EDU-27-15-00006-ERP Probationary Appointments and Tenured Teacher Hearings

10/7/15 N.Y. St. Reg. EDU-27-15-00006-ERP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 40

October 07, 2015

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-27-15-00006-ERP

Filing No. 818

Filing Date. Sept. 21, 2015

Effective Date. Sept. 21, 2015

Probationary Appointments and Tenured Teacher Hearings

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action Taken:

Amendment of section 30-1.3, Subparts 82-1 and 82-3 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207(not subdivided), 215(not subdivided), 305(1), (2), 2509(1), (2), 2573(1), (5), (6), 3001(2), 3004(1), 3009(1), 3012(1), (2), 3012-c(1-10), 3012-d(1-15), 3014(1), (2), 3020(3), (4), 3020-a(2) and 3020-b(1-6); L. 2015, ch. 56, part EE, Subparts D and G

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

The proposed rule is necessary to conform the Commissioner’s Regulations to changes in the Education Law enacted in Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenured teacher hearings.

The proposed amendment was adopted by emergency action at the June 15-16, 2015 Regents meeting, effective July 1, 2015. The Department recommends that the proposed rule be amended to address public comment received. A Notice of Revised Rule Making will be published in the State Register on October 7, 2015. Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for regular (non-emergency) adoption, after expiration of the required 30-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the November 16-17, 2015 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the November meeting, would be December 2, 2015, the date a Notice of Adoption would be published in the State Register.

The June emergency rule will expire on September 21, 2015, 90 days after its filing with the Department of State on June 23, 2015. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed amendment adopted by emergency action at the June 2015 Regents meeting and revised at the September 2015 Regents meeting, remains continuously in effect until the effective date of its permanent adoption in order to timely implement Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenured teacher hearings.

Subject:

Probationary Appointments and Tenured Teacher Hearings.

Purpose:

To implement subparts D and G of part EE chapter 56 of the Laws of 2015.

Substance of emergency/revised rule:

The Commissioner of Education proposes to amend section 30-1.3 and Subpart 82-1 and add a new Subpart 82-3 of the Commissioner’s Regulations, relating to probationary appointments and tenure teacher hearings, to implement the requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015. The proposed rule has been adopted as an emergency action at the June 2015 Regents meeting, effective June 23, 2015. The following is a summary of the substance of the proposed rule.

Section 30-1.3 is amended to provide that for appointments of classroom teachers and building principals made on or after July 1, 2015, the board resolution must reflect that, except to the extent required by the applicable provisions of Education Law §§ 2509, 2573, 3212 and 3014, in order to be granted tenure, the classroom teacher or building principal shall have received composite or overall annual professional performance review ratings pursuant to Education Law § 3012-c and/or 3012-d of either effective or highly effective in at least three (3) of the four (4) preceding years and if the classroom teacher or building principal receives an ineffective composite or overall rating in the final year of the probationary period he or she shall not be eligible for tenure at that time. For purposes of this subdivision, “classroom teacher” and “building principal” means a classroom teacher or building principal as such terms are defined in sections 30-2.2 and 30-3.2 of this Part.

The Title of Subpart 82-1 and section 82-1.1 are amended to provide that Subpart 82-1 applies to hearings on charges against tenured school employees pursuant to section 3020-a of the Education Law that are commenced by the filing of charges on or after August 25, 1994 and prior to July 1, 2015.

A new Subpart 82-3 is added, relating to hearings on charges against tenured school employees pursuant to section 3020-a of the Education Law that are commenced by the filing of charges on or after July 1, 2015.

Section 82-3.1, Application of this Subpart, provides that Subpart 80-3 applies to hearings on charges against tenured school employees pursuant to sections 3020-a and 3020-b of the Education Law that are commenced by the filing of charges on or after July 1, 2015.

Section 82-3.2, Definitions, provides definitions of terms used in Subpart 82-3, including “employee”, “chief school administrator”, “board”, “clerk”, “Commissioner”, “association”, “hearing officer”, “communication”, “Day”, and “Party.”

Section 82-3.3, Charges, establishes requirements and procedures for bringing charges.

