N.Y. Education Law § 3020-a: Disciplinary procedures and penalties

§ 3020-a. Disciplinary procedures and penalties. 1. Filing of charges.

All charges against a person enjoying the benefits of tenure as provided

in subdivision three of section eleven hundred two, and sections

twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five

hundred ninety-j, three thousand twelve and three thousand fourteen of

this chapter shall be in writing and filed with the clerk or secretary

of the school district or employing board during the period between the

actual opening and closing of the school year for which the employed is

normally required to serve. Except as provided in subdivision eight of

section twenty-five hundred seventy-three and subdivision seven of

section twenty-five hundred ninety-j of this chapter, no charges under

this section shall be brought more than three years after the occurrence

of the alleged incompetency or misconduct, except when the charge is of

misconduct constituting a crime when committed.

2. Disposition of charges. a. Upon receipt of the charges, the clerk

or secretary of the school district or employing board shall immediately

notify said board thereof. Within five days after receipt of charges,

the employing board, in executive session, shall determine, by a vote of

a majority of all the members of such board, whether probable cause

exists to bring a disciplinary proceeding against an employee pursuant

to this section. If such determination is affirmative, a written

statement specifying (i) the charges in detail, (ii) the maximum penalty

which will be imposed by the board if the employee does not request a

hearing or that will be sought by the board if the employee is found

guilty of the charges after a hearing and (iii) the employee's rights

under this section, shall be immediately forwarded to the accused

employee by certified or registered mail, return receipt requested or by

personal delivery to the employee.

b. The employee may be suspended pending a hearing on the charges and

the final determination thereof. The suspension shall be with pay,

except the employee may be suspended without pay if the employee has

entered a guilty plea to or has been convicted of a felony crime

concerning the criminal sale or possession of a controlled substance, a

precursor of a controlled substance, or drug paraphernalia as defined in

article two hundred twenty or two hundred twenty-one of the penal law;

or a felony crime involving the physical abuse of a minor or student.

c. Where charges of misconduct constituting physical or sexual abuse

of a student are brought on or after July first, two thousand fifteen,

the board of education may suspend the employee without pay pending an

expedited hearing pursuant to subparagraph (i-a) of paragraph c of

subdivision three of this section. Notwithstanding any other law, rule,

or regulation to the contrary, the commissioner shall establish a

process in regulations for a probable cause hearing before an impartial

hearing officer within ten days to determine whether the decision to

suspend an employee without pay pursuant to this paragraph should be

continued or reversed. The process for selection of an impartial hearing

officer shall be as similar as possible to the regulatory framework for

the appointment of an impartial hearing officer for due process

complaints pursuant to section forty-four hundred four of this chapter.

The hearing officer shall determine whether probable cause supports the

charges and shall reverse the decision of the board of education to

suspend the employee without pay and reinstate such pay upon a finding

that probable cause does not support the charges. The hearing officer

may also reinstate pay upon a written determination that a suspension

without pay is grossly disproportionate in light of all surrounding

circumstances. Provided, further, that such an employee shall be

eligible to receive reimbursement for withheld pay and accrued interest

at a rate of six percent compounded annually if the hearing officer

finds in his or her favor, either at the probable cause hearing or in a

final determination pursuant to the expedited hearing held pursuant to

subparagraph (i-a) of paragraph c of subdivision three of this section.

Any suspension without pay shall last no longer than one hundred and

twenty days from the decision of the board of education to suspend the

employee without pay and such suspension shall only relate to employee

compensation, exclusive of other benefits and guarantees.

Notwithstanding any other provision of law or regulation to the

contrary, any provision of a collective bargaining agreement entered

into by the city of New York as of April first, two thousand fifteen,

that provides for suspension without pay for offenses as specified in

this paragraph shall supersede the provisions hereof and shall continue

in effect without modification and may be extended.

d. The employee shall be terminated without a hearing, as provided for

in this section, upon conviction of a sex offense, as defined in

subparagraph two of paragraph b of subdivision seven-a of section three

hundred five of this chapter. To the extent this section applies to an

employee acting as a school administrator or supervisor, as defined in

subparagraph three of paragraph b of subdivision seven-b of section

three hundred five of this chapter, such employee shall be terminated

without a hearing, as provided for in this section, upon conviction of a

felony offense defined in subparagraph two of paragraph b of subdivision

seven-b of section three hundred five of this chapter.

