LBD16061-01-2
S. 7497 2
utive session, shall determine, by a vote of a majority of all the
members of such board, whether probable cause exists to bring a disci-
plinary proceeding against an employee pursuant to this section. If such
determination is affirmative, a written statement specifying (i) the
charges in detail, (ii) ANY OF THE CHARGES THAT HAVE BEEN DESIGNATED AS
INVOLVING INAPPROPRIATE SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION SIX OF
THIS SECTION; (III) 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)] (IV) the employee's rights under this section, shall
be immediately forwarded to the accused employee by certified or regis-
tered mail, return receipt requested or by personal delivery to the
employee.
S 3. Paragraph b of subdivision 2 of section 3020-a of the education
law, as amended by section 1 of part B of chapter 57 of the laws of
2012, 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,
except the employee may be suspended without pay if (I) 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; OR (II) PURSUANT TO PARAGRAPH E OF THIS SUBDIVISION, A HEARING
OFFICER HAS FOUND PROBABLE CAUSE THAT THE EMPLOYEE HAS COMMITTED INAP-
PROPRIATE SEXUAL CONDUCT AS DEFINED IN THIS SECTION. 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.
S 4. Subdivision 2 of section 3020-a of the education law is amended
by adding a new paragraph e to read as follows:
E. WHERE THE EMPLOYEE IS CHARGED BY CRIMINAL COMPLAINT OR INDICTMENT
WITH CRIMINAL CONDUCT UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW
AGAINST A STUDENT OR MINOR OR WHERE THE EMPLOYING BOARD HAS FILED A
CHARGE OF INAPPROPRIATE SEXUAL CONDUCT AGAINST THE EMPLOYEE, THE EMPLOY-
ING BOARD MAY REQUEST A PROBABLE CAUSE HEARING BEFORE A HEARING OFFICER.
(I) WHERE A CRIMINAL COMPLAINT OR INDICTMENT HAS BEEN FILED CHARGING
THE EMPLOYEE WITH CRIMINAL CONDUCT UNDER ARTICLE ONE HUNDRED THIRTY OF
THE PENAL LAW AGAINST A STUDENT OR MINOR, THE PROBABLE CAUSE HEARING
SHALL TAKE PLACE WITHIN FIFTEEN DAYS OF THE FILING OF SUCH CRIMINAL
COMPLAINT OR INDICTMENT, AND SUCH CRIMINAL COMPLAINT OR INDICTMENT SHALL
BE SUFFICIENT TO ESTABLISH PROBABLE CAUSE WITHOUT FURTHER TESTIMONY.
(II) IN ALL OTHER CASES, WHERE THE EMPLOYING BOARD HAS FILED A CHARGE
OF INAPPROPRIATE SEXUAL CONDUCT, SUCH PROBABLE CAUSE HEARING SHALL TAKE
PLACE WITHIN TEN DAYS OF THE EMPLOYEE'S REQUEST FOR A HEARING ON THE
CHARGES AND SHALL NOT EXCEED ONE HALF DAY IN LENGTH. FOR PURPOSES OF
THIS PARAGRAPH, PROBABLE CAUSE SHALL BE FOUND TO EXIST WHERE EVIDENCE OR
INFORMATION WHICH APPEARS RELIABLE DISCLOSES FACTS AND CIRCUMSTANCES
S. 7497 3
MAKING IT LIKELY THAT INAPPROPRIATE SEXUAL CONDUCT IN FACT OCCURRED AND
THE EMPLOYEE CHARGED COMMITTED THE CONDUCT. TO ESTABLISH PROBABLE CAUSE,
AN INVESTIGATOR OR SCHOOL DISTRICT OFFICIAL SHALL BE PRESENT AND SHALL
TESTIFY AT THE PROBABLE CAUSE HEARING. THE EMPLOYING BOARD MAY ALSO BE
REQUIRED TO PRODUCE WRITTEN STATEMENTS FROM THE VICTIM OR WITNESSES, IF
ANY. THE EMPLOYEE SHALL HAVE AN OPPORTUNITY TO RESPOND ORALLY TO THE
OFFER OF PROOF. THE HEARING OFFICER MAY ASK RELEVANT QUESTIONS OR MAKE
FURTHER INQUIRY AT THE REQUEST OF THE EMPLOYEE. THE HEARING SHALL NOT
REQUIRE TESTIMONY OF OTHER WITNESSES NOR SHALL CROSS-EXAMINATION BE
PERMITTED.
(III) SHOULD THE EMPLOYING BOARD MEET ITS BURDEN OF ESTABLISHING PROB-
ABLE CAUSE OF INAPPROPRIATE SEXUAL CONDUCT, THE EMPLOYEE SHALL REMAIN
SUSPENDED WITHOUT PAY DURING THE PENDENCY OF THE DISCIPLINARY ACTION,
AND THE FINAL HEARING ON THE CHARGES SHALL BE COMPLETED WITHIN THE TIME-
FRAME SET FORTH IN SUBPARAGRAPH (VI) OF PARAGRAPH C OF SUBDIVISION THREE
OF THIS SECTION.