Section 82-3.4, Request for a hearing, sets forth the requirements and procedures for requesting a hearing.

Section 82-3.5, Appointment of hearing officer in standard and expedited § 3020-a proceedings, sets forth requirements and procedures for appointment of a hearing officer from a list of qualified individuals, as specified in the regulation, who are selected by the American Arbitration Association to preside in standard and expedited § 3020-a proceedings.

Section 82-3.6, Appointment of hearing officer in expedited § 3020-b proceeding, establishes different procedures for the appointment of hearing officers for standard § 3020-a hearings and the four categories of expedited hearings.

Section 82-3.7, Pre-Hearing Conference, sets forth requirements and procedures for conducting pre-hearing conferences.

Section 82-3.8, General hearing procedures, establishes general hearing requirements and procedures including time deadlines for hearings, powers of hearing officers, parties rights, record of proceedings, public access to hearings, submission of memoranda of law, and requirements for issuing decisions.

Section 82-3.9, Special Hearing Procedures for expedited hearings, establishes special requirements and procedures for expedited § 3020-a proceedings (based on revocation of certification, or based on charges constituting physical or sexual abuse of a student), and for expedited § 3020-b hearings (relating to a removal proceeding for charges of incompetence based two consecutive ineffective composite or overall APPR ratings, or relating to a removal proceeding for charges of incompetence based three consecutive ineffective composite or overall APPR ratings).

Section 82-3.10, Probable Cause Hearing for Certain Suspensions without pay, provides for conduct of a probable cause hearing in instances where an employee is suspended without pay pending a determination in an expedited hearing based on charges of misconduct constituting physical or sexual abuse of a student. By statute, the hearing officers in such probable cause hearings must be appointed from a rotational list in a manner similar to the rotational selection process contained in Education Law § 4404, and the proposed amendment clarifies that this will be a rotational list of hearing officers who have agreed to serve under the terms and conditions set forth in Education Law § 3020-a(2)(c).

Section 82-3.11, Monitoring and enforcement of timelines, provides for the monitoring and investigation by the State Education Department of a hearing officer's compliance with the timelines prescribed in Education Law §§ 3020-a and 3020-b, and provides for the removal of hearing officers from the qualified list on grounds of a record of continued failure to commence and complete hearings within the time periods prescribed, and provides for reinstatement to the list, at the Commissioner’s discretion and upon application made after one year.

Section 82-3.12, Reimbursable hearing expenses, sets forth requirements for compensation and reimbursement by the Commissioner of necessary travel expenses and other reasonable expenses of a hearing officer.

This notice is intended

to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on July 8, 2015, I.D. No. EDU-27-15-00006-EP. The emergency rule will expire November 19, 2015.

Emergency rule compared with proposed rule:

Substantial revisions were made in sections 80-3.5(f), (g), 80-3.6(b)(1), (2), (6), 80-3.7(c)(2), (3) and 80-3.9(e)(2).

Text of rule and any required statements and analyses may be obtained from:

Kirti Goswami, New York State Education Department, 89 Washington Avenue, Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Peg Rivers, New York State Education Department, 89 Washington Avenue, Albany, NY 12234, [phone], email: privers2nysed.gov

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 8, 2015, the following substantial revisions were made to the proposed rule:

One commenter indicated that the requirement for a TIP/PIP for charges relating to three ineffective ratings is inconsistent with the statute and has requested a technical amendment to remove this requirement for charges brought for three consecutive ineffective ratings. In an effort to conform the regulatory language with Chapter 56 of the Laws of 2015, the Department recommends that section 80-3.9(e)(2) of the regulations be amended to eliminate the requirement for a TIP/PIP for charges relating to three ineffective ratings.

Section 82-3.6(b) of the Commissioner’s regulations is amended to require that the parties select the hearing officer within 7 calendar days, instead of 5 business days. That provides relief and is less burdensome for the Department to track than a 5 business day rule.

