EDU-27-11-00002-P Due Process Procedures for Criminal History Checks of Prospective School Employees and Certification Applicants

7/6/11 N.Y. St. Reg. EDU-27-11-00002-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 27

July 06, 2011

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-27-11-00002-P

Due Process Procedures for Criminal History Checks of Prospective School Employees and Certification Applicants

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

Proposed Action:

Amendment of section 87.5 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207(not subdivided), 305(1), (2), (30) and 3035(3)

Subject:

Due process procedures for criminal history checks of prospective school employees and certification applicants.

Purpose:

To conform to recent change in Department's Office of Teaching Initiatives.

Text of proposed rule:

1. Subparagraph (vii) of paragraph (4) of subdivision (a) of section 87.5 of the Regulations of the Commissioner of Education is amended, effective October 5, 2011, as follows:

(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 [the executive director of the Office of Teaching Initiatives of the State Education Department] 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.

2. Subparagraph (viii) of paragraph (4) of subdivision (a) of section 87.5 of the Regulations of the Commissioner of Education is amended, effective October 5, 2011, as follows:

(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 [the assistant commissioner of the Office of Teaching Initiatives of the State Education Department] 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.

3. Paragraph (5) of subdivision (a) of section 87.5 of the Regulations of the Commissioner of Education is amended, effective October 5, 2011, as follows:

(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 [the assistant commissioner of the Office of Teaching Initiatives of the State Education Department] 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. [Such appeal shall be heard by the assistant commissioner of the Office of Teaching Initiatives or a State review officer designated by the assistant commissioner who did not participate in the department's determination].

(ii) . . .

(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 [assistant commissioner, or a State review officer designated by the assistant commissioner,] 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. The prospective school employee may request oral argument and must do so in the appeal papers submitted within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph. Such oral argument shall be conducted in accordance with the requirements of subparagraph (iv) of this paragraph.

(iv) A prospective school employee may request oral argument as part of the appeal of the department's determination denying clearance for employment. The department shall notify the prospective school employee of the time and location of such oral argument. Such argument shall be heard before the [assistant commissioner, or a State review officer designated by the assistant commissioner] Commissioner's designee. At the oral argument, the prospective school employee may present additional affidavits or other relevant written information and written argument which the prospective school employee wishes [the assistant commissioner, or the State review officer designated by the assistant commissioner,] the Commissioner's designee to consider in support of the position that clearance for employment should be granted, including, where applicable, written information in regard to his or her good conduct and rehabilitation. No testimony shall be taken at the oral argument and no transcript of oral argument shall be made. The prospective school employee may make an audio tape recording of the oral argument. However, such audio tape recording or transcript thereof shall not be part of the record upon which the [assistant commissioner or a State review officer designated by the assistant commissioner] Commissioner's designee makes the determination on whether clearance for employment shall be granted or denied.

(v) 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, and written information provided at oral argument if requested by the prospective school employee, the [assistant commissioner of the Office of Teaching Initiatives or a State review officer designated by the assistant commissioner who did not participate in the department's determination,] Commissioner's designee shall make a determination of whether clearance for employment shall be granted or denied. In such appeal, the [assistant commissioner or his or her designee] 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 [assistant commissioner, or his or her designee,] 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.

4. Subdivision (b) of section 87.5 of the Regulations of the Commissioner is amended, effective October 5, 2011, as follows:

(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 [assistant commissioner of the] 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.

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

Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Peg Rivers, New York State Education Department, Room 977 EBA, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Paragraph (a) of subdivision (30) of section 305 of the Education Law authorizes the Commissioner of Education to promulgate regulations to authorize the fingerprinting of prospective employees of nonpublic and private elementary and secondary schools, and for the use of information derived from searches of the records of the Division of Criminal Justice Services ("DCJS") and the Federal Bureau of Investigation ("FBI") based on the use of such fingerprints.

