Part 82 Hearings of Charges Against Employees on Tenure:Regulations of the Commissioner of Education:OTI:NYSED

Part 82 Hearings of Charges Against Employees on Tenure

Text is current through August 15, 2006.

(Statutory authority: Education Law, §§ 207, 305, 3020-a; L. 1994, ch. 691)

Subpart 82-1 Procedures for Hearings Commenced on or after August 25, 1994

Subpart 82-2 Procedures for Hearings Commenced prior to August 25, 1994

Historical Note

Part filed June 29, 1970; renum. and amd. Subpart 82-2, new (Subparts 82-1—82-2) filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.1

Historical Note

Sec. filed June 29, 1970; amd. filed May 31, 1977 as emergency measure; renum. 82-2.2, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.2

Historical Note

Sec. filed June 29, 1970; renum. 82-2.3, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.3

Historical Note

Sec. filed June 29, 1970; amds. filed: Jan. 30, 1974; May 31, 1977 as emergency measure; renum. 82-2.4, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.4

Historical Note

Sec. filed June 29, 1970; amd. filed May 31, 1977 as emergency measure; renum. 82-2.5, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.5

Historical Note

Sec. filed June 29, 1970; amds. filed: July I, 1975; May 31, 1977 as emergency measure; renum. 82-2.6, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.6

Historical Note

Sec. filed June 29, 1970; renum. 82-2.7, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.7-82.9

Historical Note

Secs. filed June 29, 1970; amd. filed May 31, 1977 as emergency measure; renum. 82-2.8----82-2.10, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.10

Historical Note

Sec. filed June 29, 1970; amds. filed: Feb. 28, 1974; Jan. 23, 1975; July 1, 1975; May 31, 1977 as emergency measure, expired 60 days after filing; Sept. 25, 1978; June 30, 1981; July 30, 1991; renum. 82-2.11, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82.11

Historical Note

Sec. filed Feb. 28, 1974; repealed, filed May 31, 1977 as emergency measure, expired 60 days after filing; new filed June 30, 1981; repealed, new filed July 30, 1991; renum. 82-2.12, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994eff. Jan.5, 1995.

SUBPART 82-1
PROCEDURES FOR HEARINGS COMMENCED ON OR AFTER
AUGUST 25, 1994

Sec.

82-1.1 Application of Subpart
82-1.2 Definitions
82-1.3 Filing of charges
82-1.4 Request for a hearing
82-1.5 Notice of need for hearing
82-1.6 Appointment of hearing officer and notice of prehearing conference
82-1.7 Panel members
82-1.8 Selection of panel member by employee
82-1.9 Demand for public hearing
82-1.10 Conduct of hearings
82-1.11 Reimbursable hearing expenses

Historical Note

Subpart (§§ 82-1. 1 —82-1.11) filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82-1.1 Application of Subpart.

This Subpart applies to hearings on charges against tenured school employees pursuant to section 3020-a of the Education Law that are commenced by the filing of charges on or after August 25, 1994.

Historical Note Sec. filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-1.1, 8 NY ADC 82-1.1 8 NY ADC 82-1.1

§ 82-1.2 Definitions.

(a) As used in this Subpart:

(1) Employee means any person or persons against whom charges may be filed pursuant to section 3020-a of the Education Law, or, except where the context indicates a contrary intent, the attorney designated to represent such person or persons in a hearing pursuant to this Part.

(2) Chief school administrator means the district superintendent of schools of the board of cooperative educational services employing a person against whom charges are made; or the superintendent of schools, community superintendent, chancellor or the principal of the school district employing a person against whom charges are made.

(3) Board means the employing trustee, board of trustees, board of education, community board or board of cooperative educational services. (4) Commissioner means Commissioner of Education.

(5) Association means the American Arbitration Association.

(6) Hearing officer means a single hearing officer selected to conduct a hearing pursuant to section 3020-a of the Education Law, or the panel chairperson in the case of a hearing before a three member hearing panel.

(7) Panel member means a member of a three member hearing panel, other than a hearing officer, who is selected by either the employee or the board.

§ 82-1.3 Filing of charges.

