Were you charged, or do you feel you will be charged pursuant to Education Law § 3020-a or § 3020-b? Now what?
Were you charged, or do you feel you will be charged pursuant to Education Law § 3020-a or § 3020-b? 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, an Education Law § 3020-a or § 3020-b Word Wall
Specifications: charges brought against a tenured pedagogue. Sometimes the words “charges” and “specifications” are interchangeable.
Arbitrator: the hearing officer that facilitates the Education Law § 3020-a or § 3020-b hearing. Both the terms “hearing officer” and “arbitrator” are interchangeable.
Respondent: The tenured educator who 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.
The Law
New York State Education Law § 3020-a provides, among other things, that a school district cannot terminate a tenured teacher without a hearing (except if there has been a conviction for a sex offense). Education Law § 3020-b provides, among other things, streamlined removal procedures for teachers rated “Ineffective.” A hearing can be great (as long as there is an unbiased arbitrator) 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.
Here is the full text of Education Law § 3020-a and § 3020-b:
https://www.nysenate.gov/legislation/laws/EDN/3020-A
https://www.nysenate.gov/legislation/laws/EDN/3020-B
Also, see, Education Law § 3020, § 3012-c, and § 3012-d:
https://www.nysenate.gov/legislation/laws/EDN/3020
https://www.nysenate.gov/legislation/laws/EDN/3012-C
https://www.nysenate.gov/legislation/laws/EDN/3012-D
UFT DOE Reassignment Agreement
Read this to familiarize yourself with reassignment pending an Education Law § 3020-a or § 3020-b hearing.
https://www.uft.org/files/attachments/temporary-reassignment-centers-agreement-april-2010.pdf
Also be mindful of the contractual limitations for investigations. SCI has one year from the time they were made aware and OSI and OEO have only six months. If this time elapses you can grieve that the investigative reports are to be removed from your official school 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 six months and twelve 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 Education Law § 3020-a or § 3020-b papers
In some cases, a teacher is reassigned from their normal duties pending an investigation, or investigations, and then charged pursuant to Education Law § 3020-a or § 3020-b 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, via a process server, that they are being brought up on charges that may result in termination. Imagine this happening after over thirty years of satisfactory/effective teaching. It can be understandably stressful.
It’s common to get served during Regents Week, which happens during the second and third weeks in June. Admins call it “3020-a Week.” This is by design to get you unbalanced when you are not ready and not prepared. There is a pattern of targeting teachers due to the actions of the Executive Superintendents, pushed by (former) Chancellor Carranza. We can assume (current) Chancellor Porter is completely on board with this. Don’t be surprised if you get served on a break or in the hallway. The process server or school supervisor won’t tell you what’s going on.
Inform the Chapter Leader (CL) and District Rep (DR) ASAP. That same day, once you are done with your workday, go to the UFT Borough Office and file paperwork. You legally have ten days to file paperwork. Do not wait! You have a choice to request a hearing or not. If you don’t ask for a hearing, the DOE will take action to fire you.
Ask for copies of your personnel file on Day 1. Your principal will probably remove good stuff from your file. COPY EVERY SINGLE PIECE OF PAPER. THE DOE IS RIGHT UNTIL YOU CAN PROVE THAT THEY ARE WRONG!
When Education Law § 3020-a or § 3020-b charges are preferred against you, the Department 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 supervisor or process server is just doing their job. There have been situations where the charges for which the teacher was originally served were cleared. However, the teacher’s alleged unprofessional behavior, when they were served and reassigned, was added to the list.
Here is Subpart 82-3 of the Regulations of the Commissioner of Education — Procedures for Hearings Commenced by the Filing of Charges on or after July 1, 2015:
Here is the NYS Education Department’s webpage about “Teacher Tenure Hearings”:
http://www.nysed.gov/educator-integrity/teacher-tenure-hearings-3020a
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 ten days, then you might automatically be formally reprimanded, fined, suspended without pay, 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. Go to https://solidarityuft.org/?page_id=6161 to see 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.
- Immediately make copies of all important school emails. DO NOT WAIT. You will be cut off from school emails! Always make copies of your materials in Google Drive folders and emails including your accomplishments, criticisms, observations, awards, and emails that talk about the good and bad of your career.
