EDU-27-15-00006-E Probationary Appointments and Tenured Teacher Hearings
12/2/15 N.Y. St. Reg. EDU-27-15-00006-E
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 48
December 02, 2015
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-27-15-00006-E
Filing No. 997
Filing Date. Nov. 17, 2015
Effective Date. Nov. 20, 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 and Subpart 82-1; and addition of Subpart 82-3 to 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 general welfare.
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 then revised the proposed amendment to address public comment and the Board of Regents adopted the revised rule as an emergency action at its September 16-17 meeting, effective September 21, 2015. A Notice of Revised Rule Making was 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) for revised rulemakings, 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 September emergency rule will expire on November 20, 2015, 60 days after its filing with the Department of State on September 21, 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 of part EE chapter 56 of the Laws of 2015.
Substance of emergency rule:
Section 30-1.3 and Subpart 82-1 of the Commissioner’s Regulations have been amended and a new Subpart 82-3 has been added, 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 proposed rule has been adopted as an emergency action at the November 16-17, 2015 Regents meeting, effective November 20, 2015. The following is a summary of the substance of the emergency 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 only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-27-15-00006-EP, Issue of July 8, 2015. The emergency rule will expire January 15, 2016.
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, (518) 474-6400, email: legal@nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law § 101 charges the State Education Department with the general management and supervision of the educational work of the State and establishes the Regents as head of the Department.
Education Law § 207 grants general rule-making authority to the Regents to carry into effect State educational laws and policies.
Education Law § 215 authorizes the Commissioner to require reports from schools under State educational supervision.
Education Law § 305(1) and (2) authorize the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies, and provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools. Section 305(7-a), as amended by Subpart G of Part EE of Chapter 56 of the Laws of 2015, authorizes the Commissioner to revoke and annul a certificate for a teacher convicted of a sex offense for which registration as a sex offender is required pursuant to Article 6-C of the Correction Law or of any other violent felony offense committed against a child when such child was the intended victim of such offense.
Education Law § § 2509(1) and (2), 2573(1), (5) and (6), 3012(1) and (2), 3012(1) and (2) and 3014(1) and (2), as amended by Subpart D of Part EE of Chapter 56 of the Laws of 2015, provide with certain limited exceptions, for a three year probationary appointment of members of the teaching staff and supervising staff who are appointed prior to July 1, 2015 and a four year probationary term for those appointed on or after July 1, 2015; and to provide that, in the case of classroom teachers and building principals, the teacher or principal must have received composite or overall ratings of Effective or Highly Effective on their Annual Professional Performance Review (APPR) in order to receive tenure and cannot have received an Ineffective rating on the APPR in the final year of his or her probationary period.
Education Law § 3001(2) establishes certification by the Department as a qualification to teach in the public schools of New York State.
Education Law § 3004(1) authorizes the Commissioner to prescribe regulations governing certification of teachers.
Education Law § 3009(1) provides that no part of the school moneys apportioned to a district shall be applied to the payment of the salary of an unqualified teacher, nor shall his salary or part thereof, be collected by a district tax except as provided in the Education Law.
Education Law § 3012-c establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES).
Education Law § 3012-d establishes a new evaluation system for classroom teachers and building principals employed by school districts and BOCES for the 2015-16 school year and thereafter.
Education Law § 3020(3) and (4)(a). as amended by Subpart G of Part EE of Chapter 56 of the Laws of 2015, provides that no tenured employee may be disciplined except as set forth in section 3020-a of the Education Law or in accordance with alternate disciplinary procedures set forth in a collective bargaining agreement, and further provides that any alternative disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after July 1, 2015 shall provide that all hearings pursuant to Education Law § § 3020-a or 3020-b shall be conducted before a single hearing officer and that two consecutive ineffective ratings, or three consecutive ineffective ratings, if not overcome as respectively specified in the statute, shall constitute prima facie evidence of incompetence, and absent extraordinary circumstances, shall be just cause for removal.
Education Law § 3020-a, as amended by Subpart G of Part EE of Chapter 56 of the Laws of 2015, establishes requirements for hearings on charges of tenured school employees. Section 3020-a(2) directs the Commissioner to establish in regulations a process for a probable cause hearing before an impartial hearing officer to determine whether to continue or reverse a decision of a board of education to suspend an employee without pay where charges of misconduct constituting physical or sexual abuse of a student are brought on or after July 1, 2015.
