§ 3020-a. Disciplinary procedures and penalties. 1. Filing of charges.
All charges against a person enjoying the benefits of tenure as provided
in subdivision three of section eleven hundred two, and sections
twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five
hundred ninety-j, three thousand twelve and three thousand fourteen of
this chapter shall be in writing and filed with the clerk or secretary
of the school district or employing board during the period between the
actual opening and closing of the school year for which the employed is
normally required to serve. Except as provided in subdivision eight of
section twenty-five hundred seventy-three and subdivision seven of
section twenty-five hundred ninety-j of this chapter, no charges under
this section shall be brought more than three years after the occurrence
of the alleged incompetency or misconduct, except when the charge is of
misconduct constituting a crime when committed.

2. Disposition of charges. a. Upon receipt of the charges, the clerk
or secretary of the school district or employing board shall immediately
notify said board thereof. Within five days after receipt of charges,
the employing board, in executive session, shall determine, by a vote of
a majority of all the members of such board, whether probable cause
exists to bring a disciplinary proceeding against an employee pursuant
to this section. If such determination is affirmative, a written
statement specifying (i) the charges in detail, (ii) the maximum penalty
which will be imposed by the board if the employee does not request a
hearing or that will be sought by the board if the employee is found
guilty of the charges after a hearing and (iii) the employee's rights
under this section, shall be immediately forwarded to the accused
employee by certified or registered mail, return receipt requested or by
personal delivery to the employee.

b. The employee may be suspended pending a hearing on the charges and
the final determination thereof. The suspension shall be with pay,
except the employee may be suspended without pay if the employee has
entered a guilty plea to or has been convicted of a felony crime
concerning the criminal sale or possession of a controlled substance, a
precursor of a controlled substance, or drug paraphernalia as defined in
article two hundred twenty or two hundred twenty-one of the penal law;
or a felony crime involving the physical abuse of a minor or student.

c. Where charges of misconduct constituting physical or sexual abuse
of a student are brought on or after July first, two thousand fifteen,
the board of education may suspend the employee without pay pending an
expedited hearing pursuant to subparagraph (i-a) of paragraph c of
subdivision three of this section. Notwithstanding any other law, rule,
or regulation to the contrary, the commissioner shall establish a
process in regulations for a probable cause hearing before an impartial
hearing officer within ten days to determine whether the decision to
suspend an employee without pay pursuant to this paragraph should be
continued or reversed. The process for selection of an impartial hearing
officer shall be as similar as possible to the regulatory framework for
the appointment of an impartial hearing officer for due process
complaints pursuant to section forty-four hundred four of this chapter.
The hearing officer shall determine whether probable cause supports the
charges and shall reverse the decision of the board of education to
suspend the employee without pay and reinstate such pay upon a finding
that probable cause does not support the charges. The hearing officer
may also reinstate pay upon a written determination that a suspension
without pay is grossly disproportionate in light of all surrounding
circumstances. Provided, further, that such an employee shall be
eligible to receive reimbursement for withheld pay and accrued interest
at a rate of six percent compounded annually if the hearing officer
finds in his or her favor, either at the probable cause hearing or in a
final determination pursuant to the expedited hearing held pursuant to
subparagraph (i-a) of paragraph c of subdivision three of this section.
Any suspension without pay shall last no longer than one hundred and
twenty days from the decision of the board of education to suspend the
employee without pay and such suspension shall only relate to employee
compensation, exclusive of other benefits and guarantees.
Notwithstanding any other provision of law or regulation to the
contrary, any provision of a collective bargaining agreement entered
into by the city of New York as of April first, two thousand fifteen,
that provides for suspension without pay for offenses as specified in
this paragraph shall supersede the provisions hereof and shall continue
in effect without modification and may be extended.

d. The employee shall be terminated without a hearing, as provided for
in this section, upon conviction of a sex offense, as defined in
subparagraph two of paragraph b of subdivision seven-a of section three
hundred five of this chapter. To the extent this section applies to an
employee acting as a school administrator or supervisor, as defined in
subparagraph three of paragraph b of subdivision seven-b of section
three hundred five of this chapter, such employee shall be terminated
without a hearing, as provided for in this section, upon conviction of a
felony offense defined in subparagraph two of paragraph b of subdivision
seven-b of section three hundred five of this chapter.

