May 23, 2011

Testimony: Due Process for Teachers

Source: NYSUT Legislative Department


Testimony of Andrew Pallotta, Executive Vice President New York State United Teachers to the Senate Education Committee on Reforming Section 3020-a of the Education Law

May 23, 2011

Good morning Senator Flanagan and Honorable members of the Senate Education Committee. My name is Andrew Pallotta, Executive Vice President of NYSUT (the New York State United Teachers). NYSUT is a statewide union representing more than 600,000 members. Our members are pre-k to 12th grade teachers, school–related professionals, higher education faculty, and other professionals in education and health care.

To properly address the issues surrounding teacher tenure and due process protection, we must first look at why this process was enacted into law many decades ago.

Prior to the adoption of the State's first tenure statute in 1917, teachers were subject to dismissal based on the whims of their administrators. Before tenure, educators had no right to due process and could be arbitrarily dismissed for their political, religious or social views, for voicing workplace concerns or trying to expand the education process beyond the standard curriculum. Tenure is also the first line of defense against attacks on academic freedom at every level of education. Absent tenure, teachers would be reluctant to engage their students in a free exchange of ideas for fear of arbitrary dismissal. Tenure thus protects academic freedom the way the First Amendment protects freedom of the press.

Tenure, and due process protection for tenured educators, is the norm not only in New York, but across the country. According to a recent survey by the National Education Association, 47 of the 50 states provide some measure of due process protection to tenured educators. Moreover, most civil servants in New York, together with many private sector employees who are protected by collective bargaining agreements, have due process protection before they can be disciplined or discharged from their employment.

There are numerous examples of teachers who, without the protection of tenure, have been improperly discharged from their employment for the most outrageous reasons, such as because they spoke out when the school failed to discipline violent students; for challenging discrimination against disabled students; and for reporting dangerous conditions in the school building.

Please remember that teachers, unlike any other public servant, must serve, at a minimum, a three year probationary period. During this time, probationary teachers have minimal job protection, and can be dismissed on virtually any grounds. Teachers are granted tenure only after successfully completing the probationary period and having been found to be competent, efficient and satisfactory by the superintendent of schools and school board. Tenure is not, however, the guarantee of a "job for life." Tenured educators can be dismissed for just cause, including incompetency or misconduct. The due process protections set forth by the Legislature under Section 3020-a are designed to ensure that educators, once having passed probation and been appointed tenure, cannot be disciplined or discharged from their employment without just cause after a truly fair, due process hearing. NYSUT does not and has never opposed ensuring that the procedures in 3020-a are efficient. NYSUT does oppose, however, any changes to 3020-a that would weaken the fairness of the process in the name of efficiency.

The claims by some about how long it takes to prosecute a 3020-a proceeding are greatly exaggerated and based on flawed or incomplete statistical analysis. To the extent that there are sometimes protracted proceedings, the delays are often due to the failure on the part of the State Education Department or the prosecuting school attorney to adhere to the statutory timelines. In addition, the calls for reform ignore the fact that 3020-a has been reformed twice in the last three years, and the impact of these reforms has not yet been evaluated.

Before I address these claims specifically, the Committee should be aware that the scope of the problem is being overblown. There are over 120,000 tenured teachers in New York State, not including those working in New York City. NYSUT's legal department handles the vast majority of 3020-a cases. During the 2005-06 through 2009-10 school years, our office handled an average of 104 new cases annually outside New York City. In other words, fewer than one 3020-a case is filed for every seven school districts per year outside New York City. Further, 84% of the cases commenced and completed in these five years were settled prior to a hearing, or prior to a final decision by the hearing officer. Additionally, in many more cases which are not captured by the statistics being floated by the New York State School Boards Association and others, teachers, confronted with the threat of 3020-a charges, immediately resign, or otherwise resolve the matter, without the necessity of charges ever being filed.

The claim that it is difficult or impossible to fire a tenured teacher is simply not true. We have studied the results in the 351 cases handled by NYSUT attorneys brought outside of the City of New York, which began and ended in the last 5 ½ years. In about 35% of the cases, the teacher resigned soon after charges were filed. In 40% of the cases that went to decision, the teacher was terminated by the hearing officer. Many of the other decisions or settlements resulted in substantial penalties or other resolutions designed to remediate any deficiencies in the teacher's performance. Such remediation, wherever it is possible, is one of the prime purposes of 3020-a.

