NY State Senate Bill 2011-S4629

Archive: Last Bill Status - In Senate Committee Education Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to education
Apr 14, 2011	referred to education

co-Sponsors

2011-S4629 (ACTIVE) - Details

See Assembly Version of this Bill:: A6225
Current Committee:: Senate Education
Law Section:: Education Law
Laws Affected:: Amd §3020-a, Ed L

2011-S4629 (ACTIVE) - Summary

Updates the procedures for conducting tenured teacher disciplinary hearings to conform the law to the current needs and practices; controls overall hearing costs, including hearing officer compensation and provides for more timely hearing decisions.

2011-S4629 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4629

TITLE OF BILL:

An act
to amend the education law, in relation to tenured teacher
disciplinary hearings

PURPOSE OF THE BILL:

The purpose of this bill is to improve and update the procedures for
conducting disciplinary hearings for tenured teachers and to conform
the applicable law to the current needs and practices of such
proceedings; to contain overall hearing costs, including hearing officer
compensation; and to provide for more timely hearing decisions.

SUMMARY OF THE PROVISIONS OF THE BILL:

Section 1 would amend Education Law §3020-a to update the procedures
for conducting hearings and to provide for a more efficient and
effective administration and supervision of such proceedings. More
specifically, the bill would amend Education Law §3020-a to provide
for the immediate suspension of an employee upon a determination by
the Commissioner of Education that the employee lacks the appropriate
certification for the position in which he or she is serving, and
which he or she had been lawfully assigned to by the employing board.

The Commissioner of Education would be authorized to adopt
regulations establishing procedures for determining whether an
employee lacks such appropriate certification. These regulations
would be required to include procedures providing for the employee to
respond in writing to such a determination.

Education Law §3020-a(3)(b) would also be amended to conform the
process of payment of hearing officer compensation and costs to the
growing fiscal and operational needs of the administration of these
hearings. Among other things, Education Law §3020-a(3)(b)(i), as
amended, would provide for the compensation of hearing officers for
his or her actual hours of service performed in his or her official
capacity as a hearing officer. This provision would apply to hearings
held pursuant to charges filed on or after July 1, 2011. The
Commissioner of Education would be authorized to set a maximum hourly
rate of compensation and to impose limitations on the number of study
hours a hearing officer may claim. For hearings conducted on charges
tiled prior to such date, hearing officers would continue to be paid
in accordance with current practice.

Under Education Law §3020-a(3)(b)(i), as amended, payment for actual
hours served would be shared among the State, the employing board,
and the employee or the employee's collective bargaining unit if the
employee is being represented by his or her bargaining unit at
hearing. The Commissioner of Education would annually establish the
State's share of such hourly compensation. This State reimbursement
rate would be determined based on the Legislature's annual
appropriation for such purposes net of the cost of recording or
prescribing the proceedings and State Education Department
(Department) administrative costs. The employing board and the


employee, or employee's collective bargaining unit, as applicable,
would pay, In equal shares, the balance of the hearing officer's
claims and the costs of any necessary travel or other related
expenses incurred by the hearing officer in completing the hearing.

This bill requires two appropriations by the Legislature. One
appropriation is needed to pay for the cost of hearing officers,
including their travel and other necessary expenses, for cases which
commence before July 1, 2011. These costs would be paid in accordance
with current practice. Another appropriation is needed to pay for the
State's share of actual hours served by hearing officers for cases
which commence on or after July 1, 2011, recording or transcribing
costs and Department administrative costs. Under both appropriations,
hearing officer claims would be paid in the order in which they are
approved for payment by the Commissioner of Education.

