(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 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.]

2. Subparagraph (iv) of paragraph (5) of subdivision (a) of section 87.5 of the Regulations of the Commissioner of Education is repealed, effective April 11, 2012, as follows:

[(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 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 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 Commissioner's designee makes the determination on whether clearance for employment shall be granted or denied.]

3. Subparagraph (v) of paragraph (5) of subdivision (a) of section 87.5 of the Regulations of the Commissioner of Education is amended, effective April 11, 2012, as follows:

(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 Commissioner's designee shall make a determination of whether clearance for employment shall be granted or denied. In such appeal, the 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 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.

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 school districts, charter schools and boards of cooperative educational services and 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.

Education Law section 3001-d sets forth the procedures and requirements for conducting criminal history record checks of prospective employees of a nonpublic or private elementary or secondary schools.

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:

Pursuant to section 87.5(5) of the Commissioner's Regulations, a prospective school employee who was denied clearance for employment by the State Education Department as a result of a criminal history record check, may appeal that determination to a designee of the Commissioner and may request oral argument as part of the appeal. If requested, oral argument must be provided by the Department.

The proposed amendment would eliminate the provisions concerning oral argument. There is no legal requirement to conduct oral arguments under either the applicable statute (Education Law § 3035) or general due process principles, and elimination of oral arguments would not have a significant impact on the appeals process. A review of Department records of Part 87 decisions during a three year period (1/1/08 - 12/31/10) shows that oral arguments were requested in a minority of appeals (48 out of 138 appeals), and that the information received, as a result of oral argument, was the determinative factor in only 6 such appeals. Therefore, the considerable amount of Department staff time and resources devoted to conducting oral arguments is not justified by the small impact oral arguments have on the appeals process, particularly in a time of State fiscal constraints.

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 does not impose any costs but instead will eliminate costs to the State Education Department and parties to appeals, including school districts, BOCES and certain nonpublic and private schools, which are associated with conducting oral arguments.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments. The proposed amendment will eliminate provisions relating to oral arguments in appeals brought by prospective school employees who were denied clearance for employment by the State Education Department as a result of a criminal history record check.

6. PAPERWORK:

The proposed amendment does not impose any additional reporting or other paperwork requirements, and will eliminate paperwork associated with conducting oral arguments.

7. DUPLICATION:

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

8. ALTERNATIVES:

Consideration was given to maintaining the present requirement that oral argument be provided if a party requests it, or revising the regulation to give the Commissioner discretion to grant oral argument in particular instances. However, there is no legal requirement to conduct oral arguments under either the applicable statute (Education Law § 3035) or general due process principles. Furthermore, elimination of oral arguments would not have a significant impact on the appeals process. A review of Department records of Part 87 decisions during a three year period (1/1/08 - 12/31/10) shows that oral arguments were requested in a minority of appeals (48 out of 138 appeals), and that the information received, as a result of oral argument, was the determinative factor in only 6 such appeals. Therefore, the considerable amount of Department staff time and resources devoted to conducting oral arguments is not justified by the small impact oral arguments have on the appeals process, particularly in a time of State fiscal constraints.

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.

Small businesses:

The proposed amendment relates to procedures in appeals of clearance determinations resulting from criminal history record check of prospective nonpublic and private school employees, 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 school districts, charter schools and boards of cooperative educational services, or any nonpublic and private elementary and secondary school that elects to fingerprint and seek clearance for prospective employees from the State Education Department and is geographically located in New York State, except the city school district of the City of New York.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional program, service, duty or responsibility, or compliance requirements, on local governments. The proposed amendment will eliminate provisions relating to oral arguments in appeals brought by prospective school employees who were denied clearance for employment by the State Education Department as a result of a criminal history record check.

3. PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional service requirements on local governments.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any costs but instead will eliminate costs to the State Education Department and parties to appeals, including school districts, BOCES and certain nonpublic and private schools, which are associated with conducting oral arguments.

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 local governments. The proposed amendment will eliminate requirements and costs relating to oral arguments in appeals brought by prospective school employees who were denied clearance for employment by the State Education Department as a result of a criminal history record check.

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.

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to school districts, charter schools and boards of cooperative educational services, or any nonpublic and private elementary and secondary school in the State (except for the New York City School District) that elect to fingerprint and seek clearance for prospective employees from the State Education Department, 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.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional program, service, duty or responsibility or compliance requirements on local governments. The proposed amendment will eliminate provisions relating to oral arguments in appeals brought by prospective school employees who were denied clearance for employment by the State Education Department as a result of a criminal history record check.

The proposed amendment does not impose any additional professional services requirements.

COSTS:

The proposed amendment does not impose any costs but instead will eliminate costs to the State Education Department and parties to appeals, including school districts, BOCES and certain nonpublic and private schools, which are associated with conducting oral arguments.

MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any compliance requirements or costs on local governments. The proposed amendment will eliminate requirements and costs relating to oral arguments in appeals brought by prospective school employees who were denied clearance for employment by the State Education Department as a result of a criminal history record check.

RURAL AREA PARTICIPATION:

Comments on the proposed rule were solicited from the Department's Rural Advisory Committee.

The proposed amendment relates to procedures in appeals of clearance determinations resulting from criminal history record check of prospective employees of school districts, charter schools and boards of cooperative educational services and certain nonpublic and private schools that elect to fingerprint and seek clearance for prospective employees from the State Education Department, and will not have any impact on jobs and employment opportunities. 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.