Education Law section 3020-b, as added by § 4 of Subpart G of Part EE of Chapter 56 of the Laws of 2015, establishes requirements for a streamlined removal procedures for charges brought against tenured school employees who received two or more consecutive ineffective ratings.
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above statutory authority and is necessary to implement, and otherwise conform the Commissioner’s Regulations to, Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenured teacher hearings.
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to implement, and otherwise conform the Commissioner’s Regulations to, Subparts D and G of Part EE of Chapter 56 of the Laws of 2015.
Section 80-1.3(d) 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.
There were several amendments made in Chapter 56 to Education Law § 3020-a that require conforming amendments to the provisions of Part 82 of the Regulations of the Commissioner relating to procedures in tenured teacher hearings. Notably, Subpart G of Part EE of Chapter 56 made the following changes to Education Law § 3020-a:
• The use of a three-member panel for incompetency cases was eliminated and all § 3020-a hearings must be held before a single hearing officer.
• The prior expedited hearing process applicable to a pattern of ineffective teaching based on two consecutive Ineffective APPR ratings was repealed, and replaced by the new expedited hearing procedures in Education Law § 3020-b.
• A new expedited hearing process was established for cases involving charges of misconduct constituting physical or sexual abuse of a student.
• For employees charged on or after July 1, 2015 with misconduct constituting physical or sexual abuse of a student, the board of education is authorized to suspend the employee without pay pending an expedited hearing, provided that a probable cause hearing must be held within 10 days in accordance with procedures prescribed in the Regulations of the Commissioner.
• A provision was added to require the hearing officer at the pre-hearing conference to provide for full and fair disclosure of the witnesses and evidence to be offered by the employee. Previously, only the employing board was required to provide full and fair disclosure of the nature of the case and evidence against the employee.
• A provision was added to require the hearing officer, in determining the penalty to be imposed on an employee, to give serious consideration to the penalty recommended by the employing board, and if he or she rejects the recommended penalty, the rejection must be based on reasons based in the record and expressed in the written decision.
• A provision was added authorizing a child witness under the age of 14 to testify through the use of a live, two-way closed circuit television under certain specified conditions.
New Education Law § 3020-b, which takes effect July 1, 2015, establishes procedures for expedited hearings commenced by the filing of charges of incompetence against a classroom teacher or building principal based on receipt of either two or three consecutive Ineffective composite or overall APPR ratings under Education Law § 3012-c and/or 3012-d. Section 3020-b requires the Commissioner to adopt regulations prescribing the necessary rules and procedures for the conduct of hearings. The procedures set forth in the statute for an expedited hearing based on two Ineffective APPR ratings are significantly different from those for an expedited hearing based on three Ineffective APPR ratings. The two processes are summarized below:
1. Expedited Proceedings Based on two Ineffective APPR Ratings:
• Where the charges are based on two Ineffective ratings pursuant to the annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, the school may bring charges of incompetence.
• The school must have developed and substantially implemented a Teacher Improvement Plan or Principal Improvement Plan in accordance with Education Law § § 3012-c or 3012-d for the educator following the first evaluation in which the educator was rated Ineffective, and the immediately preceding evaluation if the employee was rated Developing.
• The parties jointly select the hearing officer.
• Two consecutive Ineffective APPR ratings are prima facie evidence of incompetence overcome only by clear and convincing evidence that the employee is not incompetent in light of the surrounding circumstances.
• The final hearing date must be within 90 days of the date of the hearing request. Adjournments that would extend the hearing beyond the 90 day period may be granted if the hearing officer determines that the delay is attributable to a circumstance or occurrence beyond the control of the requesting party and an injustice would result if the adjournment were not granted.
• The hearing officer must render a decision within 10 days of the last day of hearing.
2. Expedited Proceedings Based on Three Ineffective APPR Ratings:
• Where the charges are based on three Ineffective ratings pursuant to annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, the school shall bring charges of incompetence.
• The Commissioner selects the hearing officer, instead of the parties.
• Three Ineffective ratings are prima facie evidence of incompetence which may be overcome only by clear and convincing evidence that the calculation of one or more of the underlying components on the APPR was fraudulent, which includes mistaken identity.
