The proposed amendment was published in the State Register on May 16, 2007. Below is a summary of written comments received by the State Education Department (SED) and SED's assessment of issues raised.

COMMENT: Our principal concern is that when a nonpublic school applicant is found to have a criminal record, the hiring decision is made by SED. The commentor expressed concern regarding their inability to make their own clearance determinations.

RESPONSE: Pursuant to Education Law §§ 305(30)(a) and (b) and 3035(1) and (3), the Commissioner of Education is required or authorized to make clearance for employment determinations for prospective employees of a school district, charter school, board of cooperative educational services or non-public and private elementary and/or secondary schools. When making these determinations in instances where the criminal history record check reveals that the prospective employee was convicted of a crime or has a pending criminal charge, SED reviews this record and applies the standards for the granting or denial of a license or employment application set forth in Correction Law § 752 and considers the factors specified in Correction Law § 753. This review is also conducted in accordance with Executive Law § 296(16).

However, the fact that SED grants a clearance does not require the school to hire the individual. The clearance determination simply means that the individual is employable. The employer may still consider other employment factors when determining whether to hire an individual. The clearance determination simply means that there is nothing in the individual's criminal history which would serve as a bar to employment in that particular position, in that particular setting.

COMMENT: Two commentors have also requested that the proposed regulations be amended so that parents are notified when SED approves/disapproves a prospective employee for employment.

RESPONSE: Chapter 630 of the Laws of 2006 only authorizes the Commissioner to notify the non-public or private elementary or secondary school of the clearance or denial of clearance for employment. Any additional notifications would require a statutory change.

COMMENT: Two commentors have requested that SED continue and extend the time period for the public comment period, pursuant to Section 202(3) of the State Administrative Procedure Act (SAPA), so that additional notifications can be sent to as many nonpublic school parent groups as possible.

RESPONSE: The Department believes that publication of a Notice of Proposed Rule Making in the State Register on May 16, 2007 and the ensuing 45-day period for the Department's receipt of public comment (May 16th through July 2nd), pursuant to SAPA Section 202(1), provided sufficient opportunity for interested parties to comment upon the proposed rule. The commentors' assertion that the rule making is not widely known in the nonpublic school parent community is merely speculative, and nothing precludes the commentors, one of which is an unincorporated, state-wide parent association, from taking appropriate measures to notify their constituency. Furthermore, there is no provision in SAPA that authorizes SED to extend the comment period after the Notice of Proposed is published. While SAPA section 202(4-a) provides for an additional 30 day public comment period upon filing of a Notice of Revised Rule Making, no revised rule has been filed with respect to this proposed rule making. SAPA section 202(3), cited by the commentors, is inapplicable to the proposed rule making since it relates to the extension of a rule making, rather than the 45-day public comment period, for an additional 90 days beyond the 365 day period after which a notice of rule making expires pursuant to SAPA section 202(2), provided a notice of revised rule making is submitted within 90 days of rule making's expiration date.

COMMENT: The regulations, if amended as proposed, merely extend the same criteria for clearance to participating private schools as have been in place for public schools. Some 75% of applicants for employment who have criminal records will be cleared. The school will not be informed of the existing conviction record.

RESPONSE: Chapter 630 of the Laws of 2006 authorizes nonpublic or private elementary or secondary schools to elect to have their prospective employees cleared for employment by the department, upon the department's review of the prospective employee's criminal history record. The proposed regulation does not establish different criteria than those currently prescribed for public schools, charter schools or boards of cooperative educational services for evaluating criminal histories for the purpose of clearance determinations. Different standards for nonpublic or private schools would require a statutory change.

Moreover, pursuant to Section 3035(1) of the Education Law, criminal history records sent to the commissioner shall be confidential pursuant to the applicable federal and state laws, rules and regulations, and shall not be published or in any way disclosed to persons other than the commissioner, unless authorized by law. There is no provision in law authorizing SED to notify a nonpublic or private school of a prospective employee's existing conviction record. This would require a statutory change.

COMMENT: The procedures enacted pursuant to Section 3035 of the Education Law have been in place for public schools for several years. It is clear that, by having SED be the sole authority to make the determination as to whether the applicant is suitable for employment, the legislature intended a certain uniformity to result statewide in the judgment calls as to the weight and applicability of the factors in Section 752 and 753 of the Corrections Law.

However, this is not necessarily the case regarding the newly-added entities, non-public and private schools. There is nothing in the new statutory language that prevents SED from enacting procedures that conform to the New York State public policy that countenances a broad diversity of programs and curriculum in private schools, a diversity that does not exist in the current public school scheme. The protection of the right of parent to have a child educated in a specific program is in fact one of the justifications for maintaining the licensing and legitimacy of non-public schools.

