Motto For Employee Misconduct Or Performance: Get ‘Em Good Or Get ‘Em Gone

Section 3020 of the Education Law provides, in part, “No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause” and in accordance with the procedures set forth in Section 3020-a of the Education Law. These procedures include formal written charges and a hearing. Without an agreement between the district/BOCES and the employee, a 3020-a proceeding must be held before any discipline may be imposed, including discipline short of termination such as reprimands, fines, unpaid suspensions, and/or other types of remediation. Even though the process of 3020-a is frequently viewed as a hurdle to overcome, if used appropriately, it can be used as a tool for progressive discipline to either fix the behavior or get the district/BOCES prepared to take disciplinary action, including and up to termination.

At a 3020-a disciplinary proceeding the district/BOCES claiming misconduct or other performance issues must not only prove the misconduct, behavior, and/or poor performance, but that the penalty requested is proportionate to the issue at hand based upon the circumstances. This is known as “just cause”. There are several factors a hearing officer considers when assessing “just cause”, but one of the main factors considered is whether steps were previously taken to remediate the conduct, behavior, and/or poor performance. While certain especially egregious conduct may warrant termination without progressive discipline, other types of conduct require the district/BOCES to establish that it had previously taken steps to remediate the behavior, misconduct, or poor performance in the form of non-disciplinary and/or disciplinary action.

Non-disciplinary remediation comes in many forms (for example, verbal warnings, training/retraining, evaluations, counseling memos, and/or improvement plans). The key here is to appropriately document the steps taken to remediate the employee’s behavior, conduct, and/or poor performance not just by creating the document itself but by preparing the document so that any outside party could review the document at a later point and understand what occurred. Additionally, preparing appropriate documentation is important because the administrator who initially addressed the behavior, conduct, and/or poor performance with the employee may not be available if such matters need to be addressed again with the employee, resulting in the other administrators trying to piece together what previously occurred. Hearing officers are interested in seeing good documentation because it is evidence that the employee was put on notice of the problem, provided guidance and resources for improvement, and advised of the consequences of any future occurrences.

When non-disciplinary remediation is not effective, the district/BOCES should then consider whether disciplinary action is warranted in accordance with Section 3020-a of the Education Law. If the school has taken the appropriate steps for remediation at the outset, the likelihood of success increases for obtaining the requested penalty. Moreover, the school is in a better position to resolve such a matter with an agreement between the parties without the need for a hearing, which ultimately provides certainty and finality to the situation in a more expeditious fashion.