Home » 2013 Issues » August 07, 2013 » EDU-19-13-00006-ERP Moral Character Hearings Under 8 NYCRR Part 83 for Certified Teachers and Other Certified School Personnel
EDU-19-13-00006-ERP Moral Character Hearings Under 8 NYCRR Part 83 for Certified Teachers and Other Certified School Personnel
8/7/13 N.Y. St. Reg. EDU-19-13-00006-ERP
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 32
August 07, 2013
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-19-13-00006-ERP
Filing No. 774
Filing Date. Jul. 22, 2013
Effective Date. Jul. 22, 2013
Moral Character Hearings Under 8 NYCRR Part 83 for Certified Teachers and Other Certified School Personnel
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of sections 83.4 and 83.5 of Title 8 NYCRR.
Specific reasons underlying the finding of necessity:
The Department’s Office of School Personnel Review & Accountability (OSPRA) is responsible for facilitating fingerprint generated criminal background checks in accordance with the Education Law (Chapter 180 of the Laws of 2000). All prospective covered school employees and/or applicants for a teaching certificate must be fingerprinted.
Generally, fingerprints are collected across the state at school districts, Boards of Cooperative Educational Services (BOCES), colleges and universities, and law enforcement agencies. Fingerprints are received by the Department in two formats: hard cards containing fingerprints that are collected through the “ink and roll” method and mailed, and digital fingerprint images captured on a scanner and transmitted electronically via a server. All fingerprint images are delivered by the Department to the state Division of Criminal Justice Services (DCJS), which conducts a state criminal history records check and then forwards the images to the Federal Bureau of Investigation (FBI) for processing against their criminal record repository.
The Department has taken steps to better ensure the security of fingerprints in recent years by growing the number of fingerprints collected electronically. Approximately 75 percent of fingerprints are collected electronically, which reduces the opportunity for the integrity of fingerprints to be compromised.
In an effort to close potential gaps that may exist (such as the ability of a person to submit false fingerprints), the Department began a review of the fingerprinting process. As part of this review, the Department has determined that there are no provisions to expeditiously address actions related to fingerprint fraud. As such, individuals with serious criminal histories, whose presence in the classroom or school poses a danger to the safety of students and/or staff, may be able to evade the criminal history record check process and gain access to schools. The proposed amendment establishes a rebuttable presumption that a teacher or school administrator who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. In addition to shifting the burden to the teacher or school administrator in Part 83 proceedings, such an amendment would serve as a deterrent for individuals who may be inclined to submit false information relative to a criminal history background check.
Based on public comment received following the 45-day public comment period required under the State Administrative Procedure Act, the proposed amendment was revised to clarify that the rebuttable presumption for fingerprinting fraud applies not only to crimes committed after certification, but also to convictions of individuals for submission of false fingerprints or other fraudulent acts undertaken to obtain their certification. In addition, the proposed amendment was revised to allow the Commissioner to initiate a review of the findings and recommendations of a hearing officer or hearing panel, including fingerprinting fraud.
Emergency action is needed for the preservation of the general welfare in order to ensure that action can be taken expeditiously to revoke or suspend the certificates of teachers and school administrators who commit a crime involving fraud or submission of information related to their criminal history record checks in order to ensure the safety of the children and faculty of the schools in this State.
Emergency action is also needed for the preservation of the general welfare in order to ensure that the proposed amendment continuously remains in effect until it can be adopted as a permanent rule. The proposed amendment was adopted as an emergency rule at the April 22-23, 2013 Regents meeting, effective April 23, 2013. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 8, 2013. Following the 45-day public comment period required under SAPA, the proposed rule was revised as described above. A Notice of Revised Rule Making will be published in the State Register on July 23, 2013. Following the public 30-day public comment period for a revised rule making, the proposed amendment will be adopted as a permanent rule. The earliest effective date of the revised rule, if adopted at the September meeting, would be October 2, 2013.
