How Do I Fire an Incompetent Teacher?

In New York City, teachers

become eligible for Notes may not be
You are the administrator Problem: The tenure after three years. added more than
of a New York City public teacher has tenure. State law grants teachers three months after
school. Your mission is to tenure after five years of an incident.
fire a teacher who is so continuous service.
inept that virtually no
other teacher, parent, or
student would object. STEP ONE: Evaluate
and document. The teacher can attach
Every note must be shown to the a written response to
teacher, and she must sign the note. any letter
The teacher’s signature means only in the file.
Teachers cannot be disciplined for
that she has seen the note, not that
“micromanagement” violations,
Documentation requires she agrees with its content.
meaning bulletin board format,
furniture arrangement, or placing notes in the
durations of lesson units. teacher’s file to record
incompetence. The Department of Education will
be issuing “detailed guidance on
best practices for issuing letters
You may proceed past this point to file shortly.” Letters that do not result in
only if enough documentation has disciplinary charges must be
accumulated in the teacher’s file removed from the teacher’s file
to justify your giving the teacher after three years.
an unsatisfactory rating on the
You think you have enough evidence
teacher’s annual evaluation.
and assign an unsatisfactory rating.
The Department of
You’re ready to fire Education will issue
You’re ready for a
Don’t give up. this teacher. additional guidance
Good news! The round of appeals.
on the removal of
burden from here on file letters shortly.
out is largely on your
school’s lawyer. You At the hearing before
can watch while the committee, the
others decide what teacher may be advised
The teacher first
staffing decisions are by an employee of
appeals to a The teacher will
best for your school. the City School
committee be confronted by
designated by District or a union witnesses and
the chancellor. representative. may call
witnesses,
examine exhibits,
The committee and introduce
The committee overturns the rating. renders a evidence.
Return to STEP ONE. The committee decision.
upholds the rating.

The chancellor
Return to overturns But its decision isn’t final. The
STEP ONE. committee forwards its decision to The chancellor
the rating. upholds the
the chancellor for a “final” decision.
rating.

The aggrieved Section 310 of the New York State Option 1

has 30 days after
the action to
appeal.
The State Department of Education
says, “We endeavor to issue a
decision within six to eight months
(i.e. eight to ten months after the
petition is filed). However, hundreds
of complex appeals are filed each
year, so it is impossible to
guarantee a specific date.”
Education Law provides that anyone who
considers herself aggrieved by an action
taken by school authorities may appeal Appeal to the state
to the commissioner for a review. commissioner of
education. But to protect the
teacher from
arbitrary or unfair
dismissal, she has
So the inept teacher will be around a
a few appeal
while longer. But at least the
options.
commissioner gives “great deference
to decisions by local officials” and will
not substitute his judgment unless
“he can find no rational, reasonable
basis for the district’s actions.”
Option 2
Option 3

File in state court to

The termination of a licensed probationary Convinced? Here are have the chancellor’s Don’t appeal.
special education teacher was not upheld some actual decisions: decision overturned.
because the board didn’t adhere to a
circular issued by the chancellor regarding
the tenure and probation of teachers. The Even if the teacher
circular said that a special education The commissioner decided that a teacher should doesn’t pursue
have been suspended for a year, rather than To the courtroom.
teacher, before being terminated, was another appeal at this
entitled to the “substantial rights of an dismissed, because even though she was guilty stage, she cannot be
evaluation by the Division of Special of “excessive absences which had a detrimental fired yet. Termination
Education and Pupil Personnel Services.” impact on students…there was no indication that can result only from a
Lehman v. Board of Education (1981, 2d teacher was guilty of malingering, and the record hearing under Section
Dept) 82 AD2d 832, 439 NYSd 670. indicated that she had tried (to some extent) to 3020-A of the New York
reduce the number of her absences and to assist State Education Law.
some substitute teachers hired to replace her.”
1994 Op Comm Ed No. 13278.
Back to STEP ONE.