e. (i) For hearings commenced by the filing of charges prior to July
first, two thousand fifteen, within ten days of receipt of the statement
of charges, the employee shall notify the clerk or secretary of the
employing board in writing whether he or she desires a hearing on the
charges and when the charges concern pedagogical incompetence or issues
involving pedagogical judgment, his or her choice of either a single
hearing officer or a three member panel, provided that a three member
panel shall not be available where the charges concern pedagogical
incompetence based solely upon a teacher's or principal's pattern of
ineffective teaching or performance as defined in section three thousand
twelve-c of this article. All other charges shall be heard by a single
hearing officer.

(ii) All hearings commenced by the filing of charges on or after July
first, two thousand fifteen shall be heard by a single hearing officer.

f. The unexcused failure of the employee to notify the clerk or
secretary of his or her desire for a hearing within ten days of the
receipt of charges shall be deemed a waiver of the right to a hearing.
Where an employee requests a hearing in the manner provided for by this
section, the clerk or secretary of the board shall, within three working
days of receipt of the employee's notice or request for a hearing,
notify the commissioner of the need for a hearing. If the employee
waives his or her right to a hearing the employing board shall proceed,
within fifteen days, by a vote of a majority of all members of such
board, to determine the case and fix the penalty, if any, to be imposed
in accordance with subdivision four of this section.

3. Hearings. a. Notice of hearing. Upon receipt of a request for a
hearing in accordance with subdivision two of this section, the
commissioner shall forthwith notify the American Arbitration Association
(hereinafter "association") of the need for a hearing and shall request
the association to provide to the commissioner forthwith a list of names
of persons chosen by the association from the association's panel of
labor arbitrators to potentially serve as hearing officers together with
relevant biographical information on each arbitrator. Upon receipt of
said list and biographical information, the commissioner shall forthwith
send a copy of both simultaneously to the employing board and the
employee. The commissioner shall also simultaneously notify both the
employing board and the employee of each potential hearing officer's
record in the last five cases of commencing and completing hearings
within the time periods prescribed in this section.

b. (i) Hearing officers. All hearings pursuant to this section shall
be conducted before and by a single hearing officer selected as provided
for in this section. A hearing officer shall not be eligible to serve in
such position if he or she is a resident of the school district, other
than the city of New York, under the jurisdiction of the employing
board, an employee, agent or representative of the employing board or of
any labor organization representing employees of such employing board,
has served as such agent or representative within two years of the date
of the scheduled hearing, or if he or she is then serving as a mediator
or fact finder in the same school district.

(A) Notwithstanding any other provision of law, for hearings commenced
by the filing of charges prior to April first, two thousand twelve, the
hearing officer shall be compensated by the department with the
customary fee paid for service as an arbitrator under the auspices of
the association for each day of actual service plus necessary travel and
other reasonable expenses incurred in the performance of his or her
duties. All other expenses of the disciplinary proceedings commenced by
the filing of charges prior to April first, two thousand twelve shall be
paid in accordance with rules promulgated by the commissioner. Claims
for such compensation for days of actual service and reimbursement for
necessary travel and other expenses for hearings commenced by the filing
of charges prior to April first, two thousand twelve shall be paid from
an appropriation for such purpose in the order in which they have been
approved by the commissioner for payment, provided payment shall first
be made for any other hearing costs payable by the commissioner,
including the costs of transcribing the record, and provided further
that no such claim shall be set aside for insufficiency of funds to make
a complete payment, but shall be eligible for a partial payment in one
year and shall retain its priority date status for appropriations
designated for such purpose in future years.

(B) Notwithstanding any other provision of law, rule or regulation to
the contrary, for hearings commenced by the filing of charges on or
after April first, two thousand twelve, the hearing officer shall be
compensated by the department for each day of actual service plus
necessary travel and other reasonable expenses incurred in the
performance of his or her duties, provided that the commissioner shall
establish a schedule for maximum rates of compensation of hearing
officers based on customary and reasonable fees for service as an
arbitrator and provide for limitations on the number of study hours that
may be claimed.

