N.Y. Comp. Codes R. & Regs. Tit. 8 §§ 82-3.8

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

Section 82-3.8 - General hearing procedures

(a) Except as otherwise provided in section 80-3.9 of this Subpart, within 60 days of the pre-hearing conference, the final hearing shall be completed, unless the hearing officer determines that extraordinary circumstances warrant a limited and time specific extension.

(b) Except in the case of an expedited hearing pursuant to Education Law §3020-b, all evidence shall be submitted by the parties within no later than 125 days of the filing of charges and no additional evidence shall be accepted after such time, absent extraordinary circumstances beyond the control of the parties.

(c) Hearing officer powers. The hearing officer shall have the power to administer, the hearing process including, but not limited to:

(1) regulate the course of the hearing:

(2) set the time and place for continued hearing dates;

(3) administer oaths;

(4) direct the parties to appear; and

(5) decide such additional applications and motions, as may occur during the course of the hearing.

(d) Parties rights.

(1) At the hearing, the parties have the right to::

(i) to be represented by an attorney;

(ii) confront and cross-examine witnesses;

(iii) subpoena witnesses; and

(iv) make such additional motions and applications as may be needed in order to effectively defend or prosecute the case; provided that such motions and applications do not delay the case.

(e) The employee shall:

(1) have a reasonable opportunity to defend his or her self at the hearing and have a right to testify in his or her own behalf; and

(2) not be required to testify at the hearing; and

(3) have the right to a public hearing, provided that 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 rather than a private hearing.

(f) The technical rules of evidence do not apply to hearings held under section 3020-a or 3020-b of the Education Law.

(g) The Commissioner shall arrange for the preparation of an accurate record of the proceedings. Upon request, a copy of the record shall be provided by the Commissioner to the hearing officer and/or the parties at the department's expense. 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 record shall be paid by the party requesting daily copy, or shall be shared equally by the parties where both parties request daily copy.

(h) No photos, audio or video recordings may be taken at hearings, except with the permission of the hearing officer where the hearing officer determines that the hearing is a public hearing and the prohibition in Civil Rights Law §52 against televising, broadcasting or taking of motion pictures of the testimony of witnesses does not apply. Such determination shall be upon written notice to the parties, who shall be afforded an opportunity to be heard, and the hearing officer shall ensure that the privacy rights of any student under the age of 18 are protected. The provisions of this subdivision shall not apply to the use of live, two-way closed circuit television in accordance with to Education Law §3020-a(3)(c)(i)(C).

(i) 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.

(j) At the conclusion of the testimony, the hearing officer may allow the parties to submit memoranda of law, provided that it does not delay the date that the hearing officer is required to render the final decision in the matter.

(k) Decision.

(1) Except in an expedited hearing, the hearing officer shall render a written decision within 30 days of the last hearing date, and shall submit a copy to the Commissioner who shall make such copy available to the parties.

(2) 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 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. The hearing officer, in exercising his or her discretion in determining the penalty, shall give serious consideration to the penalty recommended by the board and if the hearing officer rejects such recommended penalty, such rejection must be based on reasons based upon the record as expressed in the written decision.

(3) The decisions shall not contain any student or minor names or initials. Students and minors shall be referred to with a pseudonym. An index page shall be attached to provide the actual name for each student or minor referred to with a pseudonym.

N.Y. Comp. Codes R. & Regs. Tit. 8 §§ 82-3.8

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015