Sec. 87.5. Due process procedures

(a) Procedures for clearance for employment.

(1) Where the criminal history record check reveals no criminal record, the department shall issue a clearance for employment to the covered school, and shall notify the prospective school employee of such clearance for employment.

(2) Where the prospective school employee or the covered school on behalf of the prospective school employee requests conditional clearance for employment, and the criminal history record from the FBI has not yet been received by the department, and the criminal history record obtained from DCJS reveals no criminal record, the department shall issue a conditional clearance for employment to the covered school, and shall notify the prospective school employee of such conditional clearance for employment. Where conditional clearance is requested for a prospective school employee for whom a criminal history record has been obtained from both DCJS and the FBI, the department shall proceed to determine whether to grant or deny clearance for employment in accordance with this subdivision.

(3) If the department does not make the determination on conditional clearance for employment within 15 business days after receiving the prospective school employee's fingerprints, the department shall issue a notification to the prospective school employee and the covered school which contains a good faith estimate of the amount of additional time that is needed to make the determination on conditional clearance for employment.

(4) Initial notification and department determination.

(i) Where the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge, the department shall review such record and any related information obtained by the department pursuant to the review of such criminal history record, if any, and apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with section 296(16) of the Executive Law.

(ii) Where the department determines that a clearance for employment shall be granted, the department shall promptly issue such clearance for employment to the covered school, and shall notify the prospective school employee of such clearance for employment.

(iii) Where the prospective school employee or the covered school on behalf of the prospective school employee requests conditional clearance for employment, and the criminal history record from the FBI has not yet been received by the department, and the criminal history record obtained from DCJS reveals that the prospective school employee was convicted of a crime or has a pending criminal charge, the department shall review such record and apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with section 296(16) of the Executive Law.

(iv) Where the department determines that a conditional clearance for employment shall be granted, the department shall promptly issue such conditional clearance for employment to the covered school, and shall notify the prospective school employee of such conditional clearance for employment.

(v) Where the department determines that the criminal history record indicates that there is a basis to deny a clearance for employment, the department shall issue an initial notification of a possible denial of clearance to the prospective school employee by certified mail, return receipt requested, which shall contain the basis for this notification, including but not limited to a description of the criminal charges or convictions involved. The notification shall state that a clearance for employment shall be denied unless the prospective school employee submits a response with satisfactory information indicating why clearance should be granted, such information is mailed by regular first class mail or certified mail or is hand delivered to the State Education Department within 25 calendar days from the date the notification was mailed, and the prospective school employee demonstrates to the satisfaction of the department that clearance for employment should be granted. However, in the case of a prospective school employee who is requesting a conditional clearance for employment, or who has already received such conditional clearance for employment, the notification shall state that the response from the prospective school employee must be mailed by regular first class mail or certified mail or be hand delivered to the State Education Department within 10 calendar days from the date the notification was mailed. Such notification shall advise the prospective school employee of the address to which the response must be submitted.

(vi) For a response to be considered, the prospective school employee must mail by regular first class mail or certified mail or submit by hand delivery a response to the department's initial notification of a possible denial of clearance within 25 calendar days of the mailing of the notification of possible denial of clearance. However, in the case of a prospective school employee who is also requesting a conditional clearance for employment, or who has already received such conditional clearance for employment, for a response to be considered, the prospective school employee must mail by regular first class mail or certified mail or submit by hand delivery, a response to the department's initial notification of a possible denial of clearance within 10 calendar days of the mailing of the notification of possible denial of clearance. Such response shall be submitted to the department at the address specified in the notification of possible denial of clearance, together with any affidavits or other relevant written information and written argument which the prospective school employee wishes the department to consider in support of the position that clearance for employment should be granted, including, where applicable, information in regard to his or her good conduct and rehabilitation.

(vii) Where the prospective school employee does not submit a response within the timeframe prescribed in subparagraph (vi) of this paragraph, the department shall make a determination denying clearance for employment and notification of such denial, along with the basis for such determination, shall be transmitted to the prospective school employee by certified mail, return receipt requested. In the case of a prospective school employee requesting conditional clearance for employment, such determination shall also deny the conditional clearance for employment. In the case of a prospective school employee who has already been granted conditional clearance for employment, such determination shall also terminate the conditional clearance for employment. Such notification shall state that the prospective school employee may appeal the determination to a designee of the Commissioner of Education, at the address specified in the notification, in accordance with paragraph (5) of this subdivision, and shall include instructions for such an appeal. Notification of the denial of clearance for employment and denial or termination of conditional clearance for employment shall also be given to the covered school.

