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Proposed Amendment to the Regulations of the Commissioner
of Education Part 87- Fingerprinting
These are proposed regulations that were published in the New York State
Register on May 16, 2007 relating to fingerprinting requirements for employment
in a school district. Pursuant to the State Administrative Procedure Act,
these regulations are required to be published on our web-site for a 45-day
comment period. Comments should be submitted to Johanna Duncan Poitier, Senior
Deputy Commissioner of Education-P16 and must be received by the Department
within 45 days of the date of publication in the State Register.
AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to Sections
207, 305, 3001-d and 3035 of the Education Law.
1. Section 80-1.11
of the Regulations of the Commissioner of Education is amended, effective
July 1, 2007, as follows:
All candidates who apply
on or after July 1, 2001 for certification as a superintendent of schools, teacher,
administrator or supervisor, teaching assistant, or in any other title for which
a teaching or administrative license or certificate is required pursuant to this
Part, shall meet the requirements of Part 87 of this Title for a criminal history
record check, [except for individuals who apply for a permanent certificate and
hold a valid provisional certificate, applied for prior to July 1, 2001, in the
same title for which the permanent certificate is sought, and] except that the
requirements of Part 87 of this Title for a criminal history check shall not
be applicable for an individual to qualify for a temporary license, pursuant
to section 80-5.10 of this Part, for employment by the City School District of
the City of New York, provided that such individual has not been cleared for
employment by such school district after fingerprinting and a criminal history
record check, pursuant to section 2590-h(20) of the Education Law.
2. Section 87.1 of the Regulations of the Commissioner of Education is
amended, effective July 1, 2007, as follows:
§87.1 Purpose.
The purpose of this Part
is to set forth requirements and procedures for the fingerprinting and the State
Education Department’s criminal history record check of prospective school
employees for service in covered schools, as defined in section 87.2 of this
Part, and applicants for certification for service in the public schools
of New York State in order to determine whether such individuals shall be
granted a clearance for employment and/or certification by the State Education
Department.
3. Section 87.2
of the Regulations of the Commissioner of Education is amended, effective July
1, 2007, as follows:
§87.2 Definitions.
As used in this part:
(a) Clearance for certification means a determination by the department
that based upon its review of an applicant’s criminal history record such
individual may be certified or licensed for service [in the public schools of
New York State] by the Commissioner, pursuant to Part 80 of this Title,
provided that all other requirements for certification or licensure are met.
(b) Clearance for employment means a determination by the department that
based upon its review of a prospective school employee’s criminal history
record, such individual may be employed in a [board of cooperative educational
services, charter school, or school district in New York State] covered school
as defined in this section, provided that all other requirements for
employment are met.
(c) Conditional appointment means an appointment by a covered school in
accordance with the requirements of section 1604(39), 1709(39), 1804(9), 1950(4)(ll),
2503(18), 2554(25), [or] 2854(3)(a-2), or 3001-d(3) of the Education
Law.
(d) Conditional clearance for employment means a determination by
the department that based upon its review of a prospective school employee’s
criminal history record obtained from DCJS for a prospective school employee,
such individual may be employed by a [board of cooperative educational services,
charter school, or school district in New York State] covered school as defined
in this section on a conditional appointment, provided that all other
requirements for employment are met.
(e) Covered school means a board of cooperative educational services, a
charter school, [or] a school district, or any nonpublic or
private elementary or secondary school that elects to fingerprint and seek clearance
for prospective employees from the department beginning July 1, 2007, geographically located
in New York State, excluding the City School District of the City of New
York.
(f) . . .
(g) . . .
(h) . . .
(i) Designated fingerprinting entity means one of the following
types of entities: school districts, boards of cooperative educational
services, charter schools, nonpublic or private elementary or secondary schools
that elect to fingerprint and seek clearance from the department for prospective
employees beginning July 1, 2007, State and local criminal justice
agencies, institutions of higher education, and other entities as designated
by the department.
(j) Emergency conditional appointment means an appointment by a covered
school when an unforeseen emergency vacancy has occurred, in accordance with
the requirements of section 1604(39), 1709(39), 1804(9), 1950(4)(ll), 2503(18),
2554(25), [or] 2854(3)(a-2), or 3001-d(3) of the Education Law.
(k) . . .
(l) . . .
