S T A T E O F N E W Y O R K
________________________________________________________________________
8338
2009-2010 Regular Sessions
I N A S S E M B L Y
May 15, 2009
___________
Introduced by M. of A. MAGNARELLI, BENJAMIN, FIELDS -- Multi-Sponsored
by -- M. of A. PEOPLES -- read once and referred to the Committee on
Education
AN ACT to amend the education law, in relation to tenured teacher disci-
pline
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (b) of subdivision 2 of section 3020-a of the
education law, as separately amended by chapters 296 and 325 of the laws
of 2008, is amended to read as follows:
(b) The employee may be suspended pending a hearing on the charges and
the final determination thereof. The suspension shall be with pay FOR A
PERIOD OF ONE HUNDRED TWENTY DAYS, except the employee may be suspended
without pay IMMEDIATELY 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 twen-
ty or two hundred twenty-one of the penal law; or a felony crime involv-
ing the physical abuse of a minor or student. The employee shall be
terminated without a hearing, as provided for in this section, upon
conviction of a sex offense, as defined in subparagraph two of paragraph
b of subdivision seven-a of section three hundred five of this chapter.
To the extent this section applies to an employee acting as a school
administrator or supervisor, as defined in subparagraph three of para-
graph 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00555-01-9
A. 8338 2
S 2. Subdivisions 3, 4 and 5 of section 3020-a of the education law,
as amended by chapter 691 of the laws of 1994, are amended to read as
follows:
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 [of education] 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 associ-
ation's panel of labor arbitrators to potentially serve as hearing offi-
cers together with relevant biographical information on each arbitrator.
Upon receipt of said list and biographical information, the commissioner
[of education] shall [forthwith send a copy of both simultaneously]
WITHIN TEN BUSINESS DAYS APPOINT A HEARING OFFICER FROM SAID LIST OF
NAMES PROVIDED BY THE ASSOCIATION. UPON APPOINTMENT, THE COMMISSIONER
SHALL IMMEDIATELY SEND NOTIFICATION OF THE HEARING OFFICER APPOINTED to
the employing board and the employee.
b. APPOINTMENT. APPOINTMENT FROM SUCH LIST SHALL BE MADE ON A SEQUEN-
TIAL BASIS BEGINNING WITH THE FIRST NAME APPEARING ON SUCH LIST. SHOULD
THAT HEARING OFFICER DECLINE APPOINTMENT, OR IF, WITHIN FORTY-EIGHT
HOURS, THE HEARING OFFICER FAILS TO RESPOND OR IS UNREACHABLE AFTER
REASONABLE EFFORTS BY THE COMMISSIONER, EACH SUCCESSIVE HEARING OFFICER
WHOSE NAME NEXT APPEARS ON THE LIST SHALL BE OFFERED AN APPOINTMENT,
UNTIL SUCH APPOINTMENT IS ACCEPTED. ARBITRATORS MAY NOT ACCEPT AN
APPOINTMENT UNLESS THEY ARE AVAILABLE TO COMMENCE AND COMPLETE THE HEAR-
ING WITHIN THE TIME FRAMES SPECIFIED IN THIS SECTION. AN ARBITRATOR'S
UNEXCUSED FAILURE TO COMPLY WITH THE TIME FRAMES SPECIFIED IN THIS
SECTION SHALL BE DEEMED GOOD AND SUFFICIENT GROUNDS FOR DISQUALIFYING
HIM OR HER FROM CONSIDERATION FOR APPOINTMENT FROM SUCH LIST SPECIFIED
IN PARAGRAPH A OF THIS SUBDIVISION. IF, AFTER COMMENCEMENT OF A HEARING
AND BY MUTUAL AGREEMENT OF THE PARTIES, THE HEARING OFFICER IS DEEMED
INCAPACITATED OR OTHERWISE UNAVAILABLE OR UNWILLING TO CONTINUE THE
HEARING OR ISSUE THE DECISION, THE COMMISSIONER SHALL RESCIND THE
APPOINTMENT OF THE HEARING OFFICER AND APPOINT A NEW HEARING OFFICER IN
ACCORDANCE WITH THE PROCEDURES AS SET FORTH IN THIS SUBDIVISION, AND THE
NEW HEARING OFFICER SHALL RESUME AND CONTINUE THE HEARING AT THE POINT
AT WHICH IT WAS INTERRUPTED.
C. TRAINING PROGRAM. (I) THE COMMISSIONER SHALL ESTABLISH A TRAINING
PROGRAM WHICH SHALL BE COMPLETED TO THE SATISFACTION OF THE COMMISSIONER
AS A CONDITION FOR ELIGIBILITY FOR INCLUSION ON THE LIST OF NAMES OF
PERSONS FROM THE ASSOCIATION'S PANEL OF LABOR ARBITRATORS TO POTENTIALLY
SERVE AS HEARING OFFICERS UNDER THIS SECTION.
