S T A T E O F N E W Y O R K
________________________________________________________________________
6859
2011-2012 Regular Sessions
I N A S S E M B L Y
April 5, 2011
___________
Introduced by M. of A. GABRYSZAK, MURRAY, SAYWARD, STEVENSON,
PEOPLES-STOKES, BURLING, CALHOUN, GIGLIO -- Multi-Sponsored by -- M.
of A. CROUCH, P. RIVERA, THIELE -- read once and referred to the
Committee on Education
AN ACT to amend the education law, in relation to establishing a state
selection process for designation of hearings officers and a review
panel to hear section 3020-a appeals; authorizing dismissal of tenured
teachers in certain circumstances; capping suspension with pay bene-
fits, and requiring cooperation and reciprocal disclosure in investi-
gations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (b) and (c) of subdivision 2 of section 3020-a
of the education law, paragraph (b) as separately amended by chapters
296 and 325 of the laws of 2008 and paragraph (c) as amended by chapter
103 of the laws of 2010, are 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 FOR UP
TO SIXTY DAYS, 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 FELONY CRIME, a sex
offense, as defined in subparagraph two of paragraph b of subdivision
seven-a of section three hundred five of this chapter, OR OFFENSES
RELATING TO A CHILD, SEXUAL PERFORMANCE OF A CHILD OR INVOLVING CHILD
ABUSE, OR HAS HAD HIS OR HER TEACHING CERTIFICATION REVOKED OR HAS
FAILED TO OBTAIN PERMANENT CERTIFICATION WITHIN THE REQUISITE STATUTORY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10346-01-1
A. 6859 2
TIME FRAME. To the extent this section applies to an employee acting as
a school administrator or supervisor, as defined in subparagraph three
of paragraph b of subdivision seven-b of section three hundred five of
this chapter, such employee shall be terminated without a hearing, as
provided for in this section, upon conviction of a felony offense
defined in subparagraph two of paragraph b of subdivision seven-b of
section three hundred five of this chapter.
(c) Within ten days of receipt of the statement of charges, the
employee shall [notify] PROVIDE the clerk or secretary of the employing
board [in writing] A WRITTEN RESPONSE TO SUCH STATEMENT OF CHARGES,
INCLUDING ANY EVIDENCE OR INFORMATION THAT MAY AID IN THE DISCOVER PROC-
ESS, AND SHALL NOTIFY THE CLERK OR SECRETARY IN WRITING whether he or
she desires a hearing on the charges and when the charges concern peda-
gogical 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.
S 2. Paragraphs a and b of subdivision 3 of section 3020-a of the
education law, paragraph a as amended by chapter 103 of the laws of 2010
and paragraph b as amended by chapter 691 of the laws of 1994, are
amended and a new paragraph d is added to read as follows:
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")] DEPARTMENT OF EDUCATION of the need for a hearing and
shall request the [association] DEPARTMENT to provide to the commission-
er forthwith [a list of names of persons] THE NAME OF A PERSON chosen by
the [association] DEPARTMENT from the [association's] DEPARTMENT'S panel
of labor arbitrators to [potentially] serve as A hearing [officers]
OFFICER together with relevant biographical information on [each] SUCH
arbitrator. Upon receipt of [said list] SUCH NAME and biographical
information, the commissioner shall forthwith send a copy of both simul-
taneously to the employing board and the employee. [The commissioner
shall also simultaneously notify both the employing board and the
employee of each potential hearing officer's record in the last five
cases of commencing and completing hearings within the time periods
prescribed in this section.]
b. (i) Hearing officers. All hearings pursuant to this section shall
be conducted before and by a single hearing officer selected as provided
for in this section. A hearing officer shall not be eligible to serve as
such if he or she is a resident of the school district, other than the
city of New York, under the jurisdiction of the employing board, an
employee, agent or representative of the employing board or of any labor
organization representing employees of such employing board, has served
as such agent or representative within two years of the date of the
scheduled hearing, or if he or she is then serving as a mediator or fact
finder in the same school district. Notwithstanding any other provision
of law, the hearing officer shall be compensated by the department with
the customary fee paid for service as an arbitrator [under the auspices
of the association] for each day of actual service plus necessary travel
and other reasonable expenses incurred in the performance of his or her
duties. All other expenses of the disciplinary proceedings shall be paid
in accordance with rules promulgated by the commissioner of education.
A. 6859 3
(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] DEPARTMENT, from a list maintained for such purpose by
the commissioner of education. [The] SUCH list shall be composed of
professional personnel with administrative or supervisory responsibil-
ity, professional personnel without administrative or supervisory
responsibility, chief school administrators, members of employing boards
and others selected from lists of nominees submitted to the commissioner
by statewide organizations representing teachers, school administrators
and supervisors and the employing boards. Hearing panel members other
than the hearing officer shall be compensated by the department of
education at the rate of one hundred dollars for each day of actual
service plus necessary travel and subsistence expenses. The hearing
officer shall be compensated as set forth in this subdivision. The hear-
ing officer shall be the chairman of the hearing panel.
D. APPELLATE REVIEW PANEL. THERE IS HEREBY CREATED A HEARING REVIEW
PANEL WHICH SHALL RECEIVE, CONSIDER AND DETERMINE APPEALS FROM DETERMI-
NATIONS OF HEARING OFFICERS OF HEARING PROCEEDINGS DESCRIBED IN THIS
SUBDIVISION. APPELLATE REVIEW PANEL DECISIONS SHALL BE REVIEWABLE FOR
ERROR, ILLEGALITY OR UNCONSTITUTIONALITY OR ANY OTHER REASON WHATSOEVER
BY A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW
AND RULES IF APPLICATION THEREFOR IS MADE TO THE SUPREME COURT.
S 3. Subparagraph (i) of paragraph c of subdivision 3 of section
3020-a of the education law, as amended by chapter 691 of the laws of
1994, is amended to read as follows:
(i) The commissioner of education shall have the power to establish
necessary rules and procedures for the conduct of hearings under this
section. Such rules shall not require compliance with technical rules of
evidence. Hearings shall be conducted by the hearing officer selected
pursuant to paragraph b of this subdivision with full and fair disclo-
sure of the nature of the case and evidence against the employee by the
employing board and shall be public or private at the discretion of the
employee. The employee shall have a reasonable opportunity to defend
himself or herself and an opportunity to testify in his or her own
behalf. The employee shall not be required to testify, HOWEVER, THE
EMPLOYEE SHALL BE REQUIRED TO COOPERATE WITH A SCHOOL DISTRICT'S INVES-
TIGATION INTO THE ALLEGED MISCONDUCT PRIOR TO HIS OR HER HEARING. Each
party shall have the right to be represented by counsel, to subpoena
witnesses, and to cross-examine witnesses. All testimony taken shall be
under oath which the hearing officer is hereby authorized to administer.
A competent stenographer, designated by the commissioner of education
and compensated by the state education department, shall keep and tran-
A. 6859 4
scribe a record of the proceedings at each such hearing. A copy of the
transcript of the hearings shall, upon request, be furnished without
charge to the employee and the board of education involved.
S 4. This act shall take effect immediately.