§ 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.
