NY Educ L § 3020-A (2021)
2021 New York Laws EDN - Education Title 4 - Teachers and Pupils Article 61 - Teachers and Supervisory and Administrative Staff 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  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.   c.  Where  charges of misconduct constituting physical or sexual abuse of a student are brought on or after July first, two  thousand  fifteen, the  board  of education may suspend the employee without pay pending an expedited hearing pursuant to  subparagraph  (i-a)  of  paragraph  c  of subdivision  three of this section. Notwithstanding any other law, rule, or regulation to  the  contrary,  the  commissioner  shall  establish  a process  in regulations for a probable cause hearing before an impartial hearing officer within ten days to determine  whether  the  decision  to suspend  an  employee  without  pay pursuant to this paragraph should be continued or reversed. The process for selection of an impartial hearing officer shall be as similar as possible to the regulatory framework  for the  appointment  of  an  impartial  hearing  officer  for  due  process complaints pursuant to section forty-four hundred four of this  chapter. The  hearing officer shall determine whether probable cause supports the charges and shall reverse the decision of  the  board  of  education  to suspend  the  employee without pay and reinstate such pay upon a finding that probable cause does not support the charges.  The  hearing  officer may  also  reinstate  pay upon a written determination that a suspension without pay is grossly disproportionate  in  light  of  all  surrounding circumstances.  Provided,  further,  that  such  an  employee  shall  be eligible to receive reimbursement for withheld pay and accrued  interest at  a  rate  of  six  percent compounded annually if the hearing officer  finds in his or her favor, either at the probable cause hearing or in  a final  determination  pursuant to the expedited hearing held pursuant to subparagraph (i-a) of paragraph c of subdivision three of this  section. Any  suspension  without  pay  shall last no longer than one hundred and twenty days from the decision of the board of education to  suspend  the employee  without  pay and such suspension shall only relate to employee compensation,   exclusive   of   other    benefits    and    guarantees. Notwithstanding  any  other  provision  of  law  or  regulation  to  the contrary, any provision of a  collective  bargaining  agreement  entered into  by  the  city of New York as of April first, two thousand fifteen, that provides for suspension without pay for offenses  as  specified  in this  paragraph shall supersede the provisions hereof and shall continue in effect without modification and may be extended.   d. 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.   e. (i) For hearings commenced by the filing of charges prior  to  July first, two thousand fifteen, 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.  (ii)  All hearings commenced by the filing of charges on or after July first, two thousand fifteen shall be heard by a single hearing officer.   f. 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 commenced by the filing of charges prior to July first, two thousand fifteen 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 and provided further that the hearing  officer,  at  the pre-hearing  conference,  shall  set  a schedule and manner for full and fair disclosure of the witnesses and  evidence  to  be  offered  by  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  child witness  under  the  age of fourteen may be permitted to testify through the use of live, two-way closed-circuit  television,  as  such  term  is defined  in  subdivision four of section 65.00 of the criminal procedure law, when the hearing officer, after  providing  the  employee  with  an opportunity  to  be  heard,  determines by clear and convincing evidence that such child witness would suffer serious mental  or  emotional  harm which  would substantially impair such child's ability to communicate if required to testify at the hearing without  the  use  of  live,  two-way closed-circuit  television  and  that  the  use  of  such  live, two-way closed-circuit television will diminish the likelihood or extent of such  harm. In making such determination, the hearing officer  shall  consider any  applicable factors contained in subdivision ten of section 65.20 of the criminal procedure law. Where the hearing  officer  determines  that such child witness will be permitted to testify through the use of live, two-way  closed-circuit  television, the testimony of such child witness shall be taken in a manner consistent with section 65.30 of the criminal procedure law.  (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 misconduct constituting physical or sexual abuse of a student are brought, 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) 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  and  failure  to  do  so 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  may 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.  Provided,  however,  that  the  hearing  officer, in exercising his or her discretion, shall give  serious  consideration  to the  penalty  recommended  by  the  employing  board, and if the hearing officer rejects the recommended penalty such rejection must be based  on reasons based upon the record as expressed in a written determination.   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.