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SECTION 3020-B
Streamlined removal procedures for teachers rated ineffective
Education (EDN) CHAPTER 16, TITLE 4, ARTICLE 61
§ 3020-b. Streamlined removal procedures for teachers rated
ineffective. 1. Applicability. This section shall apply to classroom
teachers and building principals who receive two or more consecutive
annual ineffective ratings pursuant to annual professional performance
reviews conducted in accordance with the provisions of section three
thousand twelve-c or three thousand twelve-d of this article.

2. Filing and disposition of charges. a. A school district or
employing board may bring charges of incompetence pursuant to this
section against any classroom teacher or building principal who receives
two consecutive ineffective ratings. A school district or employing
board shall bring charges of incompetence pursuant to this section
against any classroom teacher or building principal who receives three
consecutive ineffective ratings. All charges against a person enjoying
the benefits of tenure as provided in subdivision three of section
eleven hundred two, and sections twenty-five hundred nine, 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. Except as provided in subdivision eight of section
twenty-five hundred seventy-three and subdivision seven of section
twenty-five hundred ninety-j of this chapter, no charges under this
section shall be brought more than three years after the occurrence of
the alleged incompetency. When such charges are brought, a written
statement specifying (i) the charges in detail, (ii) that the penalty
that will be imposed by the board if the employee does not request a
hearing or that will be sought by the board after a hearing is
dismissal; and (iii) 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. The employee may be suspended pending a hearing on the charges and
the final determination thereof and such suspension shall be with pay.

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. 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, notify the
commissioner of the need for a hearing. If the 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 to be imposed in accordance with
subdivision four of this section.

d. Charges brought pursuant to this section for two consecutive
ineffective ratings shall allege that the employing board has developed
and substantially implemented a teacher or principal improvement plan in
accordance with section three thousand twelve-c or section three
thousand twelve-d of this article for the employee following the first
evaluation in which the employee was rated ineffective, and the
immediately preceding evaluation if the employee was rated developing.

3. Hearings. 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") of the need for a hearing and shall request
that the association 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, in
the case of an employee who has received three consecutive ineffective
ratings, directly appoint a hearing officer from the list. In the case
of an employee who has received two consecutive ineffective ratings, the
commissioner shall forthwith send a copy of the list and biographical
information 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. The commissioner shall establish time
periods for the employing board and the employee to notify the
commissioner of their agreed upon hearing officer selection. If the
employing board and the employee fail to agree on an arbitrator to serve
as a hearing officer from the list of potential hearing officers, or
fail to notify the commissioner of a selection within such established
time period, the commissioner shall appoint a hearing officer from the
list.

b. 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 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,
he or she 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. Subject to an
appropriation, the hearing officer shall be compensated by the
department for each day of actual service plus necessary travel and
other reasonable expenses incurred in the performance of his or her
duties, provided that the commissioner shall establish a schedule for
maximum rates of compensation of hearing officers based on customary and
reasonable fees for service as an arbitrator and provide for limitations
on the number of study hours that may be claimed.

c. Hearing procedures. (i) The commissioner shall have the power to
establish necessary rules and procedures for the conduct of hearings
under this section, and shall establish timelines in regulations to
ensure that the duration of a removal proceeding pursuant to this
section, as measured from the date an employee requests a hearing to the
final hearing date, is no longer than ninety days in the case of an
employee who has received two consecutive ineffective ratings and no
longer than thirty days in the case of an employee who has received
three consecutive ineffective ratings. The commissioner shall establish
timeframes in regulations for a pre-hearing conference wherein a hearing
officer shall have the power to issue subpoenas, hear motions and decide
on other discovery and evidentiary issues. At such pre-hearing
conference, the hearing officer shall establish a hearing schedule at
the pre-hearing conference to ensure that the hearing is completed
within the required time period 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
timelines, except as authorized in this subparagraph. A hearing officer
may grant a limited and time specific adjournment that would extend the
hearing beyond such timelines 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.

(ii) The department shall be authorized to monitor and investigate a
hearing officer's compliance with timelines pursuant to this section and
to any regulations promulgated by the department. 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 section 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 this section shall be
considered grounds for the commissioner to exclude such individual from
the list of potential hearing officers to be considered for such
hearings.

(iii) Such rules shall not require compliance with technical rules of
evidence. Hearings shall be conducted by the hearing officer selected
pursuant to paragraph a of this subdivision 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 on 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.

(iv) An accurate record of the proceedings shall be kept at the
expense of the department at each such hearing in accordance with the
regulations of the commissioner. A copy of the 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 technology or such other appropriate means to transcribe
or record such hearings in an accurate, reliable, efficient and
cost-effective manner without any charge to the employee or board of
education involved.

(v) Legal standard. (A) Two consecutive ineffective ratings pursuant
to annual professional performance reviews conducted in accordance with
the provisions of section three thousand twelve-c or three thousand
twelve-d of this article shall constitute prima facie evidence of
incompetence that can be overcome only by clear and convincing evidence
that the employee is not incompetent in light of all surrounding
circumstances, and if not successfully overcome, the finding, absent
extraordinary circumstances, shall be just cause for removal. (B) Three
consecutive ineffective ratings pursuant to annual professional
performance reviews conducted in accordance with the provisions of
section three thousand twelve-c or three thousand twelve-d of this
article shall constitute prima facie evidence of incompetence that can
be overcome only by clear and convincing evidence that the calculation
of one or more of the teacher's or principal's underlying components on
the annual professional performance reviews pursuant to section three
thousand twelve-c or three thousand twelve-d of this article was
fraudulent, and if not successfully overcome, the finding, absent
extraordinary circumstances, shall be just cause for removal. For
purposes of this subparagraph, fraud shall include mistaken identity.

4. Post hearing procedures. a. The hearing officer shall render a
written decision within ten days of the last day of the final 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 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 whether the penalty of dismissal shall be taken by the
employing board.

b. Within fifteen days of receipt of the hearing officer's decision
the employing board shall implement the decision. If the employee is
acquitted he or she shall be restored to his or her position and the
charges expunged from the employment record.

5. Appeal. a. Not later than ten days after receipt of the hearing
officer's decision, 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.

6. Nothing in this section shall be construed to prevent the use of
any evidence of performance to support charges of incompetence brought
pursuant to the provisions of section three thousand twenty-a of this
article.