Supreme Court Confirms 1.5-Year Suspended Sentence for Cho Hee-yeon in 'Preferential Hiring' Case... Loss of Superintendent Position

Conviction Confirmed for Abuse of Authority and Violation of the National Public Officials Act
"Special Hiring of Dismissed Teachers Pre-Selected Under the Guise of Open Recruitment" Recognized
Request for Constitutional Review of Abuse of Authority Law Dismissed

The suspended sentence for imprisonment was confirmed for Cho Hee-yeon, the Seoul Metropolitan Office of Education Superintendent, who was indicted on charges of preferentially hiring five dismissed teachers, including four teachers from the Korean Teachers and Education Workers Union (JeonGyoJo).

According to the Local Education Autonomy Act (Education Autonomy Act) and the Public Official Election Act, which stipulate automatic dismissal for those sentenced to imprisonment or higher and whose sentence is finalized, Superintendent Cho lost his position.

Cho Hee-yeon, Superintendent of Seoul Metropolitan Office of Education, is holding a press conference on 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@

On the 29th, the Supreme Court's 3rd Division (Presiding Justice Oh Seok-jun) dismissed Superintendent Cho's appeal in the final trial on charges of abuse of authority and violation of the National Public Officials Act, confirming the lower court's ruling of 1 year and 6 months imprisonment with a 2-year suspended sentence.

The court stated the reason for dismissing Superintendent Cho's appeal, saying, "There is no error in the lower court's judgment such as failing to conduct necessary hearings, violating the rules of logic and experience, exceeding the limits of free evaluation of evidence, misunderstanding or omitting the legal principles regarding the specification of charges, the establishment of abuse of authority and violation of the National Public Officials Act, joint perpetration, or the relationship between offenses, or applying unconstitutional laws."

The Supreme Court dismissed or rejected Superintendent Cho's request for a constitutional review regarding the criminal law's abuse of authority charges. The court dismissed the request for constitutional review on the phrase "in relation to examination or appointment" in Article 44 of the National Public Officials Act (Prohibition of interference with examination or appointment), stating that it was inappropriate because it was a matter of judicial interpretation.

Additionally, the request for constitutional review regarding Article 12(1) of the Education Officials Act (Special Appointment), which delegates the cases where special appointments can be made to presidential decrees, and Article 123 of the Criminal Act (Abuse of Authority) was rejected on grounds that they do not violate the principle of delegation or the principle of clarity.

Superintendent Cho was indicted for abusing personnel authority from October to December 2018 to appoint five dismissed teachers, including those from JeonGyoJo, by forcing supervisors to conduct a special hiring process disguised as an open competitive exam, which they were not obligated to do.

Among the five specially hired by Superintendent Cho, four were teachers affiliated with JeonGyoJo who were automatically retired in November 2012 after being fined 2.5 million won for violating the Education Autonomy Act and other charges related to illegal election campaigning during the 2008 superintendent election. The remaining one was a teacher who was automatically retired in October 2003 after being sentenced to 10 months imprisonment with a 2-year suspended sentence for violating the Public Official Election Act due to negative expressions 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 and instructed the personnel officers to proceed with the special hiring process. Despite opposition from the Deputy Superintendent and others who argued it violated the principle of open competition, Superintendent Cho pushed it through.

It was investigated that Superintendent Cho ordered this preferential hiring at the request of a certain branch of JeonGyoJo in the second half of 2017. Notably, despite opposition from supervisors and officials in the approval line of the special hiring process, he pushed the illegal preferential hiring through his secretary-general A, who was not directly involved in the hiring work.

A, who received instructions from Superintendent Cho and made calls to interview committee members regarding the special hiring of these dismissed teachers, was indicted alongside Superintendent Cho and sentenced to 10 months imprisonment with a 2-year suspended sentence in both the first and second trials, with the second trial ruling confirmed on this day.

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

Superintendent Cho also claimed that special appointments are a separate selection process that limits competition, so he did not abuse his authority, and regarding the violation of the National Public Officials Act, he argued that he was unaware of and did not conspire with A's actions toward the examiners. These claims were also rejected.