The commissioner finds that the File charges to

teacher was fairly assigned an
unsatisfactory rating and that the
rating was appropriately upheld in
a committee proceeding adhering
fully to established procedures.
Just to recap, the inept teacher has not been
terminate the
fired yet. You have succeeded at placing
inept teacher.
notes in her file and assigning an
unsatisfactory rating. You may now proceed
to the termination hearings under Section
3020-A of the New York State Education Law. Continued
next page
 How Do I Fire an Incompetent Teacher? part 2
If a teacher is to be suspended
pending the outcome of the hearing,
it will be a paid suspension unless a
“probable cause arbitrator” finds
there is probable cause that the
charges involve one of the following:
The felony sale, possession,
or use of marijuana, a
controlled substance, or a
precursor of a controlled
substance or drug
paraphernalia; or
Any crime
involving
physical or
sexual abuse
of a minor or
student; or
Any felony committed
either on school
property or while in
the performance of
teaching duties, or
any felony involving
firearms (other felonies
may not be sufficient).
Hearing
Procedures:
The teacher shall have a
reasonable opportunity
to defend herself and an
opportunity to testify.
But the teacher
does not have
to testify.
What happens
after the hearing?
The hearing officer must
give a written decision
within 30 days of the last
day of the final hearing.
Copies
go to the
commissioner
of education.
The commissioner forwards
copies to the teacher and to the
clerk or secretary of the board.
Continued from previous page
Not Valid? Obtain further
documentation. Back to
STEP ONE.
Within 10 days, the teacher
can request a hearing and After the charges are filed,
elect to appear before either the board, in executive
a single hearing officer or a session, will vote on
panel of arbitrators. In any whether the charges are
event, a hearing officer will potentially valid.
run the hearing.
The School Board must issue a statement of the
Potentially
charges and maximum possible penalty and send a Valid.
notice outlining the teacher’s rights under Section
3020-A, including the right to a formal hearing.
The school board must provide
the teacher with copies of
Before the investigatory statements, notes,
Hearing other exculpatory evidence, and
If the teacher is relevant student records (after the
convicted of or is hearing officer reviews them first).
pleading guilty to a
felony, she will be Both sides will exchange witness
suspended without lists, witness statements, and
pay for no more than physical evidence (e.g.,
three months pending photographs), at least before the
the outcome of the presentation of their direct case. But the teacher
hearing. has to give the
school board
only documents
the board can
Pre-Hearing prove are
Conference relevant.
Issue subpoenas;
Once the panel or hearing
officer is in place, within
10 to 15 days, the hearing At the pre-hearing
officer will hold a conference, the Hear and decide all
pre-hearing conference. hearing officer can: motions, including motions
to dismiss the charges;
Set the Decide any discovery
timetable for disputes about materials
the hearing. one side or the other wants
NOTE: The board can always decide to to have before the hearing.
offer an expedited hearing to the
teacher under any circumstances, but
There will be
the teacher does not have to accept it.
an expedited
hearing.
Each party,
of course, To subpoena
has the right witnesses;
to have What if the school board
lawyers; shows at the conference
And to cross-examine that the teacher’s license
witnesses. has been revoked (and
all appeals exhausted)?
A stenographer
All testimony
will transcribe the
will be taken
proceedings.
under oath. If the hearing officer has ruled
in the board’s favor and found
that the board made efforts to
correct the employee’s
behavior, then you have finally
succeeded in terminating one Within 10 days of the
inept teacher. decision, either the
In determining the penalty, teacher or the school
the hearing officer must Yes. board can appeal the
consider whether the school decision to the New
board made efforts to correct Except that York State Supreme
the behavior of the employee the teacher Court.
No.
that resulted in charges. Did may appeal.
the board try remediation,
peer intervention, or an
employee assistance plan? If not, the hearing
officer can order
efforts to correct
You are now involved
the employee’s
in a lawsuit. Please
behavior instead
consult your school
of dismissal.
attorneys for
additional details.