Were you charged, or do you feel you will be charged, with a 3020-a hearing? Now what?
This guide will cover almost everything from start to finish, including an appeal. Read through it several times if you have to.
First, a 3020-a Word Wall
Specifications: charges brought against a tenured pedagogue. Sometimes the words “charges” and “specifications” are interchangeable.
Arbitrator: the hearing officer that facilitates the 3020-a hearing. Both the words “hearing officer” and “arbitrator” are interchangeable.
Respondent: The tenure educator that is responding to the charges.
Complainant: The ones who brought the charges. Also sometimes referred to as “the Department.”
Counsel: The attorney or lawyer. All three words “counsel,” “attorney” and “lawyer” are interchangeable.
New York State Education Law 3020-a states that a school district cannot terminate a tenured teacher without a hearing. This is great for those amazing educators, who want to continue taking part in educating students, but have come under warrantless attacks from administrators, fellow colleagues, students or parents. The key word in that sentence is “warrantless.” This guide is not intended to help anyone, who should not be working as an educator, escape proper adjudication. This guide is also written specifically for NYC Department of Education educators, but can be used by other educators across the state.
UFT DOE Reassignment Agreement
Read this to familiarize yourself with reassignment pending a 3020-a. https://www.uft.org/files/attachments/temporary-reassignment-centers-agreement-april-2010.pdf
Also be mindful of the statute of limitations for investigations. SCI has one year from the time they were made aware and OSI and OEO have only 6 months. If this time elapses you can grieve that the reports are removed from your file.
Contract Article 21 C. Summons
3. Incidents investigated by the Chancellor or by a governmental investigatory agency must be reduced to writing by the appropriate supervisor within 6 months and 12 months respectively from the date the incident either occurred or should have been discovered by the appropriate school officials. Employees must receive a complete copy of any such writing and an opportunity to answer in writing and to have such response attached. The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.
Getting Served 3020-a Papers
In some cases, a teacher is reassigned from their normal duties pending an investigation, or investigations, and then charged with a 3020-a weeks, months or over a year later, when those investigations have been completed. In other cases the reassignment and serving of charges happen at the same time.
Many do not take this part of the process that well. Some are in their class teaching, they are called down to the general office, and then they find out they are being brought up for termination by a process server. Imagine this happening after over 30 years of satisfactory teaching. It can be understandably stressful.
When 3020-a charges are preferred against you, the district will typically send the packet of papers by certified mail and hand them to you. They might be handed to you by your supervisor, or handed to you by a process server. Keep in mind the process server is just doing their job. There have been situations where the charges that the teacher was served were cleared, but the teacher’s alleged unprofessional behavior, when they were served and reassigned, was added to the list.
This is a variation of what the charges will look like:
After getting served the charges (specifications)
- Contact your local union office. They will fill out the proper paperwork to appoint you a free attorney from the New York State United Teachers (NYSUT) and request a hearing. Remember, it’s not automatic that you have a hearing. If the school district doesn’t receive notice that you are requesting a hearing within 10 days, then you might automatically be fined, suspended or terminated, depending on what discipline they are seeking. DON’T DELAY! [You can also hire a private attorney or defend yourself (pro se)]
- Obtain a full copy of your personnel file. According to Article 21 of the UFT contract, they should abide without undue delay. Either sit and review and make copies, or get a copy of the entire file. If you are denied, speak to your attorney, or file a grievance. See also uftsolidarity.org/toolbox on how to file a grievance.
- Go through your file. Anything three years or older, that’s derogatory, should be removed. That’s also in Article 21.
- Make sure letters to file and negative observations have rebuttal letters attached. If you didn’t write any, there’s no statute of limitation and you should get on that soon. Read uftsolidarity.org/rebuttals for help.
- Create a document in Microsoft Word, or Google Docs. Copy down every specification (charge) verbatim and number them accordingly. Next begin writing your responses and evidence you have to debunk the charges underneath each one. This greatly helps your attorney.
- If your charges involve something that was caught on school security cameras within the last 60 days, then request the video footage of those cameras with specific timeframe through the Freedom of Information Law (FOIL). You can file yourself or use a service like EduFOIL.com. If minors are in the footage, they might deny you, but they also must preserve the footage.
- This doesn’t happen often, but you and your attorney may want to file a Motion to Dismiss for some, or all of the charges.
- Do your home work. Read the entire NYS Education Law 3020-a. Take notes of what is being followed and what isn’t. NYS Education Law 3020 and NYS Education Law 3020-a
Preparing for Your Hearing
Find out who your arbitrator is and make a Freedom of Information Law request for their prior 3020-a decisions. You may request that from FOIL@mail.nysed.gov
At some point there will be a pre-hearing conference. Your attorney will ask for discovery material, such as a list of witnesses, your personnel file, and evidence that the District intends to use in their case. Go over that list with your attorney. Remember that the burden of proof is on the school district. They have to prove you committed acts of misconduct. For example, if you were alleged to have left early and the administration says that they saw you on the camera surveillance, then they should produce such footage.