(ii) The commissioner shall mail to the employing board and the
employee the list of potential hearing officers and biographies provided
to the commissioner by the association, the employing board and the
employee, individually or through their agents or representatives, shall
by mutual agreement select a hearing officer from said list to conduct
the hearing and shall notify the commissioner of their selection.

(iii) Within fifteen days after receiving the list of potential
hearing officers as described in subparagraph (ii) of this paragraph,
the employing board and the employee shall each notify the commissioner
of their agreed upon hearing officer selection. If the employing board
and the employee fail to agree on an arbitrator to serve as a hearing
officer from the list of potential hearing officers, or fail to notify
the commissioner of a selection within such fifteen day time period, the
commissioner shall appoint a hearing officer from the list. The
provisions of this subparagraph shall not apply in cities with a
population of one million or more with alternative procedures specified
in section three thousand twenty of this article.

(iv) In those cases commenced by the filing of charges prior to July
first, two thousand fifteen in which the employee elects to have the
charges heard by a hearing panel, the hearing panel shall consist of the
hearing officer, selected in accordance with this subdivision, and two
additional persons, one selected by the employee and one selected by the
employing board, from a list maintained for such purpose by the
commissioner. The list shall be composed of professional personnel with
administrative or supervisory responsibility, professional personnel
without administrative or supervisory responsibility, chief school
administrators, members of employing boards and others selected from
lists of nominees submitted to the commissioner by statewide
organizations representing teachers, school administrators and
supervisors and the employing boards. Hearing panel members other than
the hearing officer shall be compensated by the department at the rate
of one hundred dollars for each day of actual service plus necessary
travel and subsistence expenses. The hearing officer shall be
compensated as set forth in this subdivision. The hearing officer shall
be the chairperson of the hearing panel.

c. Hearing procedures. (i) (A) The commissioner shall have the power
to establish necessary rules and procedures for the conduct of hearings
under this section.

(B) The department shall be authorized to monitor and investigate a
hearing officer's compliance with statutory timelines pursuant to this
section. The commissioner shall annually inform all hearing officers who
have heard cases pursuant to this section during the preceding year that
the time periods prescribed in this section for conducting such hearings
are to be strictly followed. A record of continued failure to commence
and complete hearings within the time periods prescribed in this section
shall be considered grounds for the commissioner to exclude such
individual from the list of potential hearing officers sent to the
employing board and the employee for such hearings.

(C) Such rules shall not require compliance with technical rules of
evidence. Hearings shall be conducted by the hearing officer selected
pursuant to paragraph b of this subdivision with full and fair
disclosure of the nature of the case and evidence against the employee
by the employing board and shall be public or private at the discretion
of the employee and provided further that the hearing officer, at the
pre-hearing conference, shall set a schedule and manner for full and
fair disclosure of the witnesses and evidence to be offered by the
employee. The employee shall have a reasonable opportunity to defend
himself or herself and an opportunity to testify in his or her own
behalf. The employee shall not be required to testify. Each party shall
have the right to be represented by counsel, to subpoena witnesses, and
to cross-examine witnesses. All testimony taken shall be under oath
which the hearing officer is hereby authorized to administer. A child
witness under the age of fourteen may be permitted to testify through
the use of live, two-way closed-circuit television, as such term is
defined in subdivision four of section 65.00 of the criminal procedure
law, when the hearing officer, after providing the employee with an
opportunity to be heard, determines by clear and convincing evidence
that such child witness would suffer serious mental or emotional harm
which would substantially impair such child's ability to communicate if
required to testify at the hearing without the use of live, two-way
closed-circuit television and that the use of such live, two-way
closed-circuit television will diminish the likelihood or extent of such
harm. In making such determination, the hearing officer shall consider
any applicable factors contained in subdivision ten of section 65.20 of
the criminal procedure law. Where the hearing officer determines that
such child witness will be permitted to testify through the use of live,
two-way closed-circuit television, the testimony of such child witness
shall be taken in a manner consistent with section 65.30 of the criminal
procedure law.