Additionally, Education Law §3020-a would be amended to provide that
claims for hearing officer compensation would not be paid if
submitted later than one year after final disposition of the hearing.
This section of law would further be amended to authorize the
Commissioner of Education to develop specific timeline requirements
for hearing officers to complete such disciplinary proceedings, other
than expedited hearing held pursuant to Education Law
§3020-a(3)(i-a), and to monitor and investigate compliance with such
timeline requirements. Education Law §3020-a (3)(c) would also be
amended to expressly provide for equal disclosure of witnesses and
evidence by both parties, as prescribed in the State Administrative
Procedure Act (SAPA). Further, Education Law §3020-a(5) would be
amended to provide that the employee or employing board may appeal a
decision from a hearing held pursuant to charges filed on or after
July 1, 2011 to State Supreme Court pursuant to Article 78 of the
Civil Practice Laws and Rules (CPLR). For decisions from hearings
held pursuant to charges filed before July 1, 2011, the employee or
employing board would continue to be authorized to appeal to State
Supreme Court pursuant to CPLR Article 75.

Section 2 is the effective date.

STATEMENT IN SUPPORT OF THE BILL:

Currently, the process for removing tenured teachers, pursuant to
Education Law §3020-a, is unreasonably costly, inefficient, and
untimely. While New York State is obligated to pay the costs of
arbitrators and court reporters, there is no statutory limit on the
fees that may be charged for such services. Under existing law,
arbitrators are free to charge the customary rate which the existing
market will bear. As a result, fee rates are often times unreasonably
high.

Moreover there is little statutory control over arbitrator costs, and
the law provides little incentive for arbitrators to obtain such costs.
Lengthy hearings further contribute to substantial hearing expenses.
Arbitrators are private employees who have other job responsibilities
and obligations.  They have time-consuming schedules which may impede
their completion of a hearing in a timely manner.  While there are
statutory requirements governing the time frames within which a regular
hearing and an expedited hearing must be completed, the time frames


within which a regular hearing and an expedited hearing must be
completed, the time frames are routinely ignored.  Accordingly, these
hearings are often times unreasonably long. These prolonged hearings
not only increase costs, but also delay the overall hearing process.
Therefore, the overall costs of conducting such a hearing become
substantial.

Allowing the Commissioner of Education to establish a maximum
hourly rate of compensation and the ability to exclude a hearing
officer from serving on future cases for
continued failure to comply with the time frames for completing
a hearing will provide the State
with long-needed control over unreasonable and increasing hearing
costs, as well as provide some consistency in compensatory rates for
hearing officers.

Under the new proposed method of payment, the State will be provided
some relief from paying hearing costs. Under this bill, the employee
or employee's collective bargaining unit and the employing board will
be responsible for bearing some of the total cost of these hearings.
This costs sharing process will provide incentives for completing a
hearing in a timely manner and will, overall, help to contain hearing
costs.

Additionally, pursuant to the express language of Education Law
§3020-a as it currently exists, only the school district has to
provide disclosure of its evidence in advance of the hearing;
the teachers are not required to disclose any evidence. This lack of
mutual disclosure of evidence prior to the hearing leads to
protracted litigation, and is counterproductive to these proceedings.
Therefore, express authorization for mutual disclosure of evidence
between the parties is necessary to increase the overall efficiency
and fairness of the hearing process.

Further, the shift to an independent arbitration system in the 1990's
significantly diminished judicial review of hearing officer
decisions, and thus diminished the protection of the public and the
parties from inappropriate hearing officer decisions. Article 75 of
the CPLR provides specific and limited grounds for a review of an
arbitrator's decision. The courts are loathe to interfere with an
arbitrator's decision, and as such, a hearing decision is not likely
to be reversed or modified unless it is found by the Court to be
completely irrational or the findings are so skewed as to demonstrate
bias on behalf of the hearing officer. In contrast, the scope of
judicial review in a proceeding under Article 78 of the CPLR is
significantly broader. Prior to the amendment of §3020-a in 1994, the
statute authorized Article 78 review of §3020-a hearing decisions,
and reviewing courts applied the "substantial evidence" test to
overturn decisions of hearing officers that were inappropriately
rendered (see e.g. Harris v. Mechanicville Central School Dist., 45
N.Y.2d 279 1978; Fitzpatrick v. Board of Education of Mamaroneck
Union Free School Dist., 96 AD2d 557). By once again
authorizing appeals to State Supreme Court pursuant to
Article 78, this
bill would provide for more comprehensive and meaningful judicial
review, thereby protecting the interests of school districts, the


employees and the public in assuring that appropriate decisions are
made in such hearings.

