Law and Regulations
Education Law §3020-a.
Disciplinary procedures and penalties.
1. Filing of charges.
All charges against a person
enjoying the benefits of tenure as provided in subdivision three of section
eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred
seventy-three, twenty-five hundred ninety-j, three thousand twelve and three
thousand fourteen of this chapter shall be in writing and filed with the clerk
or secretary of the school district or employing board during the period
between the actual opening and closing of the school year for which the
employed is normally required to serve. Except as provided in subdivision eight
of section twenty-five hundred seventy-three and subdivision seven of section
twenty-five hundred ninety-j of this chapter, no charges under this section
shall be brought more than three years after the occurrence of the alleged
incompetency or misconduct, except when the charge is of misconduct
constituting a crime when committed.
2. Disposition of charges.
a. Upon receipt of the charges,
the clerk or secretary of the school district or employing board shall
immediately notify said board thereof. Within five days after receipt of
charges, the employing board, in executive session, shall determine, by a vote
of a majority of all the members of such board, whether probable cause exists
to bring a disciplinary proceeding against an employee pursuant to this
section. If such determination is affirmative, a written statement specifying
(i) the charges in detail, (ii) the maximum penalty which will be imposed by
the board if the employee does not request a hearing or that will be sought by
the board if the employee is found guilty of the charges after a hearing and
(iii) the employee's rights under this section, shall be immediately forwarded
to the accused employee by certified or registered mail, return receipt
requested or by personal delivery to the employee.
b. The employee may be
suspended pending a hearing on the charges and the final determination thereof.
The suspension shall be with pay, except the employee may be suspended without
pay if the employee has entered a guilty plea to or has been convicted of a
felony crime concerning the criminal sale or possession of a controlled
substance, a precursor of a controlled substance, or drug paraphernalia as
defined in article two hundred twenty or two hundred twenty-one of the penal
law; or a felony crime involving the physical abuse of a minor or student. The
employee shall be terminated without a hearing, as provided for in this
section, upon conviction of a sex offense, as defined in subparagraph two
of paragraph b of subdivision seven-a of section three hundred five of this
chapter. To the extent this section applies to an employee acting as a school
administrator or supervisor, as defined in subparagraph three of paragraph b of
subdivision seven-b of section three hundred five of this chapter, such
employee shall be terminated without a hearing, as provided for in this
section, upon conviction of a felony offense defined in subparagraph two of
paragraph b of subdivision seven-b of section three hundred five of this
chapter.
c. Within ten days of receipt
of the statement of charges, the employee shall notify the clerk or secretary
of the employing board in writing whether he or she desires a hearing on the
charges and when the charges concern pedagogical incompetence or issues
involving pedagogical judgment, his or her choice of either a single hearing
officer or a three member panel, provided that a three member panel shall not
be available where the charges concern pedagogical incompetence based solely
upon a teacher's or principal's pattern of ineffective teaching or performance
as defined in section three thousand twelve-c of this article. All other
charges shall be heard by a single hearing officer.
d. The unexcused failure of the
employee to notify the clerk or secretary of his or her desire for a hearing
within ten days of the receipt of charges shall be deemed a waiver of the right
to a hearing. Where an employee requests a hearing in the manner provided for
by this section, the clerk or secretary of the board shall, within three
working days of receipt of the employee's notice or request for a hearing,
notify the commissioner of the need for a hearing. If the employee waives his
or her right to a hearing the employing board shall proceed, within fifteen days,
by a vote of a majority of all members of such board, to determine the case and
fix the penalty, if any, to be imposed in accordance with subdivision four of
this section.
3. Hearings.
a. Notice of hearing. Upon
receipt of a request for a hearing in accordance with subdivision two of this
section, the commissioner shall forthwith notify the American Arbitration
Association (hereinafter "association") of the need for a hearing and
shall request the association to provide to the commissioner forthwith a list
of names of persons chosen by the association from the association's panel of
labor arbitrators to potentially serve as hearing officers together with
relevant biographical information on each arbitrator. Upon receipt of said list
and biographical information, the commissioner shall forthwith send a copy of
both simultaneously to the employing board and the employee. The commissioner
shall also simultaneously notify both the employing board and the employee of
each potential hearing officer's record in the last five cases of commencing
and completing hearings within the time periods prescribed in this section.
b. (i) Hearing officers. All
hearings pursuant to this section shall be conducted before and by a single
hearing officer selected as provided for in this section. A hearing officer
shall not be eligible to serve in such position if he or she is a resident of
the school district, other than the city of New York, under the jurisdiction of
the employing board, an employee, agent or representative of the employing
board or of any labor organization representing employees of such employing
board, has served as such agent or representative within two years of the date
of the scheduled hearing, or if he or she is then serving as a mediator or fact
finder in the same school district.