(viii) Where the prospective school employee submits a response within the timeframe prescribed in subparagraph (vi) of this paragraph, the department shall, upon review of the prospective school employee's criminal history record, related information obtained by the department pursuant to the review of such criminal history record, and information and written argument provided by the prospective school employee in his or response, make a determination on whether clearance for employment shall be granted or denied. In such review, the department shall apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with the requirements of section 296(16) of the Executive Law. Where the department's determination is that clearance for employment is denied, the decision shall include the basis for such determination, and shall state that the prospective employee may appeal the department's determination to a designee of the Commissioner of Education, at the address specified in the determination, in accordance with paragraph (5) of this subdivision, and shall include instructions for such an appeal. A copy of the determination that clearance for employment is denied, or notice that such clearance is granted, as the case may be, shall be transmitted to the prospective school employee. Where clearance for employment is denied, such determination shall be sent to the prospective school employee by certified mail, return receipt requested. Where clearance for employment is granted, such determination shall be sent to the prospective school employee by regular first class mail. Where clearance for employment is denied and the prospective school employee also requested conditional clearance for employment, such determination shall also deny the conditional clearance for employment. Where clearance for employment is denied and the prospective school employee has already been granted conditional clearance for employment, such determination shall also terminate the conditional clearance for employment. In addition, the covered school shall be notified of the denial or granting of clearance.

(ix) Where clearance for employment is denied prior to the department obtaining information from the FBI, and subsequent information is obtained from the FBI which forms an additional basis to deny clearance for employment, and the prospective school employee has already appealed the department's determination in accordance with paragraph (5) of this subdivision, the department shall notify the prospective school employee of this additional information and request that the prospective school employee respond. For a response to be considered, the prospective school employee must mail by regular first class mail or certified mail or submit by hand delivery a response to the department's notification of this additional information within 25 calendar days of the mailing of the notification. After a review of the information provided by the FBI and the response of the prospective school employee, if any, the department shall either notify the prospective school employee that no change in the original denial of clearance determination will be issued by the department based upon the information obtained from the FBI or issue to the prospective school employee modified determinations denying clearance for employment and denying or terminating conditional clearance for employment, which includes the information obtained from the FBI. The notification of no change in the original denial of clearance determination and the modified determinations shall be sent to the prospective school employee by regular first class mail. The modified determinations shall not affect the validity of the original determinations denying clearance for employment, and denying or terminating conditional clearance for employment.

(x) Notwithstanding any provision of this paragraph to the contrary, the department may excuse the timeframes prescribed in this paragraph for submission of responses by prospective school employees where such late submissions are due to the COVID-19 crisis.

(5) Appeal of department's determination.

(i) A prospective school employee who was denied clearance for employment by a determination of the department pursuant to paragraph (4) of this subdivision, may appeal that determination to a designee of the Commissioner of Education who did not participate in the department's determination, provided that such appeal is mailed by regular first class mail or certified mail or is hand delivered to the address specified in the department's determination within 25 calendar days of the mailing of such determination denying clearance.

(ii) Where the department has modified original determinations denying clearance for employment and denying or terminating conditional clearance for employment based upon additional information obtained from the FBI, as prescribed in subparagraph (4)(ix) of this subdivision, the subject of the appeal shall be the modified determinations. In that case, the prospective school employee may submit additional appeal papers addressing the modified determinations, provided that they are mailed by regular first class mail or certified mail or hand delivered to the address specified in the department's modified determinations within 25 calendar days of the mailing of such modified determinations.

(iii) Such appeal papers, submitted within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph, may include any affidavits or other relevant written information and written argument which the prospective school employee wishes the commissioner's designee to consider in support of the position that clearance for employment should be granted, including, where applicable, information in regard to his or her good conduct and rehabilitation.

(iv) Where a timely request for an appeal is received, upon review of the prospective school employee's criminal history record, related written information obtained by the department pursuant to the review of such criminal history record, written information and written argument submitted by the prospective school employee in this appeal within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph, the commissioner's designee shall make a determination of whether clearance for employment shall be granted or denied. In such appeal, the commissioner's designee shall apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such appeal shall be conducted in accordance with the requirements of section 296(16) of the Executive Law. Where the determination of the commissioner's designee is that clearance for employment is denied, his or her decision shall include the findings of facts and conclusions of law upon which the determination is based. A copy of the determination that clearance for employment is denied, or notice that such clearance is granted, as the case may be, shall be transmitted to the prospective school employee by regular first class mail. In addition, the covered school shall be notified of the denial or granting of clearance.

(v) Notwithstanding any provision of this paragraph to the contrary, the commissioner’s designee may excuse the timeframes prescribed in subparagraphs (i) and (ii) of this paragraph for submission of appeals and additional appeal papers by prospective school employees where such late submissions are due to the COVID-19 crisis.

(b) Procedures for clearance for certification.

Where the criminal history record reveals conviction of a crime, or an arrest for a crime, the department shall transmit the criminal history record and related information to the department's Office of Teaching Initiatives for a determination of good moral character pursuant to Part 83 of this Title, which procedure shall determine the clearance for certification.