BUDGETARY IMPLICATIONS OF THE BILL:

This bill would limit the State's liability for costs of §3020-a
tenured teacher hearings for cases which commence on or after July 1,
2011 to the annual appropriation for such purpose.
Because the cost of tenured teacher hearings is over $6.0 million per
year and the annual appropriation is only $3.8 million, the State
will save over $2.2 million per year. In addition, the cumulative
deficit of $5.3 million would not increase.

This bill also reduces the length of cases and, therefore, the cost of
them by providing a financial incentive to school districts and
especially to the employees' collective bargaining unit to resolve
cases expeditiously and giving the Commissioner of Education the
ability to exclude a hearing officer from serving on future cases for
continued failure to comply with the time frames for completing a
hearing.

Although school districts will have to share in the cost of hearing
officers, their savings from spending less on substitute teachers as
cases are resolved faster will outweigh their share of hearing
officer costs. Having the employees' collective bargaining unit share
in the costs of hearing officers is consistent with the discipline
process for most state employees, where the State and major state
unions share the cost of cases equally. In addition, the employees'
collective bargaining unit currently does not pay any of the costs
associated with tenured teacher hearings while the State pays the
full cost of hearings and school districts pay for substitute teachers.

Lastly, this bill allows the Commissioner of Education to set the
reimbursement of hearing officers, who currently set their own rates,
and impose limitations on the number of study hours hearing officers
may claim. These controls along with the reduction in the length of
cases help to increase the amount of hearing officer costs that are
covered by the per hour hearing officer State subsidy.

PRIOR LEGISLATIVE HISTORY:

This is a new legislative proposal.

EFFECTIVE DATE:

This act would take effect April 1, 2011.

2011-S4629 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4629

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 14, 2011
                               ___________

Introduced  by  Sen.  FLANAGAN  --  (at  request  of the State Education
  Department) -- read twice and ordered printed, and when printed to  be
  committed to the Committee on Education

AN ACT to amend the education law, in relation to tenured teacher disci-
  plinary hearings

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 3020-a of the education law, as amended by  chapter
691  of  the  laws of 1994, paragraph (b) of subdivision 2 as separately
amended by chapters 296 and 325 of the laws of 2008,  paragraph  (c)  of
subdivision  2  and paragraph a of subdivision 3 as amended and subpara-
graph (i-a) of paragraph c of subdivision 3 as added by chapter  103  of
the laws of 2010, is amended to read as follows:
  S 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] ELEVEN hundred two,
and sections [two thousand five] TWENTY-FIVE hundred nine, [two thousand
five] 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
[two  thousand  five]  TWENTY-FIVE hundred seventy-three and subdivision
seven of section twenty-five hundred ninety-j of this chapter, no charg-
es 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. A. Upon receipt of the  charges,  the
clerk or secretary of the school district or employing board shall imme-
diately  notify  said  board  thereof. Within five days after receipt of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09809-01-1

S. 4629                             2

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 writ-
ten 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, (III) THE RESPONSIBILITY OF
THE EMPLOYEE OR THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT,  AS  APPLICA-
BLE,  TO  PAY A SHARE OF HEARING COSTS UNDER THE CIRCUMSTANCES SET FORTH
IN PARAGRAPH B OF SUBDIVISION THREE OF  THIS  SECTION,  and  [outlining]
(IV)  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)] B. The employee may be suspended pending a hearing on the charg-
es  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  subpara-
graph two of paragraph b of subdivision seven-a of section three hundred
five  of  this chapter, OR UPON A DETERMINATION BY THE COMMISSIONER THAT
THE EMPLOYEE LACKS APPROPRIATE CERTIFICATION FOR THE POSITION  TO  WHICH
THE EMPLOYEE IS LAWFULLY ASSIGNED. 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, OR UPON A  DETER-
MINATION BY THE COMMISSIONER THAT THE EMPLOYEE LACKS APPROPRIATE CERTIF-
ICATION FOR THE POSITION TO WHICH THE EMPLOYEE IS LAWFULLY ASSIGNED. THE
COMMISSIONER  SHALL ADOPT REGULATIONS ESTABLISHING PROCEDURES FOR DETER-
MINING WHETHER AN EMPLOYEE LACKS THE  APPROPRIATE  CERTIFICATION,  WHICH
SHALL  PROVIDE THE EMPLOYEE WITH NOTICE AND AN OPPORTUNITY TO RESPOND IN
WRITING.
  [(c)] 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 sole-
ly  upon  a  teacher's or principal's pattern of ineffective teaching or
performance as defined in section three thousand twelve-c of this  arti-
cle. All other charges shall be heard by a single hearing officer.
  [(d)]  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, noti-

