NY Educ L § 3020-B (2021)
2021 New York Laws EDN - Education Title 4 - Teachers and Pupils Article 61 - Teachers and Supervisory and Administrative Staff 3020-B - Streamlined Removal Procedures for Teachers Rated Ineffective.

§   3020-b.   Streamlined   removal   procedures  for  teachers  rated ineffective. 1. Applicability. This section  shall  apply  to  classroom teachers  and  building  principals  who receive two or more consecutive annual ineffective ratings pursuant to annual  professional  performance reviews  conducted  in  accordance  with the provisions of section three thousand twelve-c or three thousand twelve-d of this article.   2. Filing  and  disposition  of  charges.  a.  A  school  district  or employing  board  may  bring  charges  of  incompetence pursuant to this section against any classroom teacher or building principal who receives two consecutive ineffective ratings.  A  school  district  or  employing board  shall  bring  charges  of  incompetence  pursuant to this section against any classroom teacher or building principal who  receives  three consecutive  ineffective  ratings. 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.  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.  When  such  charges  are brought, a written statement specifying (i) the charges in detail, (ii)  that  the  penalty that  will  be  imposed  by the board if the employee does not request a hearing or that  will  be  sought  by  the  board  after  a  hearing  is dismissal;  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 and such suspension shall be with pay.   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. 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  to  be  imposed  in  accordance  with subdivision four of this section.   d. Charges brought  pursuant  to  this  section  for  two  consecutive ineffective  ratings shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance  with  section  three  thousand  twelve-c  or  section  three thousand  twelve-d  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.   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 that the association 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,  in the  case  of an employee who has received three consecutive ineffective ratings, directly appoint a hearing officer from the list. In  the  case of an employee who has received two consecutive ineffective ratings, the commissioner  shall  forthwith  send a copy of the list and biographical information 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.  The  commissioner  shall  establish time periods  for  the  employing  board  and  the  employee  to  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 established time period, the commissioner shall appoint a hearing officer  from  the list.   b.  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, he or she 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. Subject to an appropriation,  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.   c. Hearing procedures. (i) The commissioner shall have  the  power  to establish  necessary  rules  and  procedures for the conduct of hearings under this section, and shall  establish  timelines  in  regulations  to ensure  that  the  duration  of  a  removal  proceeding pursuant to this section, as measured from the date an employee requests a hearing to the final hearing date, is no longer than ninety days  in  the  case  of  an employee  who  has  received  two consecutive ineffective ratings and no longer than thirty days in the case of  an  employee  who  has  received three  consecutive ineffective ratings. The commissioner shall establish timeframes in regulations for a pre-hearing conference wherein a hearing officer shall have the power to issue subpoenas, hear motions and decide on  other  discovery  and  evidentiary  issues.  At   such   pre-hearing conference,  the  hearing  officer shall establish a hearing schedule at the pre-hearing conference to  ensure  that  the  hearing  is  completed within  the required time period 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 timelines,  except as authorized in this subparagraph. A hearing officer may grant a limited and time specific adjournment that would extend  the hearing beyond such timelines 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.  (ii)  The  department shall be authorized to monitor and investigate a hearing officer's compliance with timelines pursuant to this section and to any regulations promulgated by the department. 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  to  be  considered  for  such hearings.  (iii)  Such rules shall not require compliance with technical rules of evidence. Hearings shall be conducted by the  hearing  officer  selected pursuant  to  paragraph  a  of  this  subdivision 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 on 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.  (iv) 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.  (v) Legal standard. (A) Two consecutive ineffective  ratings  pursuant to  annual professional performance reviews conducted in accordance with the provisions of section three  thousand  twelve-c  or  three  thousand twelve-d  of  this  article  shall  constitute  prima  facie evidence of incompetence that can be overcome only by clear and convincing  evidence that  the  employee  is  not  incompetent  in  light  of all surrounding circumstances, and if not successfully  overcome,  the  finding,  absent extraordinary  circumstances, shall be just cause for removal. (B) Three consecutive  ineffective  ratings  pursuant   to   annual   professional performance  reviews  conducted  in  accordance  with  the provisions of section three thousand twelve-c  or  three  thousand  twelve-d  of  this article  shall  constitute prima facie evidence of incompetence that can be overcome only by clear and convincing evidence that  the  calculation of  one or more of the teacher's or principal's underlying components on the annual professional performance reviews pursuant  to  section  three thousand  twelve-c  or  three  thousand  twelve-d  of  this  article was fraudulent, and  if  not  successfully  overcome,  the  finding,  absent extraordinary  circumstances,  shall  be  just  cause  for  removal. For purposes of this subparagraph, fraud shall include mistaken identity.   4. Post hearing procedures. a. The  hearing  officer  shall  render  a written  decision  within ten days of the last day of the final 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  whether  the  penalty  of  dismissal shall be taken by the employing board.   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 and the charges expunged from the employment record.   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.   6.  Nothing  in  this section shall be construed to prevent the use of any evidence of performance to support charges of  incompetence  brought pursuant  to  the  provisions of section three thousand twenty-a of this article.