- Make sure letters to file and negative observations have rebuttal letters attached. If you didn’t write any, there’s no statutory, regulatory, or contractual provision imposing a time limit, and you should get on that immediately. However, a hearing officer will not look favorably upon rebuttals that are written after charges have been filed, and, especially, if the hearing is already in progress. Read https://solidarityuft.org/?page_id=6278 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 sixty days, then request the video footage of those cameras with specific timeframe through the Freedom of Information Law (FOIL). If minors are in the footage, DOE might deny access, 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 homework. Read Education Law § 3020-a, § 3020-b, § 3020, § 3012-c, and § 3012-d as linked in “The Law” section above. You should also read Subpart 82-3 of the Regulations of the Commissioner of Education and the NYS Education Department’s webpage about “Teacher Tenure Hearings” as linked in the “Getting Served…” section above. Take notes of what is being followed and what isn’t.
The NYSUT Attorney
You won’t hear much over the summer about your case, if you are charged in the springtime. You will hear back from NYSUT in the fall, if you get charges in the spring. You cannot choose your NYSUT lawyer. Most NYSUT lawyers are competent. The big question is WILL THEY FIGHT FOR YOU? They still get paid regardless if you win or not. Your NYSUT lawyer can be biased/lazy and they still get paid. Develop a good relationship, but tell them you expect them to work for you.
NYSUT lawyers are “free” because you’ve paid for them via your dues. Pay your Union dues so you get to have access to them.
You are in a queue for this lawyer. Your lawyer serves MANY clients. You, your lawyer, the DOE lawyer, and the arbitrator are the stars of the show. Keep in mind, though, that other teachers are having hearings or are also awaiting them. If you are further down the list, it bodes well for you because it buys you time to prepare and research. Your number in line is determined when your charges are filed.
A Lonely Process
Teachers should expect to be alone, because:
- Everyone is scared.
- You will lose friends; unfriending on social media; unanswered emails/calls/texts
- People are scared of retaliation
- The District Reps say little to you, only, “Talk to the lawyer.”
- Chapter Leaders don’t know much about this at all.
- Think about going through the stages of grief.
- Use the summer to do research.
Be proactive. You cannot rely on anyone — including your Union reps and attorney!
Use your networks to find people who have gone through the Education Law § 3020-a or § 3020-b process. UFT Solidarity is a great place to start. Pat Dawson’s 3020-a, Francesco Portelos’ 3020-a and Peter Zucker’s 3020-a were documented by blogger Norm Scott.
The Long Wait
You will be reassigned. You will be removed from teaching duties/per session/coaching/clubs. There will be no interaction with students at all. You will get a letter from the Office of Personnel Investigation (OPI) that will tell you where you were reassigned to. You will either be assigned to a school or a Central Office.
If you are sent to a new school… You will report to a school in your District/Borough daily and you will be given clerical duties, at least, in theory. We are familiar with stories about teachers who were not assigned any work whatsoever. You will keep on reporting there except when you have a hearing. Your salary, benefits, and pension contributions are fully paid. You are still a teacher!
Be a good worker. Get along with folks. Don’t be arrogant about doing clerical work if, in fact, you are assigned to do it — filing, copying, answering phones, retrieving documents and mail, etc. Do not do manual labor, cleaning bathrooms, or moving very heavy furniture. If you are out of compliance or not polite, you can be given additional charges. Meet the CL at the new school and communicate with the DR there — let them know about the issue. They will be checking in on you.
- If you “win” your hearing, your reassignment location can be a good school for you to work at in the future. Maintain cordial relationships with your new boss. Make the best use of your reassignment.
- Be as invisible as possible.
- DO NOT do non-work business on the computer at work. You can be tracked. § 3020-a or § 3020-b research and personal stuff is for your phone.
- Do not sleep and do not play video games. Read appropriate, professional books if you have downtime. Show them that you are a serious person — they will be watching you. Your (former) evil principal will be calling your (current) reassignment principal.
If you are assigned to a Central or District Office . . . You can also be sent to a “rubber room” which can be an office space or room within a DOE Central or District Office. Depending on your charges, you can be given legit work related to your license or you are hidden. The third and fourth bullet points above also apply with the exception that the “reassignment principal” will now be some sort of Central or District supervisor.
Be prepared to wait from two to three months, but, in reality, it can go on for over a year. Your reassignment center will be the same spot even if there is a lengthy delay.
Things to do while waiting:
- Write down everything you remember from the past three years — what key students did, what admin did, and what you did in as much detail as you can. It doesn’t matter if it involved folks from other schools and retired admin. Anything before three years cannot be brought up unless you have been accused of a crime.
- Admin has notes too. You should have your own notes and be prepared to share with your lawyer. Be prepared to share rebuttals, how you dealt with admin, APPR filings, notes from pre- and post-observation conferences, etc. Write lesson reflections on what worked well in a lesson, create notes regarding your recollections of meetings and conferences with the administration, etc. The admin is going to argue that you aren’t humble and open to suggestions; make sure you appear to be open to suggestions.
