S T A T E O F N E W Y O R K
________________________________________________________________________
3110
2013-2014 Regular Sessions
I N A S S E M B L Y
January 23, 2013
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Introduced by M. of A. ORTIZ -- Multi-Sponsored by -- M. of A. CUSICK,
GALEF, HIKIND, MAGEE, PERRY, RIVERA, ROBINSON, WEISENBERG -- read once
and referred to the Committee on Education
AN ACT to amend the education law, in relation to establishing liability
protection for public school educators
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "education
quality and teacher and principal protection act".
S 2. The education law is amended by adding a new article 62 to read
as follows:
ARTICLE 62
EDUCATION QUALITY AND TEACHER AND PRINCIPAL
PROTECTION ACT
SECTION 3070. LEGISLATIVE FINDINGS.
3071. DEFINITIONS.
3072. LIABILITY.
3073. PUNITIVE AND EXEMPLARY DAMAGES.
3074. FALSE REPORTS.
3075. FRIVOLOUS ACTIONS; ATTORNEY'S FEES; COST.
3076. CONTINGENCY FEES; PENALTY.
3077. INSURANCE.
S 3070. LEGISLATIVE FINDINGS. THE LEGISLATURE FINDS THAT ENSURING THE
QUALITY OF PRIMARY AND SECONDARY PUBLIC EDUCATION IS A COMPELLING STATE
INTEREST. THE EDUCATIONAL ENVIRONMENT OF STUDENTS IS OFTEN NOT CONDUCIVE
TO LEARNING. VIOLENCE IS SOMETIMES A THREAT, WHILE OTHER TIMES EDUCATORS
MAY LACK THE AUTHORITY TO MAINTAIN SAFETY AND DISCIPLINE IN THE PUBLIC
SCHOOLS. THE FILING OF MERITLESS LAWSUITS AGAINST SCHOOL DISTRICTS,
TEACHERS, ADMINISTRATORS, AND OTHER SCHOOL EMPLOYEES INTERFERES WITH
ATTEMPTS TO ENSURE THE QUALITY OF PUBLIC EDUCATION, PARTICULARLY WHERE
SUCH LAWSUITS ARISE OUT OF THE GOOD FAITH EFFORTS OF EDUCATORS TO MAIN-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06850-01-3
A. 3110 2
TAIN CLASSROOM DISCIPLINE OR ADDRESS THREATS TO STUDENT SAFETY. MERIT-
LESS LITIGATION ALSO DIVERTS FINANCIAL AND PERSONNEL RESOURCES TO LITI-
GATION DEFENSE ACTIVITIES AND REDUCES THE AVAILABILITY OF SUCH RESOURCES
FOR EDUCATIONAL OPPORTUNITIES FOR STUDENTS. THE LEGISLATURE FURTHER
FINDS THAT LEGISLATION TO DETER MERITLESS LAWSUITS AND SANCTION DELIB-
ERATELY FALSE REPORTS AGAINST EDUCATORS IS A RATIONAL AND APPROPRIATE
METHOD TO ADDRESS THIS COMPELLING PUBLIC INTEREST.
S 3071. DEFINITIONS. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT
OTHERWISE REQUIRES, THE FOLLOWING TERMS SHALL MEAN:
1. "EDUCATIONAL ENTITY" MEANS THE DEPARTMENT OF EDUCATION OR ANY OTHER
BODY, BOARD OR AGENCY THAT GOVERNS ONE OR MORE PUBLIC PRIMARY OR SECOND-
ARY SCHOOLS.
2. "EMPLOYEE" MEANS ANY INDIVIDUAL ELECTED OR APPOINTED TO AN EDUCA-
TIONAL ENTITY OR WHO PROVIDES STUDENT-RELATED SERVICES TO THAT EDUCA-
TIONAL ENTITY ON A CONTRACTUAL BASIS. THE TERM EMPLOYEE SHALL ALSO
INCLUDE AN AUTHORIZED VOLUNTEER WHO PROVIDES STUDENT-RELATED SERVICES TO
THE EDUCATIONAL ENTITY.
