The following is a summary of the major changes to the law. 

Introduction of Evidence

The parties are now prohibited from submitting evidence in a § 3020-a proceeding more than 125 days after the charges against the employee are filed.  Additional evidence will be accepted after that time only if there are “extraordinary circumstances beyond the control of the parties.”  The purpose of this change is to ensure more timely resolutions of § 3020-a proceedings.  Thus, school districts, BOCES and the defendant employees will have to be prepared to provide witnesses and documents in a most expeditious manner to meet case calendar requirements.

The Selection of Arbitrators

The Commissioner of Education is still required to provide a list of the potential hearing officers (“arbitrators”) compiled by the American Arbitration Association to the employee and to the employing board.  The employee and the employing board now have 15 days from the date on which they receive the list to agree upon an arbitrator and to each notify the Commissioner of its selection.  If the employee and the employing board fail to agree or fail to notify the Commissioner of their selection within the 15-day time period, the Commissioner is required to appoint an arbitrator from the list.  (Previously, if the parties failed to notify the Commissioner of their selection within 10 days from their receipt of the list, the Commissioner was required to request that the AAA appoint an arbitrator from the list). 

According to recent guidance issued by the Department (“Guidance”), the Department will continue its current practice of e-mailing the list of potential arbitrators to counsel for the employer and counsel for the employee (or to the employee, if he or she is unrepresented).  The Guidance provides that a selection will be timely if it is e-mailed to the dedicated tenure e-mail box (Tenure@mail.nysed.gov) by the close of business on the 15^th calendar day following the parties’ receipt of the list.  The Guidance also states that the AAA has agreed to directly bill the employer for the production of the arbitrator list and that schools are “strongly encouraged” to now immediately send § 3020-a charges to the Department without a check for payment for the list and to instead make payment arrangements directly with the AAA.

Technologies Used to Record § 3020-a Hearings

The Department is still required to keep an accurate record of § 3020-a hearings at its own expense and to provide without charge a copy of the record, upon request, to the parties.  The Department is now authorized to utilize any new technology or other appropriate means to transcribe or record the hearing without any charge to the parties in an accurate and cost-effective manner. 

Previously, the Department was required to designate a stenographer to transcribe the hearing record.  The Department states in the Guidance that it will explore cost-effective alternatives and that there will be no immediate change in the manner in which the hearings are recorded. 

Arbitrators’ Compliance with Statutory Deadlines

The Department is now authorized to monitor and investigate an arbitrator’s compliance with the timelines set forth in Education Law § 3020-a.  The Commissioner may exclude an arbitrator who continuously fails to commence and complete § 3020-a proceedings within the statutory time periods from the list of potential arbitrators.

Compensation and Expenses Related to § 3020-a Proceedings

The amendments also address certain long-standing arbitrator compensation issues.  The Department remains responsible for compensating § 3020-a arbitrators.  The Commissioner is now required, however, to establish a schedule for the maximum compensation rates for arbitrators based upon customary and reasonable fees for service as an arbitrator and to establish limitations on the number of study hours arbitrators may claim.  These new compensation rates will only apply to proceedings for which the charges were filed on or after April 1, 2012.

The amendments also prohibit the Department from making payments on or after April 1, 2012 on claims for compensation for arbitrator fees or hearing expenses which are submitted (i) more than one year after the final disposition, including settlement, of the § 3020-a proceeding; or (ii) within 90 days after the effective date of the amendments (June 30, 2012), whichever is later.  Payments which are required by court order, judgment or a final audit may not be barred or reduced.  In addition, while claims for fees and expenses may not be “set aside for insufficiency of funds to make a complete payment,” the claims may be paid in part during one year and payment may be completed in a following year when appropriations are available.

According to the Guidance, the Department will amend the Commissioner’s Regulations to implement the revised law and will update “TEACH,” the web-based data information system available on the Department’s website, to allow for greater access to case information and the now-revised timelines for § 3020-a proceedings.  The Department is also updating its § 3020-a forms to reflect the recent changes and will publish these new forms on its website.

If you have any questions regarding these amendments or § 3020-a proceedings, please do not hesitate to contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2012