(D) An accurate record of the proceedings shall be kept at the expense
of the department at each such hearing in accordance with the
regulations of the commissioner. A copy of the record of the hearings
shall, upon request, be furnished without charge to the employee and the
board of education involved. The department shall be authorized to
utilize any new technology or such other appropriate means to transcribe
or record such hearings in an accurate, reliable, efficient and
cost-effective manner without any charge to the employee or board of
education involved.

(i-a)(A) Where charges of misconduct constituting physical or sexual
abuse of a student are brought, the hearing shall be conducted before
and by a single hearing officer in an expedited hearing, which shall
commence within seven days after the pre-hearing conference and shall be
completed within sixty days after the pre-hearing conference. The
hearing officer shall establish a hearing schedule at the pre-hearing
conference to ensure that the expedited hearing is completed within the
required timeframes and to ensure an equitable distribution of days
between the employing board and the charged employee. Notwithstanding
any other law, rule or regulation to the contrary, no adjournments may
be granted that would extend the hearing beyond such sixty days, except
as authorized in this subparagraph. A hearing officer, upon request, may
grant a limited and time specific adjournment that would extend the
hearing beyond such sixty days if the hearing officer determines that
the delay is attributable to a circumstance or occurrence substantially
beyond the control of the requesting party and an injustice would result
if the adjournment were not granted.

(B) The commissioner shall annually inform all hearing officers who
have heard cases pursuant to this section during the preceding year that
the time periods prescribed in this subparagraph for conducting
expedited hearings are to be strictly followed and failure to do so
shall be considered grounds for the commissioner to exclude such
individual from the list of potential hearing officers sent to the
employing board and the employee for such expedited hearings.

(ii) The hearing officer selected to conduct a hearing under this
section shall, within ten to fifteen days of agreeing to serve in such
position, hold a pre-hearing conference which shall be held in the
school district or county seat of the county, or any county, wherein the
employing school board is located. The pre-hearing conference shall be
limited in length to one day except that the hearing officer, in his or
her discretion, may allow one additional day for good cause shown.

(iii) At the pre-hearing conference the hearing officer shall have the
power to:

(A) issue subpoenas;

(B) hear and decide all motions, including but not limited to motions
to dismiss the charges;

(C) hear and decide all applications for bills of particular or
requests for production of materials or information, including, but not
limited to, any witness statement (or statements), investigatory
statement (or statements) or note (notes), exculpatory evidence or any
other evidence, including district or student records, relevant and
material to the employee's defense.

(iv) Any pre-hearing motion or application relative to the sufficiency
of the charges, application or amendment thereof, or any preliminary
matters shall be made upon written notice to the hearing officer and the
adverse party no less than five days prior to the date of the
pre-hearing conference. Any pre-hearing motions or applications not made
as provided for herein shall be deemed waived except for good cause as
determined by the hearing officer.

(v) In the event that at the pre-hearing conference the employing
board presents evidence that the professional license of the employee
has been revoked and all judicial and administrative remedies have been
exhausted or foreclosed, the hearing officer shall schedule the date,
time and place for an expedited hearing, which hearing shall commence
not more than seven days after the pre-hearing conference and which
shall be limited to one day. The expedited hearing shall be held in the
local school district or county seat of the county or any county,
wherein the said employing board is located. The expedited hearing shall
not be postponed except upon the request of a party and then only for
good cause as determined by the hearing officer. At such hearing, each
party shall have equal time in which to present its case.

(vi) During the pre-hearing conference, the hearing officer shall
determine the reasonable amount of time necessary for a final hearing on
the charge or charges and shall schedule the location, time(s) and
date(s) for the final hearing. The final hearing shall be held in the
local school district or county seat of the county, or any county,
wherein the said employing school board is located. In the event that
the hearing officer determines that the nature of the case requires the
final hearing to last more than one day, the days that are scheduled for
the final hearing shall be consecutive. The day or days scheduled for
the final hearing shall not be postponed except upon the request of a
party and then only for good cause shown as determined by the hearing
officer. In all cases, the final hearing shall be completed no later
than sixty days after the pre-hearing conference unless the hearing
officer determines that extraordinary circumstances warrant a limited
extension.

