§ 2854 — General requirements

§ 2854. General requirements. 1. Applicability of other laws. (a)\nNotwithstanding any provision of law to the contrary, to the extent that\nany provision of this article is inconsistent with any other state or\nlocal law, rule or regulation, the provisions of this article shall\ngovern and be controlling.\n (b) A charter school shall meet the same health and safety, civil\nrights, and student assessment requirements applicable to other public\nschools, except as otherwise specifically provided in this article. A\ncharter school shall be exempt from all other state and local laws,\nrules, regulations or policies governing public or private schools,\nboards of education, school districts and political subdivisions,\nincluding those relating to school personnel and students, except as\nspecifically provided in the school's charter or in this article.\nNothing in this subdivision shall affect the requirements of compulsory\neducation of minors established by part one of article sixty-five of\nthis chapter.\n (c) A charter school shall be subject to the financial audits, the\naudit procedures, and the audit requirements set forth in the charter,\nand shall be subject to audits of the comptroller of the city school\ndistrict of the city of New York for charter schools located in New York\ncity, and to the audits of the comptroller of the state of New York for\ncharter schools located in the rest of the state, at his or her\ndiscretion, with respect to the school's financial operations. Such\nprocedures and standards shall be consistent with generally accepted\naccounting and audit standards. Independent fiscal audits shall be\nrequired at least once annually.\n (d) A charter school shall design its educational programs to meet or\nexceed the student performance standards adopted by the board of regents\nand the student performance standards contained in the charter. Students\nattending charter school shall be required to take regents examinations\nto the same extent such examinations are required of other public school\nstudents. A charter school offering instruction in the high school\ngrades may grant regents diplomas and local diplomas to the same extent\nas other public schools, and such other certificates and honors as are\nspecifically authorized by their charter, and in testimony thereof give\nsuitable certificates, honors and diplomas under its seal; and every\ncertificate and diploma so granted shall entitle the conferee to all\nprivileges and immunities which by usage or statute are allowed for\nsimilar diplomas of corresponding grade granted by any other public\nschool.\n (e) A charter school shall be subject to the provisions of articles\nsix and seven of the public officers law.\n (f) A charter school shall be subject to the provisions of sections\neight hundred, eight hundred one, eight hundred two, eight hundred\nthree, eight hundred four, eight hundred four-a, eight hundred five,\neight hundred five-a, eight hundred five-b and eight hundred six of the\ngeneral municipal law to the same extent such sections apply to school\ndistricts.\n 2. Admissions; enrollment; students. (a) A charter school shall be\nnonsectarian in its programs, admission policies, employment practices,\nand all other operations and shall not charge tuition or fees; provided\nthat a charter school may require the payment of fees on the same basis\nand to the same extent as other public schools. A charter school shall\nnot discriminate against any student, employee or any other person on\nthe basis of ethnicity, national origin, gender, or disability or any\nother ground that would be unlawful if done by a school. Admission of\nstudents shall not be limited on the basis of intellectual ability,\nmeasures of achievement or aptitude, athletic ability, disability, race,\ncreed, gender, national origin, religion, or ancestry; provided,\nhowever, that nothing in this article shall be construed to prevent the\nestablishment of a single-sex charter school or a charter school\ndesigned to provide expanded learning opportunities for students at-risk\nof academic failure or students with disabilities and English language\nlearners; and provided, further, that the charter school shall\ndemonstrate good faith efforts to attract and retain a comparable or\ngreater enrollment of students with disabilities, English language\nlearners, and students who are eligible applicants for the free and\nreduced price lunch program when compared to the enrollment figures for\nsuch students in the school district in which the charter school is\nlocated. A charter shall not be issued to any school that would be\nwholly or in part under the control or direction of any religious\ndenomination, or in which any denominational tenet or doctrine would be\ntaught.