The Fateful Day for Cho Hee-yeon’s 'Preferential Hiring' Case... Confirmed Prison Sentence in Second Trial Means Loss of Superintendent Position

Abuse of Authority and Violation of the National Public Officials Act Charges
2nd Trial: 1 Year 6 Months Prison Sentence with 2 Years Probation
Request for Constitutional Review Likely to Be Dismissed

The Supreme Court will deliver its verdict on the appeal trial of Cho Hee-yeon, the Seoul Metropolitan Office of Education Superintendent, on the 29th. Cho is on trial for unlawfully hiring five dismissed teachers, including four former members of the Korean Teachers and Education Workers Union (JeonGyoJo) who were dismissed due to confirmed guilty verdicts for illegal election campaigning in the superintendent election, and one teacher who was dismissed after receiving a prison sentence for defamation of a specific candidate in the presidential election.

If the sentence of 1 year and 6 months imprisonment with a 2-year probation, previously handed down by the second trial court, is confirmed on this day, Superintendent Cho will lose his position.

Cho Hee-yeon, Superintendent of the Seoul Metropolitan Office of Education, is holding a press conference marking the 10th anniversary of his inauguration on July 2nd at the Seoul Metropolitan Office of Education in Jongno-gu, Seoul. Photo by Kang Jin-hyung aymsdream@

The Supreme Court's Third Division (Presiding Justice Oh Seok-jun) will hold the sentencing hearing for Superintendent Cho, who was indicted on charges of abuse of authority and violation of the State Public Officials Act, starting at 11:15 a.m. on the same day.

If the Supreme Court dismisses Cho's appeal and confirms the prison sentence from the second trial, Cho will lose his position as superintendent according to the Local Education Autonomy Act (Education Autonomy Act) and the Public Official Election Act, which stipulate automatic retirement for those sentenced to imprisonment or higher.

Cho was indicted on charges of abusing his personnel authority between October and December 2018 to appoint five dismissed teachers, including former JeonGyoJo members, by compelling supervisors to conduct a special recruitment process disguised as an open competitive exam, which was not obligatory.

Among the five specially hired teachers, four were former JeonGyoJo teachers who were automatically retired in November 2012 after receiving confirmed guilty verdicts with fines of 2.5 million won for violating the Education Autonomy Act due to illegal election campaigning related to the 2008 superintendent election. The remaining one was a teacher who was automatically retired in October 2003 after receiving a confirmed guilty verdict with a 10-month prison sentence with a 2-year probation for violating the Public Official Election Act by making negative remarks about a specific party candidate in the 2002 presidential election.

According to the investigation by the Corruption Investigation Office for High-ranking Officials (CIO), Superintendent Cho decided to hire these five individuals and instructed the personnel officers to proceed with the special recruitment process. Despite opposition from the deputy superintendent and others, who argued that it violated the principle of open competition, Cho pushed forward.

Investigations revealed that in the latter half of 2017, Cho ordered this preferential hiring at the request of a certain branch of JeonGyoJo. Notably, despite opposition from supervisors and officials in the approval line of the special recruitment process, Cho pushed the illegal preferential hiring through his secretary-general A, who was not directly involved in the hiring tasks.

Following Cho's instructions, A, who received reports related to the special recruitment of these dismissed teachers and even made calls to interview panel members, was indicted alongside Cho and sentenced to 10 months imprisonment with a 2-year probation in both the first and second trials.

In court, Cho argued that the Education Officials Appointment Decree, which requires open selection through competitive exams for special recruitment, was unconstitutional, but this was rejected. The court stated, "Not all special recruitments stipulated in Article 12 of the Education Officials Act can be conceptually considered contradictory to 'competitive exams' or 'open selection'."

Cho also claimed that special recruitment is a separate appointment procedure that limits competition, so he did not abuse his authority. Regarding the violation of the State Public Officials Act, he argued that he was unaware of and did not conspire with A's actions toward the examiners. However, this was also rejected.

The court explained, "Article 9-2, Paragraph 2 of the Education Officials Appointment Decree stipulates that special recruitment of education officials must be conducted through 'open selection via competitive exams.' Even if the defendant, as Seoul Metropolitan Office of Education Superintendent, exercised his appointment authority by conspiring to hire five individuals, if the special recruitment process was only superficially conducted as an open selection through competitive exams but was substantively unfair and unjust to hire the predetermined five, it cannot be considered a recruitment through 'open selection via competitive exams.' Therefore, it violates Article 12, Paragraph 1, Item 2 of the Education Officials Act and Article 9-2, Paragraph 2 of the Education Officials Appointment Decree."