• The final hearing date must be within 30 days of the date of the hearing request. The hearing must conclude within 30 days of the date of the hearing request. Adjournments that would extend the hearing beyond the 30 day period may be granted if the hearing officer determines that the delay is attributable to a circumstance or occurrence beyond the control of the requesting party and an injustice would result if the adjournment were not granted.
• The hearing officer must render a decision within 10 days of the last day of hearing.
Education Law § 3020-b includes many, but not all of the procedural provisions included in Education Law § 3020-a. For example, § 3020-b does not include the provision requiring charges to be brought between the opening and closing of school, the provision giving the parties 15 days to select a hearing officer or various other provisions prescribing the timelines for pre-hearing conferences and other steps in the hearing process between the request for the hearing and the 30 or 90 days within which the expedited hearing must be completed. In fact, Education Law § 3020-b specifically charges the Commissioner with responsibility to establish timelines in regulations to ensure that the duration of the hearing is no longer than 30 days or 90 days, as applicable.
The proposed amendments also add a new Subpart 82-3 to the Rules of the Board of Regents to establish procedural requirements that will apply to tenured teacher hearings commenced by the filing of charges on or after July 1, 2015. The changes made by Chapter 56 have effectively established different procedures for standard § 3020-a proceedings and expedited hearings under § 3020-a and § 3020-b.
The categories of expedited hearings are as follows:
• expedited hearings upon revocation of a teaching certificate;
• expedited hearings on charges of misconduct constituting the physical or sexual abuse of students;
• expedited 3020-b hearings based on two consecutive Ineffective APPR ratings; and
• expedited 3020-b hearings based on three consecutive Ineffective APPR ratings.
In addition, the Commissioner is charged with adopting regulations prescribing the procedures for probable cause hearings when a board of education suspends an employee for misconduct that constitutes the physical or sexual abuse of students.
Like Subpart 82-1, the new Subpart 82-3 (which applies to § 3020-a hearings commenced prior to July 1, 2015) sets forth the procedures on charges, requests for hearings and general hearing procedures that apply across all § 3020-a and § 3020-b hearing proceedings.
Section 82-3.6 establishes different procedures for the appointment of hearing officers for standard § 3020-a hearings and the four categories of expedited hearings.
Section 82-3.9 sets forth the special hearing procedures that apply to each of the four categories of expedited hearings.
Section 82-3.10 establishes procedures for probable cause hearings related to suspensions without pay of employees charged with misconduct constituting the 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).
With very few exceptions, the procedures set forth in Subpart 82-1, which apply to § 3020-a hearings commenced prior to July 1, 2015, are carried forward without substantive change except where they would conflict with Chapter 56 of the Laws of 2015 or other laws. One exception is that a provision is added relating to selection of hearing officers in § 3020-a proceedings to address what happens after the second time that hearing officer selected by the parties declines to serve. This situation is not addressed in § 3020-a, and in order to ensure the timeliness of the hearings, the proposed amendment specifies that the Commissioner would appoint a hearing officer from the list after two declinations. In addition, a technical amendment is made to the provisions related to reimbursement of hearing officers to clarify that reimbursement will be made for actual days of service, defined as 7 hours, and pro-rated to the nearest 1/10 hour.
4. COSTS:
(a) Costs to State government: none.
(b) Costs to local government: none.
(c) Costs to private, regulated parties: none.
(d) Costs to regulating agency for implementation and continued administration of this rule: none.
The rule is necessary to implement Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, and does not impose any costs on the State, local government, private regulated parties or the State Education Department, beyond those costs imposed by, or inherent in, the statute.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2015, and does not impose any additional program, service, duty or responsibility upon local governments beyond those inherent in the statute.
6. PAPERWORK:
The proposed rule is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2015, and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those imposed by, or inherent in, the statute.
7. DUPLICATION:
The proposed rule is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2015, and does not duplicate existing State or federal requirements.
8. ALTERNATIVES:
The proposed rule is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2015. Consequently, the major provisions of the proposed rule are statutorily imposed, and there were no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
There are no applicable Federal standards.
