Tuesday, May 08, 2012

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service
I.D. No. EDU-19-12-00004-EP; Filing No. 400; Filing Date: 2012-04-24; Effective Date: 2012-04-24

The State Department of Education has promulgated proposed rules to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on disciplinary charges filed against tenured school employees.

The full text of rule and any required statements and analyses may be obtained from: Mary Gammon, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 138, Albany, NY 12234, (518) 473-2183, email: mgammon@mail.nysed.gov

The basic elements underlying this proposed amendment are summarized below:

Amendment of Subpart 82-1 of Title 8 NYCRR. -- Statutory authority: Education Law,  §§207 (not subdivided), 305(1) and (2) and 3020-a, as amended by L. 2012, ch. 57, part B

Specific reasons underlying the finding of necessity: The proposed rule is necessary to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on charges against tenured school employees.

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time arbitrators utilized to conduct hearings.

This legislation was introduced in the Assembly and Senate. The Governor's proposed 2012-13 State Budget incorporated some of these reforms, and the State Budget as adopted by the Legislature incorporated a number of important programmatic and fiscal reforms.

The changes take place immediately, and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012.

The new amendments modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list. Education Law §3020-a(3)(b)(iii) states that ‘‘[i]f 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.’’

This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree within 15 days of receipt of the list. It does not apply to NYC where there is an alternative procedure.

The proposed amendment requires the Commissioner to 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” (emphasis added). The purpose of this amendment is to give the Commissioner the authority to control costs. Pursuant to Education Law §3020-a(3)(c)(i)(B), the proposed amendment authorizes the Department to monitor and investigate a hearing officer's compliance with the timelines set forth in the statute.

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The proposed amendment continues the requirement that an accurate ‘‘record’’ of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education. However, in accordance with the new law, the proposed amendment permits the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner.

In conformity with the new law, the amendment also imposes a one year limitation for the submission of claims for reimbursement for services rendered. The purpose of this amendment is to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time.

The rule is being adopted as an emergency measure upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately revise Subpart 82-1 of the Commissioner's regulation to conform to and implement the provisions of  §3020-a of the Education Law, as amended by Chapter 57 of the Laws of 2012. Emergency action is also necessary to give employees and employing boards sufficient notice of the new requirements to timely implement them in accordance with the statute.

It is anticipated that the proposed rule will be presented for adoption as a Proposed Rule Making in the State Register and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act §202(4-a).

This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 22, 2012.

Data, views or arguments may be submitted to: Peg Rivers, New York State Education Department, 89 Washington Avenue, Albany, New York 12234, (518) 408-1189, email: privers@mail.nysed.govPublic comment will be received until: 45 days after publication of this notice.

[N.B. This notice was published in the NYS Register dated May 9, 2012]

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/


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