Another claim we often hear is that these cases take too long. The New York State School Boards Association claims that 3020-a proceedings take an average of 528 days. While we are not apprised of NYSSBA's methodology, NYSSBA's website reflects that it counts only the cases that go all the way to a hearing officer's decision, meaning that NYSSBA ignored (1) the many cases in which charges are brought, but then are settled, either through resignation by the teacher, acceptance of a disciplinary penalty without resigning, or a commitment to undertake measures to improve performance; and (2) those cases mentioned already in which a resolution occurs as the result of the mere filing of 3020-a charges.

Not only are the statistics claiming that it takes more than 500 days to resolve a 3020-a case badly skewed, these statistics are used to suggest that it is either the statute, the teacher, or his or her representatives that are responsible for these delays. These claims are inaccurate. When NYSUT provides an attorney to represent an educator in a 3020-a proceeding, the attorney's duty to the educator is to ensure a fair hearing and the best possible defense. There are, unfortunately, many delays that are totally avoidable, but these result either from failure to adhere to the timelines or by lack of timely or appropriate prosecution by the school board.

One of the major causes for delays in 3020-a proceedings is the State Education Department's ability to provide lists of hearing officers to the parties in a timely manner, so that a hearing officer can be appointed.

There is an average delay of nearly seven weeks at the commencement of 3020-a cases. This delay is not attributable to the accused teacher, but instead involves delays either by school districts in informing SED of the need of a hearing, or by SED in failing to send the list of potential hearing officers to the parties, or both. This delay at the commencement of 3020-a cases often amounts to 60 days or longer, and in some cases exceeds 100 days. In one particularly egregious case, we repeatedly requested a hearing officer list from SED in 2007, but the list still has not been provided, and the school district has apparently decided not the prosecute the case.

In a recent case which gained notoriety because it was reported in the Times Union and cited by the School Boards Association as an example of the problems with 3020-a, there was a 160 day delay between the service of the initial charges and receipt of the potential hearing officer list by the parties - - a totally unnecessary 5 month delay caused by the State Education Department. Thus, one simple non-legislative way to speed up the 3020-a hearing process would be for SED to perform its statutory responsibility of providing hearing officer lists in a timely fashion.

Delays are also often attributable to school boards, or to the attorneys hired by school boards to prosecute these cases. We repeatedly see examples of charges that are needlessly long and complex. For instance, in one recent case, the statement of charges was comprised of fifteen single spaced pages. The teacher was charged with five separate counts of neglect of duty, incompetent and/or inefficient service, insubordination, conduct unbecoming a teacher, and immoral character. The five separate charges, which were almost entirely repetitive of one another, contained 97 separate specifications. The cost to the school district for preparing such unwieldy and unnecessary charges must have been substantial. Moreover, after a lengthy presentation by the school board, the entire case was dismissed as without merit. While many school board attorneys do not engage in such practices, lengthy, repetitive and needlessly complex charges are often brought, leading to protracted hearings.

Additionally, charges are often brought and the school district then simply fails to prosecute or does not promptly prosecute the matter. Again, turning to the Lansingburgh case that was reported in the Times Union, not only was there a five month delay by SED in providing a hearing officer's list, there was an additional delay of two months because the prosecuting attorney failed to provide discovery in a timely fashion. Then, when the hearing was about to begin, the school board decided to bring a second set of charges against the teacher, alleging conduct of which it had knowledge prior to bringing the first set of charges. The school district attorney asked that the two cases be consolidated. This consolidation, of course, required further delays in the hearing.

In New York City, despite a number of attempts to improve the disciplinary system in the last ten years, the UFT felt that this system was not working for our members or the DOE. Hundreds of educators, sometimes more than 500, were being warehoused in the notorious "rubber rooms" – at least one in each borough – in spaces comprised of just desks and chairs, with nothing productive to do. At least half of the educators in these rooms had not been charged with any disciplinary violations. They were being "investigated". These investigations regularly took many months or years and often ended with the teacher not being charged and returned to the classroom.

In an earlier attempt to make this process work efficiently, the UFT and then Chancellor Levy changed the system to create a mutually selected panel of 20 hearing officers, approved by SED, who, as a condition of being selected, agreed to dedicate 5 consecutive hearing days per month to hear these cases. While this system speeded things for a short time, cases soon started to backlog again. Cases were quickly assigned after a hearing was requested, but often each hearing officer already had multiple cases, waiting to start hearings.