S. 4629                             3

fy  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 commis-
sioner 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] 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 ON OR BEFORE JUNE THIRTIETH, TWO THOUSAND ELEV-
EN,  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 ON OR BEFORE JUNE THIRTIETH, TWO THOUSAND ELEVEN
shall be paid in accordance with rules promulgated by  the  commissioner
[of education].  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 ON  OR  BEFORE  JUNE  THIRTIETH,  TWO
THOUSAND  ELEVEN 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 JULY FIRST, TWO THOUSAND ELEVEN,  THE  HEARING  OFFICER  SHALL  BE
COMPENSATED  FOR  HIS  OR  HER  ACTUAL  HOURS OF SERVICE RENDERED IN THE
PERFORMANCE OF HIS OR HER DUTIES AS A HEARING OFFICER, PLUS  ANY  NECES-
SARY TRAVEL OR OTHER EXPENSES INCURRED IN THE PERFORMANCE OF SUCH DUTIES

S. 4629                             4

IN  ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE AND CLAUSE (C) OF THIS
SUBPARAGRAPH. THE COMMISSIONER SHALL ESTABLISH  MAXIMUM  RATES  FOR  THE
COMPENSATION  OF HEARING OFFICERS AND LIMITATIONS ON THE NUMBER OF STUDY
HOURS THAT MAY BE CLAIMED. UPON VERIFICATION AND APPROVAL BY THE EMPLOY-
ING  BOARD  AND  THE  EMPLOYEE'S  COLLECTIVE  BARGAINING  UNIT FOLLOWING
COMPLETION OF THE HEARING, CLAIMS FOR PAYMENT FOR SUCH SERVICES SHALL BE
SUBMITTED TO THE DEPARTMENT. THE COMMISSIONER SHALL BE  RESPONSIBLE  FOR
PAYMENT  OF  A  STATE  SHARE  OF SUCH CLAIMS FOR COMPENSATION WITHIN THE
AMOUNT APPROPRIATED FOR SUCH PURPOSE, TO  BE  DETERMINED  IN  ACCORDANCE
WITH  CLAUSE  (C)  OF THIS SUBPARAGRAPH, AND THE BALANCE OF SUCH CLAIMS,
PLUS THE COSTS OF NECESSARY TRAVEL AND OTHER EXPENSES  INCURRED  BY  THE
HEARING  OFFICER AND ANY OTHER HEARING COSTS NOT PAID BY THE DEPARTMENT,
SHALL BE PAID BY THE EMPLOYING BOARD AND THE EMPLOYEE OR THE  EMPLOYEE'S
COLLECTIVE  BARGAINING AGENT IN EQUAL SHARES. THE COSTS OF RECORDING THE
DISCIPLINARY PROCEEDING SHALL BE PAID BY THE  DEPARTMENT  IN  ACCORDANCE
WITH  CLAUSE (C) OF THIS SUBPARAGRAPH AND REGULATIONS PROMULGATED BY THE
COMMISSIONER.
  (C) THE STATE SHARE OF THE COSTS OF COMPENSATING HEARING OFFICERS  FOR
ACTUAL HOURS OF SERVICE SHALL BE COMPUTED IN ACCORDANCE WITH THIS CLAUSE
AND THE REGULATIONS OF THE COMMISSIONER. THE COMMISSIONER SHALL ANNUALLY
ESTABLISH  AN  HOURLY  STATE  SHARE  REIMBURSEMENT  RATE AND THE RATE SO
ESTABLISHED SHALL REMAIN IN EFFECT UNTIL A NEW RATE IS ESTABLISHED. FROM
THE AMOUNT APPROPRIATED FOR PURPOSES  OF  THIS  CLAUSE,  THE  DEPARTMENT
SHALL RESERVE AN AMOUNT FOR PAYMENT OF THE COSTS OF RECORDING THE DISCI-
PLINARY  HEARINGS  AND  THE  DEPARTMENT'S ADMINISTRATIVE COSTS. FROM THE
REMAINDER OF THE APPROPRIATION, PRIORITY SHALL BE GIVEN  TO  PAYMENT  OF
ANY  UNPAID  PRIOR  YEAR CLAIMS ATTRIBUTABLE TO HEARINGS COMMENCED ON OR
AFTER JULY FIRST, TWO THOUSAND ELEVEN IN THE ORDER IN  WHICH  THEY  WERE
APPROVED  BY  THE  COMMISSIONER.  CLAIMS  FOR  THE  HOURLY  STATE  SHARE
REIMBURSEMENT FOR ACTUAL HOURS OF SERVICE FOR THE  HEARING  OFFICER  AND
CLAIMS  FOR COMPENSATION OF HEARING PANEL MEMBERS OTHER THAN THE HEARING
OFFICER IN HEARINGS CONDUCTED AS AUTHORIZED BY SUBPARAGRAPH (IV) OF THIS
PARAGRAPH SHALL BE PAID FROM THE BALANCE OF  THE  APPROPRIATION  IN  THE
ORDER  IN  WHICH  THE CLAIMS ARE APPROVED BY THE COMMISSIONER, UNTIL THE
APPROPRIATION IS EXHAUSTED, PROVIDED 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.
  (ii) Not later than ten days after the date the commissioner mails  to
the employing board and the employee the list of potential hearing offi-
cers  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  addi-
tional  persons,  one  selected  by the employee and one selected by the
employing board, from a list maintained for such purpose by the  commis-

