The purpose of this memorandum is to highlight the changes in the teacher tenure hearing process for cases commenced on or after July 1, 2015 as required by amendments contained in Chapter 56 of the Laws of 2015.  On June 16, 2015 the Regents adopted new regulations by emergency action implementing the statutory changes.  The statute and regulations are attached to this memorandum and links to the new law and regulations are available on the Department website.1  

1. Elimination of panels in all cases

Cases brought against tenured educators must now be held in front of a single hearing officer, foreclosing the option previously available to educators to choose to have a panel decide cases where pedagogical incompetence or pedagogical judgement was at issue. Elimination of the panels is designed to reduce delays precipitated by panel scheduling issues commonly associated with these types of cases.

2.  Probable Cause Hearings (Suspension without Pay)

Traditionally, except where the case was based on certain felony convictions, educators were suspended with pay during the pendency of the matter. The amendments permit certain suspensions to be without pay.  Where the charges are for misconduct constituting physical or sexual abuse of a student, the suspension can be without pay, provided certain procedural safeguards are observed, including the following:

1. Probable Cause Hearing: A probable cause hearing must be held within 10 days of the suspension without pay before an impartial hearing officer to determine whether sufficient probable cause exists to support the charges. NYSED has created regional rotational lists on the TEACH system for these types of hearings.
2. Duration of Unpaid Suspension: If the hearing officer determines sufficient probable cause exists to support the charges, the educator may be suspended without pay no longer than 120 days.
3. Expedited Hearing:  An expedited hearing on the merits of the charges must also be commenced.
4. Restoration of Pay: At the conclusion of either the probable cause proceeding, or the expedited proceeding on the merits, if the hearing officer finds in favor of the educator, the educator is eligible for full reimbursement of the withheld pay, plus interest compounded at a rate of six percent per annum.

3.  Expedited Proceedings

The law amends Education Law §3020-a and establishes a new Education Law §3020-b to provide for expedited proceedings in certain situations. The expedited proceedings generally share common requirements, among them: the use of hearing officers from the established American Arbitration Association list; the 10 day time limit to draft the decision; and the general prohibition on adjournments in the absence of special circumstances as defined by statute.

1. Expedited Proceedings Based on Misconduct Constituting Physical or Sexual Abuse of a Student:  Where the charges involve misconduct constituting physical or sexual abuse of a student, schools must conduct an expedited proceeding.  The parties jointly select the hearing officer and the hearing must conclude within 60 days of the pre-hearing conference.
2. Expedited Proceedings Based on Two (2) Consecutive Ineffective APPR Ratings: The prior expedited hearing process applicable to a pattern of ineffective teaching based on two consecutive Ineffective APPR ratings was repealed, and replaced by the new expedited hearing procedures in Education Law §3020-b. The school must have developed and substantially implemented a Teacher Improvement Plan or Principal Improvement Plan in accordance with Education Law §§ 3012-c or 3012-d for the educator following the first evaluation in which the educator was rated ineffective, and the immediately preceding evaluation if the employee was rated developing. Two consecutive Ineffective APPR ratings are prima facie evidence of incompetence overcome only by clear and convincing evidence that the employee is not incompetent in light of the surrounding circumstances. The parties jointly select the hearing officer and the final hearing date must be within 90 days of the date of the hearing request.
3. Expedited Proceedings Based on Three (3) Annual Ineffective Ratings: Where the charges are based on three ineffective ratings pursuant to the annual professional performance reviews pursuant to Education Law §§ 3012-c or 3012-d, the school shall bring charges of incompetence. Three ineffective ratings are prima facie evidence of incompetence which may be overcome only by clear and convincing evidence that the calculation of one or more of the underlying components on the APPR was fraudulent, which includes mistaken identity. The Commissioner selects the hearing officer, instead of the parties and the hearing must conclude within 30 days of the date of the hearing request.

4.  Other Changes

1. Protections for Child Witnesses: Children under the age of 14 are permitted to testify through two-way closed circuit television if the hearing officer determines the child witness would suffer serious mental or emotional harm which would substantially impair the child’s ability to communicate if the child was required to testify without such use.
2. Mutual Discovery Provisions: The amendments to the Education Law now require the educator to provide full and fair disclosure of the witnesses and evidence it intends to use in the proceeding to the school district.
3. Hearing Officer Must Consider Board Recommendation: The hearing officer must give serious consideration to the penalty recommended by the board and, if the penalty is rejected, such rejection must be based on reasons based upon the record as expressed in a written determination.
4. Hearing Officer Declinations:  The regulations clarify when the Commissioner will appoint a hearing officer from the AAA list.
5. Hearing Officer Reimbursement:  The regulations also clarify certain rules related to reimbursement for services rendered by hearing officers.

5.  Application to NYCDOE

The law clarifies that any alternate disciplinary procedures contained in a collective bargaining agreement entered into by NYCDOE which takes effect after July 1, 2015 must have certain provisions related to a single hearing officer and the effect of two or three consecutive ineffective annual performance ratings as defined in the new Education Law §3020-b.

6.  TEACH Changes and Related Issues

The Education Department is currently making changes to the TEACH system to reflect the new hearing types, hearing officer selection process, and billing/voucher issues.  Some of these changes are already implemented on TEACH.  It is anticipated that the remainder of the changes will be incorporated in TEACH over the next several weeks.  OSPRA is also in the process of revising the forms and related guidance documents for the field.

If anyone has any questions about the changes, or how the process will work under TEACH, please contact: tenure@nysed.gov or call (518) 474-3021.