S 5. Subdivisions 4 and 5 of section 3020-a of the education law, as
amended by section 1 of part B of chapter 57 of the laws of 2012, are
amended to read as follows:
4. Post hearing procedures. a. [The] (I) IN ANY CASE THAT INCLUDES A
CHARGE DESIGNATED BY THE EMPLOYING BOARD AS INVOLVING INAPPROPRIATE
SEXUAL CONDUCT THE HEARING OFFICER SHALL PREPARE A DECISION ON ALL
CHARGES WITHIN THIRTY DAYS OF THE LAST DAY OF THE FINAL HEARING, OR IN
THE CASE OF AN EXPEDITED HEARING WITHIN TEN DAYS OF THE 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 DECISION SHALL INCLUDE
THE HEARING OFFICER'S FINDINGS OF FACT ON EACH CHARGE, AND HIS OR HER
CONCLUSIONS WITH REGARD TO EACH CHARGE BASED ON SAID FINDINGS, AND SHALL
STATE WHAT PENALTY OR OTHER ACTION, SHOULD BE TAKEN. IN THOSE CASES
WHERE A HEARING OFFICER FINDS THAT INAPPROPRIATE SEXUAL CONDUCT HAS
OCCURRED THE DECISION SHALL INCLUDE A PENALTY OF TERMINATION UNLESS THE
HEARING OFFICER, IN WRITING, IDENTIFIES SPECIFIC REASONS FOR INCLUDING A
LESSER PENALTY OR OTHER ACTION.
(II) THE HEARING OFFICER SHALL INDICATE IN THE DECISION WHETHER ANY OF
THE CHARGES BROUGHT BY THE EMPLOYING BOARD SHALL BE FOUND FRIVOLOUS AS
DEFINED IN SECTION EIGHTY-THREE HUNDRED THREE-A OF THE CIVIL PRACTICE
LAW AND RULES. IF THE HEARING OFFICER'S DECISION IS THAT ALL OF THE
CHARGES BROUGHT AGAINST THE EMPLOYEE BE FOUND FRIVOLOUS, THE HEARING
OFFICER SHALL RECOMMEND THAT THE EMPLOYING BOARD REIMBURSE THE DEPART-
MENT THE REASONABLE COSTS SAID DEPARTMENT INCURRED AS A RESULT OF THE
PROCEEDING AND 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'S DECISION IS THAT SOME
BUT NOT ALL OF THE CHARGES BROUGHT AGAINST THE EMPLOYEE BE FOUND FRIVO-
LOUS, THE HEARING OFFICER SHALL RECOMMEND THAT THE EMPLOYING BOARD REIM-
BURSE THE DEPARTMENT A PORTION OF THE REASONABLE COSTS SAID DEPARTMENT
INCURRED AS A RESULT OF THE PROCEEDING AND REIMBURSE THE EMPLOYEE A
PORTION OF THE REASONABLE COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE
ATTORNEYS' FEES, THE EMPLOYEE INCURRED IN DEFENDING THE CHARGES.
(III) FOLLOWING RECEIPT OF THE HEARING OFFICER'S DECISION, THE EMPLOY-
ING BOARD SHALL RENDER A WRITTEN DECISION ADOPTING, MODIFYING OR REJECT-
ING THE HEARING OFFICER'S DECISION, INCLUDING FINDINGS OF FACT, CONCLU-
SIONS AND PENALTIES, IN WHOLE OR IN PART. IF THE EMPLOYING BOARD DOES
NOT ADOPT THE DECISION OF THE HEARING OFFICER, THE EMPLOYING BOARD SHALL
EXPLAIN ITS REASONING IN THE WRITTEN DECISION. THE EMPLOYING BOARD SHALL
S. 7497 4
FORTHWITH FORWARD A COPY THEREOF TO THE COMMISSIONER WHO SHALL IMME-
DIATELY FORWARD A COPY OF THE DECISION TO THE EMPLOYEE. IN THOSE CASES
WHERE A PENALTY IS IMPOSED FOR INAPPROPRIATE SEXUAL CONDUCT, SUCH PENAL-
TY SHALL BE TERMINATION UNLESS THE EMPLOYING BOARD, IN WRITING, IDENTI-
FIES SPECIFIC REASONS FOR IMPOSING A LESSER PENALTY OR OTHER ACTION. IN
THOSE CASES WHERE A PENALTY OTHER THAN TERMINATION IS IMPOSED, SUCH
PENALTY MAY BE ANY PENALTY AS SET FORTH IN PARAGRAPH A-1 OF THIS SUBDI-
VISION, AND IN ADDITION TO OR IN LIEU OF SUCH PENALTIES THE EMPLOYING
BOARD MAY IMPOSE REMEDIAL ACTIONS AS SET FORTH IN PARAGRAPH A-1 OF THIS
SUBDIVISION.
