2019 New York Laws
EDN - Education
Title 4 - Teachers and Pupils
Article 61 - Teachers and Supervisory and Administrative Staff
3020-B - Streamlined Removal Procedures for Teachers Rated Ineffective.

§   3020-b.   Streamlined   removal   procedures  for  teachers  rated
ineffective. 1. Applicability. This section  shall  apply  to  classroom
teachers  and  building  principals  who receive two or more consecutive
annual ineffective ratings pursuant to annual  professional  performance
reviews  conducted  in  accordance  with the provisions of section three
thousand twelve-c or three thousand twelve-d of this article.
  2. Filing  and  disposition  of  charges.  a.  A  school  district  or
employing  board  may  bring  charges  of  incompetence pursuant to this
section against any classroom teacher or building principal who receives
two consecutive ineffective ratings.  A  school  district  or  employing
board  shall  bring  charges  of  incompetence  pursuant to this section
against any classroom teacher or building principal who  receives  three
consecutive  ineffective  ratings. 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.  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.  When  such  charges  are brought, a written
statement specifying (i) the charges in detail, (ii)  that  the  penalty
that  will  be  imposed  by the board if the employee does not request a
hearing or that  will  be  sought  by  the  board  after  a  hearing  is
dismissal;  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 and such suspension shall be with pay.
  c.  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. 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  to  be  imposed  in  accordance  with
subdivision four of this section.
  d. Charges brought  pursuant  to  this  section  for  two  consecutive
ineffective  ratings shall allege that the employing board has developed
and substantially implemented a teacher or principal improvement plan in
accordance  with  section  three  thousand  twelve-c  or  section  three
thousand  twelve-d  of this article for the employee following the first
evaluation  in  which  the  employee  was  rated  ineffective,  and  the
immediately preceding evaluation if the employee was rated developing.
  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
that the association 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,  in
the  case  of an employee who has received three consecutive ineffective
ratings, directly appoint a hearing officer from the list. In  the  case
of an employee who has received two consecutive ineffective ratings, the
commissioner  shall  forthwith  send a copy of the list and biographical
information 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.  The  commissioner  shall  establish time
periods  for  the  employing  board  and  the  employee  to  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 established
time period, the commissioner shall appoint a hearing officer  from  the
list.
  b.  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,
he or she 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. Subject to an
appropriation,  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.
  c. Hearing procedures. (i) The commissioner shall have  the  power  to
establish  necessary  rules  and  procedures for the conduct of hearings
under this section, and shall  establish  timelines  in  regulations  to
ensure  that  the  duration  of  a  removal  proceeding pursuant to this
section, as measured from the date an employee requests a hearing to the
final hearing date, is no longer than ninety days  in  the  case  of  an
employee  who  has  received  two consecutive ineffective ratings and no
longer than thirty days in the case of  an  employee  who  has  received
three  consecutive ineffective ratings. The commissioner shall establish
timeframes in regulations for a pre-hearing conference wherein a hearing
officer shall have the power to issue subpoenas, hear motions and decide
on  other  discovery  and  evidentiary  issues.  At   such   pre-hearing
conference,  the  hearing  officer shall establish a hearing schedule at
the pre-hearing conference to  ensure  that  the  hearing  is  completed
within  the required time period 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
timelines,  except as authorized in this subparagraph. A hearing officer
may grant a limited and time specific adjournment that would extend  the
hearing beyond such timelines 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.
  (ii)  The  department shall be authorized to monitor and investigate a
hearing officer's compliance with timelines pursuant to this section and
to any regulations promulgated by the department. 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  to  be  considered  for  such
hearings.
  (iii)  Such rules shall not require compliance with technical rules of
evidence. Hearings shall be conducted by the  hearing  officer  selected
pursuant  to  paragraph  a  of  this  subdivision and shall be public or
private at the discretion of the employee. The  employee  shall  have  a
reasonable  opportunity  to defend himself or herself and an opportunity
to testify on 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.
  (iv) 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.
  (v) Legal standard. (A) Two consecutive ineffective  ratings  pursuant
to  annual professional performance reviews conducted in accordance with
the provisions of section three  thousand  twelve-c  or  three  thousand
twelve-d  of  this  article  shall  constitute  prima  facie evidence of
incompetence that can be overcome only by clear and convincing  evidence
that  the  employee  is  not  incompetent  in  light  of all surrounding
circumstances, and if not successfully  overcome,  the  finding,  absent
extraordinary  circumstances, shall be just cause for removal. (B) Three
consecutive  ineffective  ratings  pursuant   to   annual   professional
performance  reviews  conducted  in  accordance  with  the provisions of
section three thousand twelve-c  or  three  thousand  twelve-d  of  this
article  shall  constitute prima facie evidence of incompetence that can
be overcome only by clear and convincing evidence that  the  calculation
of  one or more of the teacher's or principal's underlying components on
the annual professional performance reviews pursuant  to  section  three
thousand  twelve-c  or  three  thousand  twelve-d  of  this  article was
fraudulent, and  if  not  successfully  overcome,  the  finding,  absent
extraordinary  circumstances,  shall  be  just  cause  for  removal. For
purposes of this subparagraph, fraud shall include mistaken identity.
  4. Post hearing procedures. a. The  hearing  officer  shall  render  a
written  decision  within ten days of the last day of the final 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  whether  the  penalty  of  dismissal shall be taken by the
employing board.
  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 and the
charges expunged from the employment record.
  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.
  6.  Nothing  in  this section shall be construed to prevent the use of
any evidence of performance to support charges of  incompetence  brought
pursuant  to  the  provisions of section three thousand twenty-a of this
article.