Paragraph (a) of subdivision (3) of section 3035 of the Education Law requires the Commissioner of Education to promptly notify the nonpublic or private elementary or secondary school when the prospective school employee is cleared for employment based on his or criminal history and provides a prospective school employee who is denied clearance the right to be heard and offer proof in opposition to such determination in accordance with the Regulations of the Commissioner of Education.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the objectives of the above-referenced statutes by establishing requirements and procedures necessary to implement the statutory requirements prescribed in Chapter 630 of the Laws of 2006. That statute authorizes nonpublic and private schools to require their prospective school employees to be fingerprinted, to undergo a criminal history check, and be cleared for employment by the State Education Department.

3. NEEDS AND BENEFITS:

The proposed amendment is necessary to conform the Regulations of the Commissioner of Education to changes in the internal organization of the State Education Department. Under the current Commissioner's Regulation [8 NYCRR section 87.5(a)(5)], Department determinations denying clearance for employment to prospective school employees and certification applicants may be appealed to the Assistant Commissioner of the Office of Teaching Initiatives (or, in one instance, to the executive director of such Office). The proposed amendment will replace references to the specific staff titles with the terms "designee of the Commissioner" or "Commissioner's designee." The amendment will thereby provide flexibility in responding to future changes in the internal organization of the Department, and avoid the necessity of amending the regulation each time such changes occur. It is anticipated that, as a result of the retirement of the current Assistant Commissioner, effective June 23, 2011, the responsibility for determining such appeals will be assumed by a designee of the Commissioner of Education for such purpose.

4. COSTS:

(a) Costs to State government: none.

(b) Costs to local government: none.

(c) Costs to private regulated parties: none.

(d) Costs to the regulatory agency: none.

The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

6. PAPERWORK:

The proposed amendment does not impose any additional reporting or other paperwork requirements. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

7. DUPLICATION:

The proposed amendment does not duplicate other requirements of the State and Federal government.

8. ALTERNATIVES:

There are no significant alternatives to the proposed amendment, and none were considered. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

9. FEDERAL STANDARDS:

There are no Federal requirements relating to the subject matter of the proposed amendment.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

Regulatory Flexibility Analysis

The proposed amendment relates to appeals brought by prospective school employees of Department determinations denying clearance for employment on the basis of criminal record checks, and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

1. EFFECT OF RULE:

The proposed amendment applies to each public school district in the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional compliance requirements on school districts. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

3. PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional service requirements on school districts.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs to school districts. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any compliance requirements or costs on school districts. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents for distribution to school districts within their supervisory districts for review and comment.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment applies to all public and nonpublic schools in the State and their prospective employees, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional compliance requirements, or professional services requirements, on rural areas. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

3. COSTS:

The proposed amendment does not impose any additional costs to school districts. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any additional compliance requirements or costs on rural areas. The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

5. RURAL AREA PARTICIPATION:

Copies of the proposed amendment were provided to the Department's Rural Education Advisory Committee, which includes representatives of schools in rural areas.

Job Impact Statement

The proposed amendment relates to due process procedures for the fingerprinting and the criminal history record check of prospective nonpublic and private school employees, in order to implement the requirements set forth in sections 305 and 3035 of the Education Law. Because the proposed amendment simply implements the statutory requirements, it will not have any impact on jobs and employment opportunities beyond the impact of the statute.

The proposed amendment merely replaces references in section 87.5(a)(5) to "assistant commissioner" and "executive director" of the Office of Teaching Initiatives with the terms "designee of the Commissioner" or "Commissioner's designee," in order to provide flexibility to the Department in responding to future changes in the internal organization of the Department, and avoiding the necessity of amending the regulation each time such changes occur.

Because it is evident from the nature of the proposed amendment that it will not have a substantial adverse impact on jobs and employment opportunities, no further steps were needed to ascertain these facts and none were taken. Accordingly, a job impact statement was not required and one was not prepared.