The court further judged that although Cho pretended to conduct an open competition, he substantively abused his authority and committed illegal and unjust acts.

The court stated, "This special recruitment was conducted based on the nomination of five individuals, including B, requested by a certain branch of JeonGyoJo. A, who was involved in the special recruitment tasks by the defendant's instruction, selected examiners who were acquaintances or friendly with the defendants and some of the five nominees. Some examiners were individually contacted and informed of conditions favorable to B and the others. During the second interview, examiners' mobile phones were not confiscated, and applicants' career and personal information were not properly anonymized. A sent text messages to some examiners stating that hiring C was the defendant Cho's intention. Those examiners gave unusually high scores to C and the other four nominees compared to others, compromising fairness and appropriateness of the evaluation. Considering the circumstances, procedures, examiner selection, and evaluation results, this special recruitment was merely a facade of open competition. Therefore, Cho's instructions related to this special recruitment violated Article 9-2, Paragraph 2 of the Education Officials Appointment Decree, and it is hard to recognize the necessity or appropriateness of conducting such special recruitment beyond the scope and purpose of related laws."

It concluded, "Therefore, the instructions related to this special recruitment by defendant Cho are substantially and concretely illegal and unjust acts abusing the authority granted to the Seoul Metropolitan Office of Education Superintendent."

A argued that prosecutors and police officers dispatched to the CIO could only perform general administrative tasks and had no investigative authority over cases under CIO investigation, so all evidence they obtained was illegally collected. However, the court ruled that it cannot be concluded that they could not perform investigative support duties.

The first trial court, regarding Cho's sentencing, pointed out, "The defendant, as the superintendent and appointing authority, had the duty to ensure that special recruitment procedures were conducted fairly and transparently according to relevant laws. However, he allowed secretary-general A, who had no direct authority over the hiring process, to intervene in the recruitment of specific teachers requested by a branch of JeonGyoJo, preselected five individuals, and pushed the special recruitment despite opposition from personnel officers in the chain of command. By conducting the special recruitment under the guise of fair competition, he abused his appointing authority and unjustly influenced the appointment of public school teachers, damaging the fairness and transparency of the Seoul Metropolitan Office of Education's teacher appointment process." According to the prosecution's charges, on December 20, 2018, Cho finalized the special recruitment by signing next to the names of the five preselected dismissed teachers on the official document confirming the final results and number of the special recruitment.

However, the court considered as a mitigating factor that Cho did not commit the crime for monetary gain or personal benefit.

Both defendants appealed, but the second trial court upheld the same judgment.

Cho's defense team argued that they had twice sought legal reviews from lawyers who gave positive opinions, and that the mere fact that some examiners knew certain applicants does not undermine the fairness of examiner selection.

However, the court ruled that such legal opinions alone do not guarantee the openness of the special recruitment and that Cho's intent to abuse authority cannot be denied.

The court concluded, "Although Cho's exercise of authority in this special recruitment appears formally and externally to be through open selection via competitive exams, considering the specific purpose, circumstances, content, necessity, and appropriateness of the exercise of authority, it cannot be regarded as an open competitive selection. Therefore, it constitutes abuse of authority beyond legitimate powers."

Cho's defense also claimed that similar special recruitments had occurred previously. However, the court stated, "While the Seoul Metropolitan Office of Education had previously conducted special recruitments to reinstate dismissed teachers, most cases did not require open competitive selection and were for teachers dismissed due to reasons such as 'democratization movements' or 'whistleblowing,' which had social legitimacy or broad consensus."

It added, "However, in this case, the five individuals were dismissed due to criminal penalties for illegal election campaigning, so it is difficult to consider their dismissal as falling under reasons such as 'realization of public values' used as conditions for the conspiracy. Therefore, the necessity and appropriateness of this special recruitment are not recognized."

This case is the first directly investigated by the Corruption Investigation Office for High-ranking Officials, established in January 2021. However, since the CIO has investigative authority but no prosecution authority over superintendents, it transferred the case to the prosecution in September 2021 after concluding the investigation and requested indictment.

Meanwhile, the Supreme Court is expected to dismiss the constitutional review request filed by Superintendent Cho regarding the criminal abuse of authority charges on the same day.