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  one  thousand  one hundred two, and  sections two thousand five  hundred  nine,  two  thousand  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  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. (a) Disposition of charges. 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  the  charges in detail, 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 outlining 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.  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.    (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  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.(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,  notify 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  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 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  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) 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  additional persons, one selected by the employee and one selected by the  employing board,  from  a  list  maintained  for  such  purpose  by  thecommissioner  of  education.  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 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 compensated as  set  forth  in  this  subdivision.  The  hearing officer shall be the chairman of the hearing panel.    c.  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 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. 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 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 of the hearings shall,  upon  request,  be  furnished  without charge to the employee and the 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  principal, as  defined  in  section  three  thousand  twelve-c  of  this  article,  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) 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  evaluation 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 ofthis article 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  ineffective 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  expedited hearings are to be strictly followed. A  record  of  continued  failure  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  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 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 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  thefinal 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.    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 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  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.    (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 pay and other emoluments restored, for  the  period  from the date of his 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  eight  thousand three hundred three-a of the civil practice law  and rules. If the hearing officers 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 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 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, includingbut not limited to reasonable attorneys' fees, the employee incurred  in  defending the charges.    5.  Appeal.  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 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  panel's  determination  shall  be  deemed to be final for the purpose of  such proceeding. In no case shall the  filing  or  the  pendency  of  an  appeal delay the implementation of the decision of the hearing officer.