(II) EFFECTIVE SIX MONTHS FROM THE EFFECTIVE DATE OF THIS SUBPARA-
GRAPH, AS A CONDITION FOR ELIGIBILITY FOR INCLUSION ON THE LIST OF NAMES
OF PERSONS CHOSEN BY THE ASSOCIATION FROM THE ASSOCIATION'S PANEL OF
LABOR ARBITRATORS TO POTENTIALLY SERVE AS A HEARING OFFICER, AN ARBITRA-
TOR SHALL:
(A) HAVE SUCCESSFULLY COMPLETED A TRAINING PROGRAM PURSUANT TO SUBPAR-
AGRAPH (I) OF THIS PARAGRAPH;
(B) ATTEND SUCH PERIODIC UPDATE PROGRAMS AS MAY BE SCHEDULED BY THE
COMMISSIONER;
(C) POSSESS KNOWLEDGE OF, AND THE ABILITY TO UNDERSTAND, THE
PROVISIONS OF APPLICABLE LAW AND REGULATIONS PERTAINING TO THE DISCI-
PLINE OF TENURED EMPLOYEES UNDER THIS SECTION AND ADMINISTRATIVE AND
JUDICIAL INTERPRETATIONS OF SUCH LAW AND REGULATIONS;
A. 8338 3
(D) POSSESS KNOWLEDGE OF THE PROCEDURES INVOLVED IN CONDUCTING A HEAR-
ING, AND IN REACHING AND WRITING A DECISION AND THE ABILITY TO CONDUCT
HEARINGS IN ACCORDANCE WITH APPROPRIATE, STANDARD LEGAL PRACTICE; AND
(E) ANNUALLY SUBMIT, IN A FORMAT AND BY A DATE PRESCRIBED BY THE
COMMISSIONER, A CERTIFICATION THAT THE HEARING OFFICER MEETS THE
REQUIREMENTS OF THIS SUBDIVISION.
(III) THE COMMISSIONER SHALL ESTABLISH STANDARDS ALLOWING ARBITRATORS
TO DOCUMENT THEIR QUALIFICATION TO BE IMMEDIATELY ELIGIBLE FOR APPOINT-
MENT FROM SUCH LIST SPECIFIED IN PARAGRAPH A OF THIS SUBDIVISION.
[(i)] D. Hearing officers. All hearings pursuant to this section
shall be conducted before and by a single hearing officer selected as
provided for in this section. A hearing officer shall not be eligible
to serve as such if he or she is a resident of the school district,
other than the city of New York, under the jurisdiction of the employing
board, an employee, agent or representative of the employing board or of
any labor organization representing employees of such employing board,
has served as such agent or representative within two years of the date
of the scheduled hearing, or if he or she is then serving as a mediator
or fact finder in the same school district. Notwithstanding any other
provision of law, the hearing officer shall be compensated by the
department with the customary fee paid for service as an arbitrator
under the auspices of the association for each day of actual service
plus necessary travel and other reasonable expenses incurred in the
performance of his or her duties. All other expenses of the disciplinary
proceedings shall be paid in accordance with rules promulgated by the
commissioner [of education].
[(ii) Not later than ten days after the date the commissioner mails to
the employing board and the employee the list of potential hearing 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-
sioner of education. The list shall be composed of professional person-
nel 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 organ-
izations representing teachers, school administrators and supervisors
and the employing boards. Hearing panel members other than the hearing
officer shall be compensated by the department of education at the rate
of one hundred dollars for each day of actual service plus necessary
travel and subsistence expenses. The hearing officer shall be compen-
sated as set forth in this subdivision. The hearing officer shall be the
chairman of the hearing panel.
A. 8338 4
c.] E. Hearing procedures. (i) The commissioner [of education] shall
have the power to establish necessary rules and procedures for the
conduct of hearings under this section. Such rules shall not require
compliance with technical rules of evidence. Hearings shall be
conducted by the hearing officer [selected] APPOINTED pursuant to [para-
graph] PARAGRAPHS A AND b of this subdivision with full and fair disclo-
sure of [the nature of the case and evidence against the employee] ALL
MATERIAL RELEVANT TO THE PROSECUTION OR DEFENSE OF THIS ACTION by the
[employing board] PARTIES TEN BUSINESS DAYS PRIOR TO THE FIRST HEARING
DATE and shall be public or private at the discretion of the employee.