- Make a list of all the things you did to help the school — you did clubs/programs, trips, teaching new classes/electives, you helped parents, etc. These are actions that can be used to prove that you are “Effective.” You can be an “Effective” teacher by the Measures of Student Learning (MOSL), but still be charged because your Measures of Teacher Practice (MOTP), based on your observation reports, fell into the “Ineffective” range. School administrators and DOE attorneys will write you off as “being lucky” or having learned from other colleagues.
- You should have challenged all derogatory observation reports via meetings, polite emails, and rebuttal letters. The TPU lawyer will ask you whether you had a post-observation conference (with respect to each observed lesson). Your rebuttals should be attached. In all likelihood, if any are missing with respect to a derogatory observation report, the TPU lawyer will ask you whether you ever wrote one. Make sure you share the rebuttals with your lawyer.
- Take notes on what happened on the job — the good things you did for students, praise in any form, anything bad that happened in school, issues with colleagues (including co-teachers), etc.
- Don’t trust anyone implicitly. Many colleagues will backstab you or be too scared to become involved. It’s like old-time factory work/prison.
- Always reach out to your lawyer about any questions or concerns. You HAVE to be proactive! You are in the driver’s seat.
- Stay on top of your CTLE credits! Most people forget their individual situations because of COVID, but you can be audited which is not good!
- NY Historical Society
- Natural History Museum
- MCNY
- Museum of Jewish Heritage
- Brooklyn Museum
- Jewish Museum
- Poster House
- NYC DOE Literacy and Multilingual Learner Departments
- Rubin Museum
- Museo El Barrio
Preparing for Your Hearing
Find out who your arbitrator is and make a Freedom of Information Law request for their prior Education Law § 3020-a and § 3020-b decisions. You may request that from FOIL@mail.nysed.gov
You should ask your NYSUT lawyer about the DOE attorney. Your NYSUT attorney will know the DOE lawyer from other hearings so they can give you insight into the DOE attorney’s personality, style of questioning, and what to look out for.
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 DOE 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 or incompetence. 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 your hearing takes place. It could be months or over a year. At any time, the DOE 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.
If you are being tried by the Teacher Performance Unit (TPU) on grounds of “incompetence” (anything .01 below “Effective” can get you charged with § 3020-a or § 3020-b proceedings), to make yourself “look credible” you should contact witnesses who can speak of your professionalism and dedication to teaching. Folks from the DOE may be very reluctant to testify on your behalf, so if you can find folks you know from other organizations you’ve worked with, written grants with, or taken classes with, who can speak of your skills as a pedagogue, get in touch with them. If you know people no longer working in the DOE, you can try to reach out to them.
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 get retirees to come and attend. The hearings are during the school day and, therefore, working members cannot easily attend.
Here is what a hearing room may look like at 100 Gold Street in Manhattan. Many think “hearing” and think of a courtroom. This is not the case here.
During COVID times, teachers conduct their hearings via Zoom. Teachers are in a cubicle on the 9th floor of the 52 Broadway building (where NYSUT lawyers have their offices).
To settle or not to settle?
You may be posed with this question. Typically we like to recommend not settling and accepting a suspension without pay or a fine if you are innocent of the charges alleged. A settlement short of termination will almost always 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? This is an issue we are currently taking up with NYSUT and the UFT.
Think about settlement before you decide and never allow yourself to be pressured into any decision.
Some arbitrators do not know much about the trends in education — they are generally labor relations attorneys who are assigned by the NYS Education Department from a list that has jointly been approved by NYSUT and the DOE. It is extremely rare for a teacher to be completely exonerated of every single specification. They will likely face a fine or some kind of penalty (letter of reprimand, suspension without pay, required PD, or training). The arbitrator is continually learning about amendments to State Education Law and newer judicial decisions. They are intelligent, but may not truly be neutral.
First hearing is Discovery. It’s brief. Documentary evidence against you is presented. You get a copy but new things might emerge. Evidence may include any of the following:
- Evaluations
- Letters to File
- Emails Full of Criticism
- Paperwork Used to Show Administrative Support
- Notes from Intervisitations
- Your Lesson Plans and PowerPoints
- Your Unit Plans
- Instructional Coaches’ Notes
- Minutes of Departmental/Grade Team Meetings
- After School PD Paperwork/Agenda/Attendance
- Reports from “Substantiated” Misconduct Investigations Along With a Disciplinary Letter
Basic Argument by a Teacher Performance Unit (TPU) attorney: You are less than “Effective,” we gave you tons of support, there is no improvement from you at all over three years, you are not willing to acknowledge your faults, and there is no chance that you will improve in the future. Therefore, you should be fired. (Remember, if your MOTP is “Developing,” you are still vulnerable!)
