New York Codes, Rules and Regulations › Title 8 - EDUCATION DEPARTMENT › Chapter II - Regulations of the Commissioner › Subchapter C - Teacher › Part 87 - Criminal History Record Check For Prospective School Employees And Applicants For Certification › Section 87.5 - Due process procedures

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				  Procedures for clearance for employment.
(1)
				  Where the criminal history record check reveals no criminal record, the
				  department shall issue a clearance for employment to the covered school, and
				  shall notify the prospective school employee of such clearance for
				  employment.
(2) Where the
				  prospective school employee or the covered school on behalf of the prospective
				  school employee requests conditional clearance for employment, and the criminal
				  history record from the FBI has not yet been received by the department, and
				  the criminal history record obtained from DCJS reveals no criminal record, the
				  department shall issue a conditional clearance for employment to the covered
				  school, and shall notify the prospective school employee of such conditional
				  clearance for employment. Where conditional clearance is requested for a
				  prospective school employee for whom a criminal history record has been
				  obtained from both DCJS and the FBI, the department shall proceed to determine
				  whether to grant or deny clearance for employment in accordance with this
				  subdivision.
(3) If the department
				  does not make the determination on conditional clearance for employment within
				  15 business days after receiving the prospective school employee's
				  fingerprints, the department shall issue a notification to the prospective
				  school employee and the covered school which contains a good faith estimate of
				  the amount of additional time that is needed to make the determination on
				  conditional clearance for employment.
(4) Initial notification and department
				  determination.
(i) Where the criminal history
				  record check reveals that the prospective school employee was convicted of a
				  crime or has a pending criminal charge, the department shall review such record
				  and any related information obtained by the department pursuant to the review
				  of such criminal history record, if any, and apply the standards for the
				  granting or denial of a license or employment application set forth in
				  Correction Law, section
				  752 and shall consider the factors specified
				  in Correction Law, section 753. Such review shall be conducted in accordance
				  with section 296 (16)  of the Executive
				  Law.
(ii) Where the department
				  determines that a clearance for employment shall be granted, the department
				  shall promptly issue such clearance for employment to the covered school, and
				  shall notify the prospective school employee of such clearance for
				  employment.
(iii) Where the
				  prospective school employee or the covered school on behalf of the prospective
				  school employee requests conditional clearance for employment, and the criminal
				  history record from the FBI has not yet been received by the department, and
				  the criminal history record obtained from DCJS reveals that the prospective
				  school employee was convicted of a crime or has a pending criminal charge, the
				  department shall review such record and apply the standards for the granting or
				  denial of a license or employment application set forth in Correction Law,
				  section
				  752 and shall consider the factors specified
				  in Correction Law, section 753. Such review shall be conducted in accordance
				  with section 296 (16)  of the Executive
				  Law.
(iv) Where the department
				  determines that a conditional clearance for employment shall be granted, the
				  department shall promptly issue such conditional clearance for employment to
				  the covered school, and shall notify the prospective school employee of such
				  conditional clearance for employment.
(v) Where the department determines that the
				  criminal history record indicates that there is a basis to deny a clearance for
				  employment, the department shall issue an initial notification of a possible
				  denial of clearance to the prospective school employee by certified mail,
				  return receipt requested, which shall contain the basis for this notification,
				  including but not limited to a description of the criminal charges or
				  convictions involved. The notification shall state that a clearance for
				  employment shall be denied unless the prospective school employee submits a
				  response with satisfactory information indicating why clearance should be
				  granted, such information is mailed by regular first class mail or certified
				  mail or is hand delivered to the State Education Department within 25 calendar
				  days from the date the notification was mailed, and the prospective school
				  employee demonstrates to the satisfaction of the department that clearance for
				  employment should be granted. However, in the case of a prospective school
				  employee who is requesting a conditional clearance for employment, or who has
				  already received such conditional clearance for employment, the notification
				  shall state that the response from the prospective school employee must be
				  mailed by regular first class mail or certified mail or be hand delivered to
				  the State Education Department within 10 calendar days from the date the
				  notification was mailed. Such notification shall advise the prospective school
				  employee of the address to which the response must be submitted.