(vii) All evidence shall be submitted by all parties within one
hundred twenty-five days of the filing of charges and no additional
evidence shall be accepted after such time, absent extraordinary
circumstances beyond the control of the parties.

d. Limitation on claims. Notwithstanding any other provision of law,
rule or regulation to the contrary, no payments shall be made by the
department pursuant to this subdivision on or after April first, two
thousand twelve for: (i) compensation of a hearing officer or hearing
panel member, (ii) reimbursement of such hearing officers or panel
members for necessary travel or other expenses incurred by them, or
(iii) for other hearing expenses on a claim submitted later than one
year after the final disposition of the hearing by any means, including
settlement, or within ninety days after the effective date of this
paragraph, whichever is later; provided that no payment shall be barred
or reduced where such payment is required as a result of a court order
or judgment or a final audit.

4. Post hearing procedures. a. The hearing officer shall render a
written decision within thirty days of the last day of the final
hearing, or in the case of an expedited hearing within ten days of such
expedited hearing, and shall forward a copy thereof to the commissioner
who shall immediately forward copies of the decision to the employee and
to the clerk or secretary of the employing board. The written decision
shall include the hearing officer's findings of fact on each charge, his
or her conclusions with regard to each charge based on said findings and
shall state what penalty or other action, if any, shall be taken by the
employing board. At the request of the employee, in determining what, if
any, penalty or other action shall be imposed, the hearing officer may
consider the extent to which the employing board made efforts towards
correcting the behavior of the employee which resulted in charges being
brought under this section through means including but not limited to:
remediation, peer intervention or an employee assistance plan. In those
cases where a penalty is imposed, such penalty may be a written
reprimand, a fine, suspension for a fixed time without pay, or
dismissal. In addition to or in lieu of the aforementioned penalties,
the hearing officer, where he or she deems appropriate, may impose upon
the employee remedial action including but not limited to leaves of
absence with or without pay, continuing education and/or study, a
requirement that the employee seek counseling or medical treatment or
that the employee engage in any other remedial or combination of
remedial actions. Provided, however, that the hearing officer, in
exercising his or her discretion, shall give serious consideration to
the penalty recommended by the employing board, and if the hearing
officer rejects the recommended penalty such rejection must be based on
reasons based upon the record as expressed in a written determination.

b. Within fifteen days of receipt of the hearing officer's decision
the employing board shall implement the decision. If the employee is
acquitted he or she shall be restored to his or her position with full
pay for any period of suspension without pay and the charges expunged
from the employment record. If an employee who was convicted of a felony
crime specified in paragraph b of subdivision two of this section, has
said conviction reversed, the employee, upon application, shall be
entitled to have his or her pay and other emoluments restored, for the
period from the date of his or her suspension to the date of the
decision.

c. The hearing officer shall indicate in the decision whether any of
the charges brought by the employing board were frivolous as defined in
section eighty-three hundred three-a of the civil practice law and
rules. If the hearing officer finds that all of the charges brought
against the employee were frivolous, the hearing officer shall order the
employing board to reimburse the department the reasonable costs said
department incurred as a result of the proceeding and to reimburse the
employee the reasonable costs, including but not limited to reasonable
attorneys' fees, the employee incurred in defending the charges. If the
hearing officer finds that some but not all of the charges brought
against the employee were frivolous, the hearing officer shall order the
employing board to reimburse the department a portion, in the discretion
of the hearing officer, of the reasonable costs said department incurred
as a result of the proceeding and to reimburse the employee a portion,
in the discretion of the hearing officer, of the reasonable costs,
including but not limited to reasonable attorneys' fees, the employee
incurred in defending the charges.

5. Appeal. a. Not later than ten days after receipt of the hearing
officer's decision, the employee or the employing board may make an
application to the New York state supreme court to vacate or modify the
decision of the hearing officer pursuant to section seventy-five hundred
eleven of the civil practice law and rules. The court's review shall be
limited to the grounds set forth in such section. The hearing panel's
determination shall be deemed to be final for the purpose of such
proceeding.

b. In no case shall the filing or the pendency of an appeal delay the
implementation of the decision of the hearing officer.