Right to counsel in an administrative disciplinary hearing
Matter of Elmore v Plainview-Old Bethpage Central School District, Board of Education, 273 A.D.2d 307
Matter of Elmore v Plainview-Old Bethpage Central School District, Board of Education, 273 A.D.2d 307
The Plainview-Old Bethpage Central School District terminated the employee following an administrative disciplinary hearing held pursuant to Education Law §3020-a.
The employee appealed the dismissal, contending that the Hearing Officer’s ruling unfairly denied him his right to counsel during the hearing when the Hearing Officer ruled that the employee could not discuss his “cross-examination testimony” with his attorney during any adjournments in the proceding.*
The Supreme Court agreed and granted the employee’s petition to vacate the School District’s decision to terminate his employment.
The Appellate Division sustained the lower court’s ruling, noting that under Education Law §3020-a(3)(c)(i), a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.
The court explained that while it was mindful that teacher disciplinary proceedings are not criminal actions, it was equally mindful that a tenured teacher has a protected property interest in his position which raises due process considerations when a teacher is faced with termination of his employment.
Noting that New York courts have disapproved similar prohibitions forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division ruled that “In view of the due process considerations involved when a tenured teacher is threatened with termination of his employment, this is a sound approach, particularly in the instant case, where the time period involved was 10 weeks.”
Accordingly, the Appellate Division concluded that the Supreme Court did not err in vacating the award and directing a new hearing.
* The cross-examination of the employee was conducted during five days which extended over a period of 10 weeks.
The decision is posted on the Internet at:
