§ 3020-A — Disciplinary procedures and penalties

§ 3020-a. Disciplinary procedures and penalties. 1. Filing of charges.\nAll charges against a person enjoying the benefits of tenure as provided\nin subdivision three of section eleven hundred two, and sections\ntwenty-five hundred nine, twenty-five hundred seventy-three, twenty-five\nhundred ninety-j, three thousand twelve and three thousand fourteen of\nthis chapter shall be in writing and filed with the clerk or secretary\nof the school district or employing board during the period between the\nactual opening and closing of the school year for which the employed is\nnormally required to serve. Except as provided in subdivision eight of\nsection twenty-five hundred seventy-three and subdivision seven of\nsection twenty-five hundred ninety-j of this chapter, no charges under\nthis section shall be brought more than three years after the occurrence\nof the alleged incompetency or misconduct, except when the charge is of\nmisconduct constituting a crime when committed.\n 2. Disposition of charges. a. Upon receipt of the charges, the clerk\nor secretary of the school district or employing board shall immediately\nnotify said board thereof. Within five days after receipt of charges,\nthe employing board, in executive session, shall determine, by a vote of\na majority of all the members of such board, whether probable cause\nexists to bring a disciplinary proceeding against an employee pursuant\nto this section. If such determination is affirmative, a written\nstatement specifying (i) the charges in detail, (ii) the maximum penalty\nwhich will be imposed by the board if the employee does not request a\nhearing or that will be sought by the board if the employee is found\nguilty of the charges after a hearing and (iii) the employee's rights\nunder this section, shall be immediately forwarded to the accused\nemployee by certified or registered mail, return receipt requested or by\npersonal delivery to the employee.\n b. The employee may be suspended pending a hearing on the charges and\nthe final determination thereof. The suspension shall be with pay,\nexcept the employee may be suspended without pay if the employee has\nentered a guilty plea to or has been convicted of a felony crime\nconcerning the criminal sale or possession of a controlled substance, a\nprecursor of a controlled substance, or drug paraphernalia as defined in\narticle two hundred twenty or two hundred twenty-one of the penal law;\nor a felony crime involving the physical abuse of a minor or student.\n c. Where charges of misconduct constituting physical or sexual abuse\nof a student are brought on or after July first, two thousand fifteen,\nthe board of education may suspend the employee without pay pending an\nexpedited hearing pursuant to subparagraph (i-a) of paragraph c of\nsubdivision three of this section. Notwithstanding any other law, rule,\nor regulation to the contrary, the commissioner shall establish a\nprocess in regulations for a probable cause hearing before an impartial\nhearing officer within ten days to determine whether the decision to\nsuspend an employee without pay pursuant to this paragraph should be\ncontinued or reversed. The process for selection of an impartial hearing\nofficer shall be as similar as possible to the regulatory framework for\nthe appointment of an impartial hearing officer for due process\ncomplaints pursuant to section forty-four hundred four of this chapter.\nThe hearing officer shall determine whether probable cause supports the\ncharges and shall reverse the decision of the board of education to\nsuspend the employee without pay and reinstate such pay upon a finding\nthat probable cause does not support the charges. The hearing officer\nmay also reinstate pay upon a written determination that a suspension\nwithout pay is grossly disproportionate in light of all surrounding\ncircumstances. Provided, further, that such an employee shall be\neligible to receive reimbursement for withheld pay and accrued interest\nat a rate of six percent compounded annually if the hearing officer\nfinds in his or her favor, either at the probable cause hearing or in a\nfinal determination pursuant to the expedited hearing held pursuant to\nsubparagraph (i-a) of paragraph c of subdivision three of this section.\nAny suspension without pay shall last no longer than one hundred and\ntwenty days from the decision of the board of education to suspend the\nemployee without pay and such suspension shall only relate to employee\ncompensation, exclusive of other benefits and guarantees.\nNotwithstanding any other provision of law or regulation to the\ncontrary, any provision of a collective bargaining agreement entered\ninto by the city of New York as of April first, two thousand fifteen,\nthat provides for suspension without pay for offenses as specified in\nthis paragraph shall supersede the provisions hereof and shall continue\nin effect without modification and may be extended.\n d. The employee shall be terminated without a hearing, as provided for\nin this section, upon conviction of a sex offense, as defined in\nsubparagraph two of paragraph b of subdivision seven-a of section three\nhundred five of this chapter. To the extent this section applies to an\nemployee acting as a school administrator or supervisor, as defined in\nsubparagraph three of paragraph b of subdivision seven-b of section\nthree hundred five of this chapter, such employee shall be terminated\nwithout a hearing, as provided for in this section, upon conviction of a\nfelony offense defined in subparagraph two of paragraph b of subdivision\nseven-b of section three hundred five of this chapter.\n e. (i) For hearings commenced by the filing of charges prior to July\nfirst, two thousand fifteen, within ten days of receipt of the statement\nof charges, the employee shall notify the clerk or secretary of the\nemploying board in writing whether he or she desires a hearing on the\ncharges and when the charges concern pedagogical incompetence or issues\ninvolving pedagogical judgment, his or her choice of either a single\nhearing officer or a three member panel, provided that a three member\npanel shall not be available where the charges concern pedagogical\nincompetence based solely upon a teacher's or principal's pattern of\nineffective teaching or performance as defined in section three thousand\ntwelve-c of this article. All other charges shall be heard by a single\nhearing officer.\n (ii) All hearings commenced by the filing of charges on or after July\nfirst, two thousand fifteen shall be heard by a single hearing officer.\n f. The unexcused failure of the employee to notify the clerk or\nsecretary of his or her desire for a hearing within ten days of the\nreceipt of charges shall be deemed a waiver of the right to a hearing.\nWhere an employee requests a hearing in the manner provided for by this\nsection, the clerk or secretary of the board shall, within three working\ndays of receipt of the employee's notice or request for a hearing,\nnotify the commissioner of the need for a hearing. If the employee\nwaives his or her right to a hearing the employing board shall proceed,\nwithin fifteen days, by a vote of a majority of all members of such\nboard, to determine the case and fix the penalty, if any, to be imposed\nin accordance with subdivision four of this section.\n 3. Hearings. a. Notice of hearing. Upon receipt of a request for a\nhearing in accordance with subdivision two of this section, the\ncommissioner shall forthwith notify the American Arbitration Association\n(hereinafter "association") of the need for a hearing and shall request\nthe association to provide to the commissioner forthwith a list of names\nof persons chosen by the association from the association's panel of\nlabor arbitrators to potentially serve as hearing officers together with\nrelevant biographical information on each arbitrator. Upon receipt of\nsaid list and biographical information, the commissioner shall forthwith\nsend a copy of both simultaneously to the employing board and the\nemployee. The commissioner shall also simultaneously notify both the\nemploying board and the employee of each potential hearing officer's\nrecord in the last five cases of commencing and completing hearings\nwithin the time periods prescribed in this section.\n b. (i) Hearing officers. All hearings pursuant to this section shall\nbe conducted before and by a single hearing officer selected as provided\nfor in this section. A hearing officer shall not be eligible to serve in\nsuch position if he or she is a resident of the school district, other\nthan the city of New York, under the jurisdiction of the employing\nboard, an employee, agent or representative of the employing board or of\nany labor organization representing employees of such employing board,\nhas served as such agent or representative within two years of the date\nof the scheduled hearing, or if he or she is then serving as a mediator\nor fact finder in the same school district.\n (A) Notwithstanding any other provision of law, for hearings commenced\nby the filing of charges prior to April first, two thousand twelve, the\nhearing officer shall be compensated by the department with the\ncustomary fee paid for service as an arbitrator under the auspices of\nthe association for each day of actual service plus necessary travel and\nother reasonable expenses incurred in the performance of his or her\nduties. All other expenses of the disciplinary proceedings commenced by\nthe filing of charges prior to April first, two thousand twelve shall be\npaid in accordance with rules promulgated by the commissioner. Claims\nfor such compensation for days of actual service and reimbursement for\nnecessary travel and other expenses for hearings commenced by the filing\nof charges prior to April first, two thousand twelve shall be paid from\nan appropriation for such purpose in the order in which they have been\napproved by the commissioner for payment, provided payment shall first\nbe made for any other hearing costs payable by the commissioner,\nincluding the costs of transcribing the record, and provided further\nthat no such claim shall be set aside for insufficiency of funds to make\na complete payment, but shall be eligible for a partial payment in one\nyear and shall retain its priority date status for appropriations\ndesignated for such purpose in future years.\n (B) Notwithstanding any other provision of law, rule or regulation to\nthe contrary, for hearings commenced by the filing of charges on or\nafter April first, two thousand twelve, the hearing officer shall be\ncompensated by the department for each day of actual service plus\nnecessary travel and other reasonable expenses incurred in the\nperformance of his or her duties, provided that the commissioner shall\nestablish a schedule for maximum rates of compensation of hearing\nofficers based on customary and reasonable fees for service as an\narbitrator and provide for limitations on the number of study hours that\nmay be claimed.