Relates to tenured teacher disciplinary hearings

Summary of the provisions of the bill

Section 1 would amend Education Law §3020-a to update the procedures for conducting hearings and to provide for a more efficient and effective administration and supervision of such proceedings. More specifically, the bill would amend Education Law §3020-a to provide for the immediate suspension of an employee upon a determination by the Commissioner of Education that the employee lacks the appropriate certification for the position in which he or she is serving, and which he or she had been lawfully assigned to by the employing board. The Commissioner of Education would be authorized to adopt regulations establishing procedures for determining whether an employee lacks such appropriate certification. These regulations would be required to include procedures providing for the employee to respond in writing to such a determination.

Education Law §3020-a(3)(b) would also be amended to conform the process of payment of hearing officer compensation and costs to the growing fiscal and operational needs of the administration of these hearings. Among other things, Education Law §3020-a(3)(b)(i), as amended, would provide for the compensation of hearing officers for his or her actual hours of service performed in his or her official capacity as a hearing officer. This provision would apply to hearings held pursuant to charges filed on or after July 1, 2011. The Commissioner of Education would be authorized to set a maximum hourly rate of compensation and to impose limitations on the number of study hours a hearing officer may claim. For hearings conducted on charges tiled prior to such date, hearing officers would continue to be paid in accordance with current practice.

Under Education Law §3020-a(3)(b)(i), as amended, payment for actual hours served would be shared among the State, the employing board, and the employee or the employee's collective bargaining unit if the employee is being represented by his or her bargaining unit at hearing. The Commissioner of Education would annually establish the State's share of such hourly compensation. This State reimbursement rate would be determined based on the Legislature's annual appropriation for such purposes net of the cost of recording or prescribing the proceedings and State Education Department (Department) administrative costs. The employing board and the

employee, or employee's collective bargaining unit, as applicable, would pay, In equal shares, the balance of the hearing officer's claims and the costs of any necessary travel or other related expenses incurred by the hearing officer in completing the hearing.

This bill requires two appropriations by the Legislature. One appropriation is needed to pay for the cost of hearing officers, including their travel and other necessary expenses, for cases which commence before July 1, 2011. These costs would be paid in accordance with current practice. Another appropriation is needed to pay for the State's share of actual hours served by hearing officers for cases which commence on or after July 1, 2011, recording or transcribing costs and Department administrative costs. Under both appropriations, hearing officer claims would be paid in the order in which they are approved for payment by the Commissioner of Education.

Additionally, Education Law §3020-a would be amended to provide that claims for hearing officer compensation would not be paid if submitted later than one year after final disposition of the hearing. This section of law would further be amended to authorize the Commissioner of Education to develop specific timeline requirements for hearing officers to complete such disciplinary proceedings, other than expedited hearing held pursuant to Education Law §3020-a(3)(i-a), and to monitor and investigate compliance with such timeline requirements. Education Law §3020-a (3)(c) would also be amended to expressly provide for equal disclosure of witnesses and evidence by both parties, as prescribed in the State Administrative Procedure Act (SAPA). Further, Education Law §3020-a(5) would be amended to provide that the employee or employing board may appeal a decision from a hearing held pursuant to charges filed on or after July 1, 2011 to State Supreme Court pursuant to Article 78 of the Civil Practice Laws and Rules (CPLR). For decisions from hearings held pursuant to charges filed before July 1, 2011, the employee or employing board would continue to be authorized to appeal to State Supreme Court pursuant to CPLR Article 75.

Section 2 is the effective date.

Statement in support of the bill

Currently, the process for removing tenured teachers, pursuant to Education Law §3020-a, is unreasonably costly, inefficient, and untimely. While New York State is obligated to pay the costs of arbitrators and court reporters, there is no statutory limit on the fees that may be charged for such services. Under existing law, arbitrators are free to charge the customary rate which the existing market will bear. As a result, fee rates are often times unreasonably high.