e. (i) For hearings commenced by the filing of charges prior to July

first, two thousand fifteen, within ten days of receipt of the statement

of charges, the employee shall notify the clerk or secretary of the

employing board in writing whether he or she desires a hearing on the

charges and when the charges concern pedagogical incompetence or issues

involving pedagogical judgment, his or her choice of either a single

hearing officer or a three member panel, provided that a three member

panel shall not be available where the charges concern pedagogical

incompetence based solely upon a teacher's or principal's pattern of

ineffective teaching or performance as defined in section three thousand

twelve-c of this article. All other charges shall be heard by a single

hearing officer.

(ii) All hearings commenced by the filing of charges on or after July

first, two thousand fifteen shall be heard by a single hearing officer.

f. The unexcused failure of the employee to notify the clerk or

secretary of his or her desire for a hearing within ten days of the

receipt of charges shall be deemed a waiver of the right to a hearing.

Where an employee requests a hearing in the manner provided for by this

section, the clerk or secretary of the board shall, within three working

days of receipt of the employee's notice or request for a hearing,

notify the commissioner of the need for a hearing. If the employee

waives his or her right to a hearing the employing board shall proceed,

within fifteen days, by a vote of a majority of all members of such

board, to determine the case and fix the penalty, if any, to be imposed

in accordance with subdivision four of this section.

3. Hearings. a. Notice of hearing. Upon receipt of a request for a

hearing in accordance with subdivision two of this section, the

commissioner shall forthwith notify the American Arbitration Association

(hereinafter "association") of the need for a hearing and shall request

the association to provide to the commissioner forthwith a list of names

of persons chosen by the association from the association's panel of

labor arbitrators to potentially serve as hearing officers together with

relevant biographical information on each arbitrator. Upon receipt of

said list and biographical information, the commissioner shall forthwith

send a copy of both simultaneously to the employing board and the

employee. The commissioner shall also simultaneously notify both the

employing board and the employee of each potential hearing officer's

record in the last five cases of commencing and completing hearings

within the time periods prescribed in this section.

b. (i) Hearing officers. All hearings pursuant to this section shall

be conducted before and by a single hearing officer selected as provided

for in this section. A hearing officer shall not be eligible to serve in

such position if he or she is a resident of the school district, other

than the city of New York, under the jurisdiction of the employing

board, an employee, agent or representative of the employing board or of

any labor organization representing employees of such employing board,

has served as such agent or representative within two years of the date

of the scheduled hearing, or if he or she is then serving as a mediator

or fact finder in the same school district.

(A) Notwithstanding any other provision of law, for hearings commenced

by the filing of charges prior to April first, two thousand twelve, the

hearing officer shall be compensated by the department with the

customary fee paid for service as an arbitrator under the auspices of

the association for each day of actual service plus necessary travel and

other reasonable expenses incurred in the performance of his or her

duties. All other expenses of the disciplinary proceedings commenced by

the filing of charges prior to April first, two thousand twelve shall be

paid in accordance with rules promulgated by the commissioner. Claims

for such compensation for days of actual service and reimbursement for

necessary travel and other expenses for hearings commenced by the filing

of charges prior to April first, two thousand twelve shall be paid from

an appropriation for such purpose in the order in which they have been

approved by the commissioner for payment, provided payment shall first

be made for any other hearing costs payable by the commissioner,

including the costs of transcribing the record, and provided further

that no such claim shall be set aside for insufficiency of funds to make

a complete payment, but shall be eligible for a partial payment in one

year and shall retain its priority date status for appropriations

designated for such purpose in future years.

(B) Notwithstanding any other provision of law, rule or regulation to

the contrary, for hearings commenced by the filing of charges on or

after April first, two thousand twelve, the hearing officer shall be

compensated by the department for each day of actual service plus

necessary travel and other reasonable expenses incurred in the

performance of his or her duties, provided that the commissioner shall

establish a schedule for maximum rates of compensation of hearing

officers based on customary and reasonable fees for service as an

arbitrator and provide for limitations on the number of study hours that

may be claimed.