Emergency action is necessary for the preservation of the general welfare to revise the proposed amendment and ensure that the revised rule remains continuously in effect until the effective date of its permanent adoption.
Subject:
Moral character hearings under 8 NYCRR Part 83 for certified teachers and other certified school personnel.
Purpose:
To establish a rebuttable presumption that a certified individual who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character.
Text of emergency/revised rule:
1. Subdivision (d) of section 83.4 of the Regulations of the Commissioner of Education shall be amended, effective July 22, 2013, to read as follows:
(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. Except as otherwise provided in paragraph (4) of this subdivision, [In] in the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character.
(1) . . .
(2) . . .
(3) . . .
(4) any crime committed involving the submission of false information, or the commission of fraud, related to a criminal history record check.
2. A new subparagraph (iv) shall be added to paragraph (1) of subdivision (b) of section 83.5 of the Regulations of the Commissioner of Education, effective July 22, 2013, to read as follows:
(iv) any crime committed involving the submission of false information, or the commission of fraud, related to a criminal history record check.
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 May 8, 2013, I.D. No. EDU-19-13-00006-EP. The emergency rule will expire 60 days after filing.
Emergency rule compared with proposed rule:
Substantial revisions were made in sections 83.4(d) and 83.5(b)(1).
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Peg Rivers, NYS Education Department, Office of Higher Education, Room 979, Washington Avenue, Albany, NY 12234, (518) 486-3633, email: privers@mail.nysed.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 May 8, 2013, the proposed rule has been substantially revised as follows.
The introductory language of subdivision (d) of section 83.4 was revised in response to public comment to add the phrase "Except as otherwise provided in paragraph (4) of this subdivision" to clarify that the rebuttable "lack of moral character" presumption in section 83.4(d)(4) for proof of conviction of any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check shall apply, not only to such crimes committed after certification, but also to such crimes that are committed to obtain certification.
In response to public comment, a new subdivision (iv) was added to section 83.5(b)(1) to authorize the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check.
The above revisions require that the Needs and Benefits, Local Government Mandates, and Compliance Requirements sections of the previously published Regulatory Impact Statement be revised to read as follows:
3. NEEDS AND BENEFITS:
The State Education Department’s Office of School Personnel Review & Accountability (OSPRA) is responsible for facilitating fingerprint generated criminal background checks in accordance with the Education Law (Chapter 180 of the Laws of 2000). All prospective covered school employees and/or applicants for a teaching certificate must be fingerprinted.
Generally, fingerprints are collected across the state at school districts, Boards of Cooperative Educational Services (BOCES), colleges and universities, and law enforcement agencies. Fingerprints are received by the Department in two formats: hard cards containing fingerprints that are collected through the “ink and roll” method and mailed, and scanned fingerprint images captured on a scanner and transmitted electronically via a server. All fingerprint images are delivered by the Department to the state Division of Criminal Justice Services (DCJS) to conduct a state criminal history records check and to forward them to the Federal Bureau of Investigation (FBI) for processing against their criminal record repository.
The Department has taken steps to better ensure the security of fingerprints in recent years by growing the number of fingerprints collected electronically. Approximately 75 percent of fingerprints are collected electronically, which reduces the opportunity for the integrity of fingerprints to be compromised. However, the Department has begun to review the fingerprinting process to close potential gaps that may exist, such as the ability of a person to submit false fingerprints. As part of this review, the Department has determined that the proposed amendment is needed to expedite the removal of school district personnel that commit certain crimes. Currently, there are no provisions to expeditiously address actions related to fingerprint fraud, which can result in convicted felons whose presence in the classroom or school poses a danger to the safety of students and/or staff evading the criminal history record check process and gaining access to schools. The proposed amendment establishes a rebuttable presumption that a teacher or school administrator who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check. The proposed amendment will thereby expedite the removal of teachers and administrators that commit crimes involving the submission of false information, or the commission of fraud, related to a criminal history record check.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any program, service, duty or responsibility upon local governments. The proposed amendment relates to evidentiary standards in the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and merely establishes a rebuttable presumption that a certified individual who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check. The proposed amendment will thereby expedite the removal of teachers and administrators that commit crimes involving the submission of false information, or the commission of fraud, related to a criminal history record check.