\n (b) Any child who is qualified under the laws of this state for\nadmission to a public school is qualified for admission to a charter\nschool. Applications for admission to a charter school shall be\nsubmitted on a uniform application form created by the department and\nshall be made available by a charter school in languages predominately\nspoken in the community in which such charter school is located. The\nschool shall enroll each eligible student who submits a timely\napplication by the first day of April each year, unless the number of\napplications exceeds the capacity of the grade level or building. In\nsuch cases, students shall be accepted from among applicants by a random\nselection process, provided, however, that an enrollment preference\nshall be provided to pupils returning to the charter school in the\nsecond or any subsequent year of operation and pupils residing in the\nschool district in which the charter school is located, and siblings of\npupils already enrolled in the charter school. Preference may also be\nprovided to children of employees of the charter school or charter\nmanagement organization, provided that such children of employees may\nconstitute no more than fifteen percent of the charter school's total\nenrollment. The commissioner shall establish regulations to require that\nthe random selection process conducted pursuant to this paragraph be\nperformed in a transparent and equitable manner and to require that the\ntime and place of the random selection process be publicized in a manner\nconsistent with the requirements of section one hundred four of the\npublic officers law and be open to the public. For the purposes of this\nparagraph and paragraph (a) of this subdivision, the school district in\nwhich the charter school is located shall mean, for the city school\ndistrict of the city of New York, the community district in which the\ncharter school is located.\n (c) A charter school shall serve one or more of the grades one through\ntwelve, and shall limit admission to pupils within the grade levels\nserved. Nothing herein shall prohibit a charter school from establishing\na kindergarten program.\n (d) A student may withdraw from a charter school at any time and\nenroll in a public school. A charter school may refuse admission to any\nstudent who has been expelled or suspended from a public school until\nthe period of suspension or expulsion from the public school has\nexpired, consistent with the requirements of due process.\n 3. School personnel. (a) An employee of a charter school shall be an\nemployee of the education corporation formed to operate the charter\nschool and not an employee of the local school district in which the\ncharter school is located. An employee of a charter school shall be\ndeemed to be a public employee solely for purposes of article fourteen\nof the civil service law, except for section two hundred twelve of such\nlaw, and for no other purposes unless otherwise specified in this\narticle, the board of trustees of the charter school shall constitute a\nboard of education solely for purposes of article fourteen of the civil\nservice law, except for section two hundred twelve of such law, and for\nno other purposes unless otherwise specified in this article, a charter\nschool shall be deemed to be a public employer solely for purposes of\narticle fourteen of the civil service law, except for section two\nhundred twelve of such law, and for no other purposes unless otherwise\nspecified in this article, and the chief executive officer of the\ncharter school shall be the person designated as such by the board of\ntrustees of the charter school.\n (a-1) The board of trustees of a charter school shall employ and\ncontract with necessary teachers, administrators and other school\npersonnel. Such teachers shall be certified in accordance with the\nrequirements applicable to other public schools; provided, however, that\na charter school may employ as teachers (i) uncertified teachers with at\nleast three years of elementary, middle or secondary classroom teaching\nexperience; (ii) tenured or tenure track college faculty; (iii)\nindividuals with two years of satisfactory experience through the Teach\nfor America program; and (iv) individuals who possess exceptional\nbusiness, professional, artistic, athletic, or military experience,\nprovided, however, that such teachers described in clauses (i), (ii),\n(iii), and (iv) of this paragraph shall not in total comprise more than\nthe sum of: (A) thirty per centum of the teaching staff of a charter\nschool, or five teachers, whichever is less; plus (B) five teachers of\nmathematics, science, computer science, technology, or career and\ntechnical education; plus (C) five additional teachers. A teacher\ncertified or otherwise approved by the commissioner shall not be\nincluded in the numerical limits established by the preceding sentence.\n (a-2) (i) The board of trustees of a charter school shall require, for\npurposes of a criminal history record check, the fingerprinting of all\nprospective employees pursuant to section three thousand thirty-five of\nthis chapter, who do not hold valid clearance pursuant to such section\nor pursuant to section three thousand four-b of this chapter or section\nfive hundred nine-cc or twelve hundred twenty-nine-d of the vehicle and\ntraffic law. Prior to initiating the fingerprinting process, the\nprospective employer shall furnish the applicant with the form described\nin paragraph (c) of subdivision thirty of section three hundred five of\nthis chapter and shall obtain the applicant's consent to the criminal\nhistory records search. Every set of fingerprints taken pursuant to this\nparagraph shall be promptly submitted to the commissioner for purposes\nof clearance for employment.