(ii) The commissioner shall mail to the employing board and the

employee the list of potential hearing officers and biographies provided

to the commissioner by the association, the employing board and the

employee, individually or through their agents or representatives, shall

by mutual agreement select a hearing officer from said list to conduct

the hearing and shall notify the commissioner of their selection.

(iii) Within fifteen days after receiving the list of potential

hearing officers as described in subparagraph (ii) of this paragraph,

the employing board and the employee shall each notify the commissioner

of their agreed upon hearing officer selection. If the employing board

and the employee fail to agree on an arbitrator to serve as a hearing

officer from the list of potential hearing officers, or fail to notify

the commissioner of a selection within such fifteen day time period, the

commissioner shall appoint a hearing officer from the list. The

provisions of this subparagraph shall not apply in cities with a

population of one million or more with alternative procedures specified

in section three thousand twenty of this article.

(iv) In those cases commenced by the filing of charges prior to July

first, two thousand fifteen in which the employee elects to have the

charges heard by a hearing panel, the hearing panel shall consist of the

hearing officer, selected in accordance with this subdivision, and two

additional persons, one selected by the employee and one selected by the

employing board, from a list maintained for such purpose by the

commissioner. The list shall be composed of professional personnel with

administrative or supervisory responsibility, professional personnel

without administrative or supervisory responsibility, chief school

administrators, members of employing boards and others selected from

lists of nominees submitted to the commissioner by statewide

organizations representing teachers, school administrators and

supervisors and the employing boards. Hearing panel members other than

the hearing officer shall be compensated by the department at the rate

of one hundred dollars for each day of actual service plus necessary

travel and subsistence expenses. The hearing officer shall be

compensated as set forth in this subdivision. The hearing officer shall

be the chairperson of the hearing panel.

c. Hearing procedures. (i) (A) The commissioner shall have the power

to establish necessary rules and procedures for the conduct of hearings

under this section.

(B) The department shall be authorized to monitor and investigate a

hearing officer's compliance with statutory timelines pursuant to this

section. The commissioner shall annually inform all hearing officers who

have heard cases pursuant to this section during the preceding year that

the time periods prescribed in this section for conducting such hearings

are to be strictly followed. A record of continued failure to commence

and complete hearings within the time periods prescribed in this section

shall be considered grounds for the commissioner to exclude such

individual from the list of potential hearing officers sent to the

employing board and the employee for such hearings.

(C) Such rules shall not require compliance with technical rules of

evidence. Hearings shall be conducted by the hearing officer selected

pursuant to paragraph b of this subdivision with full and fair

disclosure of the nature of the case and evidence against the employee

by the employing board and shall be public or private at the discretion

of the employee and provided further that the hearing officer, at the

pre-hearing conference, shall set a schedule and manner for full and

fair disclosure of the witnesses and evidence to be offered by the

employee. The employee shall have a reasonable opportunity to defend

himself or herself and an opportunity to testify in his or her own

behalf. The employee shall not be required to testify. Each party shall

have the right to be represented by counsel, to subpoena witnesses, and

to cross-examine witnesses. All testimony taken shall be under oath

which the hearing officer is hereby authorized to administer. A child

witness under the age of fourteen may be permitted to testify through

the use of live, two-way closed-circuit television, as such term is

defined in subdivision four of section 65.00 of the criminal procedure

law, when the hearing officer, after providing the employee with an

opportunity to be heard, determines by clear and convincing evidence

that such child witness would suffer serious mental or emotional harm

which would substantially impair such child's ability to communicate if

required to testify at the hearing without the use of live, two-way

closed-circuit television and that the use of such live, two-way

closed-circuit television will diminish the likelihood or extent of such

harm. In making such determination, the hearing officer shall consider

any applicable factors contained in subdivision ten of section 65.20 of

the criminal procedure law. Where the hearing officer determines that

such child witness will be permitted to testify through the use of live,

two-way closed-circuit television, the testimony of such child witness

shall be taken in a manner consistent with section 65.30 of the criminal

procedure law.

