The following is an informative, but not exhaustive guide for Teachers and Supervisors who are faced with disciplinary charges.

Hearing for Tenured Teachers

Education Law § 3020-a provides a hearing to tenured teachers whose termination is sought by the administration.  Such a teacher is entitled to be represented by counsel of his or her choice, cross examine witnesses, and request production of documents.  An independent arbitrator serves as the hearing officer.

Hearing for Non-Tenured Teachers.

Non-tenured teachers receive a limited hearing pursuant to Chancellor’s Circular 31 [C-31.] These teachers are not entitled to be represented by counsel but by a union representative.  The hearing is conducted by an employee of the Department of Education who makes recommendations to the Chancellor.  Although the employee may cross examine witnesses and examine documents, no mechanism exists to compel discovery or witnesses to attend.

Differing Appeals Available From Adverse Determinations of 3020-a and C-31 hearings

Under Education Law §3020-a both sides may appeal within ten days to the Supreme Court from adverse decision.  Such appeals are brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR].

Appeals brought by non-tenured teachers are tricky.  A teacher who has been terminated must bring an Article 78 proceeding in New York Supreme Court within four months, whether or not a C-31 hearing has been held.  A separate or additional Article 78 proceedings may be brought after the C-31 hearing If the procedures utilized in the hearing were defective or denied due process.

Representation by Union versus Non-Union Attorneys.

Although the Union provides free counsel for tenured employees, ordinarily the union will not represent an employee in a subsequent appeal after an adverse determination in the 3020-A.  This may result in a difference of trial tactics.  Private counsel will often try 3020-A hearings with an eye toward a later appeal.  While, hopefully, an appeal is not necessary, and the client is completely exonerated, these tactics, if properly raised, often create grounds for appeal. However, where there are issues involving due process, or the admissibility of evidence, or the refusal to entertain evidence, it is important to preserve a record for appeal.  In cases where the teacher is accused of incompetence, an expert witness should be brought it to testify to the quality of supervision.  To my knowledge, this office is the only one that does this.

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