The employee shall have a reasonable opportunity to defend himself or
herself and an opportunity to testify in his or her own behalf. The
employee shall not be required to testify, HOWEVER, THIS RIGHT SHALL NOT
BE CONSTRUED TO MEAN THAT THE EMPLOYEE MAY REFUSE TO COOPERATE IN THE
EMPLOYING SCHOOL DISTRICT'S INVESTIGATION OF ALLEGATIONS OF MISCONDUCT
OR INCOMPETENCE RAISED AGAINST HIM OR HER. Each party shall have the
right to be represented by counsel, to subpoena witnesses, and to cross-
examine witnesses. All testimony taken shall be under oath which the
hearing officer is hereby authorized to administer. A competent stenog-
rapher, designated by the commissioner [of education] and compensated by
the [state education] department, shall keep and transcribe a record of
the proceedings at each such hearing. A copy of the transcript of the
hearings shall, upon request, be furnished without charge to the employ-
ee and the board of education involved.
(ii) The hearing officer [selected] APPOINTED to conduct a hearing
under this section shall, within [ten to fifteen] THIRTY days of agree-
ing to serve as such, hold a pre-hearing conference which shall be held
in the school district or county seat of the county, or any county,
wherein the employing school board is located. The pre-hearing confer-
ence shall be limited in length to one day except that the hearing offi-
cer, 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 state-
ment (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-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
A. 8338 5
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] ALL RULINGS ON
SUBSTANTIVE MOTIONS SHALL BE PLACED ON THE RECORD WITH A FULL EXPLANA-
TION OF THE HEARING OFFICER'S REASONING.
(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] ONE HUNDRED TWENTY days after the pre-hearing conference
unless the hearing officer determines that extraordinary circumstances
warrant a limited extension.
4. Post hearing procedures. (a) The hearing officer shall render a
written decision within thirty days of the last day of the final 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
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) 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 enti-
tled to have his OR HER pay and other emoluments restored, for the peri-
od from the date of his OR HER suspension to the date of the decision.
A. 8338 6
(c) The hearing officer shall indicate in the decision whether any of
the charges brought by the employing board were frivolous as defined in
section eight thousand three hundred three-a of the civil practice law
and rules. If the hearing [officers] OFFICER finds that all of the
charges brought against the employee were frivolous, the hearing officer
shall order the employing board to reimburse the [state education]
department the reasonable costs [said] THE 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 reim-
burse the [state education] department a portion, in the discretion of
the hearing officer, of the reasonable costs said department incurred as
a result of the proceeding and to reimburse the employee a portion, in
the discretion of the hearing officer, of the reasonable costs, includ-
ing 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 FOR REVIEW OF THE HEARING OFFICER'S DECISION TO THE STATE
TENURED TEACHERS AND ADMINISTRATORS DISCIPLINARY REVIEW PANEL, (HEREAFT-
ER REFERRED TO AS "THE REVIEW PANEL"), ESTABLISHED FOR THAT PURPOSE
WITHIN THE DEPARTMENT IN ACCORDANCE WITH SUBDIVISION FORTY-TWO OF
SECTION THREE HUNDRED FIVE OF THIS CHAPTER, AND THE RULES AND REGU-
LATIONS PROMULGATED BY THE COMMISSIONER. THE REVIEW PANEL MAY MODIFY OR
REVERSE THE DECISION OF A HEARING OFFICER AS APPROPRIATE TO PROPERLY
EFFECTUATE THE PURPOSES OF THIS SECTION. THE DECISIONS OF THE REVIEW
PANEL SHALL CONSTITUTE BINDING DECISIONAL LAW UNTIL MODIFIED OR REVERSED
ON APPEAL BY EITHER PARTY BY A STATE SUPREME COURT OR BY AN APPELLATE
COURT ON FURTHER APPEAL. REVIEW PANEL DECISIONS SHALL BE PUBLISHED
PURSUANT TO RULES AND REGULATIONS PROMULGATED BY THE COMMISSIONER AND IN
THE SAME MANNER AS ADMINISTRATIVE DECISIONS FROM OTHER STATE AGENCIES.
(B) NOT LATER THAN TEN DAYS AFTER RECEIPT OF THE DECISION OF THE
REVIEW PANEL, the employee or the employing board may make an applica-
tion to the New York state supreme court to vacate or modify the deci-
sion of the [hearing officer] REVIEW PANEL pursuant to section seven
thousand five hundred eleven of the civil practice law and rules. [The
court's review shall be limited to the grounds set forth in such
section.] The [hearing] REVIEW panel's determination 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] APPLI-
CATION FOR REVIEW BY THE STATE REVIEW PANEL OR AN APPEAL TO THE COURTS
delay the implementation of the decision of the hearing officer.