10. COMPLIANCE SCHEDULE:
The proposed rule is necessary to implement, and otherwise conform the Commissioner’s Regulations to, Subparts D and G of Part EE of Chapter 56 of the Laws of 2015 and does not impose any additional costs or compliance requirements beyond those imposed by, or inherent in, the statute. It is anticipated that regulated parties will be able to achieve compliance with the proposed rule on its effective date.
Regulatory Flexibility Analysis
(a) Small businesses:
The proposed rule implements Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenure teacher hearings, and does not impose any reporting, recordkeeping or other compliance requirements, and will not have an adverse economic impact, on small business. Because it is evident from the nature of the rule that it does not affect small businesses, no further steps were needed to ascertain that fact and one were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) Local governments:
1. EFFECT OF RULE:
The rule applies to approximately 695 school districts and 37 boards of cooperative educational services (“BOCES”) in the State.
2. COMPLIANCE REQUIREMENTS:
The rule conforms the regulations to the legislative provisions by making the following major changes in Subpart 30-1.3, 82-1 and 82-3 of the Regents Rules.
Section 80-1.3(d) 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.
There were several amendments made in Chapter 56 to Education Law § 3020-a, that require conforming amendments to the Commissioner’s Regulations relating to procedures in tenured teacher hearings. Subpart G of Part EE of Chapter 56 made the following changes to Education Law § 3020-a:
• Use of three-member panel for incompetency cases was eliminated and all § 3020-a hearings must be held before a single hearing officer.
• Prior expedited hearing process applicable to a pattern of ineffective teaching based on two consecutive Ineffective APPR ratings was repealed, and replaced with new expedited hearing procedures in Education Law § 3020-b.
• New expedited hearing process established for cases involving charges of misconduct constituting physical or sexual abuse of a student.
• For employees charged on or after July 1, 2015 with misconduct constituting physical or sexual abuse of a student, the school board is authorized to suspend employee without pay pending an expedited hearing, provided a probable cause hearing is held within 10 days in accordance with procedures prescribed in the Commissioner’s Regulations.
• Provision added to require hearing officer at pre-hearing conference to provide for full and fair disclosure of witnesses and evidence to be offered by the employee. Previously, only employing board was required to provide full and fair disclosure of the nature of the case and evidence against the employee.
• Provision added to require hearing officer, in determining penalty to be imposed on an employee, to give serious consideration to penalty recommended by employing board, and if he/she rejects recommended penalty, rejection must be based on reasons based in the record and expressed in written decision.
• Provision added authorizing a child witness under the age of 14 to testify through use of live, two-way closed circuit television under certain specified conditions.
New Education Law § 3020-b, which takes effect July 1, 2015, establishes procedures for expedited hearings commenced by filing of charges of incompetence against a classroom teacher or building principal based on receipt of either two or three consecutive Ineffective composite or overall APPR ratings under Education Law § 3012-c and/or 3012-d. Section 3020-b requires Commissioner to adopt regulations prescribing necessary rules and procedures for conduct of hearings. Procedures set forth in the statute for an expedited hearing based on two Ineffective APPR ratings are significantly different from those for an expedited hearing based on three Ineffective APPR ratings. The two processes are summarized below:
1. Expedited Proceedings Based on two Ineffective APPR Ratings:
• Where charges based on two Ineffective ratings pursuant to annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, school may bring charges of incompetence.
• School must have developed and substantially implemented a Teacher Improvement Plan or Principal Improvement Plan in accordance with Education Law § § 3012-c or 3012-d for the educator following first evaluation in which educator was rated Ineffective, and immediately preceding evaluation if employee was rated Developing.
• Parties jointly select hearing officer.
• Two consecutive Ineffective APPR ratings are prima facie evidence of incompetence overcome only by clear and convincing evidence that employee is not incompetent in light of surrounding circumstances.
• Final hearing date must be within 90 days of date of hearing request. Adjournments extending hearing beyond 90 day period may be granted if hearing officer determines that delay is attributable to a circumstance or occurrence beyond control of requesting party and injustice would result if adjournment were not granted.
• Hearing officer must render a decision within 10 days of last day of hearing.
2. Expedited Proceedings Based on Three Ineffective APPR Ratings:
• Where charges based on three Ineffective ratings pursuant to annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, school shall bring charges of incompetence.
• Commissioner selects hearing officer, instead of parties.
