When tenured educators break the rules, one-third of districts don't seek discipline

by Paul Heiser

On Board Online • May 7, 2018

By Paul Heiser
Senior Research Analyst

More than one-third of school districts and BOCES that consider disciplining a tenured employee choose not to file disciplinary charges, according to the results of the latest in a series of periodic surveys conducted by NYSSBA.

Asked why, school officials in these districts said they thought the process was "too expensive" (20 percent) and/or "too cumbersome" (14 percent).

In 2016, a similar percentage - 33 percent of responding school districts/BOCES - indicated they declined to file charges, saying the process was "too expensive" (18 percent) and/or "too cumbersome" (15 percent).

Section 3020-a of the state Education Law gives tenured teachers and administrators the right to a hearing prior to the district imposing discipline and governs how the process is to be carried out. It was last modified by the Legislature in 2012.

"The law has been improved, but pursuing discipline under 3020-a remains a long and expensive process that distracts from the main part of the educational mission," said NYSSBA President William Miller.

When districts do not use 3020-a, they may resort to forms of resolution that are not always in the public interest," Miller said. Sometimes the person resigns when confronted with evidence, he said. "That's great for the district. But then the individual is free to apply to work in a different school district with no blemishes on his or her record."

All 728 school districts and BOCES across the state were invited to respond to NYSSBA's latest 3020-a survey, which was conducted from January to March 2018. The results from this survey are used to provide data on teacher and principal disciplinary cases across the state.

A total of 325 completed surveys were submitted - a response rate of 45 percent. The survey covered only the period of time since Oct. 1, 2016, since previous NYSSBA surveys covered time periods prior to that date.

According to the survey, filing 3020-a charges against a tenured educator is fairly rare. Only 23 of the 325 responding school districts (7 percent) indicated they had initiated any 3020-a proceedings since Oct. 1, 2016. Three of those districts reported filing multiple cases, while 20 districts had only one such proceeding.

The most common charge filed against educators was for insubordination; about 42 percent of educators were cited for that charge. Twenty-nine percent were charged with excessive absenteeism and/or lateness.

Nearly half (46 percent) of employees against whom 3020-a charges were levied were teachers in grades 7-12. Twenty-one percent taught in grades K-6, and only one charge was against a principal. Twenty-nine percent of those charged held some other assignment, such as teaching assistant.

Changes made to the law in 2012 have helped reduce the length and cost of adjudicating these cases. The recently completed survey found the cost of a 3020-a case to be much lower than it was prior to 2012. The average cost of pursuing a 3020-a proceeding was $141,722 in the 2018 survey (covering cases initiated since Oct. 1 2016), compared with $216,588 for cases adjudicated between 2005 and 2008.

Costs include legal fees, salaries and fringe benefits of school personnel involved in the proceedings, salaries and benefits of accused employees paid during the 3020-a process, salaries and benefits for substitutes used during the 3020-a process, and any additional costs paid by the district.

Between 2005 and 2008, the average length of time it took to process an educator disciplinary case (commonly known as a 3020-a proceeding) was 502 days from the date charges were levied to when a case was decided. Between Oct. 1, 2014 and May 2016, the average length was 175 days - a 65 percent decrease. The 2018 survey found that since Oct. 1, 2016, the average was 180 days.

The shorter timeframe may be attributed to changes to section 3020-a that NYSSBA and the New York State Association of School Attorneys successfully advocated for. Prior to April 1, 2012, if an employee was charged with misconduct under 3020-a, attorneys on both sides would receive a list of available hearing officers from the State Education Department. Both parties would then attempt to mutually agree upon a hearing officer but were under no time constraints, and the process often took several months.

Since April 1, 2012, the parties have 15 days from receipt of the list of potential hearing officers to mutually agree upon who will hear the case. If they cannot come to an agreement after 15 days, the state automatically assigns a hearing officer from the list. The intent was to put pressure on parties to make a quick decision.

Another change to the law prohibits introduction of any evidence more than 125 days after the filing of charges (unless there are "extraordinary circumstances"). This change placed greater importance on gathering evidence in discovery immediately. According to the NYSSBA survey, the length of time from the date 3020-a charges were levied by a school board to the date a hearing officer agreed to serve declined from 117 days to 42 days in 2014, then to 32.5 days in 2016, then to 26 days in 2018.

Districts reported that they were able to submit all of their evidence within 125 days of filing the charges in 79 percent of cases. They also reported that employees were able to submit all of their evidence on time in 91 percent of cases.

"The process has improved," said Jay Worona, NYSSBA's deputy executive director and general counsel. "But pursuing charges under 3020-a remains a major commitment for administrators who would rather be working on other things."

"NYSSBA continues to call for 3020-a reform as part of its legislative agenda," said Timothy G. Kremer, NYSSBA's executive director. "That includes amending the law to allow districts to terminate tenured teachers without a 3020-a hearing if the educators have been convicted of child abuse in an educational setting or have had their teaching certificate revoked by the state for any reason. We also want the Legislature to cap the length of time that educators continue to be paid pending a 3020-a hearing."


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