S. 4629                             5

sioner  [of  education].  The  list  shall  be  composed of professional
personnel with administrative  or  supervisory  responsibility,  profes-
sional  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  state-
wide  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 educa-
tion] at the rate of one hundred dollars for each day of actual  service
[plus]  AND  SHALL  BE REIMBURSED IN EQUAL SHARES BY THE EMPLOYING BOARD
AND EMPLOYEE OR EMPLOYEE'S BARGAINING AGENT  FOR  necessary  travel  and
subsistence  expenses.  The  hearing officer shall be compensated as set
forth in this subdivision. The hearing officer shall be  the  [chairman]
CHAIRPERSON of the hearing panel.
  c.  Hearing  procedures. (i) (A) The commissioner [of education] shall
have the power to establish  necessary  rules  and  procedures  for  the
conduct  of  hearings  under this section WHICH, FOR HEARINGS OTHER THAN
EXPEDITED HEARINGS PURSUANT TO SUBPARAGRAPH (I-A) OF THIS PARAGRAPH, MAY
INCLUDE SPECIFIC TIMELINE REQUIREMENTS FOR CONDUCTING A HEARING AND  FOR
RENDERING A FINAL DECISION.
  (B)  THE  DEPARTMENT  SHALL BE AUTHORIZED TO MONITOR AND INVESTIGATE A
HEARING OFFICER'S COMPLIANCE WITH SUCH TIMELINES, AS SET  FORTH  IN  THE
REGULATIONS  OF THE COMMISSIONER. 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 THE REGU-
LATIONS OF THE COMMISSIONER 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 THE  REGULATIONS
AUTHORIZED  BY  THIS  SUBPARAGRAPH  SHALL  BE CONSIDERED GROUNDS FOR THE
COMMISSIONER TO EXCLUDE SUCH INDIVIDUAL FROM THE LIST OF POTENTIAL HEAR-
ING OFFICERS SENT TO THE EMPLOYING BOARD AND THE EMPLOYEE FOR SUCH HEAR-
INGS.
  (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  disclo-
sure of [the nature of the case and evidence against the employee by the
employing  board  and]  WITNESSES  AND  EVIDENCE  BY BOTH PARTIES IN THE
MANNER PRESCRIBED IN ARTICLES THREE AND FOUR OF THE STATE ADMINISTRATIVE
PROCEDURE ACT. THE HEARING 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) 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] 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 TECHNOL-
OGY  OR  SUCH OTHER APPROPRIATE MEANS TO TRANSCRIBE OR RECORD SUCH HEAR-
INGS IN AN 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

