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Due Process Procedures and Rights

Criminal History Check

1. What if the criminal history check reveals that I have no criminal record?

2. What happens when a conditional clearance for employment is requested?

3. What if the criminal history record check reveals I have been convicted of a crime and/or have a pending criminal charge?

4. What are my due process rights if the criminal history records check reveals that I have been a convicted of a crime and/or have a pending criminal charge?

5. What if SED determines that my criminal history record indicates that there is a basis to deny my clearance for employment?

Notice of Intent to Deny

6. When is my response to the Notice of Intent to Deny due?

7. What should my response to the Notice of Intent to Deny include?

8. What happens if I do not submit a response to the Notice of Intent to Deny?

Appeals

9. How do I bring an appeal?

10. Do I need to hire an attorney to bring an appeal?

11. Is there a time limit on when I can bring an appeal?

12. Who decides the appeal?

13. What kind of papers should be submitted with the appeal?

14. Is oral argument required?

15. What happens if I request an oral argument?

16. What procedures are followed at the oral argument?

17. What will the Executive Coordinator or his designee consider in making his or her determination?

18. Once an appeal is filed, when can I expect a decision?

19. Can I telephone or write SED to learn about the status of my appeal or when a decision will be issued?

20. How will I be notified of the Executive Coordinator's or his designee's determination on my appeal?
    
     

1. What if the criminal history check reveals that I have no criminal record?
   
   If the criminal history check reveals that you have no criminal history record, SED will issue a clearance for employment to the covered school and notify you of such clearance for employment.  back
    

2. What happens when a conditional clearance for employment is requested?
   
   If the criminal history record from the FBI has not yet been received by SED and the criminal history record obtained by DCJS reveals that you have no criminal record, SED will issue a conditional clearance for employment to the covered school and notify you of such conditional clearance for employment.  back
    

3. What if the criminal history record check reveals I have been convicted of a crime and/or have a pending criminal charge?
   
   If the criminal history record check reveals that you have been a convicted of a crime and/or have a pending criminal charge, SED will review such record and apply the standards for the granting or denial of a license or employment application set forth in Correction Law §752 and consider the factors set forth in Correction Law §753. This review will be conducted in accordance with Executive Law §296(16). After conducting this review, SED will determine whether a clearance for employment should be issued. If SED determines that a clearance for employment should be granted, it will issue the clearance for employment to the covered school and notify you of such clearance for employment.
   
   However, if SED determines that there is a basis to deny your clearance for employment, you have certain due process rights. Your due process rights will differ depending on whether you are an applicant for certification or an applicant for employment either for a certified position or for a position for which no certification is necessary.  back
    

4. What are my due process rights if the criminal history records check reveals that I have been a convicted of a crime and/or have a pending criminal charge?
   
   Part 87.5 of the Commissioner's Regulations outlines the due process rights of prospective school employees. These due process rights are described below.
   
   Part 83 of the Commissioner's Regulations outlines the due process rights of applicants for certification and certified teachers. For a general description of those rights, please see the section on teacher discipline due process.  back
    

5. What if SED determines that my criminal history record indicates that there is a basis to deny my clearance for employment?
   
   If SED determines that your criminal history record indicates that there is a basis to deny your clearance for employment, it will send you a Notice of Intent to Deny Clearance for Employment (Notice of Intent to Deny) by certified mail, return receipt requested, which will contain the basis for the notification, including, but not limited to, a description of the criminal charges or convictions involved. The Notice of Intent to Deny will also advise you that your clearance for employment will be denied unless you submit a response with satisfactory information indicating why you should be cleared for employment.  back
    

6. When is my response to the Notice of Intent to Deny due?
   
   Your response to the Notice of Intent to Deny must be mailed by regular first class mail, certified mail or hand delivered to the Office of School Personnel Review and Accountability (OSPRA), 5 North Education Building, Albany, NY 12234 within 25 calendar days from the date the Notice of Intent to Deny was mailed to you. However, if you have requested a conditional clearance for employment or already received a conditional clearance for employment, you must submit a response to the Notice of Intent to Deny within 10 calendar days from the date the Notice of Intent to Deny was mailed to you.  back
    

7. What should my response to the Notice of Intent to Deny include?
   
   Your response may include any relevant written information that you want the Department to consider including:
   
   

   • Any letters of support from friends, family, co-workers, employers, etc.;
   • Any documentation attesting to your good conduct or your good character;
   • Any written arguments in support of your clearance for employment;
   • Any proof of counseling and/or rehabilitation;
   • Any parole and/or probation documentation;
   • Any affidavits; or
   • Any certificates, including any certificate of relief from disabilities.
   
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8. What happens if I do not submit a response to the Notice of Intent to Deny?
   