• Three Ineffective ratings are prima facie evidence of incompetence which may be overcome only by clear and convincing evidence that calculation of one or more of underlying components on the APPR was fraudulent, which includes mistaken identity.
• Final hearing date must be within 30 days of the date of hearing request. Hearing must conclude within 30 days of date of hearing request. Adjournments extending hearing beyond 30 day period may be granted if hearing officer determines delay attributable to a circumstance or occurrence beyond control of requesting party and injustice would result if adjournment not granted.
• Hearing officer must render a decision within 10 days of last day of hearing.
Education Law § 3020-b includes many, but not all, of procedural provisions included in Education Law § 3020-a. For example, § 3020-b does not include provision requiring charges be brought between opening and closing of school, provision giving the parties 15 days to select hearing officer,or various other provisions prescribing timelines for pre-hearing conferences and other steps in hearing process between request for hearing and 30 or 90 days within which expedited hearing must be completed. In fact, Education Law § 3020-b specifically charges Commissioner with responsibility to establish timelines in regulations to ensure duration of hearing no longer than 30 days or 90 days, as applicable.
The rule also adds a new Subpart 82-3 to the Regents Rules to establish procedural requirements that will apply to tenured teacher hearings commenced by filing of charges on or after July 1, 2015. Changes made by Chapter 56 have effectively established different procedures for standard § 3020-a proceedings and expedited hearings under § 3020-a and § 3020-b.
The categories of expedited hearings are as follows:
• expedited hearings upon revocation of teaching certificate;
• expedited hearings on charges of misconduct constituting physical or sexual abuse of students;
• expedited 3020-b hearings based on two consecutive Ineffective APPR ratings; and
• expedited 3020-b hearings based on three consecutive Ineffective APPR ratings.
In addition, Commissioner is charged with adopting regulations prescribing procedures for probable cause hearings when a board of education suspends an employee for misconduct that constitutes the physical or sexual abuse of students.
Like the old Subpart 82-1,The new Subpart 82-3, which applies to § 3020-a hearings commenced prior to July 1, 2015, sets forth procedures on charges, requests for hearings and general hearing procedures that apply across all § 3020-a and § 3020-b hearing proceedings.
Section 82-3.6 establishes different procedures for appointment of hearing officers for standard § 3020-a hearings and the four categories of expedited hearings.
Section 82-3.9 sets forth special hearing procedures applicable to each of the four categories of expedited hearings.
Section 82-3.10 establishes procedures for probable cause hearings related to suspensions without pay of employees charged with misconduct constituting physical or sexual abuse of a student. By statute, hearing officers in such probable cause hearings must be appointed from a rotational list in a manner similar to rotational selection process contained in Education Law § 4404, and rule clarifies this will be a rotational list of hearing officers who have agreed to serve under terms and conditions set forth in Education Law § 3020-a(2)(c).
With very few exceptions, procedures set forth in Subpart 82-1, which apply to § 3020-a hearings commenced prior to July 1, 2015, are carried forward without substantive change except where they would conflict with Chapter 56 of the Laws of 2015 or other laws. One exception is that a provision is added relating to selection of hearing officers in § 3020-a proceedings to address what happens after the second time that hearing officer selected by the parties declines to serve. This situation is not addressed in § 3020-a, and in order to ensure the timeliness of the hearings, the rule specifies Commissioner would appoint a hearing officer from list after two declinations. In addition, a technical amendment is made to provisions related to reimbursement of hearing officers to clarify that reimbursement will be made for actual days of service, defined as 7 hours, and pro-rated to the nearest 1/10 hour.
3. PROFESSIONAL SERVICES:
The rule does not impose any additional professional services requirements on school districts or BOCES.
4. COMPLIANCE COSTS:
The rule does not impose any compliance costs on school districts and BOCES, beyond those imposed by the statutes.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule does not impose any additional technological requirements on school districts or BOCES. Economic feasibility is addressed above under Compliance Costs.
6. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Chapter 56 of the Laws of 2015 relating to probationary appointments and tenure teacher hearings to implement requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015. Since these provisions of the Education Law apply equally to all school districts and BOCES throughout the State, it was not possible to establish different compliance and reporting requirements.