\n (ii) The commissioner shall mail to the employing board and the\nemployee the list of potential hearing officers and biographies provided\nto the commissioner by the association, the employing board and the\nemployee, individually or through their agents or representatives, shall\nby mutual agreement select a hearing officer from said list to conduct\nthe hearing and shall notify the commissioner of their selection.\n (iii) Within fifteen days after receiving the list of potential\nhearing officers as described in subparagraph (ii) of this paragraph,\nthe employing board and the employee shall each notify the commissioner\nof their agreed upon hearing officer selection. If the employing board\nand the employee fail to agree on an arbitrator to serve as a hearing\nofficer from the list of potential hearing officers, or fail to notify\nthe commissioner of a selection within such fifteen day time period, the\ncommissioner shall appoint a hearing officer from the list. The\nprovisions of this subparagraph shall not apply in cities with a\npopulation of one million or more with alternative procedures specified\nin section three thousand twenty of this article.\n (iv) In those cases commenced by the filing of charges prior to July\nfirst, two thousand fifteen in which the employee elects to have the\ncharges heard by a hearing panel, the hearing panel shall consist of the\nhearing officer, selected in accordance with this subdivision, and two\nadditional persons, one selected by the employee and one selected by the\nemploying board, from a list maintained for such purpose by the\ncommissioner. The list shall be composed of professional personnel with\nadministrative or supervisory responsibility, professional personnel\nwithout administrative or supervisory responsibility, chief school\nadministrators, members of employing boards and others selected from\nlists of nominees submitted to the commissioner by statewide\norganizations representing teachers, school administrators and\nsupervisors and the employing boards. Hearing panel members other than\nthe hearing officer shall be compensated by the department at the rate\nof one hundred dollars for each day of actual service plus necessary\ntravel and subsistence expenses. The hearing officer shall be\ncompensated as set forth in this subdivision. The hearing officer shall\nbe the chairperson of the hearing panel.\n c. Hearing procedures. (i) (A) The commissioner shall have the power\nto establish necessary rules and procedures for the conduct of hearings\nunder this section.\n (B) The department shall be authorized to monitor and investigate a\nhearing officer's compliance with statutory timelines pursuant to this\nsection. The commissioner shall annually inform all hearing officers who\nhave heard cases pursuant to this section during the preceding year that\nthe time periods prescribed in this section for conducting such hearings\nare to be strictly followed. A record of continued failure to commence\nand complete hearings within the time periods prescribed in this section\nshall be considered grounds for the commissioner to exclude such\nindividual from the list of potential hearing officers sent to the\nemploying board and the employee for such hearings.\n (C) Such rules shall not require compliance with technical rules of\nevidence. Hearings shall be conducted by the hearing officer selected\npursuant to paragraph b of this subdivision with full and fair\ndisclosure of the nature of the case and evidence against the employee\nby the employing board and shall be public or private at the discretion\nof the employee and provided further that the hearing officer, at the\npre-hearing conference, shall set a schedule and manner for full and\nfair disclosure of the witnesses and evidence to be offered by the\nemployee. The employee shall have a reasonable opportunity to defend\nhimself or herself and an opportunity to testify in his or her own\nbehalf. The employee shall not be required to testify. Each party shall\nhave the right to be represented by counsel, to subpoena witnesses, and\nto cross-examine witnesses. All testimony taken shall be under oath\nwhich the hearing officer is hereby authorized to administer. A child\nwitness under the age of fourteen may be permitted to testify through\nthe use of live, two-way closed-circuit television, as such term is\ndefined in subdivision four of section 65.00 of the criminal procedure\nlaw, when the hearing officer, after providing the employee with an\nopportunity to be heard, determines by clear and convincing evidence\nthat such child witness would suffer serious mental or emotional harm\nwhich would substantially impair such child's ability to communicate if\nrequired to testify at the hearing without the use of live, two-way\nclosed-circuit television and that the use of such live, two-way\nclosed-circuit television will diminish the likelihood or extent of such\nharm. In making such determination, the hearing officer shall consider\nany applicable factors contained in subdivision ten of section 65.20 of\nthe criminal procedure law. Where the hearing officer determines that\nsuch child witness will be permitted to testify through the use of live,\ntwo-way closed-circuit television, the testimony of such child witness\nshall be taken in a manner consistent with section 65.30 of the criminal\nprocedure law.