Section 82-3.5(f) of the Commissioner’s regulation was revised to allow the selection of another hearing officer within either two business days from the first declination or failure to confirm or 15 days from the parties’ receipt of the hearing officer list, whichever is later. For expedited hearings under Education Law § 3020-b, however, the 15 day period from Education Law § 3020-a does not apply, and the proposed regulation as revised instead requires that the parties select a hearing officer within 7 days. A similar change was made to proposed § 82-3.6(b)(1) to clarify that following a declination or failure to confirm, the parties may select another hearing officer within the 7 day period.

Section 82-3.7(c)(3)(ii) of the Commissioner’s regulations is amended to conform to the literal language of Education Law § 3020-b(3)(c)(iii)(C) to clarify that the hearing officer shall consider requests for production of relevant and material evidence and information including witness statements, investigatory statements or notes, exculpatory evidence or any other evidence, including district or student records, “relevant and material to the employee’s defense”. This phrase was inadvertently omitted from the proposed regulation.

Section 82-3.7(c)(2) of the proposed regulations is amended to conform with Education Law § 3020-b(3)(c)(iv) to clarify that the five days’ notice by statute applies to applications on motions to discuss, amend or consolidate, and on other preliminary matters.

Also, proposed § 82-3.5(h) and proposed § 82-3.6(b)(6) have been revised to clarify the procedures relating to replacement of a hearing officer. Under the revised regulations, when a hearing officer who has been appointed and such appointment has been confirmed but is unable to complete the hearing and needs to be replaced, the hearing officer must immediately notify the Commissioner. If the hearing officer is incapacitated and unable to provide such notice, upon learning of such incapacity, the parties are required to notify the Commissioner. The Commissioner then notifies the parties that they need to mutually select a new hearing officer within 2 business days of receipt of notice from the Commissioner, or the Commissioner will appoint a new hearing officer from the list.

The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Impact Statement.

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 8, 2015, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The purpose of proposed rule is to implement the requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenure teacher hearings. The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Flexibility Analysis.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 8, 2015, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The purpose of proposed rule is to implement the requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenure teacher hearings. The above revisions to the proposed rule do not require any revisions to the previously published Rural Area Flexibility Analysis.

Revised Job Impact Statement

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 8, 2015, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The purpose of proposed rule is to implement the requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenure teacher hearings. The revised proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on July 8, 2015, the State Education Department (SED) received the following comments:

1. COMMENT:

Because 3020-a(1) was not amended and 3020-b(1) does not authorize charges to be brought during the summer vacation period, the commenter, a teacher’s collective bargaining representative, proposes that the regulations be clarified to reflect that no charges can be brought between the closing and opening of school.

DEPARTMENT RESPONSE:

The language in Education Law § 3020-a(1) requires that charges be filed during the period between the actual opening and closing of the school year for which the employed is normally required to serve. This language is not contained in Education Law § 3020-b(1), which otherwise repeats the language from § 3020-a(1) relating to the filing of charges. By omitting the limitation on the filing of charges during the period between the actual opening and closing of the school year, the regulation is conforming to the language of Education Law § 3020-b(1). Absent any evidence in the legislative history to the contrary, the Department concludes that this language was intentionally omitted from Education Law § 3020-b(1) and that the regulatory language allowing charges to be brought when school is not in session is consistent with Education Law § 3020-b.

2. COMMENT:

The emergency regulations provide that the unpaid suspension begins from the time of the employing board of education’s decision to suspend without pay. The commenter, has proposed and continues to propose that the suspension without pay should commence upon the hearing officer’s finding of probable cause and not before. The new law does not state that school districts can take the teacher off the payroll prior to the probable cause hearing. Under the New York City DOE/UFT contract, the teacher stays on the payroll until a probable cause determination is made.

