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New York Education - Article 61 - § 3020-A Disciplinary Procedures and PenaltiesLegal Research Home > New York Laws > Education > New York Education - Article 61 - § 3020-A Disciplinary Procedures and Penalties
§ 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 one thousand one hundred two, and
sections two thousand five hundred nine, two thousand 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 two thousand 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. (a) Disposition of charges. 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 the charges in detail, 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 outlining 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 education 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 as
such 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. Notwithstanding any other provision
of law, 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 shall be paid
in accordance with rules promulgated by the commissioner of education.
(ii) Not later than ten days after the date the commissioner mails 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) If the employing board and the employee fail to agree on an
arbitrator to serve as a hearing officer from said list and so notify
the commissioner within ten days after receiving the list from the
commissioner, the commissioner shall request the association to appoint
a hearing officer from said list.
(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 of education. 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 of
education 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 chairman of the hearing panel.
c. Hearing procedures. (i) The commissioner of education shall have
the power to establish necessary rules and procedures for the conduct of
hearings under this section. 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. A competent stenographer, designated by the
commissioner of education and compensated by the state education
department, shall keep and transcribe a record of the proceedings at
each such hearing. A copy of the transcript of the hearings shall, upon
request, be furnished without charge to the employee and the 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 as such,
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.
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 forthwith forward a copy thereof to the
commissioner of education 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 pay and other emoluments restored, for the period
from the date of his 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 eight thousand three hundred three-a of the civil practice law
and rules. If the hearing officers finds that all of the charges brought
against the employee were frivolous, the hearing officer shall order the
employing board to reimburse the state education 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 state
education 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. 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 seven thousand 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. In no case shall the filing or the pendency of an
appeal delay the implementation of the decision of the hearing officer.
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Last modified: February 15, 2012 |
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