The 3020-a Arbitration Newswire: Changing "Rules"

All of the links below under Memos To The Field are only as valid as someone at the New York State Education Department wants them to be. That's why I have " " surrounding "rules" in the title.

After completing more than 40 cases, I know which arbitrator will abide by which rule and who will not. And then there are the comments, "oh, that's what the new rule says....." and off I go to my computer to file another Freedom of Information request (FOIL).

Anyone who works very hard reading all the transcripts, who knows what the UFT contract says and what the Education Law says, and can argue Just Cause, can win the 3020-a hearing.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

 Please be advised that there were extensive modifications to Education Law §3020-a including the creation of a new Education Law §3020-b, effective July 1, 2015. Please click on this link to view the various OSPRA memos to the field outlining the various changes: www.highered.nysed.gov/tsei/employeremployee. A pre-hearing conference must be held within 10-15 days of the Hearing Officer’s acceptance of this case for standard and expedited Education Law §3020-a cases, within 7 days for an expedited Education Law §3020-b case based on two ineffective APPR ratings, and within 5 days for an expedited Education Law §3020-b case based on three ineffective APPR ratings. The timeline for the conduct of the proceedings and the issuance of the decision is outlined in the statute and the regulations. Pertinent due dates are reflected in TEACH (calculated to the best approximation available to the department). At the conclusion of the case, Hearing Officers must upload their decisions on TEACH and create their vouchers on TEACH. When a decision is made, an automated email will go to the parties. Please click on the link below to log into the TEACH System and upload, view and/or download the decision and other relevant documents.

Memos to the Field

Occasionally, there is a need to issue memoranda to the field to clarify information pertaining to the various regulatory and administrative responsibilities of OSPRA. Copies of important memoranda may be obtained by following the relevant links below.

Date	Subject
Feburary 2016	Fingerprinting Fee Increase
September 2015	Education Law §3020-a Hearing Officer Rates
August 2015	Teacher Tenure Hearing Changes
July 2015	Fingerprinting Changes – Important Dates and Escrow Accounts
June 2015	Fingerprinting Changes – FAQ’s
May 2015	Fingerprinting Rejection Report
May 2015	Fingerprinting Changes – Transition Timelines
April 2015	Fingerprinting Changes
March 2013	Teacher Tenure Hearings – New Online Tenure Case Management System
December 2012	Hearing Officer Voucher Guidelines
May 2012	Education Law Section 3020-a Hearing Officer Rates (effective April 1, 2012 through March 31, 2013)
April 2012	Education Law §3020-a Changes (Effective April 1, 2012)
September 2011	Fingerprinting Sports Officials
October 2009	Conditional Clearances

See also Test Security, Data Privacy and Educator Integrity

Education Law §3020-a Hearing Officer Rates

Date:	September 2, 2015
To:	Education Law §3020-a Hearing Officers
From:	Deborah A. Marriott
Subject:	Education Law §3020-a Hearing Officer Rates

Pursuant to New York State Education Law §3020-a(3)(b)(i)(B), the Commissioner sets forth the following maximum rates of compensation and study hours for hearing officers adjudicating matters pursuant to Education §3020-a.  The rates and study hour limitations were first imposed for cases commencing after April 1, 2012.  This memo supersedes the May 9, 2012 memo to the field entitled “Education Law 3020-a Hearing Officer Rates (effective April 1, 2012 through March 31, 2013)” and sets forth new rates and study hour limitations for cases commencing on or after July 1, 2015.

In accordance with 8 NYCRR §82-3.12(a), hearing officers shall be compensated by the New York State Education Department (“Department”) on a per diem basis, pro-rated for actual time spent as described further herein, and reimbursed for the costs of necessary travel and other reasonable expenses incurred in the performance of their duties in accordance with the December 14, 2012 memo to the field entitled “Hearing Office Voucher Guidelines.”

Maximum Rate of Compensation

Per Diem Fee:
The maximum per diem fee shall be that listed in the biographical profile for the arbitrator that the American Arbitration Association (AAA) submits to the Department pursuant to Education Law §3020-a(3)(a); provided, however, that such per diem fee shall not exceed $1,400 per day.  In no instance will an arbitrator be reimbursed a “special rate” for adjudicating an Education Law §3020-a matter that is higher than the arbitrator’s customary per diem fee for other non-Education Law §3020-a labor arbitration hearings.  It is the responsibility of the arbitrator to make sure that both AAA and the Department are aware of any rate changes.

Definition of a Day:
A “day” for per diem purposes is defined in 8 NYCRR §82-3.12(c) as seven (7) hours of hearing or study time, exclusive of meal breaks, prorated to the nearest 1/10 of an hour.

Cancellation Fee:
Any late cancellation fee charged by the hearing officer shall be paid by the party or parties responsible for the cancellation as set forth in 8 NYCRR §82-3.12(b).

Maximum Hearing Time:
Charges for hearing time will be reimbursed only for the actual time spent in hearing.

Maximum Study Time:
Study time is defined as all other administrative tasks, such as hearing preparation, phone calls, correspondence, evidence review and decision writing. Except as provided for herein, charges for study time shall not be in excess of actual time spent on the hearing, prorated to the nearest one-tenth of an hour. The Department will not reimburse for study time beyond a maximum of a 1:1 ratio of hearing days to study days, and expects that the study time for a hearing that lasts in excess of seven days will not require more than seven days of study time. If a hearing officer requires more than the maximum study time for a particularly complex matter, the hearing officer can make an application to the commissioner for additional reimbursement. In situations where good cause substantiates additional study time, as determined by the commissioner, such applications will be granted.

Special Reimbursement Rates for Probable Cause Hearings

Education Law §3020-a(2)(c) was amended to permit a school district to implement a suspension without pay where the charges are for misconduct constituting physical or sexual abuse of a student.1  In such instances, a “Probable Cause Hearing” must be held within 10 days of the suspension without pay to determine whether sufficient probable cause exists to support the charges.  At the conclusion of the probable cause hearing, the impartial hearing officer may make an oral ruling (in certain circumstances) or issue a written decision on the record as to whether the suspension without pay should be continued or reversed.  In accordance with the statute, the Department has created special regional rotational lists on the TEACH system for these types of hearings.  The regulations governing these types of proceedings may be found at 8 NYCRR §82-3.10. 

Due to the compressed timelines and the need to ensure a ready supply of hearing officers for these proceedings, the Commissioner has created a special reimbursement structure for Probable Cause Hearings.  To the extent that the hearing is conducted in person, the hearing officer will be reimbursed at twice the normal per diem rate for the first day of the hearing not to exceed seven (7) hours.  All subsequent hearing days, if any, are to be billed at the normal per diem rate.  All hearing time is to be billed for actual time spent at the hearing, prorated to the nearest 1/10th of an hour.  Study time shall be billed at the normal per diem rate, and is subject to the same rules outlined above.

If there are any questions, please contact Deborah A. Marriott, Director of the Office of school Personnel Review and Accountability at (518) 474-3021 or deborah.marriott@nysed.gov.

1 To the extent that a collective bargaining agreement entered into by the city of New York provides for suspension without pay for the same conduct, the provisions of the agreement supersede Education Law §3020-a(2)(c).