(IV) WITHIN FIFTEEN DAYS OF ISSUANCE OF THE EMPLOYING BOARD'S DECISION
THE EMPLOYING BOARD SHALL IMPLEMENT THE DECISION. IF THE DECISION IS A
DISMISSAL OF ALL CHARGES OR AN ACQUITTAL THE EMPLOYEE SHALL BE RESTORED
TO HIS OR HER POSITION AND RECEIVE BACK PAY WITH INTEREST FOR THE ENTIRE
PERIOD OF SUSPENSION WITHOUT PAY AND THE CHARGES EXPUNGED FROM THE
EMPLOYMENT RECORD.
(V) THE EMPLOYING BOARD SHALL ALSO MAKE A WRITTEN DETERMINATION WITH
RESPECT TO ANY RECOMMENDATION OF THE HEARING OFFICER THAT ANY CHARGES BE
FOUND FRIVOLOUS AND THAT REIMBURSEMENT SHOULD BE MADE TO THE DEPARTMENT
AND THE EMPLOYEE WITH RESPECT TO REASONABLE COSTS INCURRED AS A RESULT
OF SUCH CHARGES.
(VI) NOT LATER THAN TEN DAYS AFTER RECEIPT OF THE EMPLOYING BOARD'S
DECISION, THE EMPLOYEE MAY MAKE AN APPLICATION TO THE NEW YORK STATE
SUPREME COURT TO VACATE OR MODIFY THE DECISION OF THE EMPLOYING BOARD
PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
THE COURT'S REVIEW SHALL BE LIMITED TO THE GROUNDS SET FORTH IN SUCH
SECTION. THE EMPLOYING BOARD'S DETERMINATION SHALL BE DEEMED TO BE FINAL
FOR THE PURPOSE OF SUCH PROCEEDING. IF THE EMPLOYING BOARD DETERMINES TO
REJECT A RECOMMENDATION BY A HEARING OFFICER THAT ANY CHARGE BE FOUND
FRIVOLOUS, AND SUCH DETERMINATION IS FOUND IN SUCH A PROCEEDING TO BE
ARBITRARY AND CAPRICIOUS, THE EMPLOYER SHALL BE REQUIRED TO REIMBURSE
THE EMPLOYEE FOR THE REASONABLE COSTS, INCLUDING BUT NOT LIMITED TO
REASONABLE ATTORNEYS' FEES, THE EMPLOYEE INCURRED IN DEFENDING CHARGES
FOUND TO BE FRIVOLOUS, AND THE CHARGES EXPUNGED FROM THE EMPLOYMENT
RECORD.
(VII) IN NO CASE SHALL THE FILING OR THE PENDENCY OF AN APPEAL DELAY
THE IMPLEMENTATION OF THE DECISION OF THE EMPLOYING BOARD UNLESS A COURT
ISSUES A STAY OF THE PROCEEDINGS PURSUANT TO ARTICLE SEVENTY-EIGHT OF
THE CIVIL PRACTICE LAW AND RULES.
(VIII) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, RULE OR REGULATION
TO THE CONTRARY, ALL COLLECTIVE BARGAINING AGREEMENTS APPLICABLE TO
TEACHERS OR BUILDING PRINCIPALS ENTERED INTO AFTER JULY FIRST, TWO THOU-
SAND TWELVE SHALL BE CONSISTENT WITH REQUIREMENTS OF THIS PARAGRAPH, AND
ANY PROVISION TO THE CONTRARY SHALL BE NULL AND VOID AS AGAINST PUBLIC
POLICY.
A-1. IN ALL OTHER CASES, 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 hear-
ing, 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, AND 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
S. 7497 5
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 repri-
mand, 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.
B. 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 appli-
cation, 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 OF ANY CASE
SUBJECT TO PARAGRAPH A-1 OF THIS SUBDIVISION 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 PURSUANT TO PARAGRAPH A-1 OF SUBDIVISION FOUR OF THIS
SECTION, 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.