S. 4629                             6

principal, as defined in section three thousand twelve-c of  this  arti-
cle, the hearing shall be conducted before and by a single hearing offi-
cer  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  estab-
lish 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  subpara-
graph.  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 evalu-
ation 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  arti-
cle  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  ineffec-
tive 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  expe-
dited  hearings are to be strictly followed. A record of continued fail-
ure 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 hear-
ing officers sent to the employing board and the employee for such expe-
dited 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]
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 FROM EITHER PARTY 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

S. 4629                             7

evidence  or  any other evidence, including district or student records,
relevant and material to the [employee's defense] PROCEEDING.
  (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-hear-
ing  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, where-
in 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, wher-
ein 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.
  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  JULY  FIRST,  TWO
THOUSAND  ELEVEN  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 PARA-
GRAPH, 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)] A. The hearing officer shall  render
a written decision within thirty days of the last day of the final hear-
ing,  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

S. 4629                             8

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  inter-
vention  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  educa-
tion  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)] B. Within fifteen days of receipt of the hearing officer's deci-
sion  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)] 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)] 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] EIGHTY-THREE  hundred  three-a
of  the  civil practice law and rules. If the hearing [officers] OFFICER
finds that all of the charges brought against the employee  were  frivo-
lous,  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  depart-
ment incurred as a result of the proceeding and to reimburse the employ-
ee  a  portion, in the discretion of the hearing officer, of the reason-
able 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 IN A HEARING COMMENCED BY THE FILING OF CHARGES ON OR
BEFORE  JUNE THIRTIETH, TWO THOUSAND ELEVEN, the employee or the employ-
ing 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] 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. FOR HEARINGS COMMENCED BY THE FILING OF CHARGES ON AND  AFTER  JULY
FIRST, TWO THOUSAND ELEVEN, THE EMPLOYEE OR THE EMPLOYING BOARD MAY SEEK
REVIEW  OF THE HEARING OFFICER'S DECISION IN A SPECIAL PROCEEDING PURSU-

S. 4629                             9

ANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW  AND  RULES.  THE
HEARING  OFFICER'S  DECISION SHALL BE DEEMED TO BE FINAL FOR THE PURPOSE
OF SUCH PROCEEDING.
  C.  In no case shall the filing or the pendency of an appeal delay the
implementation of the decision of the hearing officer.
  S 2. This act shall take effect immediately, except that if  this  act
shall  have  become  a law on or after April 1, 2011 this act shall take
effect immediately and shall be deemed to have been in  full  force  and
effect on and after April 1, 2011.

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Senate Bill S4629

Sponsored By

Archive: Last Bill Status - In Senate Committee Education Committee

co-Sponsors

2011-S4629 (ACTIVE) - Details

2011-S4629 (ACTIVE) - Summary

2011-S4629 (ACTIVE) - Sponsor Memo

2011-S4629 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4629

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Sponsored By

John J. Flanagan

Archive: Last Bill Status - In Senate Committee Education Committee

co-Sponsors

John A. DeFrancisco

Michael H. Ranzenhofer

2011-S4629 (ACTIVE) - Details

2011-S4629 (ACTIVE) - Summary

2011-S4629 (ACTIVE) - Sponsor Memo

2011-S4629 (ACTIVE) - Bill Text download pdf

Comments