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Due process and summons

Reassignment

In some cases, teachers under investigation or awaiting charges are removed from their teaching assignments and are temporarily reassigned to administrative duties in their schools or in a DOE administrative office until the investigations are complete or their cases are adjudicated in a §3020-a proceeding. A recent agreement between the UFT and DOE states that absent unusual circumstances, allegations being investigated by principals will not result in an employee being removed from her or his school. The agreement also requires that an employee be notified of the grounds for her or his reassignment or that an employee is being investigated by the Special Commissioner of Investigation (SCI). In the agreement, the DOE states that it will diligently attempt to complete all investigations by the Chancellor’s Office of Special Investigations (OSI) within 90 days. Further, a reassigned employee will be returned to her or his school unless the reassigned employee is being investigated by the SCI or the case involves criminal charges. However, even if a reassigned employee is returned to her or his school after six months, the DOE may still bring disciplinary charges against her or him.

A reassigned employee is paid while reassigned except if she or he was found guilty or pled guilty to any felony. Also, the DOE can request a special hearing to determine whether there is sufficient evidence that the employee 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 or possession of child pornography. If a specially appointed arbitrator determines there is sufficient evidence that the employee engaged in such conduct, she or he can be suspended without pay for up to two or three months.

Cause for discipline

A tenured pedagogue may be disciplined only for just cause, which, by way of example, may include, but is not limited to charges such as incompetence, insubordination, corporal punishment or sexual misconduct.

Procedural rights

The employee is entitled to:

  • Receive a copy of the charges and specifics relating to the charges
  • Have a hearing before an impartial arbitrator
  • Be represented by counsel
  • Call witnesses
  • Cross-examine witnesses.

If the hearing officer finds a charged employee guilty of any of the charges, discipline can be imposed. The discipline may include a written reprimand, monetary fine, suspension without pay or most seriously, termination. If the employee is terminated, he or she will also lose his or her New York City teaching licenses(s). However, the employee’s permanent state certifications cannot be revoked without another hearing.

Charges may not be brought more than three years after the occurrence of the alleged misconduct, unless it constitutes a crime when committed.

Paraprofessional discharge

A paraprofessional may be discharged for a good and sufficient reason after due consideration by a supervisor having such authority.

If an employee with more than the equivalent of one school term of continuous service is discharged, he or she shall be given a written notice of discharge and a statement of the general reasons for such action. Such employee will also be afforded an opportunity for a prompt and careful review of the discharge in accordance with the provisions of the grievance procedures. A paraprofessional who has been discharged should contact his or her district representative and/or the UFT borough office as quickly as possible.

If the union is not satisfied with the determination made at Step 2, it may appeal the decision under Article 22 of the Agreement for final and binding arbitration. In the event a para is discharged he or she should notify the district representative.

Substitute teacher termination

(See Agree. Art. 21D1; DOE By-Laws)

A non-appointed pedagogue filling a full-time vacancy who receives a U-rating and is terminated is entitled to review procedures as prescribed in the By-Laws.

Summons

(See Agree. Art. 21; Educ. Section 2560 and 2568; Sp. Cir. 92, 1976-77)

Regardless of who has summoned the employee to appear, the UFT generally recommends that a person not answer any questions that could lead to disciplinary or criminal action being taken without proper representation.

A UFT-represented employee who is summoned for an interview, by the principal or another DOE employee, that may lead to disciplinary action is entitled to be accompanied by a union representative (or a representative employed by the school system). An interview that is not held in accordance with these procedures cannot be made part of an employee’s DOE personnel or school file, and any statements made at such an interview cannot be used against the employee in any DOE proceeding.

Summons to the principal's office

If the employee is summoned by the principal, he or she may be accompanied at his or her option by the chapter leader or the chapter leader’s designated alternate. It is a good practice for any employee, when summoned to a conference by the principal, to ask directly if the conference may lead to disciplinary action.The principal must then respond either yes or no.if yes, the teacher may then exercise the option to have a representative accompany him or her. Do not depend upon the principal to voluntarily inform teachers prior to conference that the conference my lead to disciplinary action or of their right to representation.