(a) Charges may not be filed by the chief school administrator or other party authorized to file charges against an employee more than five days before the next regularly scheduled meeting of the board except with the permission of the board.

(b) A copy of a written statement specifying in detail each charge as to which the board finds probable cause exists, and a copy of the vote of the board on each charge, shall be forwarded at once to the employee by certified or registered mail, return receipt requested, or personal delivery and to the commissioner by first class mail. Such statement shall state the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charge after a hearing and shall outline the employee's rights under section 3020-a, including the right to request a hearing and the right to choose either a single hearing officer or a three member panel when the charges involve pedagogical incompetence or issues involving pedagogical judgment.

(d) Where charges concerning pedagogical incompetence or issues involving pedagogical judgment are filed with other charges, the employee shall have the right to choose either a single hearing officer or a three member panel to hear all charges.

§ 82-1.4 Request for a hearing.

Where the employee desires a hearing, he or she may file a written request for a hearing with the clerk or secretary of the employing board within 10 days of receipt of the charges, and where the charges concern pedagogical incompetence or issues involving pedagogical judgment, the employee shall choose either a single hearing officer or a three member panel. In the request for a hearing, the employee may designate an attorney who will represent the employee at the hearing.

(a) The notification to the commissioner of the need for a hearing shall contain the following information:

(1) an affidavit of service of the charges upon the employee;

(2) a copy of the employee's request for hearing;

(3) a place within the district or the county seat of a county in which the board is located which will be made available by the board at school district expense for the holding of the prehearing conference and hearing;

(4) the name and address of the attorney, if any, who will represent the board at the hearing;

(5) whether an expedited hearing is sought, and whether the employee is suspended either with, or without pay;

(6) an estimate of the number of days needed for the hearing;

(7) the name of the panel member selected by the board, if applicable; and

(8) where the board has received written notice that the employee will be represented by an attorney at the hearing, the name and address of such attorney.

(b) If the board shall fail to notify the commissioner of its selection of a panel member and the employee has not waived his or her right to a panel hearing, the commissioner shall select the member of the hearing panel for the board.

(c) At the same time that the notification is sent to the commissioner, the board shall, by certified mail return receipt requested, send to the employee the information provided in paragraphs (a)(3), (4), (5), (6) and (7) of this section.

(d) Separate notification of the need for a hearing shall be given with respect to each employee against whom charges have been filed.

(e) Whenever an employee shall be deemed to have waived his/her right to a hearing, the clerk or secretary of the board shall immediately file notice of such waiver with the commissioner.

§ 82-1.6 Appointment of hearing officer and notice of prehearing conference.

(a) Forthwith after receipt of notification of the need for a hearing, the commissioner shall notify the association, obtain a list of potential hearing officers, together with relevant biographical information, and send a copy thereof to the attorneys representing the employing board and employee, or to the employee if he or she is not so represented. Such list shall consist of individuals selected by the association who are qualified to serve as hearing officers. To be qualified to serve as a hearing officer, an individual shall:

(1) be on the association's panel of labor arbitrators;

(2) be a resident of New York or an adjoining state;

(3) be willing to serve under the conditions imposed by Education Law, section 3020-a and this Subpart; and

(4) not be ineligible to serve in the particular hearing pursuant to Education Law, section 3020-a(3)(i).

(b) Not later than 10 days from the mailing of the list, the parties or their agents or representatives shall by agreement select a hearing officer and notify the commissioner thereof.

(c) If the parties fail to notify the commissioner of an agreed upon hearing officer within the time prescribed by subdivision (b) of this section, the commissioner shall request the association to select a hearing officer from said list.

(d) The commissioner shall notify the hearing officer selected pursuant to subdivision (b) or (c) of this section, and confirm his or her acceptance of such selection.

(e) The hearing officer shall contact the parties and, within 10 to 15 days of receipt of notice from the commissioner confirming his or her acceptance of a selection to serve as hearing officer, hold a prehearing conference.

§ 82-1.7 Panel members.

(a) The commissioner shall maintain a list of persons eligible to serve as panel members pursuant to Education Law, section 3020-a (3)(b)(iv), which list shall be updated at least annually.

