senate Bill S7497

2011-2012 Legislative Session

Relates to discipline for inappropriate sexual conduct

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Senate Actions - UPPERCASE
May 29, 2012 referred to education

S7497 - Bill Details

Current Committee:
Law Section:
Education Law
Laws Affected:
Amd §3020-a, Ed L

S7497 - Bill Texts

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Relates to discipline for inappropriate sexual conduct.

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BILL NUMBER:S7497

TITLE OF BILL:

An act to amend the education law, in relation to discipline for
inappropriate sexual conduct

SUMMARY OF PROVISIONS:

Section 2 of the bill would amend subdivision 2 of § 3020-a of the
Education Law to require any charges involving inappropriate sexual
conduct be specified when the employing board submits its written
statement to the employee affirming its intent to pursue disciplinary
charges.

Section 3 of the bill would amend subdivision 2 of §3020-a of the
Education Law to provide that an employee may be suspended without
pay, if a hearing officer finds probable cause that the employee has
engaged in inappropriate sexual conduct.

Section 4 of the bill would amend subdivision 2 of § 3020-a of the
Education Law to provide that the employing board may request a
probable cause hearing, when the employee is charged with a criminal
complaint or indictment under Article 130 of the Penal Law against a
student or minor, or where the employee has been charged with
inappropriate sexual conduct. These hearings shall take place within
take place within fifteen days of the filing of the criminal complaint
or indictment or ten days of the employee's request for a 3020-a
hearing. If the employing board meets the burden of establishing
probable cause, the employee shall remain suspended without pay during
the pendency of the disciplinary action.

Section 5 of the bill would amend subdivisions 4 and 5 of § 3020-a of
the Education Law to provide for post hearing procedures of employees'
charged with inappropriate sexual conduct. Hearing officers must issue
a ruling on all charges within thirty days of the last day of the
final hearing. Following the hearing officer's ruling the employing
board shall then render a written decision, adopting, modifying or
rejecting the hearing officer's decision in whole or in part. In cases
where a penalty is imposed for inappropriate sexual conduct, the
penalty shall be termination unless the employing board identifies, in
writing, specific reasons for imposing a lesser penalty. The employee
may then appeal the employing board's decision to the New York State
Supreme Court pursuant to Article 78 of Civil Practice Law.

Section 6 of the bill adds a new subdivision 6 to § 3020-a of the
Education Law to provide for the definition of inappropriate sexual
conduct.

REASONS FOR SUPPORT:

This legislation would give school districts the authority to dismiss
teachers and principals who have engaged in acts of sexual
inappropriate conduct against students or minors, while providing
appropriate due process. Under the current law, outside hearing
officers, or arbitrators, make binding determinations and impose


penalties, including whether or not to terminate employees, which
school districts must follow. This legislation will give districts -
and in New York City, the Schools Chancellor - the authority to make
personnel decisions after disciplinary proceedings in these cases.

Specifically, the proposal amends New York State Education Law 3020-a
so that the determinations are submitted to school districts for
review, but provides districts the final say on what disciplinary
action to take in cases involving inappropriate sexual conduct.
Consistent with the City's collective bargaining agreement with the
United Federation of Teachers (UFT), this legislation also provides
that an employee may be suspended without pay, if a hearing officer
finds probable cause that the employee has committed inappropriate
sexual conduct.

This approach is consistent with due process and disciplinary
proceedings for nearly all other City employees. Tenured employees
will retain the right to file an appeal with New York State Supreme
Court pursuant to Article 78 of the State Civil Practice Law. If the
Court rules against the school district, the employee must be
reimbursed at reasonable costs and the charges must be expunged from
their employment record.

For most City agencies, if an investigation finds that an employee has
engaged in serious misconduct, the commissioner can bring a case
against the employee before the Office of Administrative Trials and
Hearings (OATH). An administrative law judge will hear the case, and
if the judge finds that the employee engaged in misconduct, the judge
issues a recommendation to the commissioner. Then it is up to the
commissioner to make the final determination. This same process should
be extended to school employees who commit acts of sexual misconduct
as well.

Currently, for school districts, hearing officers must be jointly
chosen, by the school district and collective bargaining unit. If the
ruling disappoints one party, they can be removed for future cases.
This results in decisions that aim to please both sides, leading to
unacceptable rulings and penalties. Rather than terminating teachers
who commit acts of inappropriate sexual conduct, hearing officers
issue fines or suspensions instead.

Earlier this year the New York City Department of Education (DOE)
identified sixteen teachers, who engaged in inappropriate sexual
conduct with students and were then able to keep their jobs due to
hearing officer decisions. The offenses committed in these cases
included: inappropriate touching, requesting nude pictures of underage
teens, inappropriate sexual language and sexual relationships. Rather
than ordering their termination, hearing officers made factual
findings that the teacher's behavior was inappropriate, but their
behavior did not rise to the level of termination. Instead hearing
officer's issued fines and/or suspensions and allowed them to return
to the classroom.

While the DOE has enacted several personnel policy reforms to enhance
protections against students, the Chancellor must be given the
authority to ensure appropriate actions are taken and safeguards are


in place to protect our students from individuals who commit acts of
inappropriate sexual conduct against students.

Accordingly, the Mayor urges the earliest possible favorable
consideration of this proposal by the Legislature.

EFFECTIVE DATE:

Immediately, with provisions.

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

                                  7497

                            I N  S E N A T E

                              May 29, 2012
                               ___________

Introduced by Sen. SALAND -- (at request of the NYC Education (see sed))
  -- 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 discipline for inap-
  propriate sexual conduct

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

  Section  1.  Legislative intent. School employees hold important posi-
tions in our communities, not only as educators, but  often  as  mentors
and  advisors.  They are professionally and personally placed in a posi-
tion of trust. The vast majority  of  educators  are  conscientious  and
talented  and  should be credited with a significant part of the overall
success of our youth. They play an integral role  in  both  the  child's
life,  as  well  as the community as a whole; which makes a violation of
this position of trust even more pronounced. To  that  end,  reports  of
cases  of  inappropriate  sexual  conduct between educators and students
have increased. At times, this behavior  involves  an  educator  with  a
student  in  a  continuum  of inappropriate behavior that is intended to
create and advance an intimate or sexual relationship with the  student.
These  tragic  and  heinous  cases often result in life-long harm to the
student's physical, psychological and educational well-being. Given  the
serious  consequences of these actions, it imperative that the discipli-
nary procedures related to this type of misconduct  are  congruent  with
the  egregiousness of the behavior. Greater protection is needed to more
effectively deal with inappropriate sexual conduct by a  small  minority
of  school  employees  to  help  facilitate  a safer environment for our
students, target inappropriate behavior, and preserve the  integrity  of
our educational system.
  S  2.  Paragraph a 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:
  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 exec-

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

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