【精編匯總版】MEMORANDUMreNoticeReqUnder3020a合集

1、【精編匯總版】MEMORANDUMreNoticeReqUnder3020a合集】7/7【精編匯總版】MEMORANDUMreNoticeReqUnder3020a合集ATTORNEY CLIENT PRIVILEGE ATTORNEY WORK PRODUCTMEMORANDUMTO:FileEROM:FileRE:Notice/SpecificationRequirementUnder3020-aDATE:September 2010A.Ouestion PresentedSection 3020-a of the Education Law requires that the teach

2、er receive a Written statement specifying the charges in detail? See 3020-a (2).1 What level of specificity must the charges contain so as to comply with section 3020-a, and avoid a dismissal for lack of notice, specificity, and vagueness?B.Executive SummaryThe only identifiable standard requires th

3、at *lthc charges be sufficiently clear to apprise petitioner of the reasons for the hearing and to prepare a defense. In the Mailer ofJerry. 50 A.D.2d 149; 376 N.YS2d 737 (4 Dept 1975) (explained in detail below). It should not be an issue to change the way we charge by moving away from the current

4、approach of listing each “offense“ in favor of an approach that provides more context and direction for the arbitrator. The important thing is that the arbitrators not consider evidence or make findings outside the scope of the charges and specifications. As illustrated below, a bill of particulars

5、can be provided to clarify/amplify the charges, but those must be demanded by the respondent. An issue may arise if (he respondent lails to demand one and we have left out some aspects of the observations that arc helpful to us.C.Lewal Anahsisa.Standard3020-a (2)(a) (in relevant part): Disposition o

6、f charges. Upon receipt of the charges, the clerk or secretary of the school district employing board shall immediately notify said board thereof Within five days after receipt of charges, the employing board. shall determine. .whether probable cause exists to bring a disciplinary proceeding against

7、 an employee pursuant to this section. If such detenuination is affirmative, a written statement specifying the charges in detail.shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee. (Emphasis added)

8、.ATTORNEY CLIENT PRIVILEGE ATTORNEY WORK PRODUCTUnder 3020-a (2), the we must ensure that tlthc charges arc sufficiently clear to apprise petitioner of the reasons for the hearing and to prepare a defense.* In the Matter ofJerrV 50 A.D.2d 149; 376 N.YS2d 737 (4 Dept 1975).“While the charges must be

9、specific enough to enable respondent to defend against them, they need not be as specific as charges in a criminal proceeding and should not be dismissed too readily.In the Matter of Snisky. 32 Ed Dept Rep, Dec. No. 12,952 (June 28, 1993) (charges alleged that the incident occurred in the 1989-90 sc

10、hool year whereas the incident actually occurred on June 7, 1989 1988-89 school year, charges were not to be strictly construed because any error in the charge was insignificant and did not prejudice teacher/,).2 Disciplinary charges against teachers are not criminal proceedings. Indeed, their prima

11、ry function is not punitive, but rather the determination of the fitness of the teachers against whom them may be brought to continue to carry on their professional responsibilities. See In the Matter of Bott. 41 N.Y.2d 265, 360 N.E.2d 952 (1977) (school need not prove that physical abuse amounted t

12、o a crime before disciplinary action is taken against teacher.); See also In Re Bd. Of Ed. Of Sewanhaka H.S. Distrist (Mannone). 22 Ed. Dept. Rep. 440 (1983) (commissioner denied teachers motion to dismiss incompetence charges where charges failure to allege any specific time, date or place of incom

13、petence on the grounds that teacher was sufficiently informed of the criticisms concerning his performance by the statement of the charges and that the specifications allowed him to prepare a defense.).b.Sufficient Notice With Bill Of ParticularsIn the Matter of Jerry、50 A.D.2d 149; 376 N.Y.S.2d 737

14、 (4 Dept 1975) upheld the boards termination of a physical education teacher Ibr physical and verbal abuse despite teachers contention that he did not have sufficient notice of the charges against him. Where the “notices did not name the pupils affected and did not fix the exact dates of the occurre

15、nces, they did specify the schools and years in which the incidents occurred and the nature of the misconduct alleged. 50 A.D. at 158: 376 N.Y.S.2d at 746. Moreover, a bill of particulars, which was served promptly after demand, supplied the names of individual pupils, specified how each was alleged