Summons to other investigative offices

Aside from the principal, the Chancellor’s Office of Special Investigations (OSI) and the Special Commissioner of Investigation (SCI) regularly seek to interview educators. The allegations investigated by SCI usually involve potential criminal activity, financial fraud and other serious matters.Sometimes, the Chancellor’s Office of Personnel Investigations (OPI) or the Office of Equal Opportunity (OEO) will ask a member for a statement and occasionally even the police will go to a school.

If an employee is summoned to OSI, OPI or OEO, your UFT district representative or borough office will provide a representative to attend the interview with the employee. If a member is summoned by SCI, your UFT district representative or borough office will arrange for a criminal attorney to provide representation. The member should obtain the investigator’s name and the case number and call the borough office immediately.

Summons to the District Superintendent's office

Employees summoned to the office of a district superintendent or to the Division of Human Resources shall be given two days’ notice and a statement of the reason for the summons, except where an emergency is present or where considerations of confidentiality are involved. The district representative or UFT borough office should be notified of any such summons.

Summons to SubCentral

An employee summoned to SubCentral for a conference to discuss any allegation should be accompanied by a union representative. Contact your borough office.

Corporal punishment procedures

A new DOE circular has improved the procedures for investigating corporal punishment allegations. Principals are required to explain the circular to all staff members. In light of an increase in reports of such allegations, chapter leaders may want to review with members the existing definitions and policies,as well as to alert them to the new procedures and their rights.

Chancellor’s Regulation A-420 clearly prohibits corporal punishment. However, it spells out the four conditions under which reasonable physical intervention may be necessary: (1) to protect oneself from physical injury; (2) to protect another pupil or teacher or any other person from physical injury; (3) to protect the property of the school or of others; or (4) to restrain or remove a pupil whose behavior is disorderly and who has refused to comply with request to stop that behavior.

The new circular reflects several changes of procedure:

  • Responsibility for handling corporal punishment allegations resides in the Office of Special Investigations.
  • Notification. The supervisor or someone with knowledge of the alleged corporal punishment must immediately report the allegation to the Office of Special Investigations before doing anything to investigate the validity of the charge.
  • Investigation.The Office of Special Investigations will determine whether it will conduct the investigation or delegate it to the supervisor. (Previously, the supervisor always gathered the preliminary information.) If the supervisor is chosen to investigate, the Office of Special Investigations “will provide guidance and instruction” about how to do so.
  • Time limits. A supervisor who investigates a report of corporal punishment has five working days to file an A-420 Form stating a conclusion about whether corporate punishment has taken place.
  • Hearings. Regardless of who conducts the investigation, prior to any action being taken, the accused will have the chance to appear with representation to address the allegations and must receive 48 hours’ written notice before any hearing. (Before, there were no firm time limits or requirements for advance notice of hearings.)
  • Written clearance.When an inquiry determines that the staff member has not committed corporal punishment or the evidence does not support the allegation, the staff member must be so notified, in writing. This should protect members from innuendoes or lingering doubts.

What this means for chapter leaders

As soon as you hear of an allegation of corporal punishment, alert your district representative. The UFT strongly recommends that employees do not speak to the principal and/or any investigator without an appropriate representative present, even if the allegation is false.If the employee wishes, you or your designee can represent the employee in any interview conducted by the principal. If an employee is summoned to OSI, OPI or OEO, your UFT district representative or borough office will provide a representative to attend the interview with the employee. If a member is summoned by SCI, your UFT district representative or borough office will arrange for a criminal attorney to attend the interview with the member. If OPI asks for a written statement, your UFT district representative or borough office will arrange for an attorney to assist the employee in writing it.

Verbal abuse

Allegations of verbal abuse are covered by Chancellor’s Regulation A-421. The procedures are, generally, the same as in allegations of corporal punishment, except that members are not to be reassigned except in extraordinary circumstances.

Arrest of a member

If the police should arrest a member in school or for any work-related reason, you as the chapter leader should contact your district representative, who will contact the UFT’s central office. You should give the UFT representative the name, phone number and precinct of the arresting officer along with any other details you have regarding the arrest. If a member is arrested at school or for something work-related and notifies the UFT, the union will provide a criminal attorney to represent the member up to and through an arraignment.

A member who has been arrested or has received a desk appearance ticket for any reason must immediately notify in writing her or his immediate supervisor and the Office of Personnel Investigations, 65 Court Street, Brooklyn, NY 11201. (Chanc. Reg. C-105)