Moreover there is little statutory control over arbitrator costs, and the law provides little incentive for arbitrators to obtain such costs. Lengthy hearings further contribute to substantial hearing expenses. Arbitrators are private employees who have other job responsibilities and obligations. They have time-consuming schedules which may impede their completion of a hearing in a timely manner. While there are statutory requirements governing the time frames within which a regular hearing and an expedited hearing must be completed, the time frames

within which a regular hearing and an expedited hearing must be completed, the time frames are routinely ignored. Accordingly, these hearings are often times unreasonably long. These prolonged hearings not only increase costs, but also delay the overall hearing process. Therefore, the overall costs of conducting such a hearing become substantial.

Allowing the Commissioner of Education to establish a maximum hourly rate of compensation and the ability to exclude a hearing officer from serving on future cases for continued failure to comply with the time frames for completing a hearing will provide the State with long-needed control over unreasonable and increasing hearing costs, as well as provide some consistency in compensatory rates for hearing officers.

Under the new proposed method of payment, the State will be provided some relief from paying hearing costs. Under this bill, the employee or employee's collective bargaining unit and the employing board will be responsible for bearing some of the total cost of these hearings. This costs sharing process will provide incentives for completing a hearing in a timely manner and will, overall, help to contain hearing costs.

Additionally, pursuant to the express language of Education Law §3020-a as it currently exists, only the school district has to provide disclosure of its evidence in advance of the hearing; the teachers are not required to disclose any evidence. This lack of mutual disclosure of evidence prior to the hearing leads to protracted litigation, and is counterproductive to these proceedings. Therefore, express authorization for mutual disclosure of evidence between the parties is necessary to increase the overall efficiency and fairness of the hearing process.

Further, the shift to an independent arbitration system in the 1990's significantly diminished judicial review of hearing officer decisions, and thus diminished the protection of the public and the parties from inappropriate hearing officer decisions. Article 75 of the CPLR provides specific and limited grounds for a review of an arbitrator's decision. The courts are loathe to interfere with an arbitrator's decision, and as such, a hearing decision is not likely to be reversed or modified unless it is found by the Court to be completely irrational or the findings are so skewed as to demonstrate bias on behalf of the hearing officer. In contrast, the scope of judicial review in a proceeding under Article 78 of the CPLR is significantly broader. Prior to the amendment of §3020-a in 1994, the statute authorized Article 78 review of §3020-a hearing decisions, and reviewing courts applied the "substantial evidence" test to overturn decisions of hearing officers that were inappropriately rendered (see e.g. Harris v. Mechanicville Central School Dist., 45 N.Y.2d 279 1978; Fitzpatrick v. Board of Education of Mamaroneck Union Free School Dist., 96 AD2d 557). By once again authorizing appeals to State Supreme Court pursuant to Article 78, this bill would provide for more comprehensive and meaningful judicial review, thereby protecting the interests of school districts, the

employees and the public in assuring that appropriate decisions are made in such hearings.

Budgetary implications of the bill

This bill would limit the State's liability for costs of §3020-a tenured teacher hearings for cases which commence on or after July 1, 2011 to the annual appropriation for such purpose. Because the cost of tenured teacher hearings is over $6.0 million per year and the annual appropriation is only $3.8 million, the State will save over $2.2 million per year. In addition, the cumulative deficit of $5.3 million would not increase.

This bill also reduces the length of cases and, therefore, the cost of them by providing a financial incentive to school districts and especially to the employees' collective bargaining unit to resolve cases expeditiously and giving the Commissioner of Education the ability to exclude a hearing officer from serving on future cases for continued failure to comply with the time frames for completing a hearing.

Although school districts will have to share in the cost of hearing officers, their savings from spending less on substitute teachers as cases are resolved faster will outweigh their share of hearing officer costs. Having the employees' collective bargaining unit share in the costs of hearing officers is consistent with the discipline process for most state employees, where the State and major state unions share the cost of cases equally. In addition, the employees' collective bargaining unit currently does not pay any of the costs associated with tenured teacher hearings while the State pays the full cost of hearings and school districts pay for substitute teachers.

Lastly, this bill allows the Commissioner of Education to set the reimbursement of hearing officers, who currently set their own rates, and impose limitations on the number of study hours hearing officers may claim. These controls along with the reduction in the length of cases help to increase the amount of hearing officer costs that are covered by the per hour hearing officer State subsidy.

Prior legislative history

This is a new legislative proposal.

Effective date

This act would take effect April 1, 2011.