(vi) For a response to be considered, the
				  prospective school employee must mail by regular first class mail or certified
				  mail or submit by hand delivery a response to the department's initial
				  notification of a possible denial of clearance within 25 calendar days of the
				  mailing of the notification of possible denial of clearance. However, in the
				  case of a prospective school employee who is also requesting a conditional
				  clearance for employment, or who has already received such conditional
				  clearance for employment, for a response to be considered, the prospective
				  school employee must mail by regular first class mail or certified mail or
				  submit by hand delivery, a response to the department's initial notification of
				  a possible denial of clearance within 10 calendar days of the mailing of the
				  notification of possible denial of clearance. Such response shall be submitted
				  to the department at the address specified in the notification of possible
				  denial of clearance, together with any affidavits or other relevant written
				  information and written argument which the prospective school employee wishes
				  the department to consider in support of the position that clearance for
				  employment should be granted, including, where applicable, information in
				  regard to his or her good conduct and rehabilitation.
(vii) Where the prospective school employee
				  does not submit a response within the timeframe prescribed in subparagraph (vi)
				  of this paragraph, the department shall make a determination denying clearance
				  for employment and notification of such denial, along with the basis for such
				  determination, shall be transmitted to the prospective school employee by
				  certified mail, return receipt requested. In the case of a prospective school
				  employee requesting conditional clearance for employment, such determination
				  shall also deny the conditional clearance for employment. In the case of a
				  prospective school employee who has already been granted conditional clearance
				  for employment, such determination shall also terminate the conditional
				  clearance for employment. Such notification shall state that the prospective
				  school employee may appeal the determination to a designee of the Commissioner
				  of Education, at the address specified in the notification, in accordance with
				  paragraph (5) of this subdivision, and shall include instructions for such an
				  appeal. Notification of the denial of clearance for employment and denial or
				  termination of conditional clearance for employment shall also be given to the
				  covered school.
(viii) Where the
				  prospective school employee submits a response within the timeframe prescribed
				  in subparagraph (vi) of this paragraph, the department shall, upon review of
				  the prospective school employee's criminal history record, related information
				  obtained by the department pursuant to the review of such criminal history
				  record, and information and written argument provided by the prospective school
				  employee in his or response, make a determination on whether clearance for
				  employment shall be granted or denied. In such review, the department shall
				  apply the standards for the granting or denial of a license or employment
				  application set forth in Correction Law, section
				  752 and shall consider the factors specified
				  in Correction Law, section 753. Such review shall be conducted in accordance
				  with the requirements of section 296 (16)  of the Executive
				  Law. Where the department's determination is that clearance for employment is
				  denied, the decision shall include the basis for such determination, and shall
				  state that the prospective employee may appeal the department's determination
				  to a designee of the Commissioner of Education, at the address specified in the
				  determination, in accordance with paragraph (5) of this subdivision, and shall
				  include instructions for such an appeal. A copy of the determination that
				  clearance for employment is denied, or notice that such clearance is granted,
				  as the case may be, shall be transmitted to the prospective school employee.
				  Where clearance for employment is denied, such determination shall be sent to
				  the prospective school employee by certified mail, return receipt requested.
				  Where clearance for employment is granted, such determination shall be sent to
				  the prospective school employee by regular first class mail. Where clearance
				  for employment is denied and the prospective school employee also requested
				  conditional clearance for employment, such determination shall also deny the
				  conditional clearance for employment. Where clearance for employment is denied
				  and the prospective school employee has already been granted conditional
				  clearance for employment, such determination shall also terminate the
				  conditional clearance for employment. In addition, the covered school shall be
				  notified of the denial or granting of clearance.