\n (ii) Upon the recommendation of the chief executive officer of the\ncharter school, the board of trustees of a charter school may\nconditionally appoint a prospective employee. A request for conditional\nclearance shall be forwarded to the commissioner along with the\nprospective employee's fingerprints, as required by subparagraph (i) of\nthis paragraph. Such appointment shall not commence until notification\nby the commissioner that the prospective employee has been conditionally\ncleared for employment and shall terminate forty-five days after such\nnotification of conditional clearance or when the prospective employer\nis notified of a determination by the commissioner to grant or deny\nclearance, whichever occurs earlier, and may not be extended or renewed\nunless the commissioner issues a new conditional clearance after finding\nthat there was good cause for failing to obtain clearance within such\nperiod, provided that if clearance is granted, the appointment shall\ncontinue and the conditional status shall be removed. Prior to\ncommencement of such conditional appointment, the prospective employer\nshall obtain a signed statement for conditional appointment from the\nprospective employee, indicating whether, to the best of his or her\nknowledge, he or she has a pending criminal charge or criminal\nconviction in any jurisdiction outside the state.\n (iii) Upon the recommendation of the chief executive officer of the\ncharter school, the board of trustees of a charter school may make an\nemergency conditional appointment when an unforeseen emergency vacancy\nhas occurred. When such appointment is made, the process for conditional\nappointment pursuant to subparagraph (ii) of this paragraph must also be\ninitiated. Emergency conditional appointment may commence prior to\nnotification from the commissioner on conditional clearance but shall\nterminate twenty business days from the date such appointment commences\nor when the prospective employer is notified by the commissioner\nregarding conditional clearance, whichever occurs earlier, provided that\nif conditional clearance is granted, the appointment shall continue as a\nconditional appointment. Prior to the commencement of such appointment,\nthe prospective employer must obtain a signed statement for emergency\nconditional appointment from the prospective employee, indicating\nwhether, to the best of his or her knowledge, he or she has a pending\ncriminal charge or criminal conviction in any jurisdiction. An\nunforeseen emergency vacancy shall be defined as: (1) a vacancy that\noccurred less than ten business days before the start of any school\nsession, including summer school, or during any school session,\nincluding summer school, without sufficient notice to allow for\nclearance or conditional clearance; (2) when no other qualified person\nis available to fill the vacancy temporarily; and (3) when emergency\nconditional appointment is necessary to maintain services which the\ncharter school is legally required to provide or services necessary to\nprotect the health, education or safety of students or staff. The\nprovisions of clause one of this subparagraph shall not apply if the\nboard finds that the charter school has been unable to fill the vacancy\ndespite good faith efforts to fill such vacancy in a manner which would\nhave allowed sufficient time for clearance or conditional clearance.\n (iv) Shall develop a policy for the safety of the children who have\ncontact with an employee holding conditional appointment or emergency\nconditional appointment.\n (a-3) The board of trustees of a charter school shall upon\ncommencement and termination of employment of an employee by the charter\nschool district, provide the commissioner with the name of and position\nheld by such employee.\n (b) The school employees of a charter school that has been converted\nfrom an existing public school who are eligible for representation under\narticle fourteen of the civil service law shall be deemed to be included\nwithin the negotiating unit containing like titles or positions, if any,\nfor the school district in which such charter school is located and\nshall be subject to the collective bargaining agreement covering that\nschool district negotiating unit; provided, however, that a majority of\nthe members of a negotiating unit within a charter school may modify, in\nwriting, a collective bargaining agreement for the purposes of\nemployment in the charter school with the approval of the board of\ntrustees of the charter school.