By the spring of 2010 the system had again reached a crisis. On April 15, 2010, then chancellor Klein and the UFT reached an agreement to eliminate the growing backlog of cases. The agreement, which is attached to this testimony, committed to completely eliminate the backlog by December 31, 2010 and, for all cases where charges were filed after September 1, 2010, decisions must be rendered within 105 days of the time the request for a hearing is made. The hearing officer panel was expanded to accommodate these needs. The agreement, by its terms, provides for no more than 10 hearing days in misconduct cases and 14 hearing days in incompetence cases.

This agreement also addresses the other problem – lengthy investigations requiring long periods of reassignment. First, any educator who is reassigned pending an investigation, or 3020-a charges, must be given an administrative or other productive assignment. Further, educators being investigated by the DOE for misconduct can only be reassigned for 60 days without charges. If no charges are filed within that timeframe, the educator is returned to his or her teaching assignment, but can still be charged when the investigation is completed.

The agreement also included improved discovery procedures, mediation and expedited proceedings for cases where the DOE is not seeking termination.

The agreement so far has proven to be very productive.

There were approximately 350 cases backlogged at the time of the agreement. By December 31, 2010 none of those cases were awaiting hearings. Virtually all cases were completed, either by settlement or decision. As of April of this year, there were 18 cases that were still awaiting decisions. Of those, 8 were cases where the educator was represented by private counsel, rather than an attorney from NYSUT and the UFT had no ability to try and finish the case. Eight others are awaiting decision from hearing officers no longer on the DOE/UFT panel, so our ability to pry decisions out is limited.

For cases where charges were filed on or after September 1, 2010, the statutory timelines are being met and there is no backlog. There have been 128 cases filed and completed. Thirty-one cases have gone to hearing and decision. These cases have averaged 93 days. The remaining 97 cases have been settled and have averaged 33 days from charge to settlement.

Over the 2009-10 and 2010-11 school years, a period which covers both the backlogged and the newly filed cases, we have completed 561 cases, 176 decisions and 382 settlements. Of those, 34%, or 191, were either terminated by decision or resigned or retired in a settlement.

In New York City, the UFT and the chancellor, through this agreement, were able to find a way to investigate and prosecute charges expeditiously, and with dignity and respect for all those involved.

Finally, the calls for reform ignore the fact that section 3020-a has been amended twice in the past three years, and impact of these changes has not yet been evaluated.

n 2008, the Education Law was amended to provide for automatic loss of teaching license and tenured teacher position, without a 3020-a hearing, based on the conviction or the plea of guilty to certain sex offenses.

Just last year, the Education Law was amended to provide that beginning in the coming school year, all tenured teachers must be annually evaluated and rated as highly effective, effective, developing or ineffective. A tenured teacher who receives two consecutive annual ratings of ineffective is subject to expedited 3020-a charges, and the two ineffective ratings are by statute deemed "very significant evidence of incompetence which may form the basis of just cause removal." This 2010 amendment should greatly expedite 3020-a charges based on pedagogical incompetence. Such cases are historically the most time-consuming because proving incompetence requires submission of documents such as lesson plans, evaluations and other written evidence, and the testimony of evaluators and other educational experts.

We believe that it would be wise to allow the amended law to take full effect before making any more changes to the current statute.

The calls for reform should not be used to assault or weaken the rights of our tenured educators, who perform such an important service to the children and families of this state. The protections provided by Education Law 3020-a are crucial to NYSUT's members. While certainly there are rare instances of educators who should be and are removed from the classroom for pedagogical inadequacy or misconduct, there are also many cases where teachers are wrongfully accused, and whose careers and reputations are saved only because they receive, as they should and must, a fair hearing before judgments are made against them. In the last four years, we have had dozens of cases were educators have been wrongfully charged, and ultimately acquitted after it was determined that the charges against them were false or fabricated, or even that administrators improperly withheld exculpatory evidence.

In closing, I would like to express my sincere hope that the members of this committee understand that we are all working toward the same goal: ensuring that the process of removing or remediating tenured educators is one that is fair, efficient and consistent with this nation's concept of due process. It is our position that the current process is fair to teachers and that delays which do exist are often caused by the failure on the part of SED and school districts to adhere to timelines contained in section 3020-a. The recent amendments to the Education Law, aimed at reforming the both teacher evaluation and disciplinary processes to make them more meaningful and consistent with best educational practice, should be given a chance to work.

I appreciate this opportunity to address the committee today and would be happy to take any questions you have.


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