(b) Copies of such list of panel members appointed by the commissioner shall be filed in the office of the school district clerk or secretary of the board of each district and shall be available for public inspection.

(c) No person may be selected from a list to serve as a panel member when that person is serving as a panel member in connection with charges being heard against another employee, except with the consent of the commissioner.

§ 82-1.8 Selection of panel member by employee.

Where an employee has exercised the option to have the hearing conducted before a hearing panel, within five days after receiving the copy of the notification to the commissioner of the need for a panel hearing, the employee shall, in writing by certified mail, notify the board and the commissioner of the name of his or her selection for the hearing panel. If the employee shall fail to notify the commissioner and the board as required and the employee has not waived his or her right to a hearing, the commissioner shall select the employee panel member for the employee.

§ 82-1.9 Demand for public hearing.

Unless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.

§ 82-1.10 Conduct of hearings.

(a) Cine photographs, still photographs, videotape recordings and audiotape recordings may not be taken at private hearings, and may be taken at public hearings only when permitted by the hearing officer.

(b) Public hearings shall be open to members of the public and to representatives of the news media, except that the hearing officer may, in his or her discretion, exclude any persons other than parties, witnesses, and their attorneys from all or any portion of the hearing where such exclusion is warranted for the protection of the privacy or reputation of any person under the age of 18 years.

(c) The hearing officer shall have the power to consolidate with the pending charges amended or additional charges against an employee as to which the board has found that probable cause exists no later than five days before the date of the prehearing conference, provided that the employee may file a waiver of the right to a hearing on such amended or additional charges with the hearing officer and provided further that charges involving pedagogical incompetence or issues involving pedagogical judgment may not be consolidated with pending charges unless the employee has previously exercised his or her right to choose between a single hearing officer and hearing panel in the request for a hearing.

(d) If the hearing officer determines that the absence of a hearing panel member is likely to delay unduly the prosecution of the hearing, he or she shall order the replacement of such panel member. If the party who selected such panel member fails to select a replacement within two business days, the commissioner shall select such replacement. If the hearing officer needs to be replaced and if the commissioner determines that the parties cannot agree on a replacement, the commissioner shall request the association to select a replacement from the list of hearing officers. In no event shall a panel hearing proceed except in the presence of two panel members and the hearing officer.

(e) Members of the hearing panel may question witnesses and parties, subject to the right of the hearing officer to disallow such questions if he or she deems them improper. Notwithstanding the foregoing, no questions may be addressed to the employee unless he or she has been sworn as a witness with his or her own consent.

(f) At the conclusion of the testimony, the hearing officer may adjourn the hearing to a specified date after conclusion of the testimony, to permit preparation of the transcript, submission by the parties of memoranda of law, and deliberation; provided that such specified date may not be more than 60 days after the prehearing conference unless the hearing officer determines that extraordinary circumstances warrant a later date. The hearing officer shall arrange for the preparation and delivery of one copy of the transcript of the hearing to each panel member, to the employee and the board.

(g) The hearing officer or hearing panel shall render a written decision within 30 days of the last day of the final hearing, or within 10 days of the last day of an expedited hearing and shall forthwith forward a copy to the commissioner who shall send copies to the employee and the clerk or secretary of the employing board. Such 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 such findings and shall state the penalty or other action, if any, which shall be taken by the board, provided that such findings, conclusions and penalty determination shall be based solely upon the record in the proceedings before the hearing officer or panel, and shall set forth the reasons and the factual basis for the determination.

§ 82-1 .11 Reimbursable hearing expenses.

(a) The commissioner shall compensate the hearing officer with the customary fee paid for service as an arbitrator for each day of actual service rendered by the hearing officer. For this purpose, a day of actual service shall be five hours. In the event a hearing officer renders more or less than five hours of service on a given calendar day, the per diem fee shall be prorated accordingly. Any late cancellation fee charged by the hearing officer shall be paid by the party or parties responsible for the cancellation.

(b) In addition to the statutory fees payable to the hearing officer and panel members for each day of actual service, the commissioner shall reimburse hearing officers and panel members for their necessary travel and other related reasonable expenses incurred at rates not to exceed the rates applicable to state employees.

