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

                                  6225

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 9, 2011
                               ___________

Introduced  by  M.  of  A.  NOLAN  -- (at request of the State Education
  Department) -- read once and referred to the Committee on Education

AN ACT to amend the education law, in relation to tenured teacher disci-
  plinary hearings

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

  Section  1. Section 3020-a of the education law, as amended by chapter
691 of the laws of 1994, paragraph (b) of subdivision  2  as  separately
amended  by  chapters  296 and 325 of the laws of 2008, paragraph (c) of
subdivision 2 and paragraph a of subdivision 3 as amended  and  subpara-
graph  (i-a)  of paragraph c of subdivision 3 as added by chapter 103 of
the laws of 2010, is amended to read as follows:
  S 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] ELEVEN  hundred  two,
and sections [two thousand five] TWENTY-FIVE hundred nine, [two thousand
five]  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
[two thousand five] TWENTY-FIVE hundred  seventy-three  and  subdivision
seven of section twenty-five hundred ninety-j of this chapter, no charg-
es  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. A. Upon receipt of the charges, the
clerk or secretary of the school district or employing board shall imme-
diately notify said board thereof. Within five  days  after  receipt  of
charges,  the employing board, in executive session, shall determine, by

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD09809-01-1
              

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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  writ-
ten  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, (III) THE RESPONSIBILITY OF
THE  EMPLOYEE  OR THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT, AS APPLICA-
BLE, TO PAY A SHARE OF HEARING COSTS UNDER THE CIRCUMSTANCES  SET  FORTH
IN  PARAGRAPH  B  OF  SUBDIVISION THREE OF THIS SECTION, and [outlining]
(IV) 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)] B. The employee may be suspended pending a hearing on the charg-
es 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 subpara-
graph two of paragraph b of subdivision seven-a of section three hundred
five of this chapter, OR UPON A DETERMINATION BY THE  COMMISSIONER  THAT
THE  EMPLOYEE  LACKS APPROPRIATE CERTIFICATION FOR THE POSITION TO WHICH
THE EMPLOYEE IS LAWFULLY ASSIGNED. 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, OR UPON A DETER-
MINATION BY THE COMMISSIONER THAT THE EMPLOYEE LACKS APPROPRIATE CERTIF-
ICATION FOR THE POSITION TO WHICH THE EMPLOYEE IS LAWFULLY ASSIGNED. THE
COMMISSIONER SHALL ADOPT REGULATIONS ESTABLISHING PROCEDURES FOR  DETER-
MINING  WHETHER  AN  EMPLOYEE LACKS THE APPROPRIATE CERTIFICATION, WHICH
SHALL PROVIDE THE EMPLOYEE WITH NOTICE AND AN OPPORTUNITY TO RESPOND  IN
WRITING.
  [(c)]  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 sole-
ly upon a teacher's or principal's pattern of  ineffective  teaching  or
performance  as defined in section three thousand twelve-c of this arti-
cle. All other charges shall be heard by a single hearing officer.
  [(d)] 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, noti-
fy the commissioner [of education] of the need for  a  hearing.  If  the

A. 6225                             3

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  commis-
sioner  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]  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 ON OR BEFORE JUNE THIRTIETH, TWO THOUSAND ELEV-
EN, 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 ON OR BEFORE JUNE THIRTIETH, TWO  THOUSAND  ELEVEN
shall  be  paid in accordance with rules promulgated by the commissioner
[of education].  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 ON OR BEFORE JUNE THIRTIETH, TWO
THOUSAND ELEVEN 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  JULY  FIRST,  TWO  THOUSAND  ELEVEN, THE HEARING OFFICER SHALL BE
COMPENSATED FOR HIS OR HER ACTUAL  HOURS  OF  SERVICE  RENDERED  IN  THE
PERFORMANCE  OF  HIS OR HER DUTIES AS A HEARING OFFICER, PLUS ANY NECES-
SARY TRAVEL OR OTHER EXPENSES INCURRED IN THE PERFORMANCE OF SUCH DUTIES
IN ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE AND CLAUSE (C) OF  THIS