(A) Notwithstanding any other
provision of law, for hearings commenced by the filing of charges prior to
April first, two thousand twelve, the hearing officer shall be compensated by
the department with the customary fee paid for service as an arbitrator under
the auspices of the association for each day of actual service plus necessary
travel and other reasonable expenses incurred in the performance of his or her
duties. All other expenses of the disciplinary proceedings commenced by the
filing of charges prior to April first, two thousand twelve shall be paid in
accordance with rules promulgated by the commissioner. Claims for such
compensation for days of actual service and reimbursement for necessary travel
and other expenses for hearings commenced by the filing of charges prior to
April first, two thousand twelve shall be paid from an appropriation for such
purpose in the order in which they have been approved by the commissioner for
payment, provided payment shall first be made for any other hearing costs
payable by the commissioner, including the costs of transcribing the record,
and provided further that no such claim shall be set aside for insufficiency of
funds to make a complete payment, but shall be eligible for a partial payment
in one year and shall retain its priority date status for appropriations
designated for such purpose in future years.
(B) Notwithstanding any other
provision of law, rule or regulation to the contrary, for hearings commenced by
the filing of charges on or after April first, two thousand twelve, the hearing
officer shall be compensated by the department for each day of actual service
plus necessary travel and other reasonable expenses incurred in the
performance of his or her duties, provided that the commissioner shall
establish a schedule for maximum rates of compensation of hearing officers
based on customary and reasonable fees for service as an arbitrator and provide
for limitations on the number of study hours that may be claimed.
(ii) The commissioner shall
mail to the employing board and the employee the list of potential hearing
officers and biographies provided to the commissioner by the association, the
employing board and the employee, individually or through their agents or
representatives, shall by mutual agreement select a hearing officer from said
list to conduct the hearing and shall notify the commissioner of their
selection.
(iii) Within fifteen days after
receiving the list of potential hearing officers as described in subparagraph
(ii) of this paragraph, the employing board and the employee shall each notify
the commissioner of their agreed upon hearing officer selection. If the
employing board and the employee fail to agree on an arbitrator to serve as a
hearing officer from the list of potential hearing officers, or fail to notify
the commissioner of a selection within such fifteen day time period, the
commissioner shall appoint a hearing officer from the list. The provisions of
this subparagraph shall not apply in cities with a population of one million or
more with alternative procedures specified in section three thousand twenty of
this article.
(iv) In those cases in which
the employee elects to have the charges heard by a hearing panel, the hearing
panel shall consist of the hearing officer, selected in accordance with this
subdivision, and two additional persons, one selected by the
employee and one selected by the employing board, from a list maintained for
such purpose by the commissioner. The list shall be composed of professional
personnel with administrative or supervisory responsibility, professional
personnel without administrative or supervisory responsibility, chief school
administrators, members of employing boards and others selected from lists of
nominees submitted to the commissioner by statewide
organizations representing teachers, school
administrators and supervisors and the employing boards. Hearing
panel members other than the hearing officer shall be compensated by the
department at the rate of one hundred dollars for each day of actual service
plus necessary travel and subsistence expenses. The hearing
officer shall be compensated as set forth in this subdivision. The hearing
officer shall be the chairperson of the hearing panel.
c. Hearing procedures. (i) (A)
The commissioner shall have the power to establish necessary rules and
procedures for the conduct of hearings under this section.
(B) The department shall be
authorized to monitor and investigate a hearing officer's compliance with
statutory timelines pursuant to this section. The commissioner shall annually
inform all hearing officers who have heard cases pursuant to this section
during the preceding year that the time periods prescribed in this section for
conducting such hearings are to be strictly followed. A record of continued
failure to commence and complete hearings within the time periods prescribed in
this section shall be considered grounds for the commissioner to exclude such
individual from the list of potential hearing officers sent to the employing
board and the employee for such hearings.
(C) Such rules shall not
require compliance with technical rules of evidence. Hearings shall be
conducted by the hearing officer selected pursuant to paragraph b of this
subdivision with full and fair disclosure of the nature of the case and
evidence against the employee by the employing board and shall be public or
private at the discretion of the employee. The employee shall have a reasonable
opportunity to defend himself or herself and an opportunity to testify in his
or her own behalf. The employee shall not be required to testify. Each party
shall have the right to be represented by counsel, to subpoena witnesses, and
to cross-examine witnesses. All testimony taken shall be under oath which the
hearing officer is hereby authorized to administer.