(ix) Where clearance for employment is denied
				  prior to the department obtaining information from the FBI, and subsequent
				  information is obtained from the FBI which forms an additional basis to deny
				  clearance for employment, and the prospective school employee has already
				  appealed the department's determination in accordance with paragraph (5) of
				  this subdivision, the department shall notify the prospective school employee
				  of this additional information and request that the prospective school employee
				  respond. For a response to be considered, the prospective school employee must
				  mail by regular first class mail or certified mail or submit by hand delivery a
				  response to the department's notification of this additional information within
				  25 calendar days of the mailing of the notification. After a review of the
				  information provided by the FBI and the response of the prospective school
				  employee, if any, the department shall either notify the prospective school
				  employee that no change in the original denial of clearance determination will
				  be issued by the department based upon the information obtained from the FBI or
				  issue to the prospective school employee modified determinations denying
				  clearance for employment and denying or terminating conditional clearance for
				  employment, which includes the information obtained from the FBI. The
				  notification of no change in the original denial of clearance determination and
				  the modified determinations shall be sent to the prospective school employee by
				  regular first class mail. The modified determinations shall not affect the
				  validity of the original determinations denying clearance for employment, and
				  denying or terminating conditional clearance for employment.
(x) Notwithstanding any provision of this
				  paragraph to the contrary, the Department may excuse the timeframes prescribed
				  in this paragraph for submission of responses by prospective school employees
				  where such late submissions are due to the COVID-19 crisis.
(5) Appeal of department's
				  determination.
(i) A prospective school
				  employee who was denied clearance for employment by a determination of the
				  department pursuant to paragraph (4) of this subdivision, may appeal that
				  determination to a designee of the Commissioner of Education who did not
				  participate in the department's determination, provided that such appeal is
				  mailed by regular first class mail or certified mail or is hand delivered to
				  the address specified in the department's determination within 25 calendar days
				  of the mailing of such determination denying clearance.
(ii) Where the department has modified
				  original determinations denying clearance for employment and denying or
				  terminating conditional clearance for employment based upon additional
				  information obtained from the FBI, as prescribed in subparagraph (4)(ix) of
				  this subdivision, the subject of the appeal shall be the modified
				  determinations. In that case, the prospective school employee may submit
				  additional appeal papers addressing the modified determinations, provided that
				  they are mailed by regular first class mail or certified mail or hand delivered
				  to the address specified in the department's modified determinations within 25
				  calendar days of the mailing of such modified determinations.
(iii) Such appeal papers, submitted within
				  the timeframes prescribed in subparagraph (i) or (ii) of this paragraph, may
				  include any affidavits or other relevant written information and written
				  argument which the prospective school employee wishes the commissioner's
				  designee to consider in support of the position that clearance for employment
				  should be granted, including, where applicable, information in regard to his or
				  her good conduct and rehabilitation.
(iv) Where a timely request for an appeal is
				  received, upon review of the prospective school employee's criminal history
				  record, related written information obtained by the department pursuant to the
				  review of such criminal history record, written information and written
				  argument submitted by the prospective school employee in this appeal within the
				  timeframes prescribed in subparagraph (i) or (ii) of this paragraph, the
				  commissioner's designee shall make a determination of whether clearance for
				  employment shall be granted or denied. In such appeal, the commissioner's
				  designee shall apply the standards for the granting or denial of a license or
				  employment application set forth in Correction Law, section
				  752 and shall consider the factors specified
				  in Correction Law, section 753. Such appeal shall be conducted in accordance
				  with the requirements of section 296 (16)  of the Executive
				  Law. Where the determination of the commissioner's designee is that clearance
				  for employment is denied, his or her decision shall include the findings of
				  facts and conclusions of law upon which the determination is based. A copy of
				  the determination that clearance for employment is denied, or notice that such
				  clearance is granted, as the case may be, shall be transmitted to the
				  prospective school employee by regular first class mail. In addition, the
				  covered school shall be notified of the denial or granting of
				  clearance.
(v) Notwithstanding any
				  provision of this paragraph to the contrary, the Commissioner's designee may
				  excuse the timeframes prescribed in subparagraphs (i) and (ii) of this
				  paragraph for submission of appeals and additional appeal papers by prospective
				  school employees where such late submissions are due to the COVID-19
				  crisis.