As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.

Since publication of a Notice of Revised Rule Making in the State Register on October 7, 2015, the State Education Department (SED) received the following comments:

1. COMMENT:

The emergency regulations could be read to allow charges brought under Education Law § 3020-b to be initiated at any time, even when school is not in session. Charges under 3020-a cannot be brought during the summer. The commenter requests that the regulations be modified to treat charges under 3020-b in the same way.

DEPARTMENT RESPONSE: The language in Education Law § 3020-a(1) requires that charges be filed during the period between the actual opening and closing of the school year for which the employed is normally required to serve. This language is not contained in Education Law § 3020-b(1), which otherwise repeats the language from § 3020-a(1) relating to the filing of charges. By omitting the limitation on the filing of charges during the period between the actual opening and closing of the school year, the regulation is conforming to the language of Education Law § 3020-b(1). Absent any evidence in the legislative history to the contrary, the Department concludes that this language was intentionally omitted from Education Law § 3020-b(1) and that the regulatory language allowing charges to be brought when school is not in session is consistent with Education Law § 3020-b.

2. COMMENT:

The emergency regulations provide that the unpaid suspension begins from the time of the employing board of education’s decision to suspend without pay. The commenter, a teacher’s collective bargaining representative, has proposed and continues to propose that the suspension without pay should commence upon the hearing officer’s finding of probable cause and not before. The new law does not state that school districts can take the teacher off the payroll prior to the probable cause hearing. Under the New York City DOE/UFT contract, the teacher stays on the payroll until a probable cause determination is made.

DEPARTMENT RESPONSE: Education Law § 3020-a(2)(c) specifically provides that, where charges of misconduct constituting physical or sexual abuse of a student are brought on or after July 1, 2015, the board of education may suspend the employee without pay pending an expedited hearing. It also requires the Commissioner to establish a process in regulations for a probable cause hearing before an impartial hearing officer within 10 days to determine whether the decision to suspend an employee without pay should be continued or reversed. The reference in the statute to the hearing officer determining at the probable cause hearing whether a suspension without pay should be continued, is a clear and unequivocal indicator that a board of education may suspend without pay prior to the hearing officer’s determination of probable cause. The Department believes that regulation is consistent with the statutory language which authorizes the employee to be suspended without pay pending an expedited hearing. The fact that the language of Education Law § 3020-a(2)(c) differs from a collectively bargained alternative probable cause hearing process in this regard is not controlling. The plain language of the statute indicates that a board of education may suspend without pay in this instance unless and until a probable cause determination reversing the suspension is made.

3. COMMENT:

The emergency regulations add a requirement that the seven hour hearing day must exclude any time taken for meal breaks. The commenter requests that this should be deleted as unnecessary absent evidence that such breaks are excessive in length under current regulations.

DEPARTMENT RESPONSE: The Department believes that this policy is reasonable and that pursuant to Education Law § 3020-a and 3020-b, hearing officers should only be reimbursed for their actual service and that this is consistent with customary employment practice.