\n (D) An accurate record of the proceedings shall be kept at the expense\nof the department at each such hearing in accordance with the\nregulations of the commissioner. A copy of the record of the hearings\nshall, upon request, be furnished without charge to the employee and the\nboard of education involved. The department shall be authorized to\nutilize any new technology or such other appropriate means to transcribe\nor record such hearings in an accurate, reliable, efficient and\ncost-effective manner without any charge to the employee or board of\neducation involved.\n (i-a)(A) Where charges of misconduct constituting physical or sexual\nabuse of a student are brought, the hearing shall be conducted before\nand by a single hearing officer in an expedited hearing, which shall\ncommence within seven days after the pre-hearing conference and shall be\ncompleted within sixty days after the pre-hearing conference. The\nhearing officer shall establish a hearing schedule at the pre-hearing\nconference to ensure that the expedited hearing is completed within the\nrequired timeframes and to ensure an equitable distribution of days\nbetween the employing board and the charged employee. Notwithstanding\nany other law, rule or regulation to the contrary, no adjournments may\nbe granted that would extend the hearing beyond such sixty days, except\nas authorized in this subparagraph. A hearing officer, upon request, may\ngrant a limited and time specific adjournment that would extend the\nhearing beyond such sixty days if the hearing officer determines that\nthe delay is attributable to a circumstance or occurrence substantially\nbeyond the control of the requesting party and an injustice would result\nif the adjournment were not granted.\n (B) The commissioner shall annually inform all hearing officers who\nhave heard cases pursuant to this section during the preceding year that\nthe time periods prescribed in this subparagraph for conducting\nexpedited hearings are to be strictly followed and failure to do so\nshall be considered grounds for the commissioner to exclude such\nindividual from the list of potential hearing officers sent to the\nemploying board and the employee for such expedited hearings.\n (ii) The hearing officer selected to conduct a hearing under this\nsection shall, within ten to fifteen days of agreeing to serve in such\nposition, hold a pre-hearing conference which shall be held in the\nschool district or county seat of the county, or any county, wherein the\nemploying school board is located. The pre-hearing conference shall be\nlimited in length to one day except that the hearing officer, in his or\nher discretion, may allow one additional day for good cause shown.\n (iii) At the pre-hearing conference the hearing officer shall have the\npower to:\n (A) issue subpoenas;\n (B) hear and decide all motions, including but not limited to motions\nto dismiss the charges;\n (C) hear and decide all applications for bills of particular or\nrequests for production of materials or information, including, but not\nlimited to, any witness statement (or statements), investigatory\nstatement (or statements) or note (notes), exculpatory evidence or any\nother evidence, including district or student records, relevant and\nmaterial to the employee's defense.\n (iv) Any pre-hearing motion or application relative to the sufficiency\nof the charges, application or amendment thereof, or any preliminary\nmatters shall be made upon written notice to the hearing officer and the\nadverse party no less than five days prior to the date of the\npre-hearing conference. Any pre-hearing motions or applications not made\nas provided for herein shall be deemed waived except for good cause as\ndetermined by the hearing officer.\n (v) In the event that at the pre-hearing conference the employing\nboard presents evidence that the professional license of the employee\nhas been revoked and all judicial and administrative remedies have been\nexhausted or foreclosed, the hearing officer shall schedule the date,\ntime and place for an expedited hearing, which hearing shall commence\nnot more than seven days after the pre-hearing conference and which\nshall be limited to one day. The expedited hearing shall be held in the\nlocal school district or county seat of the county or any county,\nwherein the said employing board is located. The expedited hearing shall\nnot be postponed except upon the request of a party and then only for\ngood cause as determined by the hearing officer. At such hearing, each\nparty shall have equal time in which to present its case.\n (vi) During the pre-hearing conference, the hearing officer shall\ndetermine the reasonable amount of time necessary for a final hearing on\nthe charge or charges and shall schedule the location, time(s) and\ndate(s) for the final hearing. The final hearing shall be held in the\nlocal school district or county seat of the county, or any county,\nwherein the said employing school board is located. In the event that\nthe hearing officer determines that the nature of the case requires the\nfinal hearing to last more than one day, the days that are scheduled for\nthe final hearing shall be consecutive. The day or days scheduled for\nthe final hearing shall not be postponed except upon the request of a\nparty and then only for good cause shown as determined by the hearing\nofficer. In all cases, the final hearing shall be completed no later\nthan sixty days after the pre-hearing conference unless the hearing\nofficer determines that extraordinary circumstances warrant a limited\nextension.