4. Section 87.4 of the Regulations of the Commissioner of Education is
amended, effective July 1, 2007, as follows:
§87.4 Requirements for covered schools and prospective school employees.
The requirements of this section shall apply to all prospective school
employees, as defined in section 87.2 of this Part, appointed to compensated
positions in [the covered school] a board of cooperative educational services,
charter school or school district by official action of the governing
body of such covered school on or after July 1, 2001. The requirements of
this section shall also apply to all prospective school employees appointed to
compensated positions in a nonpublic or private elementary or secondary school
on or after July 1, 2007, if such school elects to fingerprint and seek clearance
for prospective employees from the department. The requirements
of this section shall not apply to prospective school employees, as defined in
section 87.2 of this Part, appointed to compensated positions in [the covered
school] a board of cooperative educational services, charter school or school
district by official action of the governing body of [the] such covered
school prior to July 1, 2001, notwithstanding the fact that such prospective
school employees are not required to provide services until on or after July
1, 2001. These requirements shall also not apply to prospective school
employees, as defined in section 87.2 of this Part, appointed to compensated
positions in a nonpublic or private elementary or secondary school by official
action of the governing body of such covered school prior to July 1, 2007, notwithstanding
the fact that such prospective school employees are not required to provide services
until on or after July 1, 2007. The requirements of this section shall
apply to all prospective school employees, as defined in section 87.2
of this Part, who commence providing services at [the covered school] a board
of cooperative educational services, charter school or school district on
or after July 1, 2001, or in a nonpublic or private elementary or secondary
school on or after July 1, 2007, when such prospective school employees
are: employees
of a provider of contracted services to the covered school, or workers who are
placed within the covered school under a public assistance employment program
pursuant to title 9-B of article V of the Social Services Law, directly or through
contract, or in compensated positions at the covered school not appointed by
official action of the governing body of such covered school.
(a) Requirements for covered schools.
(1) . . .
(2) Except as provided in section 87.9(d) of this Part, covered schools shall
require [a] all prospective school [employee] employees who
[is] are not
in the SED criminal history file to be fingerprinted for purposes of a criminal
history record check by authorized personnel of a designated fingerprinting
entity. In
such cases, either the covered school or prospective school employee shall cause
the designated fingerprinting entity to transmit [two sets] a sufficient number of
[completed fingerprint cards] fingerprints to the department for the
purpose of a criminal history record check and clearance for employment along
with the consent form and the fee required by section 87.8 of this Part.
(3) . . .
(4) . . .
(5) [Covered schools shall notify the department on forms or an equivalent
manner as prescribed by the department of the name and other identifying
information of a prospective school employee who has commenced employment
with or began providing services for the covered school, the date of the
commencement of such employment or service and the position held by such
individual.
(6)] . . .
(b) Requirements for prospective school employees.
(1) Except as provided in section 87.9 (d) of this Part, where the prospective
school employee is not already in the SED criminal history file, the prospective
school employee shall:
(i) . . .
(ii) be fingerprinted for purposes of a criminal history record check by
authorized personnel of a designated fingerprinting entity. In such cases, either
the prospective school employee or the covered school shall cause the designated
fingerprinting entity to transmit [two sets] a sufficient number of
[completed fingerprint cards] fingerprints to the department for the
purpose of a criminal history record check and clearance for employment along
with the consent form and the fee required by section 87.8 of this Part.
(2) . . .
(3) Where the prospective school employee is already in the SED criminal
history file, the prospective school employee shall notify the covered school
of this fact. [In such cases, the covered school shall request a clearance
for employment on forms or an equivalent manner prescribed by the department.
The prospective school employee may also request a conditional clearance for
employment for the purposes of meeting the requirements for a conditional appointment
upon a form prescribed by the department, which shall be completed and signed
by the prospective school employee. No fee shall be payable to the department
for such request for clearance. No fee shall be payable to the department for
such request for clearance.]
(c) . . .
5. Section 87.5 of the Regulations of the Commissioner of Education is
amended, effective July 1, 2007, as follows:
§ 87.5 Due process procedures.
(a) Procedures for clearance for employment.
(1) . . .
(2) . . .
(3) . . .
(4) Initial notification and department determination.
(i) Where the criminal history record check reveals that the prospective
school employee was convicted of a crime or has a pending criminal charge, the
department shall review such record and any related information obtained by
the department pursuant to the review of such criminal history record, if any, and
apply the standards for the granting or denial of a license or employment
application set forth in Correction Law, section 752 and shall consider
the factors specified in Correction Law, section 753. Such review shall
be conducted in accordance with section 296(16) of the Executive Law.