(c) The commissioner shall arrange for the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board. Upon request of one or more parties, the commissioner may arrange to have a daily copy of the transcript prepared and distributed to each party making such request and to the hearing officer, in addition to the final copies to be provided by the commissioner after conclusion of the hearing. Any incremental cost incurred for preparing a daily copy for a party and the hearing officer that is in addition to the base amount payable by the commissioner for preparation of the final transcript shall be paid by the party requesting daily copy, or shall be shared equally by the parties where both parties request daily copy.

(d) Additional hearing costs, other than facilities costs, incurred to make a reasonable accommodation to an employee or a witness based on such individual's disability, including but not limited to the retention of a qualified interpreter for the deaf or hearing impaired, shall be paid by the commissioner. Except as otherwise provided in this Subpart, any other additional hearing costs shall be paid by the board.

SUBPART 82-2
PROCEDURES FOR HEARINGS COMMENCED PRIOR TO AUGUST 25,1994.

Sec.

82-2.1 Application of Subpart
82-2.2 Definitions
82-2.3 Filing of charges
82-2.4 Request for hearings
82-2.5 Notice of hearing
82-2.6 Panel members
82-2.7 Selection of hearing panel member by employee
82-2.8 Selection of chairperson of the panel
82-2.9 Witnesses
82-2.10 Demand for public hearing
82-2.11 Conduct of hearings
82-2.12 Additional procedure

Historical Note

Subpart (§§~ 82-2.1—82-2.12) added by renum. and amd. Part 82, tiled: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82-2.1 Application of Subpart.

This Subpart applies to hearings on charges against tenured school employees pursuant to section 3020-a of the Education Law that were commenced by the filing of charges on or before August 24, 1994.

§ 82-2.2 Definitions.

(a) As used in this Subpart:

(1) Employee means any person or persons against whom charges may be filed pursuant to section 3020-a of the Education Law.

(2) Chief school administrator means the superintendent of schools, community superintendent, chancellor or the principal of the school district employing a person against whom charges are made.

(3) Complainant means the person preferring the charges.

(4) Board means trustee, board of trustees, board of education, community board or board of cooperative educational services.

(5) Commissioner means Commissioner of Education.

Historical Note Sec. added by renum. and amd. 82.1, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.2, 8 NY ADC 82-2.2 8 NY ADC 82-2.2

§ 82-2.3 Filing of charges.

(a) Charges may not be filed against an employee more than five days before the next regularly scheduled meeting of the board except with the permission of the board.

(b) A copy of a written statement of each charge as to which the board finds that probable cause exists, together with a copy of the vote of each member of the board on each such charge, shall be forwarded at once to the commissioner by first class mail.

Historical Note Sec. added by renum. 82.2, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995.

§ 82-2.4 Requests for hearings.

(a) A notification to the commissioner of the need for a hearing shall contain at least the following information:

(1) A copy of the charges and all other information forwarded to the employee and an affidavit of service of a copy of such charges upon the employee.

(2) The name of the panel member selected by the board.

(3) The place to be provided by the board for the holding of the hearing.

(4) The name and address of the attorney, if any, who will represent the complainant at the hearing.

(b) If the board shall fail to notify the commissioner of its selection of a panel member and the employee has not waived his or her right to a hearing, the commissioner shall select the member of the hearing panel for the board.

(c) At the same time that the notification is sent to the commissioner the board shall by certified mail send to the employee the information provided in paragraphs (2), (3) and (4) of subdivision (a) of this section.

(d) Separate notification of the need for a hearing shall be given with respect to each employee against whom charges have been filed.

(e) Whenever an employee shall be deemed to have waived his or her right to a hearing by his or her unexcused failure to request a hearing within 10 days after receipt of a written statement of the charges against him or her, the clerk or secretary of the board shall immediately file notice of such waiver with the commissioner.

Historical Note Sec. added by renum. and amd. 82.3, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.4, 8 NY ADC 82-2.4 8 NY ADC 82-2.4

§ 82-2.5 Notice of hearing.

As promptly as possible after receipt of notification of the need for a hearing, the commissioner will advise each party as to the date, time and place of the hearing and the procedures to be followed in selecting the hearing panel.

