In March, the state Board of Regents voted to create a new office within the State Education Department (SED) called the Test Security Unit. Education Commissioner John B. King Jr. announced that a federal prosecutor, Tina Sciocchetti, would become the first executive director of the unit. Overlooked in initial coverage of this appointment is the role this office will play in addressing the problem of education professionals who have engaged in egregious misconduct, regardless of whether testing is involved.
An SED news release said that Sciocchetti “will also be responsible for overseeing teacher and administrator discipline, including the department’s enforcement of moral character regulatory provisions that are applied when certified educators are found to have engaged in misconduct, ranging from test integrity violations to inappropriate relationships with students.”
This is welcome news among school attorneys because of widespread frustration with inefficiencies in the 3020-a disciplinary process, which is used to address a wide range of inappropriate employee conduct.
Part 83 of the commissioner’s regulations authorizes the commissioner to impose disciplinary action against certified individuals such as teachers or administrators who have “been convicted of a crime, or (have) committed an act which raises a reasonable question as to the individual’s moral character.” Penalties the commissioner can impose include a temporary or permanent suspension of certification, fines up to $5,000, and/or a requirement to undergo continuing education or retraining.
Historically, certification revocation has been the penalty issued for egregious acts, such as teachers who have committed crimes or used drugs with students. However, the commissioner’s authority under Part 83 is not limited to only certain forms of moral turpitude. In creating the Test Security Unit, the Regents have explicitly identified test cheating as an act which “raises a reasonable question as to the individual’s moral character” and can put an individual’s professional license in jeopardy. Because many forms of employee misconduct involve moral issues, the creation of the Test Security Unit represents an opportunity for the State Education Department to take a much-needed leadership role in policing egregious employee misconduct.
The number of Part 83 cases resulting in action against professional certifications has increased in recent years. In 2006 approximately 109 certifications were acted upon as a result of Part 83 investigations. By 2010, that number increased to approximately 132.
Until 2001, Part 83 allegations were handled by an SED office known as the Teacher Moral Character Unit or Part 83 Office. Then the Legislature passed the Safe Schools Against Violence in Education (SAVE) Act, which required SED to conduct fingerprinting and criminal background checks on not only newly certified individuals, but on all new school staff.
This function was added as an additional duty of the Part 83 Office. The office was renamed the Office of School Personnel Review and Accountability (OSPRA). Staff at that time was limited to just three investigators and two attorneys. Additional staff was added with the SAVE legislation, but the majority of disciplinary cases involving issues of moral turpitude continued to be handled at the school district level, through Section 3020-a proceedings.
As a result, school districts have had the burden of prosecuting hundreds of 3020-a cases to try to remove teachers and administrators who may have committed acts that demonstrate a lack of good moral character. Many cases end in a settlement in which the person agrees to resign. A 2008 NYSSBA survey found 3020-a cases outside of New York City cost districts an average of $216,588 and it took an average of 502 days from the date charges were preferred to the date a decision was rendered.
Another frustration is the fact that in 3020-a cases light penalties have been imposed despite findings of serious misconduct – including cases involving test integrity (see sidebars, below). Arbitrators have, at times, seen fit to return individuals to the classroom after a short suspension. This is usually due to the deference that the relevant statutes and case law accord to the concept of progressive discipline in which individuals who exercise poor judgment often can get a second or third chance.
Arguably, Part 83 addresses the public interest better than the 3020-a process in cases involving moral character. License revocation means that the educator is removed not only from classrooms or school offices in one district, but from all classrooms and school offices throughout the state. As noted above, the commissioner’s authority under Part 83 includes a range of penalties of varying severity, which is consistent with the concept of progressive discipline.
Aggressive enforcement of Part 83 in cases with issues of moral character, regardless of whether test integrity is involved, would appear consistent with the Regents’ reform agenda, which has made it a statewide priority to have a high quality educator in every classroom.
The New York State Association of School Attorneys and NYSSBA have advocated for substantial 3020-a reform for many years, with meager results. Significantly, as part of the legislation implementing the new state budget, the Legislature empowered the commissioner of education to require arbitrators to adhere to timelines. (See sidebar at left). More changes are needed, however.
Staffing will be a key issue in the new SED unit. A state report recommends Sciocchetti have a staff of at least five to 10 full time investigators and attorneys who are expected to focus exclusively or primarily on test integrity. It is our hope that, at a minimum, the creation of the new unit will free other SED staff and resources to pursue Part 83 proceedings in a variety of misconduct cases where license revocation is justified.
Members of the New York State Association of School Attorneys represent school districts and BOCES. This article was written by Howard J. Goldsmith of Harris Beach PLLC in Albany. Goldsmith formerly had a variety of legal and administrative roles in the State Education Department, where he supervised the creation of the Office of School Personnel Review and Accountability and served as its first bureau chief.