(D) An accurate record of the
proceedings shall be kept at the expense of the department at each such hearing
in accordance with the regulations of the commissioner. A copy of the record of
the hearings shall, upon request, be furnished without charge to the employee
and the board of education involved. The department shall be authorized to
utilize any new technology or such other appropriate means to transcribe or
record such hearings in an accurate, reliable, efficient and cost-effective
manner without any charge to the employee or board of education involved.
(i-a)(A) Where charges of
incompetence are brought based solely upon a pattern of ineffective teaching or
performance of a classroom teacher or principal, as defined in section three
thousand twelve-c of this article, the hearing shall be conducted before and by
a single hearing officer in an expedited hearing, which shall commence within
seven days after the pre-hearing conference and shall be completed within sixty
days after the pre-hearing conference. The hearing officer shall establish a
hearing schedule at the pre-hearing conference to ensure that the expedited
hearing is completed within the required timeframes and to ensure an equitable
distribution of days between the employing board and the charged employee.
Notwithstanding any other law, rule or regulation to the contrary, no
adjournments may be granted that would extend the hearing beyond such sixty
days, except as authorized in this subparagraph. A hearing officer, upon
request, may grant a limited and time specific adjournment that would extend
the hearing beyond such sixty days if the hearing officer determines that the
delay is attributable to a circumstance or occurrence substantially beyond the
control of the requesting party and an injustice would result if the
adjournment were not granted.
(B) Such charges shall allege
that the employing board has developed and substantially implemented a teacher
or principal improvement plan in accordance with subdivision four of section
three thousand twelve-c of this article for the employee following the first
evaluation in which the employee was rated ineffective, and the immediately
preceding evaluation if the employee was rated developing. Notwithstanding any
other provision of law to the contrary, a pattern of ineffective teaching or
performance as defined in section three thousand twelve-c of this article shall
constitute very significant evidence of incompetence for purposes of this section.
Nothing in this subparagraph shall be construed to limit the defenses which the
employee may place before the hearing officer in challenging the allegation of
a pattern of ineffective teaching or performance.
(C) The commissioner shall
annually inform all hearing officers who have heard cases pursuant to this
section during the preceding year that the time periods prescribed in this
subparagraph for conducting expedited hearings are to be strictly
followed. A record of continued failure to commence and complete expedited
hearings within the time periods prescribed in this subparagraph shall be
considered grounds for the commissioner to exclude such individual from the
list of potential hearing officers sent to the employing board and the employee
for such expedited hearings.
(ii) The hearing officer
selected to conduct a hearing under this section shall, within ten to fifteen
days of agreeing to serve in such position, hold a pre-hearing conference which
shall be held in the school district or county seat of the county, or any
county, wherein the employing school board is located. The pre-hearing
conference shall be limited in length to one day except that the hearing
officer, in his or her discretion, may allow one additional day for good cause
shown.
(iii) At the pre-hearing
conference the hearing officer shall have the power to:
(A) issue subpoenas;
(B) hear and decide all
motions, including but not limited to motions to dismiss the charges;
(C) hear and decide all
applications for bills of particular or requests for production of materials or
information, including, but not limited to, any witness statement (or
statements), investigatory statement (or statements) or note (notes),
exculpatory evidence or any other evidence, including district or student
records, relevant and material to the employee's defense.
(iv) Any pre-hearing motion or
application relative to the sufficiency of the charges, application or
amendment thereof, or any preliminary matters shall be made upon written notice
to the hearing officer and the adverse party no less than five days prior to
the date of the pre-hearing conference. Any pre-hearing motions or applications
not made as provided for herein shall be deemed waived except for good cause as
determined by the hearing officer.
(v) In the event that at the
pre-hearing conference the employing board presents evidence that the
professional license of the employee has been revoked and all judicial and
administrative remedies have been exhausted or foreclosed, the hearing officer
shall schedule the date, time and place for an expedited hearing, which hearing
shall commence not more than seven days after the pre-hearing conference and
which shall be limited to one day. The expedited hearing shall be held in the
local school district or county seat of the county or any county, wherein the
said employing board is located. The expedited hearing shall not be postponed
except upon the request of a party and then only for good cause as determined
by the hearing officer. At such hearing, each party shall have equal time in
which to present its case.