DEPARTMENT RESPONSE:

Education Law § 3020-a(2)(c) specifically provides that, where charges of misconduct constituting physical or sexual abuse of a student are brought on or before July 1, 2015, the board of education may suspend the employee without pay pending an expedited hearing. It also requires the Commissioner to establish a process in regulations for a probable cause hearing before an impartial hearing officer within 10 days to determine whether the decision to suspend an employee without pay should be continued or reversed. The reference in the statute to the hearing officer determining at the probable cause hearing whether a suspension without pay should be continued, is a clear and unequivocal indicator that a board of education may suspend without pay prior to the hearing officer’s determination of probable cause. The Department believes that regulation is consistent with the statutory language which authorizes the employee to be suspended without pay pending an expedited hearing. The fact that the language of Education Law § 3020-a(2)(c) differs from a collectively bargained alternative probable cause hearing process in this regard is not controlling. The plain language of the statute indicates that a board of education may suspend without pay in this instance unless and until a probable cause determination reversing the suspension is made.

3. COMMENT:

The emergency regulations provide that for all cases in which the parties select a hearing officer, if the hearing officer selected by the parties fails to respond within three days it will be treated as a declination, and the parties have two days to select another, and that if that second hearing officer declines or fails to confirm within three days, SED can select the hearing officer. The commenter proposes that this provision be modified to conform with SED’s current practice of allowing two business days or fifteen days from receipt of the hearing officer list, whichever is later, for the parties to select another hearing officer if the first selection declines or fails to respond, before SED may make the selection.

DEPARTMENT RESPONSE:

The Department agrees that the parties in a regular or expedited hearing under Education Law § 3020-a should have the opportunity to select another hearing officer within the 15 day period set forth in statute, and did not intend to change that practice. Accordingly, we have amended proposed § 82-3.5(f) to allow the selection of another hearing officer within either two business days from the first declination or failure to confirm or 15 days from the parties’ receipt of the hearing officer list, whichever is later. For expedited hearings under Education Law § 3020-b, however, the 15 day period from Education Law § 3020-a does not apply, and the proposed regulation as revised instead requires that the parties select a hearing officer within 7 days. A similar change has been made to proposed § 82-3.6(b)(1) to clarify that following a declination or failure to confirm, the parties may select another hearing officer within the 7 day period.

4. COMMENT:

For expedited cases based on two consecutive ineffective ratings under 3020-b, the commenter believes that five-day period for initial selection of a hearing officer i is unrealistic and proposes that it be changed to five business days.

DEPARTMENT RESPONSE:

The Department is not persuaded that a five day period is unrealistic, but has agreed to amend proposed § 82-3.6(b)(1) and (2) to give the parties seven calendar days. This provides equivalent relief to five business days and is easier for the Department to track administratively. The Department believes that seven calendar days provides a sufficient amount of time to make a selection and that it is the appropriate amount of time for these types of expedited hearings, where a decision needs to be made in 90 days from when the employee requested a hearing. Moreover, under § 25-a of the General Construction Law, if a deadline falls on a weekend or holiday, the actual deadline can be pushed to the next succeeding business day, so the actual period available to the parties can be longer.

5. COMMENT:

The emergency regulations provide if a hearing officer needs to be replaced after he or she has agreed to serve, the parties have two business days to select another or the Department will make the selection. The commenter states that this is not authorized by either 3020-a or 3020-b.

DEPARTMENT RESPONSE:

The Department disagrees with this comment. Education Law 3020-a(3)(i)(A) and (B) provides the Commissioner with the power to establish necessary rules and procedures for the conduct of hearings under that section, and to enforce timelines in regulations to ensure that the duration of a tenured teacher removal proceeding is conducted within the statutory timelines. Education Law § 3020-a(3)(b)(iii) explicitly gives the Commissioner the authority to appoint a hearing officer from the list if the parties fail to agree on an arbitrator or fail to notify the Commissioner of the selection within 15 days of the parties receipt of the list. It is true that the statute doesn’t specifically address what happens when the selected hearing officer needs to be replaced after he or she has agreed to serve, but it is also true that the clear intent is for the parties to complete the submission of evidence in 125 days after the filing of the charges (see, Education Law § 3020-a[c][vii]), thus the need for very tightly controlled timelines. A hearing officer may need to be replaced at any point in the hearing, making it imperative that a replacement be appointed expeditiously. We believe that the Commissioner has the authority to adopt a regulation, proposed § 82-3.5(h), that provides an expedited procedure for selection of a new hearing officer to replace a previously appointed hearing officer in order to assure that the hearing is not unduly delayed, and will be conducted within the statutory timeline.