10. COMPLIANCE SCHEDULE:
The proposed amendment does not impose any costs or compliance requirements. The proposed amendment relates to evidentiary standards in hearings relating to the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and merely establishes a rebuttable presumption that a certified individual who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check. The proposed amendment will thereby expedite the removal of teachers and administrators that commit crimes involving the submission of false information, or the commission of fraud, related to a criminal history record check.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on May 8, 2013, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith. The proposed amendment, as so revised, relates to evidentiary standards in the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and will not impose any adverse economic, reporting, recordkeeping, or any other compliance requirements on small businesses or local governments. Because it is evident from the nature of the revised rule that it does not affect small businesses or local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and local governments is not required and one has not been prepared.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on May 8, 2013, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above changes require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services and Minimizing Adverse Impact sections of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional reporting, recordkeeping, or other compliance requirements, or professional services requirements on any regulated party. The proposed amendment relates to evidentiary standards in the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and merely establishes a rebuttable presumption that a teacher or school administrator who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check. The proposed amendment will thereby expedite the removal of teachers and administrators that commit crimes involving the submission of false information, or the commission of fraud, related to a criminal history record check.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any compliance requirements or costs on public or private entities located in rural areas. The proposed amendment relates to evidentiary standards in the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and merely establishes a rebuttable presumption that a teacher or school administrator who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character. The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check. The proposed amendment will thereby expedite the removal of teachers and administrators that commit crimes involving the submission of false information, or the commission of fraud, related to a criminal history record check. Because evidentiary standards in Part 83 moral character hearings must be uniformly applicable throughout the State in order to meet Constitutional requirements, it is not possible to establish differing requirements for or to exempt affected individuals in rural areas.
Revised Job Impact Statement
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on May 8, 2013, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith. The proposed amendment, as so revised, relates to evidentiary standards in the conduct of moral character hearings for certified teachers and other certified school personnel under Part 83 of the Commissioner's Regulations, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed revised amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts 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 Emergency Adoption and Proposed Rule Making in the State Register on May 8, 2013, the State Education Department received the following comments:
1. One commenter notes that currently 8 NYCRR § 83.4(d) lists three categories of crimes that create a rebuttable presumption related to moral character: Penal Law drug offenses, physical or sexual abuse of a minor or student, and any crime committed on school property or while performing teaching duties. However, in all three cases the presumption is limited to only such crimes that are “committed subsequent to certification.” It is not clear that this limitation should properly pertain to a conviction for fingerprinting fraud. Instead, it would seem appropriate to apply such a presumption not only to crimes committed after certification, but also to convictions of individuals for submission of false fingerprints or other fraudulent acts undertaken to obtain their certification.
DEPARTMENT RESPONSE:
The Department agrees and proposed amendment was revised to clarify that the presumption related to convictions for fingerprinting fraud also apply to the conviction of individuals for submission of false fingerprints or other fraudulent acts undertaken to obtain their certification.
2. COMMENT:
The commenter also notes that § 83.5(b) of the Commissioner’s regulations provides that the Commissioner may initiate a review of the findings and recommendations of a hearing officer or hearing panel, but only in cases involving convictions of specific crimes – specifically, this provision relists the three categories of crimes in § 83.4(d). If SED believes that acts involving fingerprinting/criminal history fraud merit inclusion in the rebuttable presumption provisions in § 83.4(d), it may also find it appropriate to add such offenses to the list of crimes in § 83.5(b) that enable the Commissioner to initiate a review of a hearing report involving such cases.
DEPARTMENT RESPONSE:
The Department agrees and has revised § 83.5 of the Commissioner’s regulations accordingly.