Many of the programs in private schools have a strong therapeutic component, or a highly emphasized religious component, that is absent in public schools. The degree to which these respective components can be conveyed with fidelity by all employees of the school can have a profound impact on the welfare of the students, according to the lights of the schools philosophy or credo. On the other hand, if it is clear that a specific applicant has evidenced a course of conduct contrary to the tenets of the private school, the risk to the welfare of the children he teaches can include emotional trauma even when such course of conduct would be innocuous in a public school setting.

RESPONSE: SED is required to make clearance determinations in accordance with Correction Law §§ 752 and 753. However, the fact that SED grants a clearance does not require the school to hire the individual. The clearance determination simply means that the individual is employable. The employer may still consider other employment factors when determining whether to hire an individual. The clearance determination simply means that there is nothing in the individual's criminal history which would serve as a bar to employment in that particular position in that particular setting.

Also, as stated above, pursuant to Section 3035(1) of the Education Law, criminal history records sent to the commissioner shall be confidential and there is no provision in law authorizing SED to notify the nonpublic or private school of the prospective employee's existing conviction record. This would require a statutory change.

COMMENT: SED should promulgate clearance procedures that allow each participating private school to specify to SED those convictions that, in the school's judgment, make the applicant an acceptable risk to the welfare of its students. The schools could be asked to justify why the specific position applied for requires a person free of such conviction. Once this statement by the school has been accepted, it should be incumbent on SED to conduct the consideration of the factors set forth in Corrections Law Section 752 and 753 in light of the individual school's stated policy.

SED should design the regulation so as to recognize the right of the school - especially religious schools (which are exempt from the state's Human Rights Law) to require a self-disclosure statement of previous convictions to be filled out by the applicant. (Whether the regulations could or should permit this affidavit to be executed under the penalties of perjury is a question about which the legal community and participating schools should be polled). SED should consider whether the school could submit this form to SED so that it can be compared for veracity with the actual criminal history record received from the Division of Criminal Justice Services (“DCJS”) and the Federal Bureau of Investigation (“FBI”).

RESPONSE: Chapter 630 of the Laws of 2006 requires SED to make clearance determinations pursuant to Correction Law §§ 752 and 753. There is no provision in the law to allow for any additional factors. Further, the fact that SED grants a clearance does not require the school to hire the individual. The clearance determination simply means that the individual is employable. The employer may still consider other employment factors when determining whether to hire an individual. The clearance determination simply means that there is nothing in the individual's criminal history which would serve as a bar to employment in that particular position in that particular setting.

COMMENT: One commentor noted that language in the proposed amendment authorizing SED to be able to consider “any related information obtained by the department pursuant to the review of an applicant's criminal history record” is beyond the scope of the authority conferred upon SED by Section 3035(2), (3) of the Education Law.

RESPONSE: Section 3035(3) of the Education Law specifically states that “[a]fter receipt of a criminal history record from the division of criminal justice services and the federal bureau of investigation the commissioner shall promptly notify the appropriate school district, charter school or board of cooperative educational services whether the prospective employee to which such report relates is cleared for employment based upon his or her criminal history.” This statutory language authorizes SED to make a clearance determination based upon the prospective employee's criminal history.

Oftentimes when SED receives a criminal history record from DCJS and the FBI, the record is incomplete, i.e., dispositions for some or all of the charges against a prospective school employee do not appear. SED then needs to seek additional information from the court regarding the disposition of such charges in order to obtain the complete criminal history record for the prospective employee. If SED is unable to obtain the dispositions for these charges, then these “open” or “unresolved” charges will be considered as pending charges for clearance for employment determination purposes. In the absence of this proposed amendment, both the prospective employee and the school may be negatively impacted by unnecessarily subjecting the prospective employee to a lengthy due process review which will delay a clearance for employment in situations where the pending criminal charges appearing on the rap sheet have actually been dismissed or reduced. These missing dispositions are part of the applicant's criminal history and without them, SED does not have all the information needed to do the analysis required under Executive Law § 296(16) and Correction Law § 752 and 753.

Moreover, Education Law § 3035(3) states that if the Commissioner denies the clearance for employment, the applicant must be provided with notice and an opportunity to be heard and offer proof in opposition to such determination in accordance with the regulations. Section 87.5(a)(4)(viii) of the Regulations of the Commissioner was adopted to permit the Department, after the issuance of an intent to deny, to consider the applicant's criminal record and any related information obtained by the Department pursuant to the review of such criminal history record when the applicant timely submits a response to the intent to deny. The proposed language merely codifies SED's current practice of considering “related information” earlier on in the clearance process to provide the prospective employee with the opportunity to clear his or her name earlier on in the process and become employable as quickly as possible.