S 3072. LIABILITY. 1. AN EDUCATIONAL ENTITY OR ITS EMPLOYEES SHALL NOT
BE SUBJECT TO LIABILITY FOR TAKING ANY ACTION REGARDING THE SUPERVISION,
GRADING, SUSPENSION, EXPULSION OR DISCIPLINE OF STUDENTS WHILE SUCH
STUDENTS ARE ON THE PROPERTY OF THE EDUCATIONAL ENTITY OR ARE UNDER THE
SUPERVISION OF THE EDUCATIONAL ENTITY OR ITS EMPLOYEES. HOWEVER, THIS
IMMUNITY SHALL NOT APPLY IF SUCH ACTION VIOLATED AN EXPRESS STATUTE,
RULE, REGULATION OR CLEARLY ARTICULATED POLICY OF THE STATE OR EDUCA-
TIONAL ENTITY. THE BURDEN OF PROOF OF SUCH A VIOLATION SHALL REST WITH
THE PARTY BRINGING THE ACTION AND MUST BE ESTABLISHED BY CLEAR AND
CONVINCING EVIDENCE TO THE COURT AS PART OF A SUMMARY PROCEEDING.
2. AN EDUCATIONAL ENTITY AND ITS EMPLOYEES SHALL NOT BE SUBJECT TO
LIABILITY FOR MAKING A REPORT CONSISTENT WITH FEDERAL LAW TO THE APPRO-
PRIATE LAW ENFORCEMENT AUTHORITIES OR OFFICIALS OF AN EDUCATIONAL ENTITY
IF THE INDIVIDUAL MAKING THE REPORT HAS REASONABLE GROUNDS TO SUSPECT
THAT A STUDENT IS:
(A) UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE OR A CONTROLLED
SUBSTANCE NOT LAWFULLY PRESCRIBED TO THAT INDIVIDUAL;
(B) IN POSSESSION OF A FIREARM, ALCOHOLIC BEVERAGE OR A CONTROLLED
SUBSTANCE NOT LAWFULLY PRESCRIBED TO THAT INDIVIDUAL; OR
(C) INVOLVED IN THE ILLEGAL SOLICITATION, SALE OR DISTRIBUTION OF A
FIREARM, ALCOHOLIC BEVERAGE OR CONTROLLED SUBSTANCE NOT LAWFULLY
PRESCRIBED TO THAT INDIVIDUAL.
S 3073. PUNITIVE AND EXEMPLARY DAMAGES. 1. AN EDUCATIONAL ENTITY SHALL
NOT BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES. AN EMPLOYEE SHALL NOT
BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES FOR ACTS OR OMISSIONS WITHIN
THE COURSE AND SCOPE OF EMPLOYMENT.
2. FOR THE PURPOSES OF THIS SECTION, AN EMPLOYEE WHO ACTS WITH SPECIF-
IC INTENT TO CAUSE HARM SHALL NOT BE CONSIDERED AS ACTING WITHIN THE
COURSE AND SCOPE OF EMPLOYMENT.
S 3074. FALSE REPORTS. 1. EXCEPT AS OTHERWISE PROVIDED IN THIS ARTI-
CLE, ANY PERSON EIGHTEEN YEARS OF AGE OR OLDER WHO ACTS WITH SPECIFIC
INTENT IN MAKING A FALSE ACCUSATION OF CRIMINAL ACTIVITY AGAINST AN
EMPLOYEE OF AN EDUCATIONAL ENTITY TO LAW ENFORCEMENT AUTHORITIES, SCHOOL
DISTRICT OFFICIALS OR PERSONNEL, OR BOTH, SHALL BE SUBJECT TO A CIVIL
FINE OF UP TO TWO THOUSAND DOLLARS.
2. EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE, ANY PUBLIC SCHOOL
STUDENT BETWEEN THE AGES OF SEVEN AND SEVENTEEN, INCLUSIVE, WHO ACTS
WITH SPECIFIC INTENT IN MAKING A FALSE ACCUSATION OF CRIMINAL ACTIVITY
AGAINST AN EMPLOYEE OF AN EDUCATIONAL ENTITY TO LAW ENFORCEMENT AUTHORI-
A. 3110 3
TIES, SCHOOL DISTRICT OFFICIALS OR PERSONNEL, OR BOTH, MAY, AT THE
DISCRETION OF THE COURT, AND IN ACCORDANCE WITH THE PROVISIONS OF THE
FEDERAL INDIVIDUALS WITH DISABILITIES EDUCATION ACT, 20 U.S.C.A. SS 1400
ET SEQ., BE SUBJECT TO ANY OF THE FOLLOWING:
(A) EXPULSION;
(B) SUSPENSION FOR A PERIOD OF TIME TO BE DETERMINED BY THE COURT;
(C) COMMUNITY SERVICE OF A TYPE AND FOR A PERIOD OF TIME TO BE DETER-
MINED BY THE COURT; OR
(D) ANY OTHER SANCTION AS THE COURT IN ITS DISCRETION MAY DEEM APPRO-
PRIATE.
3. THE PROVISIONS OF THIS ARTICLE SHALL NOT APPLY TO STATEMENTS
REGARDING INDIVIDUALS ELECTED OR APPOINTED TO A SCHOOL BOARD.
4. THIS ARTICLE SHALL NOT BE DEEMED TO LIMIT THE CIVIL OR CRIMINAL
LIABILITY OF THOSE PERSONS WHO MAKE FALSE STATEMENTS ALLEGING CRIMINAL
ACTIVITY BY OTHERS.
S 3075. FRIVOLOUS ACTIONS; ATTORNEY'S FEES; COST. 1. IN ANY CIVIL
ACTION OR PROCEEDING AGAINST AN EDUCATIONAL ENTITY OR ITS EMPLOYEE IN
WHICH THE EDUCATIONAL ENTITY OR ITS EMPLOYEE PREVAIL, THE COURT SHALL
AWARD COST AND REASONABLE ATTORNEY'S FEES TO THE PREVAILING DEFENDANT OR
DEFENDANTS. THE COURT IN ITS DISCRETION MAY DETERMINE WHETHER SUCH FEES
AND COSTS ARE TO BE BORNE BY THE PLAINTIFF'S ATTORNEY, THE PLAINTIFF, OR
BOTH.
2. EXPERT WITNESS FEES MAY BE INCLUDED AS PART OF THE COSTS AWARDED
UNDER THIS SECTION.
S 3076. CONTINGENCY FEES; PENALTY. 1. NO ATTORNEY SHALL CHARGE,
DEMAND, RECEIVE OR COLLECT FOR SERVICES RENDERED, FEES IN EXCESS OF
TWENTY-FIVE PERCENT OF ANY CIVIL JUDGEMENT RENDERED AGAINST AN EDUCA-
TIONAL ENTITY OR ITS EMPLOYEES, OR ANY SETTLEMENT ENTERED INTO PURSUANT
TO LAW.
2. ANY INTERESTED PERSON MAY FILE A CIVIL ACTION OR PETITION WITH THE
APPROPRIATE COURT TO RESCIND ANY PROVISION OF THE ATTORNEY FEE CONTRACT
INCONSISTENT WITH THIS SECTION AND TO COMPEL DISGORGEMENT OF ANY FEES
PAID IN EXCESS OF THE AMOUNTS ALLOWED UNDER THIS SECTION. IN ADDITION, A
COURT WITH JURISDICTION OVER THE MATTER SHALL IMPOSE A FINE AGAINST THE
ATTORNEY THAT IS EQUAL TO OR LESS THAN THE AMOUNT OF MONEY SOUGHT BY THE
ATTORNEY IN EXCESS OF THE AMOUNT PERMITTED BY THIS SECTION, BUT IN ANY
EVENT NOT LESS THAN TWO THOUSAND DOLLARS.
S 3077. INSURANCE. UNLESS OTHERWISE PROVIDED BY LAW, THE EXISTENCE OF
ANY POLICY OF INSURANCE INDEMNIFYING AN EDUCATIONAL ENTITY AGAINST
LIABILITY FOR DAMAGES SHALL NOT BE CONSIDERED A WAIVER OF ANY DEFENSE
OTHERWISE AVAILABLE TO THE EDUCATIONAL ENTITY OR ITS EMPLOYEES IN THE
DEFENSE OF THE CLAIM.
S 3. This act shall take effect November 1, 2013.