(vi) During the pre-hearing
conference, the hearing officer shall determine the reasonable amount of time
necessary for a final hearing on the charge or charges and shall schedule the
location, time(s) and date(s) for the final hearing. The final hearing shall be
held in the local school district or county seat of the county, or any county,
wherein the said employing school board is located. In the event that the
hearing officer determines that the nature of the case requires the final
hearing to last more than one day, the days that are scheduled for the final
hearing shall be consecutive. The day or days scheduled for the final hearing
shall not be postponed except upon the request of a party and then only for
good cause shown as determined by the hearing officer. In all cases, the final
hearing shall be completed no later than sixty days after the pre-hearing
conference unless the hearing officer determines that extraordinary
circumstances warrant a limited extension.
(vii) All evidence shall be
submitted by all parties within one hundred twenty-five days of the filing of
charges and no additional evidence shall be accepted after such time, absent
extraordinary circumstances beyond the control of the parties.
d. Limitation on claims.
Notwithstanding any other provision of law, rule or regulation to the contrary,
no payments shall be made by the department pursuant to this subdivision on or
after April first, two thousand twelve for:
(i) compensation of a hearing
officer or hearing panel member, (ii) reimbursement of such hearing officers or
panel members for necessary travel or other expenses incurred by them, or (iii)
for other hearing expenses on a claim submitted later than one year after the
final disposition of the hearing by any means, including settlement, or within
ninety days after the effective date of this paragraph, whichever is later;
provided that no payment shall be barred or reduced where such payment is
required as a result of a court order or judgment or a final audit.
4. Post hearing procedures.
a. The hearing officer shall
render a written decision within thirty days of the last day of the final
hearing, or in the case of an expedited hearing within ten days of such
expedited hearing, and shall forward a copy thereof to the commissioner who
shall immediately forward copies of the decision to the employee and to the
clerk or secretary of the employing board. The written decision shall include
the hearing officer's findings of fact on each charge, his or her conclusions
with regard to each charge based on said findings and shall state what penalty
or other action, if any, shall be taken by the employing board. At the request
of the employee, in determining what, if any, penalty or other action shall be
imposed, the hearing officer shall consider the extent to which the employing
board made efforts towards correcting the behavior of the employee which
resulted in charges being brought under this section through means including
but not limited to: remediation, peer intervention or an employee assistance
plan. In those cases where a penalty is imposed, such penalty may be a written
reprimand, a fine, suspension for a fixed time without pay, or dismissal. In
addition to or in lieu of the aforementioned penalties, the hearing officer,
where he or she deems appropriate, may impose upon the employee remedial action
including but not limited to leaves of absence with or without pay, continuing
education and/or study, a requirement that the employee seek counseling or
medical treatment or that the employee engage in any other remedial or
combination of remedial actions.
b. Within fifteen days of
receipt of the hearing officer's decision the employing board shall implement
the decision. If the employee is acquitted he or she shall be restored to his
or her position with full pay for any period of suspension without pay and the
charges expunged from the employment record. If an employee who was convicted
of a felony crime specified in paragraph b of subdivision two of this section,
has said conviction reversed, the employee, upon application, shall be entitled
to have his or her pay and other emoluments restored, for the period from the
date of his or her suspension to the date of the decision.
c. The hearing officer shall
indicate in the decision whether any of the charges brought by the employing
board were frivolous as defined in section eighty-three hundred three-a of the
civil practice law and rules. If the hearing officer finds that all of the charges
brought against the employee were frivolous, the hearing officer shall order
the employing board to reimburse the department the reasonable costs said
department incurred as a result of the proceeding and to reimburse the employee
the reasonable costs, including but not limited to reasonable attorneys' fees,
the employee incurred in defending the charges. If the hearing officer finds
that some but not all of the charges brought against the employee were
frivolous, the hearing officer shall order the employing board to reimburse the
department a portion, in the discretion of the hearing officer, of the
reasonable costs said department incurred as a result of the proceeding and to
reimburse the employee a portion, in the discretion of the hearing officer, of
the reasonable costs, including but not limited to reasonable attorneys' fees,
the employee incurred in defending the charges.
5. Appeal.
a. Not later than ten days
after receipt of the hearing officer's decision, the employee or the employing
board may make an application to the New York state supreme court to vacate or
modify the decision of the hearing officer pursuant to section seventy-five
hundred eleven of the civil practice law and rules. The court's review shall be
limited to the grounds set forth in such section. The hearing panel's
determination shall be deemed to be final for the purpose of such proceeding.
b. In no case shall the filing
or the pendency of an appeal delay the implementation of the decision of the
hearing officer.
Last Updated: June
19, 2012
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