\n (vii) All evidence shall be submitted by all parties within one\nhundred twenty-five days of the filing of charges and no additional\nevidence shall be accepted after such time, absent extraordinary\ncircumstances beyond the control of the parties.\n d. Limitation on claims. Notwithstanding any other provision of law,\nrule or regulation to the contrary, no payments shall be made by the\ndepartment pursuant to this subdivision on or after April first, two\nthousand twelve for: (i) compensation of a hearing officer or hearing\npanel member, (ii) reimbursement of such hearing officers or panel\nmembers for necessary travel or other expenses incurred by them, or\n(iii) for other hearing expenses on a claim submitted later than one\nyear after the final disposition of the hearing by any means, including\nsettlement, or within ninety days after the effective date of this\nparagraph, whichever is later; provided that no payment shall be barred\nor reduced where such payment is required as a result of a court order\nor judgment or a final audit.\n 4. Post hearing procedures. a. The hearing officer shall render a\nwritten decision within thirty days of the last day of the final\nhearing, or in the case of an expedited hearing within ten days of such\nexpedited hearing, and shall forward a copy thereof to the commissioner\nwho shall immediately forward copies of the decision to the employee and\nto the clerk or secretary of the employing board. The written decision\nshall include the hearing officer's findings of fact on each charge, his\nor her conclusions with regard to each charge based on said findings and\nshall state what penalty or other action, if any, shall be taken by the\nemploying board. At the request of the employee, in determining what, if\nany, penalty or other action shall be imposed, the hearing officer may\nconsider the extent to which the employing board made efforts towards\ncorrecting the behavior of the employee which resulted in charges being\nbrought under this section through means including but not limited to:\nremediation, peer intervention or an employee assistance plan. In those\ncases where a penalty is imposed, such penalty may be a written\nreprimand, a fine, suspension for a fixed time without pay, or\ndismissal. In addition to or in lieu of the aforementioned penalties,\nthe hearing officer, where he or she deems appropriate, may impose upon\nthe employee remedial action including but not limited to leaves of\nabsence with or without pay, continuing education and/or study, a\nrequirement that the employee seek counseling or medical treatment or\nthat the employee engage in any other remedial or combination of\nremedial actions. Provided, however, that the hearing officer, in\nexercising his or her discretion, shall give serious consideration to\nthe penalty recommended by the employing board, and if the hearing\nofficer rejects the recommended penalty such rejection must be based on\nreasons based upon the record as expressed in a written determination.\n b. Within fifteen days of receipt of the hearing officer's decision\nthe employing board shall implement the decision. If the employee is\nacquitted he or she shall be restored to his or her position with full\npay for any period of suspension without pay and the charges expunged\nfrom the employment record. If an employee who was convicted of a felony\ncrime specified in paragraph b of subdivision two of this section, has\nsaid conviction reversed, the employee, upon application, shall be\nentitled to have his or her pay and other emoluments restored, for the\nperiod from the date of his or her suspension to the date of the\ndecision.\n c. The hearing officer shall indicate in the decision whether any of\nthe charges brought by the employing board were frivolous as defined in\nsection eighty-three hundred three-a of the civil practice law and\nrules. If the hearing officer finds that all of the charges brought\nagainst the employee were frivolous, the hearing officer shall order the\nemploying board to reimburse the department the reasonable costs said\ndepartment incurred as a result of the proceeding and to reimburse the\nemployee the reasonable costs, including but not limited to reasonable\nattorneys' fees, the employee incurred in defending the charges. If the\nhearing officer finds that some but not all of the charges brought\nagainst the employee were frivolous, the hearing officer shall order the\nemploying board to reimburse the department a portion, in the discretion\nof the hearing officer, of the reasonable costs said department incurred\nas a result of the proceeding and to reimburse the employee a portion,\nin the discretion of the hearing officer, of the reasonable costs,\nincluding but not limited to reasonable attorneys' fees, the employee\nincurred in defending the charges.\n 5. Appeal. a. Not later than ten days after receipt of the hearing\nofficer's decision, the employee or the employing board may make an\napplication to the New York state supreme court to vacate or modify the\ndecision of the hearing officer pursuant to section seventy-five hundred\neleven of the civil practice law and rules. The court's review shall be\nlimited to the grounds set forth in such section. The hearing panel's\ndetermination shall be deemed to be final for the purpose of such\nproceeding.\n b. In no case shall the filing or the pendency of an appeal delay the\nimplementation of the decision of the hearing officer.\n