(ii) . . .
(iii) . . .
(iv) . . .
(v) . . .
(vi) . . .
(vii) . . .
(viii) Where the prospective school employee submits a response within
the timeframe prescribed in subparagraph (vi) of this paragraph, the department
shall, upon review of the prospective school employee's criminal history record,
related information obtained by the department pursuant to the review of such
criminal history record, and information and written argument provided by the
prospective school employee in his or response, make a determination on whether
clearance for employment shall be granted or denied. In such review, the department
shall apply the standards for the granting or denial of a license or employment
application set forth in Correction Law, section 752 and shall consider the factors
specified in Correction Law, section 753. Such review shall be conducted in accordance
with the requirements of section 296(16) of the Executive Law. Where the department's
determination is that clearance for employment is denied, the decision shall
include the basis for such determination, and shall state that the prospective
employee may appeal the department's determination to the [executive director] assistant
commissioner of the Office of Teaching Initiatives of the State Education
Department at the address specified in the determination, in accordance with
paragraph (5) of this subdivision, and shall include instructions for such
an appeal. A copy of the determination that clearance for employment is
denied, or notice that such clearance is granted, as the case may be, shall
be transmitted to the prospective school employee. Where clearance for
employment is denied, such determination shall be sent to the prospective
school employee by certified mail, return receipt requested. Where clearance
for employment is granted, such determination shall be sent to the prospective
school employee by regular first class mail. Where clearance for employment
is denied and the prospective school employee also requested conditional
clearance for employment, such determination shall also deny the conditional
clearance for employment. Where clearance for employment is denied and
the prospective school employee has already been granted conditional clearance
for employment, such determination shall also terminate the conditional
clearance for employment. In addition, the covered school shall be notified
of the denial or granting of clearance.
(ix) . . .
(5) Appeal of department's determination.
(i) A prospective school employee who was denied clearance for employment
by a determination of the department pursuant to paragraph (4) of this subdivision,
may appeal that determination to the [executive director] assistant commissioner of
the Office of Teaching Initiatives of the State Education Department, provided
that such appeal is mailed by regular first class mail or certified mail
or is hand delivered to the address specified in the department's determination
within 25 calendar days of the mailing of such determination denying clearance.
Such appeal shall be heard by the [executive director] assistant commissioner of
the Office of Teaching Initiatives or a State review officer designated by
the [executive director] assistant commissioner who did not participate
in the department's determination.
(ii) . . .
(iii) Such appeal papers, submitted within the timeframes prescribed in
subparagraph (i) or (ii) of this paragraph, may include any affidavits or other
relevant written information and written argument which the prospective school
employee wishes the [executive director] assistant commissioner, or
a State review officer designated by the [executive director] assistant commissioner,
to consider in support of the position that clearance for employment should
be granted, including, where applicable, information in regard to his or
her good conduct and rehabilitation. The prospective school employee may
request oral argument and must do so in the appeal papers submitted within
the timeframes prescribed in subparagraph (i) or (ii) of this paragraph.
Such oral argument shall be conducted in accordance with the requirements
of subparagraph (iv) of this paragraph.
(iv) A prospective school employee may request oral argument as part of
the appeal of the department's determination denying clearance for employment.
The department shall notify the prospective school employee of the time and location
of such oral argument. Such argument shall be heard before the [executive director] assistant
commissioner, or a State review officer designated by the [executive
director] assistant
commissioner. At the oral argument, the prospective school employee
may present additional affidavits or other relevant written information
and written argument which the prospective school employee wishes the
[executive director] assistant
commissioner, or the State review officer designated by the [executive
director] assistant
commissioner, to consider in support of the position that clearance
for employment should be granted, including, where applicable, written
information in regard to his or her good conduct and rehabilitation.
No testimony shall be taken at the oral argument and no transcript of
oral argument shall be made. The prospective school employee may make
an audio tape recording of the oral argument. However, such audio tape
recording or transcript thereof shall not be part of the record upon
which the [executive director] assistant commissioner or a State
review officer designated by the [executive director] assistant commissioner makes
the determination on whether clearance for employment shall be granted or denied.