A. 6225                             4

SUBPARAGRAPH.  THE  COMMISSIONER  SHALL  ESTABLISH MAXIMUM RATES FOR THE
COMPENSATION OF HEARING OFFICERS AND LIMITATIONS ON THE NUMBER OF  STUDY
HOURS THAT MAY BE CLAIMED. UPON VERIFICATION AND APPROVAL BY THE EMPLOY-
ING  BOARD  AND  THE  EMPLOYEE'S  COLLECTIVE  BARGAINING  UNIT FOLLOWING
COMPLETION OF THE HEARING, CLAIMS FOR PAYMENT FOR SUCH SERVICES SHALL BE
SUBMITTED TO THE DEPARTMENT. THE COMMISSIONER SHALL BE  RESPONSIBLE  FOR
PAYMENT  OF  A  STATE  SHARE  OF SUCH CLAIMS FOR COMPENSATION WITHIN THE
AMOUNT APPROPRIATED FOR SUCH PURPOSE, TO  BE  DETERMINED  IN  ACCORDANCE
WITH  CLAUSE  (C)  OF THIS SUBPARAGRAPH, AND THE BALANCE OF SUCH CLAIMS,
PLUS THE COSTS OF NECESSARY TRAVEL AND OTHER EXPENSES  INCURRED  BY  THE
HEARING  OFFICER AND ANY OTHER HEARING COSTS NOT PAID BY THE DEPARTMENT,
SHALL BE PAID BY THE EMPLOYING BOARD AND THE EMPLOYEE OR THE  EMPLOYEE'S
COLLECTIVE  BARGAINING AGENT IN EQUAL SHARES. THE COSTS OF RECORDING THE
DISCIPLINARY PROCEEDING SHALL BE PAID BY THE  DEPARTMENT  IN  ACCORDANCE
WITH  CLAUSE (C) OF THIS SUBPARAGRAPH AND REGULATIONS PROMULGATED BY THE
COMMISSIONER.
  (C) THE STATE SHARE OF THE COSTS OF COMPENSATING HEARING OFFICERS  FOR
ACTUAL HOURS OF SERVICE SHALL BE COMPUTED IN ACCORDANCE WITH THIS CLAUSE
AND THE REGULATIONS OF THE COMMISSIONER. THE COMMISSIONER SHALL ANNUALLY
ESTABLISH  AN  HOURLY  STATE  SHARE  REIMBURSEMENT  RATE AND THE RATE SO
ESTABLISHED SHALL REMAIN IN EFFECT UNTIL A NEW RATE IS ESTABLISHED. FROM
THE AMOUNT APPROPRIATED FOR PURPOSES  OF  THIS  CLAUSE,  THE  DEPARTMENT
SHALL RESERVE AN AMOUNT FOR PAYMENT OF THE COSTS OF RECORDING THE DISCI-
PLINARY  HEARINGS  AND  THE  DEPARTMENT'S ADMINISTRATIVE COSTS. FROM THE
REMAINDER OF THE APPROPRIATION, PRIORITY SHALL BE GIVEN  TO  PAYMENT  OF
ANY  UNPAID  PRIOR  YEAR CLAIMS ATTRIBUTABLE TO HEARINGS COMMENCED ON OR
AFTER JULY FIRST, TWO THOUSAND ELEVEN IN THE ORDER IN  WHICH  THEY  WERE
APPROVED  BY  THE  COMMISSIONER.  CLAIMS  FOR  THE  HOURLY  STATE  SHARE
REIMBURSEMENT FOR ACTUAL HOURS OF SERVICE FOR THE  HEARING  OFFICER  AND
CLAIMS  FOR COMPENSATION OF HEARING PANEL MEMBERS OTHER THAN THE HEARING
OFFICER IN HEARINGS CONDUCTED AS AUTHORIZED BY SUBPARAGRAPH (IV) OF THIS
PARAGRAPH SHALL BE PAID FROM THE BALANCE OF  THE  APPROPRIATION  IN  THE
ORDER  IN  WHICH  THE CLAIMS ARE APPROVED BY THE COMMISSIONER, UNTIL THE
APPROPRIATION IS EXHAUSTED, PROVIDED 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.
  (ii) Not later than ten days after the date the commissioner mails  to
the employing board and the employee the list of potential hearing offi-
cers  and  biographies  provided to the commissioner by the association,
the employing board and the  employee,  individually  or  through  their
agents  or  representatives,  shall by mutual agreement select a hearing
officer from said list to conduct  the  hearing  and  shall  notify  the
commissioner of their selection.
  (iii)  If  the  employing  board  and the employee fail to agree on an
arbitrator to serve as a hearing officer from said list  and  so  notify
the  commissioner  within  ten  days  after  receiving the list from the
commissioner, the commissioner shall request the association to  appoint
a hearing officer from said list.
  (iv)  In  those cases in which the employee elects to have the charges
heard by a hearing panel, the hearing panel shall consist of the hearing
officer, selected in accordance with this  subdivision,  and  two  addi-
tional  persons,  one  selected  by the employee and one selected by the
employing board, from a list maintained for such purpose by the  commis-
sioner  [of  education].  The  list  shall  be  composed of professional