\n (b-1) The employees of a charter school that is not a conversion from\nan existing public school shall not be deemed members of any existing\ncollective bargaining unit representing employees of the school district\nin which the charter school is located, and the charter school and its\nemployees shall not be subject to any existing collective bargaining\nagreement between the school district and its employees. Provided,\nhowever, that (i) if the student enrollment of the charter school on the\nfirst day on which the charter school commences student instruction\nexceeds two hundred fifty or if the average daily student enrollment of\nsuch school exceeds two hundred fifty students at any point during the\nfirst two years after the charter school commences student instruction,\nall employees of the school who are eligible for representation under\narticle fourteen of the civil service law shall be deemed to be\nrepresented in a separate negotiating unit at the charter school by the\nsame employee organization, if any, that represents like employees in\nthe school district in which such charter school is located; (ii) the\nprovisions of subparagraph (i) of this paragraph may be waived in up to\nten charters issued on the recommendation of the charter entity set\nforth in paragraph (b) of subdivision three of section twenty-eight\nhundred fifty-one of this article; (iii) the provisions of subparagraph\n(i) of this paragraph shall not be applicable to the renewal or\nextension of a charter; and (iv) nothing in this sentence shall be\nconstrued to subject a charter school subject to the provisions of this\nparagraph or its employees to any collective bargaining agreement\nbetween any public school district and its employees or to make the\nemployees of such charter school part of any negotiating unit at such\nschool district. The charter school may, in its sole discretion, choose\nwhether or not to offer the terms of any existing collective bargaining\nto school employees.\n (c) The employees of the charter school may be deemed employees of the\nlocal school district for the purpose of providing retirement benefits,\nincluding membership in the teachers' retirement system and other\nretirement systems open to employees of public schools. The financial\ncontributions for such benefits shall be the responsibility of the\ncharter school and the school's employees. The commissioner, in\nconsultation with the comptroller, shall develop regulations to\nimplement the provisions of this paragraph in a manner that allows\ncharter schools to provide retirement benefits to its employees in the\nsame manner as other public school employees.\n (c-1) Reasonable access. (i) If employees of the charter school are\nnot represented, any charter school chartered pursuant to this article\nmust afford reasonable access to any employee organization during the\nreasonable proximate period before any representation question is\nraised; or\n (ii) If the employee organization is a challenging organization,\nreasonable access must be provided to any organization seeking to\nrepresent employees beginning with a date reasonably proximate to a\nchallenge period. Reasonableness is defined, at a minimum, as access\nequal to that provided to the incumbent organization.\n (c-2) Employer neutrality. It shall be an improper practice for a\ncharter school board of directors, chief administrative officer and\ntheir agents to commit any of the acts set forth in subdivision one of\nsection two hundred nine-a of the civil service law and could in\naccordance with section twenty-eight hundred fifty-five of this article,\nresult in the revocation of the charter.\n (d) A teacher employed by a school district may make a written request\nto the board of education for an extended leave of absence to teach at a\ncharter school. Approval for such a leave of absence for a period of\nthree years or less shall not be unreasonably withheld. If such approval\nis granted to a teacher by the school district, the teacher may return\nto teach in the school district during such period of leave without the\nloss of any right of certification, retirement, seniority, salary status\nor any other benefit provided by law or by collective bargaining\nagreement. If an appropriate position is unavailable, the teacher's name\nshall be placed on a preferred eligible list of candidates for\nappointment to a vacancy that may thereafter occur in an office or\nposition similar to the one such teacher filled in such school district\nimmediately prior to the leave of service.\n (d-1) In a school district of a city having a population of one\nmillion or more, a principal employed by such school district may make a\nwritten request to the board of education for an extended leave of\nabsence to serve as a principal of a charter school. Approval for such a\nleave of absence for a period of three years or less shall not be\nunreasonably withheld. If such approval is granted to a principal by the\nschool district, the principal may return to serve as a principal in the\nschool district during such period of leave without the loss of any\nright of certification, retirement, seniority, salary status or any\nother benefit provided by law or by collective bargaining agreement. If\nan appropriate position is unavailable, the principal's name shall be\nplaced on a preferred eligible list of candidates for appointment to a\nvacancy that may thereafter occur in an office or position similar to\nthe one such principal filled in such school district immediately prior\nto the leave of service.\n