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Know your rights
Disciplinary charges and false accusations
Despite many attempts to undercut it, section 3020-a of the State Education Law provides for due process before a tenured pedagogue can be disciplined, including termination for charges such as incompetence, insubordination, corporal punishment or sexual misconduct.
If the New York City Department of Education serves you with disciplinary charges pursuant to Education Law Section 3020-a, you should immediately contact your UFT borough office. The UFT will assist you in filing the necessary forms and arrange, if you choose, for you to be assigned legal counsel from the New York State United Teachers. A hearing officer jointly agreed upon by the UFT and the DOE will conduct a hearing.
If the hearing officer finds you guilty of any of the charges, discipline can be imposed. The discipline may range from a written reprimand, monetary fine or suspension without pay to the loss of your job. If you are terminated, you will also lose your New York City teaching license(s). However, your permanent state certifications cannot be revoked without another hearing.
In some cases, teachers awaiting charges are removed from their schools and assigned to Temporary Reassignment Centers until the investigations are complete or their cases are adjudicated in a 3020-a proceeding.
A recent agreement between the UFT and the DOE states that, absent unusual circumstances, allegations being investigated by principals will not result in an employee being removed from his or her school. The agreement also requires that an employee be notified of the grounds for his or her reassignment or that an employee is being investigated by the special commissioner of investigation.
In the agreement, the DOE states that it will diligently attempt to complete all investigations by the chancellor’s Office of Special Investigations within 90 days. Further, you must be formally charged within six months from being reassigned or returned to your school unless you are being investigated by the SCI or your case involves criminal charges. If you are returned to your school after six months, the DOE may still bring disciplinary charges against you.
You are paid while you are reassigned except if you were found guilty or pled guilty to any felony. Also, the DOE can request a special hearing to determine whether there is sufficient evidence that you engaged in serious misconduct such as any actions that would constitute: 1. a felony involving a controlled substance; 2. a crime involving physical abuse of a student or minor; 3. a felony committed on school property or while performing duties; 4. a felony involving a firearm; or 5. serious sexual misconduct with a student or a minor such as sexual touching, verbal abuse of a sexual nature, solicitation of a relationship and possession of child pornography.
If a specially appointed arbitrator determines there is sufficient evidence that you engaged in such conduct, you can be suspended without pay for up to two or three months.
Bring a union representative to any interrogation
If you are summoned for an interview by your principal or another DOE employee that may lead to disciplinary action, you are entitled to be accompanied by a union representative (or a representative employed by the school system). These are called “Weingarten Rights” (no relation to the former UFT president).
An interview that is not held in accordance with these procedures cannot be made part of your DOE personnel or school file, and any statements you make at such an interview cannot be used against you in any DOE proceeding.
Aside from the principal, the chancellor’s Office of Special Investigations and the special commissioner of investigation regularly seek to interview educators. The allegations investigated by the SCI usually involve potential criminal activity, financial fraud and other serious matters.
Sometimes, the chancellor’s Office of Personnel Investigations or Office of Equal Opportunity will ask a member for a statement and, occasionally, even the police will go to a school. Regardless of who has summoned you to appear, the UFT generally recommends that you not answer any questions that could lead to disciplinary or legal action being taken without proper representation.
If you are summoned to an investigatory interview, you should immediately ask your chapter leader and UFT district representative for assistance. If you are summoned to OSI, OPI or OEO, your UFT district representative or borough office will provide a representative to attend the interview with you.
If you are summoned by SCI, your UFT district representative or borough office will arrange for a criminal attorney to attend the interview with you. If OPI asks for a written statement, your UFT district representative or borough office will arrange for an attorney to assist you in writing it.
State Education Department regulations and Chancellor’s Regulation A-420 prohibit the use of physical force against students. Some staffers have been charged with that offense for having physical contact with a student, such as when breaking up a fight.
In general, you should attempt to defuse a student altercation by using verbal, rather than physical, means. However, you may use physical force in self-defense or to protect a person or school property. If you are accused of corporal punishment, speak with your chapter leader or district representative immediately and ask for union help.
Many of the allegations of corporal punishment are investigated by the employee’s supervisor. We strongly recommend that you do not speak to the principal and/or any investigator without a union representative present, even if the allegation is false.
If you are accused of sexual misconduct or physical abuse involving students and it is determined that the allegations were knowingly false when they were made, the DOE must remove all references to the allegations from your DOE personnel file, restore any lost pay with interest and permanently reassign the student from your class absent compelling and extraordinary circumstances.
The agreement makes clear that the disciplinary process should never be used to retaliate against whistle-blowers or for any other illegal reason. It goes on to state that all employees who make a knowingly false allegation shall be subject to discipline.
Chancellor’s regulations prohibit verbal abuse of students, which includes using language that causes fear or physical or mental distress; using language that denotes race, ethnicity, religion, gender, disability or sexual orientation which tends to cause fear or mental distress; threatening physical harm; or belittling or ridiculing students.
If you are accused of verbal abuse, you should immediately notify your chapter leader or district representative. Consult Chancellor’s Regulation A-421 for additional information. Among other things, the regulation requires your principal to inform the staff about what constitutes verbal abuse. If accusations of verbal abuse are found to be unsubstantiated, all references to the accusations must be removed from your DOE file.