Similarly, Education Law § 3020-b(3)(c)(i) provides the Commissioner with the power to establish necessary rules and procedures for the conduct of hearings in expedited removal proceedings under that section, and to establish timelines in regulations to ensure that the duration of a tenured teacher removal proceeding will be within the statutory timeline. As with § 3020-a hearings, Education Law § 3020-b(3)(a) explicitly gives the Commissioner the authority to appoint a hearing officer from the list if the parties fail to agree on an arbitrator or fail to notify the Commissioner of their selection. We believe that the Commissioner is fully authorized to adopt regulations to ensure that the expedited hearings will be completed within the 90 day period by requiring in § 82-3.6(b)(6) that the parties must mutually select a new hearing officer within 2 business days, or the Commissioner will appoint a new hearing officer from the list.

However, both proposed § 82-3.5(h) and proposed § 82-3.6(b)(6) have been revised to clarify that a hearing officer who previously has been appointed but cannot complete the hearing must immediately notify the Commissioner, and if the hearing officer is incapacitated and unable to provide such notice, the parties shall provide the notice upon learning of his/her incapacity. The regulation is further revised to provide that the Commissioner shall notify the parties when a hearing officer needs to be replaced, and the parties must mutually select a new hearing officer within 2 business days of receipt of notice from the Commissioner, or the Commissioner will appoint a new hearing officer from the list. This establishes a fixed point in time from which the two business days will be measured.

6. COMMENT:

One commenter expressed concern that the regulations go beyond what the statute allows by allowing hearing officers to entertain motions by the employer for additional discovery of the employee’s case including issuance of subpoenas, bills of particular, witness statements and investigatory materials. The commenter suggested that the regulations be limited to pre-hearing disclosure of the teacher’s witnesses and evidence that the teacher will offer at the hearing, the only material authorized by the statute.

DEPARTMENT RESPONSE:

The Department has revised 82-3.7(c)(3)(ii) to conform to the literal language of Education Law § 3020-b (3)(c)(iii)(C), to clarify that a schedule shall be set at the prehearing conference for the full and fair disclosure of witnesses and evidence for both witnesses, including but not limited to bills of particular and requests for production of relevant and material evidence and information including witness statements, investigatory statements or notes, exculpatory evidence or any other evidence, including district or student records, “relevant and material to the employee’s defense”. This phrase was inadvertently omitted from the proposed regulation.

7. COMMENT:

One commenter expressed concern that the language on pre-hearing motions, includes a provision for five days’ notice for motions to discuss, amend or consolidate, but omits such provision for other preliminary matters, which is required by the statute.

DEPARTMENT RESPONSE:

The Department agrees and section 82-3.7(c)(2) has been amended to conform with Education Law § 3020-b(3)(c)(iv) by clarifying that the five days’ notice by statute applies to applications on other preliminary matters.

8. COMMENT:

The regulations provide that the seven hour hearing day must exclude any time taken for meal breaks. The commenter requests that this should be deleted as unnecessary absent evidence that such breaks are excessive in length under current regulations.

DEPARTMENT RESPONSE:

The Department believes that this policy is reasonable and that pursuant to Education Law § 3020-a and 3020-b, hearing officers should only be reimbursed for their actual service and that this is consistent with customary employment practice.

9. COMMENT:

Education Law § 3020-b(2)(d) requires that any charges brought for two ineffective ratings shall allege that the employing board has developed and substantially implemented a teacher improvement plan (TIP)/principal improvement plan (PIP) 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. However, the regulations contain this requirement for charges brought for two or three consecutive ineffective ratings (82-3.9[d][2]; 82-3.9[e][2]). One commenter indicated that this is inconsistent with the statute and has requested a technical amendment to remove this requirement for charges brought for three consecutive ineffective ratings.

DEPARTMENT RESPONSE:

In an effort to conform the regulatory language with the statute, this requirement has been eliminated from § 82-3.9(e)(2) of the proposed regulations.