Historical Note Sec. added by renum. 82.4, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.5, 8 NY ADC 82-2.5 8 NY ADC 82-2.5

§ 82-2.6 Panel members.

(a) Panel members will be appointed by the commissioner from time to time, and their names and other pertinent information will be furnished to each board.

(b) Copies of each list of panel members appointed by the commissioner shall be filed in the office of the school district clerk or secretary of the board and shall be available for public inspection.

(d) No person may be selected from a list to serve as a panel member when that person is serving as a panel member in connection with charges being heard against another employee, except with the consent of the commissioner.

Historical Note Sec. added by renum. 82.5, filed Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.6, 8 NY ADC 82-2.6 8 NY ADC 82-2.6

§ 82-2.7 Selection of hearing panel member by employee.

a) Within five days after receiving the copy of the notification to the commissioner of the need for a hearing, the employee shall, in writing by certified mail, notify the board and the commissioner of the name of his or her selection for the hearing panel. If the employee shall fail to notify the commissioner and the board as required, and the employee has not waived his or her right to a hearing, the commissioner shall select the member of the hearing panel for the employee.

Historical Note Sec. added by renum. and amd. 82.6, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.7, 8 NY ADC 82-2.7 8 NY ADC 82-2.7

§ 82-2.8 Selection of chairperson of the panel.

(a) Not less than seven days before the date scheduled for the hearing the panel members chosen by the board and the employee shall be certified mail or telegram advise the commissioner of the name of the person chosen as the chairperson of the panel, or that no agreement as to a chairperson of the panel has been reached.

(b) If such notice is not received by the commissioner at least five days before the date scheduled for the hearing the commissioner shall select the chairperson of the panel.

Historical Note Sec. added by renum. and amd. 82.7, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> CASE NOTES: Where 2 designated disciplinary panel members only identified acceptable candidates for chairmanship position and failed to timely notify Commissioner that chairman was selected, under 8 NYCRR §82.7, Commissioner was authorized to appoint chairman of 3-member disciplinary panel. Boden v. Sobol, 1992, 582 N.Y.S.2d 593, 153 Misc.2d 761 8 NYCRR 82-2.8, 8 NY ADC 82-2.8 8 NY ADC 82-2.8

§ 82-2.9 Witnesses.

At the time set for the commencement of the hearing, the parties will present to the chairperson of the panel copies of any subpoenas served on prospective witnesses.

Historical Note Sec. added by renum. and amd. 82.8, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.9, 8 NY ADC 82-2.9 8 NY ADC 82-2.9

§ 82-2.10 Demand for public hearing.

Unless the employee or his or her attorney shall have served a written demand for a public hearing upon the chairperson of the panel or if no chairperson of the panel has yet been designated, upon the commissioner, at least five days before the date set for the hearing, the employee will be deemed to have waived his or her right to a public hearing and the hearing will be private.

Historical Note Sec. added by renum. and amd. 82.9, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.10, 8 NY ADC 82-2.10 8 NY ADC 82-2.10

§ 82-2.11 Conduct of hearings.

(b) Public hearings shall be open to members of the public and to representatives of the news media, except that the chairperson of the panel may, in his or her discretion, exclude any persons other than parties, witnesses, and their attorneys from all or any portion of the hearing where such exclusion is warranted for the protection of the privacy or reputation of any person under the age of 18 years.

(c) An adjournment of a hearing shall be granted at the discretion of the chairperson of the hearing panel only in the interests of justice and upon good cause shown by the party requesting such adjournment. For hearings of charges filed on or after September 13, 1991, adjournments shall be limited to two adjournments for each party over the duration of the proceedings. No adjournment may be granted for a period in excess of 15 days, provided that the final day of testimony may be adjourned for a longer period upon a showing of exceptional cause, which shall include but not be limited to unavailability of a witness and incapacity of an attorney for a party.

(d) The chairperson of the panel shall have the power to consolidate with the pending charges amended or additional charges against an employee as to which the board has found that probable cause exists no later than five days before the date of the hearing, provided that the employee may file a waiver of hearing concerning such amended or additional charges with the chairperson of the panel.