(D) An accurate record of the proceedings shall be kept at the expense

of the department at each such hearing in accordance with the

regulations of the commissioner. A copy of the record of the hearings

shall, upon request, be furnished without charge to the employee and the

board of education involved. The department shall be authorized to

utilize any new technology or such other appropriate means to transcribe

or record such hearings in an accurate, reliable, efficient and

cost-effective manner without any charge to the employee or board of

education involved.

(i-a)(A) Where charges of misconduct constituting physical or sexual

abuse of a student are brought, the hearing shall be conducted before

and by a single hearing officer in an expedited hearing, which shall

commence within seven days after the pre-hearing conference and shall be

completed within sixty days after the pre-hearing conference. The

hearing officer shall establish a hearing schedule at the pre-hearing

conference to ensure that the expedited hearing is completed within the

required timeframes and to ensure an equitable distribution of days

between the employing board and the charged employee. Notwithstanding

any other law, rule or regulation to the contrary, no adjournments may

be granted that would extend the hearing beyond such sixty days, except

as authorized in this subparagraph. A hearing officer, upon request, may

grant a limited and time specific adjournment that would extend the

hearing beyond such sixty days if the hearing officer determines that

the delay is attributable to a circumstance or occurrence substantially

beyond the control of the requesting party and an injustice would result

if the adjournment were not granted.

(B) The commissioner shall annually inform all hearing officers who

have heard cases pursuant to this section during the preceding year that

the time periods prescribed in this subparagraph for conducting

expedited hearings are to be strictly followed and failure to do so

shall be considered grounds for the commissioner to exclude such

individual from the list of potential hearing officers sent to the

employing board and the employee for such expedited hearings.

(ii) The hearing officer selected to conduct a hearing under this

section shall, within ten to fifteen days of agreeing to serve in such

position, hold a pre-hearing conference which shall be held in the

school district or county seat of the county, or any county, wherein the

employing school board is located. The pre-hearing conference shall be

limited in length to one day except that the hearing officer, in his or

her discretion, may allow one additional day for good cause shown.

(iii) At the pre-hearing conference the hearing officer shall have the

power to:

(A) issue subpoenas;

(B) hear and decide all motions, including but not limited to motions

to dismiss the charges;

(C) hear and decide all applications for bills of particular or

requests for production of materials or information, including, but not

limited to, any witness statement (or statements), investigatory

statement (or statements) or note (notes), exculpatory evidence or any

other evidence, including district or student records, relevant and

material to the employee's defense.

(iv) Any pre-hearing motion or application relative to the sufficiency

of the charges, application or amendment thereof, or any preliminary

matters shall be made upon written notice to the hearing officer and the

adverse party no less than five days prior to the date of the

pre-hearing conference. Any pre-hearing motions or applications not made

as provided for herein shall be deemed waived except for good cause as

determined by the hearing officer.

(v) In the event that at the pre-hearing conference the employing

board presents evidence that the professional license of the employee

has been revoked and all judicial and administrative remedies have been

exhausted or foreclosed, the hearing officer shall schedule the date,

time and place for an expedited hearing, which hearing shall commence

not more than seven days after the pre-hearing conference and which

shall be limited to one day. The expedited hearing shall be held in the

local school district or county seat of the county or any county,

wherein the said employing board is located. The expedited hearing shall

not be postponed except upon the request of a party and then only for

good cause as determined by the hearing officer. At such hearing, each

party shall have equal time in which to present its case.

(vi) During the pre-hearing conference, the hearing officer shall

determine the reasonable amount of time necessary for a final hearing on

the charge or charges and shall schedule the location, time(s) and

date(s) for the final hearing. The final hearing shall be held in the

local school district or county seat of the county, or any county,

wherein the said employing school board is located. In the event that

the hearing officer determines that the nature of the case requires the

final hearing to last more than one day, the days that are scheduled for

the final hearing shall be consecutive. The day or days scheduled for

the final hearing shall not be postponed except upon the request of a

party and then only for good cause shown as determined by the hearing

officer. In all cases, the final hearing shall be completed no later

than sixty days after the pre-hearing conference unless the hearing

officer determines that extraordinary circumstances warrant a limited

extension.