7. LOCAL GOVERNMENT PARTICIPATION:
During the public comment period, the Department will be seeking comments on the proposed amendment from representatives of teachers, principals, superintendents of schools, school boards, school districts and board of cooperative educational services officials, and other interested parties.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The rule applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The rule conforms the regulations to the legislative provisions by making the following major changes in Subpart 30-1.3, 82-1 and 82-3 of the Regents Rules.
Section 80-1.3(d) 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.
There were several amendments made in Chapter 56 to Education Law § 3020-a, that require conforming amendments to the Commissioner’s Regulations relating to procedures in tenured teacher hearings. Subpart G of Part EE of Chapter 56 made the following changes to Education Law § 3020-a:
• Use of three-member panel for incompetency cases was eliminated and all § 3020-a hearings must be held before a single hearing officer.
• Prior expedited hearing process applicable to a pattern of ineffective teaching based on two consecutive Ineffective APPR ratings was repealed, and replaced with new expedited hearing procedures in Education Law § 3020-b.
• New expedited hearing process established for cases involving charges of misconduct constituting physical or sexual abuse of a student.
• For employees charged on or after July 1, 2015 with misconduct constituting physical or sexual abuse of a student, the school board is authorized to suspend employee without pay pending an expedited hearing, provided a probable cause hearing is held within 10 days in accordance with procedures prescribed in the Commissioner’s Regulations.
• Provision added to require hearing officer at pre-hearing conference to provide for full and fair disclosure of witnesses and evidence to be offered by the employee. Previously, only employing board was required to provide full and fair disclosure of the nature of the case and evidence against the employee.
• Provision added to require hearing officer, in determining penalty to be imposed on an employee, to give serious consideration to penalty recommended by employing board, and if he/she rejects recommended penalty, rejection must be based on reasons based in the record and expressed in written decision.
• Provision added authorizing a child witness under the age of 14 to testify through use of live, two-way closed circuit television under certain specified conditions.
New Education Law § 3020-b, which takes effect July 1, 2015, establishes procedures for expedited hearings commenced by filing of charges of incompetence against a classroom teacher or building principal based on receipt of either two or three consecutive Ineffective composite or overall APPR ratings under Education Law § 3012-c and/or 3012-d. Section 3020-b requires Commissioner to adopt regulations prescribing necessary rules and procedures for conduct of hearings. Procedures set forth in the statute for an expedited hearing based on two Ineffective APPR ratings are significantly different from those for an expedited hearing based on three Ineffective APPR ratings. The two processes are summarized below:
1. Expedited Proceedings Based on two Ineffective APPR Ratings:
• Where charges based on two Ineffective ratings pursuant to annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, school may bring charges of incompetence.
• School must have developed and substantially implemented a Teacher Improvement Plan or Principal Improvement Plan in accordance with Education Law § § 3012-c or 3012-d for the educator following first evaluation in which educator was rated Ineffective, and immediately preceding evaluation if employee was rated Developing.
• Parties jointly select hearing officer.
• Two consecutive Ineffective APPR ratings are prima facie evidence of incompetence overcome only by clear and convincing evidence that employee is not incompetent in light of surrounding circumstances.
• Final hearing date must be within 90 days of date of hearing request. Adjournments extending hearing beyond 90 day period may be granted if hearing officer determines that delay is attributable to a circumstance or occurrence beyond control of requesting party and injustice would result if adjournment were not granted.
• Hearing officer must render a decision within 10 days of last day of hearing.
2. Expedited Proceedings Based on Three Ineffective APPR Ratings:
• Where charges based on three Ineffective ratings pursuant to annual professional performance reviews conducted pursuant to Education Law § § 3012-c or 3012-d, school shall bring charges of incompetence.
• Commissioner selects hearing officer, instead of parties.
• Three Ineffective ratings are prima facie evidence of incompetence which may be overcome only by clear and convincing evidence that calculation of one or more of underlying components on the APPR was fraudulent, which includes mistaken identity.
• Final hearing date must be within 30 days of the date of hearing request. Hearing must conclude within 30 days of date of hearing request. Adjournments extending hearing beyond 30 day period may be granted if hearing officer determines delay attributable to a circumstance or occurrence beyond control of requesting party and injustice would result if adjournment not granted.
• Hearing officer must render a decision within 10 days of last day of hearing.