S 6. Section 3020-a of the education law is amended by adding a new
subdivision 6 to read as follows:
6. A. "INAPPROPRIATE SEXUAL CONDUCT" SHALL MEAN:
(I) ANY CONDUCT BETWEEN AN EMPLOYEE AND A STUDENT WHETHER VERBAL, IN
PERSON, IN WRITING OR BY ELECTRONIC MEANS, WHETHER IT OCCURS ON SCHOOL
GROUNDS, OR AT A SCHOOL FUNCTION AS DEFINED IN SECTION TWENTY-EIGHT
S. 7497 6
HUNDRED ONE OF THIS CHAPTER, OR NOT ON SCHOOL GROUNDS, OR NOT A SCHOOL
FUNCTION, THAT IS INTENDED TO INITIATE, CREATE, FOSTER OR ADVANCE AN
INTIMATE OR A SEXUAL RELATIONSHIP BY AN EMPLOYEE WITH A STUDENT, INCLUD-
ING BUT NOT LIMITED TO:
(1) ANY SEXUAL EXPRESSION, SEXUAL CONDUCT, CONTACT, TOUCHING, WITHOUT
A LEGITIMATE PEDAGOGICAL PURPOSE, INCLUDING BUT NOT LIMITED TO SEXUALLY
SUGGESTIVE COMMENTS AND DISCUSSIONS OF SEXUAL ACTS;
(2) EXPOSING A STUDENT TO REPRESENTATIONS, INCLUDING BUT NOT LIMITED
TO DRAWINGS OR PHOTOGRAPHS, OF A SEXUAL NATURE, WHETHER VERBAL, WRITTEN,
ELECTRONIC OR PHYSICAL, WITHOUT A LEGITIMATE PEDAGOGICAL PURPOSE;
(3) PROVIDING OF A GIFT TO A STUDENT;
(4) ANY ACTION THAT COULD REASONABLY BE INTERPRETED AS SOLICITING, OR
INTENDING TO FORM, AN INTIMATE OR SEXUAL RELATIONSHIP OR SEXUAL ACTIV-
ITY, INCLUDING BUT NOT LIMITED TO MEETINGS OF A NON-PEDAGOGICAL NATURE
WITHOUT SCHOOL ADMINISTRATION AND PARENTAL NOTIFICATION AND PERMISSION;
(II) SEXUAL INTERCOURSE. ANY ACT OF SEXUAL PENETRATION, HOWEVER
SLIGHT, OF A STUDENT'S ANAL, GENITAL, OR ORAL OPENING WITH ANY OBJECT OR
BODY PART;
(III) PUBLISHING, RECREATING OR REPRODUCING IMAGES OF A SEXUAL ACT
INVOLVING A STUDENT;
(IV) ANY ACT OF PUBLIC LEWDNESS, AS DEFINED IN SECTION 245.00 OF THE
PENAL LAW, OR EXPOSURE, AS DEFINED IN SECTION 245.01 OF THE PENAL LAW,
IN A PLACE WHERE A STUDENT COULD VIEW SUCH ACT OF PUBLIC LEWDNESS OR
EXPOSURE;
(V) EXPOSING A STUDENT TO PORNOGRAPHIC MATERIAL;
(VI) POSSESSION OR USE OF CHILD PORNOGRAPHY;
(VII) SERIOUS OR REPEATED VERBAL ABUSE OF A SEXUAL NATURE;
(VIII) INTENTIONAL OR REPEATED OBSERVING OR VIEWING OF THE SEXUAL OR
INTIMATE PARTS OF A STUDENT OR UNDER THE CLOTHING WORN BY A STUDENT, OR
ANY ACTION INVOLVING THE USE OF AN IMAGING DEVICE THAT WOULD CONSTITUTE
CRIMINAL CONDUCT AS DEFINED UNDER SECTIONS 250.40, 250.45 OR 250.50 OF
THE PENAL LAW;
(IX) INDUCING OR ATTEMPTING TO INDUCE INCAPACITATION OR IMPAIRMENT OF
A STUDENT FOR THE PURPOSE OF HAVING SEXUAL INTERCOURSE, SEXUAL CONTACT
OR FOR THE PURPOSE OF CREATING PORNOGRAPHIC IMAGES OR MATERIALS, REGARD-
LESS OF WHETHER SEXUAL ACTIVITY ACTUALLY TAKES PLACE;
(X) ANY ACTION THAT WOULD CONSTITUTE CRIMINAL CONDUCT UNDER ARTICLE
ONE HUNDRED THIRTY OF THE PENAL LAW AGAINST A STUDENT OR MINOR;
(XI) ANY OTHER ACTION OR CONDUCT DESIGNATED BY THE COMMISSIONER;
B. FOR THE PURPOSES OF THIS SUBDIVISION "STUDENT" SHALL MEAN A STUDENT
OR A MINOR WHO IS NOT A STUDENT;
C. "INAPPROPRIATE SEXUAL CONDUCT" SHALL NOT BE CONSTRUED TO INCLUDE
LEGITIMATE NONSEXUAL TOUCHING OR OTHER NONSEXUAL CONDUCT.
S 7. This act shall take effect immediately and shall apply with
respect to cases initiated by the filing of charges on or after such
date.