S 3. Section 3020-a of the education law is amended by adding a new
subdivision 6 to read as follows:
6. IMMEDIATE REMOVAL. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
A PERSON ENJOYING THE BENEFITS OF TENURE AS PROVIDED IN SUBDIVISION
THREE OF SECTION ELEVEN HUNDRED TWO, OR SECTION TWENTY-FIVE HUNDRED
NINE, TWENTY-FIVE HUNDRED SEVENTY-THREE, TWENTY-FIVE HUNDRED NINETY-J,
THREE THOUSAND TWELVE OR THREE THOUSAND FOURTEEN OF THIS CHAPTER SHALL
LOSE SUCH BENEFITS AND SHALL BE IMMEDIATELY REMOVED FROM EMPLOYMENT BY
THE EMPLOYING BOARD OF EDUCATION UPON CONVICTION OF ANY OFFENSE RELATED
TO CHILD ABUSE; CHILD ABUSE IN AN EDUCATIONAL SETTING AS DEFINED IN
SECTION ELEVEN HUNDRED TWENTY-FIVE OF THIS CHAPTER; OR ANY OTHER FELONY
OFFENSE THAT AFFECTS THE OPERATION OF A SCHOOL DISTRICT; OR, UPON REVO-
A. 8338 7
CATION OF A PROFESSIONAL CERTIFICATE PURSUANT TO SUBDIVISION SEVEN OF
SECTION THREE HUNDRED FIVE OF THIS CHAPTER.
(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO PERSON ENJOYING THE
BENEFITS OF TENURE AS PROVIDED IN SUBDIVISION THREE OF SECTION ELEVEN
HUNDRED TWO, OR SECTION TWENTY-FIVE HUNDRED NINE, TWENTY-FIVE HUNDRED
SEVENTY-THREE, TWENTY-FIVE HUNDRED NINETY-J, THREE THOUSAND TWELVE OR
THREE THOUSAND FOURTEEN OF THIS CHAPTER WHO FAILS TO RECEIVE A PROFES-
SIONAL CERTIFICATE WITHIN THE STATUTORY TIMEFRAME AS REQUIRED BY SECTION
THREE THOUSAND FOUR OF THIS ARTICLE SHALL RETAIN SUCH BENEFITS AND MAY
BE IMMEDIATELY REMOVED FROM EMPLOYMENT BY A BOARD OF EDUCATION.
(C) ANY EMPLOYEE OF A SCHOOL DISTRICT SUBJECT TO IMMEDIATE TERMINATION
UNDER THE PROVISIONS OF THIS SECTION SHALL HAVE FIVE BUSINESS DAYS FROM
THE NOTICE OF TERMINATION IN WHICH TO PROVIDE DOCUMENTARY EVIDENCE
ESTABLISHING TO THE SATISFACTION OF THE EMPLOYING BOARD THAT HE OR SHE
IS NOT THE SAME INDIVIDUAL REFERENCED IN THE ACTION TRIGGERING HIS OR
HER REMOVAL.
S 4. Section 305 of the education law is amended by adding a new
subdivision 42 to read as follows:
42. (A) THE COMMISSIONER SHALL ESTABLISH THE STATE TENURED TEACHERS
AND ADMINISTRATORS DISCIPLINARY REVIEW PANEL, (HEREAFTER REFERRED TO AS
"THE REVIEW PANEL"). THE PANEL SHALL CONSIST OF NO LESS THAN THREE
MEMBERS APPOINTED BY THE COMMISSIONER. PANEL MEMBERS SHALL BE EMPLOYED
BY THE DEPARTMENT AND THEIR SALARY SHALL BE DETERMINED AND PAID BY THE
DEPARTMENT.
(B) PANEL MEMBERS SHALL:
(I) SUCCESSFULLY COMPLETE A TRAINING PROGRAM ESTABLISHED BY THE
COMMISSIONER AND ATTEND SUCH ADDITIONAL TRAINING PROGRAMS AS MAY BE
REQUIRED BY THE COMMISSIONER;
(II) POSSESS KNOWLEDGE OF AND THE ABILITY TO UNDERSTAND THE PROVISIONS
OF APPLICABLE LAW AND REGULATIONS PERTAINING TO THE DISCIPLINE OF
TENURED EMPLOYEES UNDER THIS SECTION, AND ADMINISTRATIVE AND JUDICIAL
INTERPRETATIONS OF SUCH LAWS AND REGULATIONS;
(III) POSSESS KNOWLEDGE OF THE PROCEDURES INVOLVED IN CONDUCTING A
HEARING UNDER THIS SECTION; AND
(IV) POSSESS THE ABILITY TO RENDER AND WRITE DECISIONS IN ACCORDANCE
WITH APPROPRIATE STANDARD LEGAL PRACTICE.
S 5. This act shall take effect immediately.