Basic Argument by an Administrative Trials Unit (ATU) attorney: You are a danger to students. The principal called your attention to instances of corporal punishment and/or verbal abuse via disciplinary letters. You will continue to be a danger to students if you remain in the profession.
At the Hearing
First off, keep your cool and keep calm. You will be watched by the hearing officer/arbitrator. Dress professionally. You will gain nothing by slamming your hand down on the table and yelling “LIAR!” during a witness’ testimony. Do not text or make faces during the testimony.
On the first day you will see that the hearing officer/arbitrator sits in the middle, or head of the table. Next are 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 from your attorney.
Hearing dates go for five days a month; the dates aren’t consecutive so you have time to reflect and think about it.
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.
There will be lots of breaks so you can get water, use the bathroom, and text/talk/pass notes to your lawyer. You should be taking notes. You should not react. You should remain silent and have a poker face.
Admins freely lie in these hearings, so have your evidence handy to back it up and prove that they are lying. Admins risk nothing by lying or exaggerating.
However, since all witnesses are sworn in under oath, you have the option of filing a complaint with an investigative authority and alleging perjury. You can contact the New York County District Attorney, the 1st Police Precinct where the alleged perjury occurred (either 52 Broadway or 100 Gold Street in Manhattan), the NYC Council, or the NYC Department of Investigation. They may refer it to the Special Commissioner of Investigation for the New York City School District, but let that be their call.
See, Penal Law § 210.00, § 210.05 § 210.10, and § 210.15:
https://www.nysenate.gov/legislation/laws/PEN/210.00
https://www.nysenate.gov/legislation/laws/PEN/210.05
https://www.nysenate.gov/legislation/laws/PEN/210.10
https://www.nysenate.gov/legislation/laws/PEN/210.15
Also, see, New York City Charter § 1116(b) regarding the knowing making of a false or deceptive report or statement in the course of duty :
https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCcharter/0-0-0-3212
Take great notes while the witnesses are speaking. Listen, but note anything of importance. Remember that the transcriptions will be available, so there is no 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.
Evidence
Make sure you take a good look at the evidence presented. Before a document is officially part of the record, it must be reviewed. Your attorney can object to its inclusion. For example, if DOE submits a disciplinary letter that you never saw before, your attorney can object. Your attorney can also engage in something called voir 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.
Make sure you have researched your administrators and get relevant dirt on them that can be helpful. If you know your principal is an overtalker or says inappropriate things, tell your lawyer so they can use it to your advantage. Share everything you know about the witnesses — admin, coaches, colleagues, parents, and kids.
Your Witnesses. Your Evidence.
Testimony and paper/digital documents are used as evidence. Your case evidence will be presented once the DOE witnesses have been questioned. 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.
For TPU cases, it’s rare for colleagues to testify against you because colleagues technically aren’t admin and cannot pass judgment on another teacher’s pedagogy. If it relates to an ATU case, colleagues are fair game to be brought in as witnesses.
Admin paints you as a cross of “Helpless Harry,” “Typhoid Mary,” and “Jack the Ripper.” Be a professional despite this. Try to be the teacher you’d want the arbitrator to have to teach their own kids! Make sure that for every piece of evidence the DOE has against you, that you can push back against it and prove them wrong.
The Transcript
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. DO NOT record your own hearing.
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 (CPLR 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 thirty days after the closing of the hearing to render a decision (also called an opinion and award). We find this timeline is almost never adhered to. Be prepared to wait a long time.
What are some possible outcomes?
- Full exoneration can happen but it’s extremely rare.
- You pay a fine: Your fine is BIG but it’s paid out in regular installments subtracted from your paycheck or Direct Deposit.
- You can be suspended without pay.
- You can receive a formal written reprimand.
- You can be assigned to do training, set up with the DOE. One-on-one with a Specialist.
- You can be terminated (i.e., fired).
What happens if you lose?
If you receive a decision that you are not happy with (i.e., termination, suspension without pay, formal written reprimand, or fine), then you can appeal to your local Supreme Court and file a Civil Practice Law and Rules (CPLR) Article 75 lawsuit. 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.
You cannot add new testimony and evidence so it’s important to get as much info into the record in some form (witnesses, documents, and testimony). If the punishment is too excessive, as in “shocks the conscience,” it can be reduced or overturned.
If you need to contact a private lawyer, we recommend
Attorney Jordan F. Harlow, Esq. of Glass Krakower – Teacher’s Lawyer | GHNY Law
Bryan D. Glass, Esq. –
*Please be careful not to pay for anyone to help you who does not hold a license to practice law in NYS.