(e) The chairperson of the panel shall decide all motions and objections, but he or she may not dismiss the charges with prejudice, without the consent of the complainant or his or her attorney. However, the chairperson of the panel may grant a motion to dismiss the charges, without prejudice to the filing of more specific charges, if such motion is made within the time specified in this subdivision, and if he or she finds that the charges are not sufficiently specific to enable the employee to prepare a defense to such charges. Any motion concerning the sufficiency of the charges shall be made to the chairperson of the panel no later than 20 days after receipt by the employee of the statement of charges or five days after receipt of notice of the selection of the chairperson of the panel, whichever shall later occur, upon notice to the complainant or his or her attorney. The decision of the chairperson of the panel upon such motion shall be in writing.

(f) If the chairperson of the panel determines that the absence of a hearing panel member is likely to delay unduly the prosecution of the hearing, he or she shall order the replacement of such panel member. If the party who selected such panel member fails to select a replacement within two days, the commissioner shall select such replacement. If the panel member to be replaced is the chairperson of the panel, and if the commissioner determines that the panel members selected by the parties cannot agree on a replacement, the commissioner shall select a replacement. In no event shall a hearing proceed except in the presence of three panel members.

(g) Members of the hearing panel may question witnesses and parties, subject to the right of the chairperson of the panel to disallow such questions if he or she deems them improper. No questions may be addressed to the employee unless he or she has been sworn as a witness with his or her own consent.

(h) At the conclusion of the testimony, the chairperson of the panel may adjourn the hearing to a specified date not more than 14 days after the conclusion of the testimony, to permit preparation of the transcript, submission by the parties of memoranda of law, and deliberation by the panel members. The chairperson of the panel shall provide for the preparation and delivery of one copy of the transcript of the hearing to each panel member, to the employee and the board, if requested. The complainant may order copies of the transcript directly from the stenographer.

(i) The findings of the panel on each charge, and the recommendations of the panel as to disciplinary action shall be based solely upon the record in the proceedings before the hearing panel, and shall set forth the reasons and the factual basis for the determination. The chairperson of the panel shall declare the hearing concluded, and shall forward the findings and recommendations, together with the three copies of the transcript, to the commissioner. The commissioner shall forward a report of the hearing, including the findings and recommendations of the hearing panel and their recommendations as to the penalty or punishment if one is warranted, together with a copy of the transcript of the proceedings before the hearing panel, to the employee and to the clerk or secretary of the employing board, should either the employee or the board of education not have received a copy of the transcript previously.

(j) For hearings of charges filed on or after September 13, 1991, no panel member will be authorized to serve who has not filed with the commissioner a written commitment to commence the hearing on the date specified by the commissioner, and to devote to the hearing not less than three consecutive days beginning with the first day of the hearing. A copy of each such commitment shall be filed within five days after the selection of each panel member.

Historical Note Sec. added by renum. and amd. 82.10, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.11, 8 NY ADC 82-2.11 8 NY ADC 82-2.11

§ 82-2.12 Additional procedure.

For hearings of charges filed on or after September 13, 1991:

(a) The chairperson shall, within 60 days from receipt of the hearing transcript, submit the panel findings and recommendations to the commissioner, provided that failure to comply with such requirement shall not affect the validity of a hearing panel's findings and recommendations. Upon application of the chairperson, the commissioner may grant an extension of such time limitation, not to exceed 30 days, for good cause shown provided that only one such extension may be granted.

(b) A two-year suspension from further cases shall be imposed against any chairperson who fails to meet the time limitation of this section.

Historical Note Sec. added by renum. 82.11, filed: Sept. 27, 1994 as emergency measure; Dec. 20, 1994 as emergency measure eff. Dec. 20, 1994; Dec. 20, 1994 eff. Jan. 5, 1995. <General Materials (GM) - References, Annotations, or Tables> 8 NYCRR 82-2.12, 8 NY ADC 82-2.12 8 NY ADC 82-2.12

Last Updated: August 9, 2009

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Part 82 Hearings of Charges Against Employees on Tenure

University of the State of New York - New York State Education Department