As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time to conduct hearings. This legislation was introduced in the Assembly and Senate. The Governor’s proposed 2012-13 State Budget included some of these reforms and the State Budget as adopted by the Legislature included a number of important programmatic and fiscal reforms.   The purpose of this memorandum is to clarify and provide guidance on the major changes set forth in Education Law §3020-a.  The Department is reviewing these changes and will make conforming amendments to the regulations to implement the law.  The Department will also be updating TEACH (a web-based data information system) to allow for greater access to case information and relevant dates.  During this transitional period, the Department thanks all affected parties in advance for their patience and cooperation as we work together to ensure successful implementation of the new Education Law §3020-a reform measures.     

Below is a summary of the major Education Law §3020-a revisions.  For specific guidance, please refer to the actual statutory language, a copy of which has been attached to this memo.

Effective Date

The change set forth in the amendments to Education Law §3020-a take place immediately and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012. 

• All affected parties should be aware of this effective date and are strongly advised to carefully review these changes and how they may affect any cases currently in progress or those that are anticipated.
• The parties are strongly encouraged to develop the necessary tracking systems to ensure that responsibilities are carried out in a timely and professional manner, so that no party is unduly penalized by the very stringent timelines set forth in the statute.

Prohibition on Introduction of Evidence After 125 days

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).  Proceedings under §3020-a have traditionally taken far too long to resolve and this provision is designed to ensure timely resolution by prohibiting the introduction of evidence beyond a certain point in the proceeding.  This means that once the charges are filed, all parties should work expeditiously and cooperatively to complete the case in a timely manner so that cases are resolved within the statutory timeline of 125 days after the filing of charges.  After 125 days no additional evidence shall be accepted unless there are extraordinary circumstances beyond control of the parties.  The “extraordinary circumstances” rule was meant to provide for that rare occasion when evidence truly could not be introduced in a timely manner.

• The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, arbitrators are expected to closely monitor the relevant dates and ensure adherence.

Department Selects Arbitrator When Parties Can Not Agree

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.  Education Law §3020-a(3)(b)(iii) states that  “[i]f the employing board and the employee fail to agree on an arbitrator  to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection  within  such  fifteen day  time  period, the commissioner shall appoint a hearing officer from the list.”  This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree by the 15th day.  It does not apply to NYC where there is an alternative procedure. 

• Historically, the Department only intervened when notified of the failure to agree, however, the amended language does not require the Commissioner to wait until notification of the failure to agree.  The Commissioner will be authorized to select an arbitrator if no selection is affirmatively made by the 15th day. 
• To ensure that all parties get proper notice of the list, the Department will continue its current practice of emailing the list of potential arbitrators to the school attorney and the employee attorney, if one has been designated by the employee.  Where no attorney is provided by the employee, the list will be sent directly to the employee. 
• A hearing officer selection will be considered timely, if it is emailed to the dedicated tenure email box (TENURE@nysed.gov) by the close of business on 15th calendar day. 
• To minimize any potential delays that may occur at the school district level, the American Arbitration Association (“AAA”) has agreed to directly bill the school district for the production of the arbitrator list.  Schools are strongly encouraged to send the charges to the Department immediately without a check to AAA and make payment arrangements directly with AAA after the compilation of the list. AAA will take payment in the form of check or credit card for the $150 fee. 

Department Can Establish Maximum Arbitrator Rates and Study Hours

An amendment to Education Law §3020-a(3)(b)(i)(B) requires the Commissioner to establish a schedule for “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added).  The purpose of this amendment was to give the Commissioner the authority to control costs. 

• Over the next several weeks, the Department will be conducting an analysis to determine both the appropriate rates and the maximum number of study hours for these types of proceedings.  Once the analysis is complete, the Commissioner will be establishing guidelines for arbitrator fees and study hours. 
• All new arbitrator appointments will be contingent upon accepting the new maximum fee and study hour rates established by the Commissioner.
• It is anticipated that the new TEACH modifications will incorporate changes in the manner in which arbitrator invoices are filed with the Department, to permit online filing to ensure accuracy, and improve the time it takes to process payments.

Department Can Exclude Arbitrators For Untimeliness

Pursuant to Education Law §3020-a(3)(c)(i)(B) the Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute.  The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

• The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, the Department will monitor manually. 

New Technology for Recording Hearings is Allowed

Education Law §3020-a(3)(c)(i)(D) continues the requirement that an accurate “record” of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education.  The statutory changes, however, permit the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner. 

• The Department will explore other cost-effective alternatives to recording and producing transcripts for these proceedings, however, there will be no immediate change to the manner in which these hearings are recorded.

Appropriation For New Cases

In order to ensure that the new reforms are successful, the law provides that any claims for cases in which charges were filed after April 1, 2012 be paid first out of the funds appropriated for the 2012-13 fiscal year pursuant to Education Law §3020-a(3)(b)(i)(A).  Total spending for 2012-13 is limited to $3.8 million.

• This amendment will ensure that the Department is able to make timely payments for services rendered for new cases under the new system during 2012-13.  Thus arbitrators who accept cases under the new system with the new time constraints will be reimbursed for their services in a timely manner.  Any funds remaining will be used to pay for claims on cases that had charges filed prior to April 1, 2012. 

One Year limitation on Claims

Education Law §3020-a(3)(d) imposes a one-year limitation, following the final disposition of the hearing, for the submission of claims for reimbursement for services rendered.  The purpose of this amendment was to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time. 

New Forms   The Education Law §3020-a forms are in the process of being updated.  It is imperative that schools use the updated forms for any cases commenced under the new system because they will reflect the new changes and provide critical information necessary to expedite the administrative steps for opening of cases and the appointment of the hearing officer.  It is anticipated that the new forms will be available within a week.  Please refer to: Teacher Tenure Hearing (3020a) for further information.

Questions

If you have any questions please contact Deborah A. Marriott, Director, Office of School Personnel Review and Accountability at 518-474-3021 or send an email to her attention at TENURE@nysed.gov.

c:  Deborah A. Marriott

Part 82 Hearings of Charges Against Employees on Tenure