45 35 55 18 Deny 19 20 10 19 5 9 2 9 19 3 Suspend

Education Law § 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.

Selected SAPA Provisions – Stay of Expiration of License 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.

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