There may be a short or long lapse between the time you were served your charges and the time you hearing takes place. It could be months or over a year. At any time, the district can add more charges, so do not do anything that will give them a reason to add more. You may also want to debunk their charges ahead of time. We have seen issues with this as you show your hand for your defense and they rarely withdraw the charges.
Public or Private Hearing?
You have the option of asking for a public or private hearing. The benefits of a public hearing are that you can have supporters come in to observe and take notes. The more eyes and ears in the hearing room, the more chances of the hearing procedures being on the up and up. UFT Solidarity does help advertise your public hearings and send retirees come and attend. The hearings are during the school day and therefore active members cannot easily attend.
Here is what a hearing room may look like at 100 Gold Street. Many think “hearing” and think of a courtroom. This is not the case here.
To settle or not to settle?
You may be posed with this question. Typically we like to recommend not settling and accepting a fine or suspension if you are innocent of the charges alleged. A settlement short of termination will almost always you land you in the Absent Teacher Reserve (ATR).
Some NYSUT attorneys might tell you that a reason to take a settlement, despite your innocence, is because “…your hearing officer terminates everyone!” Now we have an issue with such statements and such facts. The hearing officers are selected jointly by the DOE and the UFT. This means that either party can strike arbitrators from the panel. So why keep an arbitrator that continues to terminate teachers? An issue we are currently taking up with NYSUT and UFT.
Think about settlement before you decide and never allow yourself to be pressured into any decision.
At the Hearing.
First off, keep your cool and keep calm. You will be watched by the hearing officer. Dress professionally. You will gain nothing by slamming your hand down on the table and yelling “LIAR!” during a witnesses testimony.
On the first day you will see that the hearing officer sits in the middle, or head of the table. Next is the two attorneys from both sides. You sit next to your attorney, opposite the side of the hearing officer. Now there are times when the witness seat is directly next to the arbitrator, and other times it is across the table next to the court reporter. All hearings are recorded and transcribed. You should always get a digital copy of each transcript.
Typical Order at a Hearing: Department’s opening statement, Department’s witness direct testimony by Department’s attorney, Your attorney’s cross examination of Department’s witness, Introduction of evidence during both direct and cross, repeated until all of the Department’s witnesses have testified, the Department rests their case, your attorney makes an opening statement, you and your witnesses testify in the same manner as above with the Department being able to cross, your attorney rests your case. Finally, both your attorney and the Department’s attorney make closing statements where everything is wrapped up.
NOTE: Sometimes there is rebuttal after cross where the party that asked the direct questions can follow up after the other party crosses.
The Department goes first and opens the case. They start with their opening statement and then move to their first witness. Please keep in mind that you may be called horrible things throughout your hearing. You will have a chance to speak and your attorney will have a chance to cross examine every witness.
Take great notes while the witnesses are speaking. Listen, but note anything of importance. Remember that the transcriptions will be available, so need to keep your own word for word handwritten transcript. Maybe you want to circle topics that you want your attorney to cover. You may have a short period between direct testimony of the Department’s witness, or you might have longer if the cross examination takes place on another day. Be prepared and make sure your attorney is as well.
Make sure you take a good luck at the evidence presented. Before a document is officially part of the record, it must be reviewed. Your attorney can object. For example if the Department submits a disciplinary letter that you never saw before, your attorney can object. Your attorney can also engage is something called voire dire, where they examine the document and ask questions.
Again, make sure any rebuttals you wrote for disciplinary letters or observations are affixed to the originals.
Your witnesses. Your evidence.
You might have the tendency to have the entire school come testify on your behalf and bring in a truckload of documents. Make your point, cover every base, but don’t overdo it.
There will be a court reporter there. Ask your attorney to get a digital copy of the day’s transcription and email it to you. Go over what took place and make notes. The time when these are available varies.
REMEMBER, EVERYTHING IS ABOUT THE RECORD.
When the hearing officer writes the decision, they will reference “the record.” This includes the transcript, as well as the documentary evidence. If you need to appeal their decision (Article 75 explained below), you may want to point out where the arbitrator ignored the record. Therefore make sure you have facts in the record to argue your case.
The law states that the hearing officer has 30 days after closing of the hearing to render a decision (also called an opinion and award). We find this timeline is almost never adhered to.
What happens if you lose?
If you receive a decision that you are not happy with (ie. termination, suspension or fine), then you can appeal to your local Supreme Court and file an Article 75. You only have ten calendar days to do so from the date your attorney receives the decision. At this point, NYSUT may file an Article 75 for you or you may retain a private lawyer.
If you need to contact a private lawyer, we recommend
Bryan D. Glass, Esq. – GHNYLaw.com
Maria Chikedantz, Esq. – mmsjlaw.com
*Please be careful not to pay for anyone to help you who does not hold a license to practice law in NYS.
If you have time, watch this video below we obtained of the DOE and UFT discussing expediting this entire process above.
*We continue to work on this page and give you all the information you need to get through this.