Assembly Bill A6218

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

                                  6218

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             March 15, 2013
                               ___________

Introduced  by M. of A. NOLAN -- read once and referred 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 is imperative that the  disci-
plinary 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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09920-01-3

              

A. 6218                             2

  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-
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

A. 6218                             3

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
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 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 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-

A. 6218                             4

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
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 THIRTEEN 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

A. 6218                             5

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
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:

A. 6218                             6

  (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
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.