A. 6225                             5

personnel with administrative  or  supervisory  responsibility,  profes-
sional  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 state-
wide 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  educa-
tion]  at the rate of one hundred dollars for each day of actual service
[plus] AND SHALL BE REIMBURSED IN EQUAL SHARES BY  THE  EMPLOYING  BOARD
AND  EMPLOYEE  OR  EMPLOYEE'S  BARGAINING AGENT FOR necessary travel and
subsistence expenses. The hearing officer shall be  compensated  as  set
forth  in  this subdivision. The hearing officer shall be the [chairman]
CHAIRPERSON of the hearing panel.
  c. Hearing procedures. (i) (A) The commissioner [of  education]  shall
have  the  power  to  establish  necessary  rules and procedures for the
conduct of hearings under this section WHICH, FOR  HEARINGS  OTHER  THAN
EXPEDITED HEARINGS PURSUANT TO SUBPARAGRAPH (I-A) OF THIS PARAGRAPH, MAY
INCLUDE  SPECIFIC TIMELINE REQUIREMENTS FOR CONDUCTING A HEARING AND FOR
RENDERING A FINAL DECISION.
  (B) THE DEPARTMENT SHALL BE AUTHORIZED TO MONITOR  AND  INVESTIGATE  A
HEARING  OFFICER'S  COMPLIANCE  WITH SUCH TIMELINES, AS SET FORTH IN THE
REGULATIONS OF THE COMMISSIONER. 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 THE  REGU-
LATIONS  OF  THE  COMMISSIONER  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 THE REGULATIONS
AUTHORIZED BY THIS SUBPARAGRAPH SHALL  BE  CONSIDERED  GROUNDS  FOR  THE
COMMISSIONER TO EXCLUDE SUCH INDIVIDUAL FROM THE LIST OF POTENTIAL HEAR-
ING OFFICERS SENT TO THE EMPLOYING BOARD AND THE EMPLOYEE FOR SUCH HEAR-
INGS.
  (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 disclo-
sure of [the nature of the case and evidence against the employee by the
employing board and] WITNESSES AND  EVIDENCE  BY  BOTH  PARTIES  IN  THE
MANNER PRESCRIBED IN ARTICLES THREE AND FOUR OF THE STATE ADMINISTRATIVE
PROCEDURE  ACT. THE HEARING 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.
  (D)  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] 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 TECHNOL-
OGY OR SUCH OTHER APPROPRIATE MEANS TO TRANSCRIBE OR RECORD  SUCH  HEAR-
INGS IN AN EFFICIENT AND COST-EFFECTIVE MANNER WITHOUT ANY CHARGE TO THE
EMPLOYEE OR 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 arti-

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cle, the hearing shall be conducted before and by a single hearing offi-
cer 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 estab-
lish 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 subpara-
graph. 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 evalu-
ation  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 of this arti-
cle 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 ineffec-
tive 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 expe-
dited hearings are to be strictly followed. A record of continued  fail-
ure  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 hear-
ing officers sent to the employing board and the employee for such expe-
dited 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]
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 FROM EITHER PARTY  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] PROCEEDING.