Education Law § 3020-b includes many, but not all, of procedural provisions included in Education Law § 3020-a. For example, § 3020-b does not include provision requiring charges be brought between opening and closing of school, provision giving the parties 15 days to select hearing officer,or various other provisions prescribing timelines for pre-hearing conferences and other steps in hearing process between request for hearing and 30 or 90 days within which expedited hearing must be completed. In fact, Education Law § 3020-b specifically charges Commissioner with responsibility to establish timelines in regulations to ensure duration of hearing no longer than 30 days or 90 days, as applicable.
The rule also adds a new Subpart 82-3 to the Regents Rules to establish procedural requirements that will apply to tenured teacher hearings commenced by filing of charges on or after July 1, 2015. Changes made by Chapter 56 have effectively established different procedures for standard § 3020-a proceedings and expedited hearings under § 3020-a and § 3020-b.
The categories of expedited hearings are as follows:
• expedited hearings upon revocation of teaching certificate;
• expedited hearings on charges of misconduct constituting physical or sexual abuse of students;
• expedited 3020-b hearings based on two consecutive Ineffective APPR ratings; and
• expedited 3020-b hearings based on three consecutive Ineffective APPR ratings.
In addition, Commissioner is charged with adopting regulations prescribing procedures for probable cause hearings when a board of education suspends an employee for misconduct that constitutes the physical or sexual abuse of students.
Like the old Subpart 82-1,The new Subpart 82-3, which applies to § 3020-a hearings commenced prior to July 1, 2015, sets forth procedures on charges, requests for hearings and general hearing procedures that apply across all § 3020-a and § 3020-b hearing proceedings.
Section 82-3.6 establishes different procedures for appointment of hearing officers for standard § 3020-a hearings and the four categories of expedited hearings.
Section 82-3.9 sets forth special hearing procedures applicable to each of the four categories of expedited hearings.
Section 82-3.10 establishes procedures for probable cause hearings related to suspensions without pay of employees charged with misconduct constituting physical or sexual abuse of a student. By statute, hearing officers in such probable cause hearings must be appointed from a rotational list in a manner similar to rotational selection process contained in Education Law § 4404, and rule clarifies this will be a rotational list of hearing officers who have agreed to serve under terms and conditions set forth in Education Law § 3020-a(2)(c).
With very few exceptions, procedures set forth in Subpart 82-1, which apply to § 3020-a hearings commenced prior to July 1, 2015, are carried forward without substantive change except where they would conflict with Chapter 56 of the Laws of 2015 or other laws. One exception is that a provision is added relating to selection of hearing officers in § 3020-a proceedings to address what happens after the second time that hearing officer selected by the parties declines to serve. This situation is not addressed in § 3020-a, and in order to ensure the timeliness of the hearings, the rule specifies Commissioner would appoint a hearing officer from list after two declinations. In addition, a technical amendment is made to provisions related to reimbursement of hearing officers to clarify that reimbursement will be made for actual days of service, defined as 7 hours, and pro-rated to the nearest 1/10 hour. The rule does not impose any additional professional services requirements on entities in rural areas.
3. COSTS:
The rule does not impose any compliance costs on school districts and BOCES in rural areas, beyond those imposed by the statutes.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Chapter 56 of the Laws of 2015 relating to probationary appointments and tenure teacher hearings to implement requirements of Subparts D and G of Part EE of Chapter 56 of the Laws of 2015. Since these provisions of the Education Law apply to all school districts and BOCES throughout the State, it was not possible to establish different compliance and reporting requirements for regulated parties in rural areas, or to exempt them from the rule's provisions.
5. RURAL AREA PARTICIPATION:
The State Education Department has sent the proposed amendment to the Rural Advisory Committee, which has members who live or work in rural areas across the State.
Job Impact Statement
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. Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, no further 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 Revised Rule Making in the State Register on October 7, 2015, the State Education Department (SED) received the following comments:
1. COMMENT:
The emergency regulations could be read to allow charges brought under Education Law § 3020-b to be initiated at any time, even when school is not in session. Charges under 3020-a cannot be brought during the summer. The commenter requests that the regulations be modified to treat charges under 3020-b in the same way.
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, a teacher’s collective bargaining representative, 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 after 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 add a requirement 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.