The court said, "Article 9-2(2) of the Education Officials Appointment Decree stipulates that education officials should be specially appointed through an open selection via competitive exams. Even if the defendant exercised the authority of the Seoul Metropolitan Office of Education Superintendent by hiring five people through collusion, if the special hiring process was only superficially conducted as an open selection via competitive exams but was substantively unfair and unjust to appoint these five predetermined individuals, it cannot be considered as hiring education officials through an open selection via competitive exams. Therefore, it violates Article 12(1)(2) of the Education Officials Act and Article 9-2(2) of the Education Officials Appointment Decree."

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

The court stated, "This special hiring 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 hiring work by the defendant's instruction, selected examiners who were friendly or acquainted with some of the defendants and the five individuals. Some examiners were individually contacted and informed of conditions favorable to B and the others. During the second interview, examiners' mobile phones were not collected, applicants' career and personal information were not properly anonymized, and A sent text messages to some examiners stating that hiring C was Superintendent Cho's intention. The examiners who received such messages gave unusually high scores to C and the others compared to other examiners, undermining fairness and appropriateness of the evaluation. Considering the circumstances, procedures, examiner selection, and evaluation results, this special hiring was merely a facade of open competition. Therefore, Superintendent Cho's instructions related to this special hiring violated Article 9-2(2) of the Education Officials Appointment Decree, and the necessity or appropriateness of conducting such special hiring beyond the scope of relevant laws is not recognized."

It concluded, "Therefore, the instructions related to this special hiring are considered as Superintendent Cho abusing the authority granted to him as the Seoul Metropolitan Office of Education Superintendent by committing substantive and specific illegal and unjust acts."

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

The first trial court, regarding sentencing, pointed out, "The defendant, as the appointing authority, had the duty to direct and supervise the special hiring process to be fair and transparent according to relevant laws. However, he allowed secretary-general A, who had no direct authority over the hiring process, to instruct personnel officers for the special hiring of specific teachers requested by a certain branch of JeonGyoJo, preselected five individuals, and pushed the special hiring forward by unilateral approval despite opposition from personnel officers in the chain of command. By conducting the special hiring process under the guise of fair competition, he abused his authority and unduly influenced the appointment of public official 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, Superintendent Cho finalized the special hiring 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 hiring.

The chain of command refers to an organization with a hierarchical structure that directly performs the organization's essential functions and contributes to achieving organizational goals. In this case, it includes the Deputy Superintendent, Director of Education Policy, and Director of Secondary Education, who are responsible for approval functions.

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

Both individuals appealed, but the second trial court's judgment was the same.

Superintendent Cho's side argued that they received positive legal reviews twice from lawyers and that the fact that some examiners knew certain applicants does not necessarily undermine the fairness of examiner selection.

However, the court judged that such legal reviews alone do not guarantee the openness of the special hiring and that it cannot be concluded that Superintendent Cho lacked intent to abuse authority.

The court concluded, "Although Superintendent Cho's exercise of authority regarding this special hiring 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 by acting beyond legitimate powers."

Superintendent Cho's side also argued that there were similar special hiring cases before. However, the court stated, "Although the Seoul Metropolitan Office of Education previously conducted special hiring to reinstate dismissed teachers, most cases were during periods when open competitive selection was not necessary, and the purpose of special hiring was for teachers dismissed due to 'democratization movements' or 'whistleblowing,' which had social justification or broad consensus."

It added, "However, in this case, the five individuals were automatically retired due to criminal punishment for illegal election campaigning, so it is difficult to consider that they were dismissed for reasons corresponding to 'realization of public values' as the collusion condition. Therefore, the necessity and appropriateness of this special hiring are not recognized."

This case was the first directly investigated by the CIO, which was launched in January 2021. However, since the CIO only has investigative authority but not prosecution authority over the superintendent, it transferred the case to the prosecution in September 2021 after completing the investigation and requested prosecution.