(v) Where a timely request for an appeal is received, upon review of the
prospective school employee's criminal history record, related written information
obtained by the department pursuant to the review of such criminal history record,
written information and written argument submitted by the prospective school
employee in this appeal within the timeframes prescribed in subparagraph (i)
or (ii) of this paragraph, and written information provided at oral argument
if requested by the prospective school employee, the [executive director] assistant
commissioner of the Office of Teaching Initiatives or a State review
officer designated by the [executive director] assistant commissioner who
did not participate in the department's determination, shall make a determination
of whether clearance for employment shall be granted or denied. In such appeal,
the [executive director] assistant commissioner or his or her designee
shall apply the standards for the granting or denial of a license or employment
application set forth in Correction Law, section 752 and shall consider the
factors specified in Correction Law, section 753. Such appeal shall be conducted
in accordance with the requirements of section 296(16) of the Executive Law.
Where the determination of the [executive director] assistant commissioner,
or his or her designee, is that clearance for employment is denied, his or
her decision shall include the findings of facts and conclusions of law upon
which the determination is based. A copy of the determination that clearance
for employment is denied, or notice that such clearance is granted, as the
case may be, shall be transmitted to the prospective school employee by regular
first class mail. In addition, the covered school shall be notified of the
denial or granting of clearance.
(b) Procedures for clearance for certification. Where the criminal
history record reveals conviction of a crime, or an arrest for a crime, the department
shall transmit the criminal history record and related information to the department's
[executive director] assistant commissioner of the Office of Teaching
Initiatives for a determination of good moral character pursuant to Part
83 of this Title, which procedure shall determine the clearance for certification.
6. Section 87.6 of the Regulations of the Commissioner of Education is
amended, effective July 1, 2007, as follows:
§87.6 Procedures for subsequent criminal history notifications.
(a) . . .
(b) For applicants for or holders of certification pursuant to Part 80
of this Title, for whom subsequent criminal history notifications reveal an arrest
for a crime, the department shall transmit such information to the department's
[executive director] assistant commissioner of the Office of Teaching
Initiatives for a determination of good moral character pursuant to Part
83 of this Title.
7. Section 87.8 of the Regulations of the Commissioner of Education is
amended, effective July 1, 2007, as follows:
§87.8 Fees.
(a) The fee for the criminal history record search prescribed in sections
87.3 and 87.4 of this Part shall be in an amount equal to the fees established,
pursuant to law, by DCJS and the Federal Bureau of Investigation for processing
the criminal history information request. The fee shall be payable to the New
York State Education Department and paid by money order or check of a covered
school or check from a provider of contracted services to a covered school or
a certified check or by credit card.
(b) . . .
(c) . . .
(d) . . .
(1) . . .
(2) A prospective school employee may submit a request to the governing
body of [a school district] the covered school, on a form prescribed
by the department, that the fees imposed for conducting a criminal history
records check be waived and paid by the governing body instead. The governing
body of the [school district] covered school may grant such a request
if the governing body determines that payment of such a fee would impose
an unreasonable financial hardship on the applicant or his or her family
and upon such determination the governing body shall pay the fee on behalf
of the prospective school employee.
8. Section 87.10 of the Regulations of the Commissioner of Education is
added, effective July 1, 2007, as follows:
87.10 Special requirements for nonpublic or private elementary or secondary
schools that elect to fingerprint and seek clearance from the department for
prospective employees beginning July 1, 2007.
(1) Beginning July 1, 2007, any nonpublic or private elementary or secondary
school that elects to submit to the department requests for criminal history
record review for prospective employees shall notify the assistant commissioner
of the Office of Teaching Initiatives, or his designee, on forms to be provided
by the department of its intent to elect to fingerprint and seek clearance from
the department for prospective employees through the department’s TEACH
online services system. Upon receipt of such election form, the assistant
commissioner shall begin accepting fingerprints for prospective employees of
that nonpublic or private elementary or secondary school for the purpose of clearance
of employment.
(2) Any nonpublic or private elementary or secondary school that
elects to submit requests for criminal history record review to the department
for prospective employees shall do so with respect to each such prospective employee,
in accordance with section 3001-d of the Education Law.
(3) Any nonpublic or private elementary school that elects to submit
requests for criminal history record review to the department shall also develop
a policy for the safety of the children who have contact with an employee holding
conditional appointment or emergency conditional appointment.
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