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  (iv) Any pre-hearing motion or application relative to the sufficiency
of  the  charges,  application  or amendment thereof, or any preliminary
matters shall be made upon written notice to the hearing officer and the
adverse party no less than five days prior to the date of the  pre-hear-
ing  conference.  Any  pre-hearing  motions  or applications not made as
provided for herein shall be deemed waived  except  for  good  cause  as
determined by the hearing officer.
  (v)  In  the  event  that  at the pre-hearing conference the employing
board presents evidence that the professional license  of  the  employee
has  been revoked and all judicial and administrative remedies have been
exhausted or foreclosed, the hearing officer shall  schedule  the  date,
time  and  place  for an expedited hearing, which hearing shall commence
not more than seven days after  the  pre-hearing  conference  and  which
shall  be limited to one day. The expedited hearing shall be held in the
local school district or county seat of the county or any county, where-
in the said employing board is located. The expedited hearing shall  not
be  postponed  except upon the request of a party and then only for good
cause as determined by the hearing officer. At such hearing, each  party
shall have equal time in which to present its case.
  (vi)  During  the  pre-hearing  conference,  the hearing officer shall
determine the reasonable amount of time necessary for a final hearing on
the charge or charges and  shall  schedule  the  location,  time(s)  and
date(s)  for  the  final hearing. The final hearing shall be held in the
local school district or county seat of the county, or any county, wher-
ein the said employing school board is located. In the  event  that  the
hearing  officer  determines  that  the  nature of the case requires the
final hearing to last more than one day, the days that are scheduled for
the final hearing shall be consecutive. The day or  days  scheduled  for
the  final  hearing  shall not be postponed except upon the request of a
party and then only for good cause shown as determined  by  the  hearing
officer.  In  all  cases,  the final hearing shall be completed no later
than sixty days after the  pre-hearing  conference  unless  the  hearing
officer  determines  that  extraordinary circumstances warrant a limited
extension.
  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  JULY  FIRST,  TWO
THOUSAND  ELEVEN  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 PARA-
GRAPH, 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)] A. The hearing officer shall  render
a written decision within thirty days of the last day of the final hear-
ing,  or  in  the  case  of an expedited hearing within ten days of such
expedited hearing, and shall [forthwith] forward a copy thereof  to  the
commissioner  [of education] who shall immediately forward copies of the
decision to the employee and to the clerk or secretary of the  employing
board. The written decision shall include the hearing officer's findings
of  fact  on  each  charge,  his  or her conclusions with regard to each
charge based on said findings and shall  state  what  penalty  or  other
action, if any, shall be taken by the employing board. At the request of

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the employee, in determining what, if any, penalty or other action shall
be  imposed,  the hearing officer shall consider the extent to which the
employing board made efforts towards  correcting  the  behavior  of  the
employee  which  resulted  in  charges  being brought under this section
through means including but not limited  to:  remediation,  peer  inter-
vention  or  an employee assistance plan. In those cases where a penalty
is imposed, such penalty may be a written reprimand, a fine,  suspension
for a fixed time without pay, or dismissal. In addition to or in lieu of
the aforementioned penalties, the hearing officer, where he or she deems
appropriate,  may impose upon the employee remedial action including but
not limited to leaves of absence with or without pay, continuing  educa-
tion  and/or  study,  a requirement that the employee seek counseling or
medical treatment or that the employee engage in any other  remedial  or
combination of remedial actions.
  [(b)] B. Within fifteen days of receipt of the hearing officer's deci-
sion  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)] 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)] 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] EIGHTY-THREE  hundred  three-a
of  the  civil practice law and rules. If the hearing [officers] OFFICER
finds that all of the charges brought against the employee  were  frivo-
lous,  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  depart-
ment incurred as a result of the proceeding and to reimburse the employ-
ee  a  portion, in the discretion of the hearing officer, of the reason-
able 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 IN A HEARING COMMENCED BY THE FILING OF CHARGES ON OR
BEFORE  JUNE THIRTIETH, TWO THOUSAND ELEVEN, the employee or the employ-
ing 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] 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. FOR HEARINGS COMMENCED BY THE FILING OF CHARGES ON AND  AFTER  JULY
FIRST, TWO THOUSAND ELEVEN, THE EMPLOYEE OR THE EMPLOYING BOARD MAY SEEK
REVIEW  OF THE HEARING OFFICER'S DECISION IN A SPECIAL PROCEEDING PURSU-
ANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW  AND  RULES.  THE

A. 6225                             9

HEARING  OFFICER'S  DECISION SHALL BE DEEMED TO BE FINAL FOR THE PURPOSE
OF SUCH PROCEEDING.
  C.  In no case shall the filing or the pendency of an appeal delay the
implementation of the decision of the hearing officer.
  S 2. This act shall take effect immediately, except that if  this  act
shall  have  become  a law on or after April 1, 2011 this act shall take
effect immediately and shall be deemed to have been in  full  force  and
effect on and after April 1, 2011.