16、ly mistreated, and gave exact or approximate dates when possible, Id. The written notice of charges, as amplified by the bill of particulars, satisfied the specificity requirement of subdivision 2 of 3020-a?, Id. Ultimately, the Court held that *thc charges were sufficiently clear to apprise petitio

17、ner of (he reasons Ibr the hearing and to prepare a defense. Id. (internal citations omitted).In the Malter of Root, 59 A.D.2d 328; 399 N.YS2d 785 (4 Dept 1977) upheld boards termination of English teacher based on incompetence and distributing offensive materials to students. The Court disagreed wi

18、th Respondents contention that the charges were unconstitutionally vague and failed to apprise him of the charges leveled against2 Interlocutory appeal of arbitralors decision to dismiss several specifications for lack of specificity not permitted. See In the Matter of Anonymous, 31 Ed Dept Rep _. D

19、ec. No. 12. 725 (June 26. 1992) (The Commissioner of Education will not entertain interlocutory appeals on rulings made prior (o a hearing panel determination on charges brought pursuant to Education Law 3020-a.,).ATTORNEY CLIENT PRIVILEGE ATTORNEY WORK PRODUCThim. Even though the initial charges we

20、re somewhat inart fully drawn“ the Court found it significant that they were supplemented with a 13letter detailing very specifically the behavior which formed the basis for the charges and teacher was supplied with a 67bill of particulars amplifying the charges? 59 A.D.2d 330: 300 N.Y.S.2d at 787.

21、Moreover, that teacher was repeatedly notified by the department chairman and principal of specific problems with his teachings, and had consulted with him and advised him that he would be expected to correct his teaching deficiencies” constituted adequate notice of the “criticisms being leveled at

22、his teaching performance. Id.Respondent was repeatedly cautioned regarding deficiencies in his “caching methods, preparation, lesson plans, use of inappropriate materials, grading techniques and other aspects ofhis teaching pertormance. 59 A.D.2d 329： 300 N.Y.S.2d at 786. Observation reports reveale

23、d that he did very little active teachingHis classes did a great deal of silent reading and he showed a great many movies and film clips without accompanying teaching activities, lie did very little work with composition and some compositions were graded inadequately and improperly. Spelling lists w

24、ere found by the department chairman in which many of the words were misspelled. 50 A.D.2d at 330: 399 N.Y.S.2d at 787. The record further showed that: Respondent consistently submitted poor lesson plans; failed to follow New York State syllabi requiring students to submit book reports; failed to se

25、nd out progress reports of foiling students; artificially inflated student grades on report cards. Id.In ihe Malter of Caravel 48 A.D.2d 967; 369 N.Y.S.2d 829 (3 Dept 1975) affirmed the Boards decision to terminate teacher on grounds of insubordination and conduct unbecoming a teacher shoplifting bu

26、t awarded back-pay from date of suspension to date of termination. Teacher sought to reverse termination on the ground, among others, that board considered acts that were not specified in the charging instrument. Court ruled that 4*while 3020-a makes no provision for a bill of particulars to be ftim

27、ished, Board served a detailed bill amplifying the stated charges and teacher could not complain that board considered conduct outside charges and specifications where teacher demanded: If this charge is not based wholly upon the arrest, state what other incidents, if any, will be further alleged ag

28、ainst the defendant. 48 A.D.2d at 969： 369 N.Y.S.2d at 832. In light of this demand made by the teacher, Court found that the hearing panel and the board were, thus, limited to the charge and specifications as they were set forth in the bill of particulars? Id.c.VaguenessIn the Malter of Soucy, 41 A

29、.D.2d 984; 343 N.Y.S.2d 624 (3 Dept 1973) reversed the boards decision to terminate a kindergarten teacher on grounds that panels findings were inconsistent with the charges violating 3020-a (2). Charges of incompetence included (I) time wasted on class plans; (2) lack of planning for definite readiness sequence; (3) lack of units in art, music and science. See 41 A.D.2d at 985; 343 N.Y.S.2d 625. The panel found that petitioners class ulackcd a well-rounded program for children in k