N.Y. Comp. Codes R. & Regs. tit. 8 § 83.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 83.4 - Hearing

(a) If requested by the certified individual or applicant, in writing to the professional conduct officer within 30 days after receipt of said notice that a substantial question exists as to the individual's moral character, a hearing shall be held on the issue of whether the individual's certification should be revoked or suspended or whether another penalty should be imposed upon the certified individual as prescribed in section 83.6 of this Part or whether the application for certification should be denied. In the request for a hearing, the certified individual or applicant may request that the hearing be held solely before a hearing officer or, in the alternative, before a hearing officer and a three-member hearing panel. Upon receipt of a request for a hearing, a hearing officer shall be appointed by the commissioner to hear and recommend, and a hearing scheduled. In the order designating a hearing officer, the commissioner shall also designate the place where said hearing will be held. At least 15 days before the hearing, the hearing officer shall give to the certified individual or applicant written notice by mail of the time and place of said hearing.

(b) If a hearing panel has been requested, the members shall be selected in the following manner from the list maintained by the commissioner pursuant to the provisions of Education Law section 3020-a: one member shall be selected by the certified individual or applicant, one member shall be selected by the State professional standards and practices board for teaching or a subcommittee thereof, as determined in the bylaws of the board, and the third member shall be chosen by mutual agreement of the first two, or, if they fail to agree, by the commissioner. In the event that the certified individual or applicant has requested a hearing panel but fails or refuses to choose a hearing panel member within 30 days from the receipt of the panel list, the certified individual or applicant shall be deemed to have waived a hearing panel and the hearing shall be conducted before the hearing officer.

(c) The certified individual or applicant may be represented at the hearing by counsel and may produce witnesses and affidavits in proof of the individual's good moral character. The department shall have the burden of proof of lack of good moral character. The hearing officer may issue subpoenas on request of a party and shall conduct the hearing. A verbatim record shall be kept of the testimony.

(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. Except as otherwise provided in paragraph (4) of this subdivision, in the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character:

(1) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or

(2) any crime involving physical or sexual abuse of a minor or student; or

(3) any crime committed either on school property or while in the performance of teaching duties.

(4) any crime committed involving the submission of false information, or the commission of fraud, related to a criminal history record check.

(e) In determining whether a certificate should be revoked or suspended or an application for certification should be denied based on a previous criminal conviction, the hearing officer or panel shall apply the standards for denial of a license application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753.

(f) Upon the conclusion of the hearing, the hearing officer shall submit to the commissioner and to the certified individual or applicant a report of the findings and recommendations or, if a hearing panel has been utilized, a report of the findings and recommendations of such panel, together with a copy of the transcript. The findings and recommendations of the hearing officer or the hearing panel shall be based solely upon the record and shall set forth the factual basis therefor.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 83.4