(vii) All evidence shall be submitted by all parties within one

hundred twenty-five days of the filing of charges and no additional

evidence shall be accepted after such time, absent extraordinary

circumstances beyond the control of the parties.

d. Limitation on claims. Notwithstanding any other provision of law,

rule or regulation to the contrary, no payments shall be made by the

department pursuant to this subdivision on or after April first, two

thousand twelve for: (i) compensation of a hearing officer or hearing

panel member, (ii) reimbursement of such hearing officers or panel

members for necessary travel or other expenses incurred by them, or

(iii) for other hearing expenses on a claim submitted later than one

year after the final disposition of the hearing by any means, including

settlement, or within ninety days after the effective date of this

paragraph, whichever is later; provided that no payment shall be barred

or reduced where such payment is required as a result of a court order

or judgment or a final audit.

4. Post hearing procedures. a. The hearing officer shall render a

written decision within thirty days of the last day of the final

hearing, or in the case of an expedited hearing within ten days of such

expedited hearing, and shall forward a copy thereof to the commissioner

who shall immediately forward copies of the decision to the employee and

to the clerk or secretary of the employing board. The written decision

shall include the hearing officer's findings of fact on each charge, his

or her conclusions with regard to each charge based on said findings and

shall state what penalty or other action, if any, shall be taken by the

employing board. At the request of the employee, in determining what, if

any, penalty or other action shall be imposed, the hearing officer may

consider the extent to which the employing board made efforts towards

correcting the behavior of the employee which resulted in charges being

brought under this section through means including but not limited to:

remediation, peer intervention or an employee assistance plan. In those

cases where a penalty is imposed, such penalty may be a written

reprimand, a fine, suspension for a fixed time without pay, or

dismissal. In addition to or in lieu of the aforementioned penalties,

the hearing officer, where he or she deems appropriate, may impose upon

the employee remedial action including but not limited to leaves of

absence with or without pay, continuing education and/or study, a

requirement that the employee seek counseling or medical treatment or

that the employee engage in any other remedial or combination of

remedial actions. Provided, however, that the hearing officer, in

exercising his or her discretion, shall give serious consideration to

the penalty recommended by the employing board, and if the hearing

officer rejects the recommended penalty such rejection must be based on

reasons based upon the record as expressed in a written determination.

b. Within fifteen days of receipt of the hearing officer's decision

the employing board shall implement the decision. If the employee is

acquitted he or she shall be restored to his or her position with full

pay for any period of suspension without pay and the charges expunged

from the employment record. If an employee who was convicted of a felony

crime specified in paragraph b of subdivision two of this section, has

said conviction reversed, the employee, upon application, shall be

entitled to have his or her pay and other emoluments restored, for the

period from the date of his or her suspension to the date of the

decision.

c. The hearing officer shall indicate in the decision whether any of

the charges brought by the employing board were frivolous as defined in

section eighty-three hundred three-a of the civil practice law and

rules. If the hearing officer finds that all of the charges brought

against the employee were frivolous, the hearing officer shall order the

employing board to reimburse the department the reasonable costs said

department incurred as a result of the proceeding and to reimburse the

employee the reasonable costs, including but not limited to reasonable

attorneys' fees, the employee incurred in defending the charges. If the

hearing officer finds that some but not all of the charges brought

against the employee were frivolous, the hearing officer shall order the

employing board to reimburse the department a portion, in the discretion

of the hearing officer, of the reasonable costs said department incurred

as a result of the proceeding and to reimburse the employee a portion,

in the discretion of the hearing officer, of the reasonable costs,

including but not limited to reasonable attorneys' fees, the employee

incurred in defending the charges.

5. Appeal. a. Not later than ten days after receipt of the hearing

officer's decision, the employee or the employing board may make an

application to the New York state supreme court to vacate or modify the

decision of the hearing officer pursuant to section seventy-five hundred

eleven of the civil practice law and rules. The court's review shall be

limited to the grounds set forth in such section. The hearing panel's

determination shall be deemed to be final for the purpose of such

proceeding.

b. In no case shall the filing or the pendency of an appeal delay the

implementation of the decision of the hearing officer.