   If you fail to submit a response to the Notice of Intent to Deny within 25 calendar days from the date the Notice of Intent to Deny was mailed to you, your clearance for employment will be denied. SED will send you a Notice of Denial of Clearance for Employment (Notice of Denial) by certified mail, return receipt requested. The Notice of Denial will include the basis for the denial and advise you that you may appeal the denial to the Executive Coordinator of the Office of Teaching. The Notice of Denial will also include instructions for filing an appeal.
   
    If you requested a conditional clearance for employment, the Notice of Denial will also deny your conditional clearance for employment.
   
   If you have already been granted a conditional clearance for employment, the Notice of Denial will terminate your conditional clearance for employment.  back
    

9. How do I bring an appeal?
   The procedures for bringing an appeal are described in the Regulations of the Commissioner at 8 NYCRR §87.5.  back
    

10. Do I need to hire an attorney to bring an appeal?
    No. However, there are advantages to representation by an attorney. The appeal process is a legal proceeding that raises legal questions that may be best understood and addressed with the assistance of an attorney.  back
     

11. Is there a time limit on when I can bring an appeal?
    Yes. An appeal must be mailed by regular first class mail or certified mail or hand delivered to OSPRA, 5 North Education Building, Albany, New York 12234 within 25 calendar days from the date that the Notice of Denial was mailed to you.  back
     

12. Who decides the appeal?
    The Executive Coordinator or a State Review Officer who has been designated by the Executive Coordinator will decide the appeal. Neither the Executive Coordinator nor his designee will have participated in SED' decision to deny your clearance for employment.  back
     

13. What kind of papers should be submitted with the appeal?
    Appeal papers may include any affidavits or other relevant written information and written argument, which you wish the Executive Director or his designee to consider in support of your position that a clearance for employment should be issued including:
    
    

    • Any letters of support from friends, family, co-workers, employers, etc.;
    • Any documentation attesting to your good conduct or your good character;
    • Any written arguments in support of your clearance for employment;
    • Any proof of counseling and/or rehabilitation;
    • Any parole and/or probation documentation;
    • Any affidavits; or
    • Any certificates, including any certificate of relief from disabilities.
    
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14. Is oral argument required?
    No. However, if you want an oral argument, you must request it in your appeal papers.  back
     

15. What happens if I request an oral argument?
    If you request an oral argument, SED will send you a letter by certified mail, return receipt requested advising you of the time, place, and date of the oral argument.  back
     

16. What procedures are followed at the oral argument?
    
    The following procedures apply to oral arguments:
    

    • you have the right to present your argument to the Executive Coordinator or his designee;

    • you have the right to be represented by an attorney, at your own expense;

    • no persons other than you, your attorney, if you retain one, and SED employees, will be allowed to be present during the oral argument;

    • you will be given twenty minutes to present your argument;

    • you may be asked questions about statements made in your oral argument and/or appeal papers;

    • at oral argument, you may, pursuant to the regulations, present additional affidavits or other relevant written information and written argument that you wish the Executive Coordinator or his designee to consider in support of the position that you should be granted a clearance for employment;

    • you may submit information regarding your good conduct and rehabilitation; and

    • you may audio tape the oral argument, however, no testimony will be taken and no transcript of the oral argument will be made.  back
       

17. What will the Executive Coordinator or his designee consider in making his or her determination?
    
    If you timely file an appeal, the Executive Coordinator or his designee will review your criminal history record, related information obtained by SED as part of its review of your criminal history, written information, and written argument submitted by you as part of your appeal and written information provided by you during oral argument, if you requested such argument. After reviewing all the aforementioned information and documents, the Executive Coordinator or his designee will make a determination on whether your clearance for employment should be granted or denied.
    
    In reaching a determination on your appeal, the Executive Coordinator or his designee will apply the standards for the granting or denial of a license or employment application set forth in Correction Law §752 and will consider the factors specified in Correction Law §753. The appeal will also be conducted in accordance with Executive Law §296(16).
    
    If the Executive Coordinator or his designee makes a determination to deny your clearance for employment, his or her decision will include the findings of facts and conclusions of law upon which the determination is based.  back
     

18. Once an appeal is filed, when can I expect a decision?
    
    The number of appeals varies from year to year. Thus, it is impossible to guarantee that a decision will be issued by a specific date.  back
     

19. Can I telephone or write SED to learn about the status of my appeal or when a decision will be issued?
    
    Much like a court with a case that is pending before a judge, SED does not provide information about the decision-making process or the status of a decision once an appeal is filed. However, SED makes every effort to decide each appeal as expeditiously as possible.  back
     

20. How will I be notified of the Executive Coordinator's or his designee's determination on my appeal?
    
    A copy of the determination that your clearance for employment is denied, or notice that your clearance is granted, as the case may be, will be mailed to you by regular first class mail. In addition, the covered school will be notified of the denial or granting of your clearance for employment.  back