(a)
Procedures for clearance for employment.
(1)
Where the criminal history record check reveals no criminal record, the
department shall issue a clearance for employment to the covered school, and
shall notify the prospective school employee of such clearance for
employment.
(2) Where the
prospective school employee or the covered school on behalf of the prospective
school employee requests conditional clearance for employment, and the criminal
history record from the FBI has not yet been received by the department, and
the criminal history record obtained from DCJS reveals no criminal record, the
department shall issue a conditional clearance for employment to the covered
school, and shall notify the prospective school employee of such conditional
clearance for employment. Where conditional clearance is requested for a
prospective school employee for whom a criminal history record has been
obtained from both DCJS and the FBI, the department shall proceed to determine
whether to grant or deny clearance for employment in accordance with this
subdivision.
(3) If the department
does not make the determination on conditional clearance for employment within
15 business days after receiving the prospective school employee's
fingerprints, the department shall issue a notification to the prospective
school employee and the covered school which contains a good faith estimate of
the amount of additional time that is needed to make the determination on
conditional clearance for employment.
(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) Where the department
determines that a clearance for employment shall be granted, the department
shall promptly issue such clearance for employment to the covered school, and
shall notify the prospective school employee of such clearance for
employment.
(iii) Where the
prospective school employee or the covered school on behalf of the prospective
school employee requests conditional clearance for employment, and the criminal
history record from the FBI has not yet been received by the department, and
the criminal history record obtained from DCJS reveals that the prospective
school employee was convicted of a crime or has a pending criminal charge, the
department shall review such record 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.
(iv) Where the department
determines that a conditional clearance for employment shall be granted, the
department shall promptly issue such conditional clearance for employment to
the covered school, and shall notify the prospective school employee of such
conditional clearance for employment.
(v) Where the department determines that the
criminal history record indicates that there is a basis to deny a clearance for
employment, the department shall issue an initial notification of a possible
denial of clearance to the prospective school employee by certified mail,
return receipt requested, which shall contain the basis for this notification,
including but not limited to a description of the criminal charges or
convictions involved. The notification shall state that a clearance for
employment shall be denied unless the prospective school employee submits a
response with satisfactory information indicating why clearance should be
granted, such information is mailed by regular first class mail or certified
mail or is hand delivered to the State Education Department within 25 calendar
days from the date the notification was mailed, and the prospective school
employee demonstrates to the satisfaction of the department that clearance for
employment should be granted. However, in the case of a prospective school
employee who is requesting a conditional clearance for employment, or who has
already received such conditional clearance for employment, the notification
shall state that the response from the prospective school employee must be
mailed by regular first class mail or certified mail or be hand delivered to
the State Education Department within 10 calendar days from the date the
notification was mailed. Such notification shall advise the prospective school
employee of the address to which the response must be submitted.
(vi) For a response to be considered, the
prospective school employee must mail by regular first class mail or certified
mail or submit by hand delivery a response to the department's initial
notification of a possible denial of clearance within 25 calendar days of the
mailing of the notification of possible denial of clearance. However, in the
case of a prospective school employee who is also requesting a conditional
clearance for employment, or who has already received such conditional
clearance for employment, for a response to be considered, the prospective
school employee must mail by regular first class mail or certified mail or
submit by hand delivery, a response to the department's initial notification of
a possible denial of clearance within 10 calendar days of the mailing of the
notification of possible denial of clearance. Such response shall be submitted
to the department at the address specified in the notification of possible
denial of clearance, together with any affidavits or other relevant written
information and written argument which the prospective school employee wishes
the department 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.
(vii) Where the prospective school employee
does not submit a response within the timeframe prescribed in subparagraph (vi)
of this paragraph, the department shall make a determination denying clearance
for employment and notification of such denial, along with the basis for such
determination, shall be transmitted to the prospective school employee by
certified mail, return receipt requested. In the case of a prospective school
employee requesting conditional clearance for employment, such determination
shall also deny the conditional clearance for employment. In the case of a
prospective school employee who has already been granted conditional clearance
for employment, such determination shall also terminate the conditional
clearance for employment. Such notification shall state that the prospective
school employee may appeal the determination to a designee of the Commissioner
of Education, at the address specified in the notification, in accordance with
paragraph (5) of this subdivision, and shall include instructions for such an
appeal. Notification of the denial of clearance for employment and denial or
termination of conditional clearance for employment shall also be given to the
covered school.
(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 a designee of the Commissioner of Education, 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) Where clearance for employment is denied
prior to the department obtaining information from the FBI, and subsequent
information is obtained from the FBI which forms an additional basis to deny
clearance for employment, and the prospective school employee has already
appealed the department's determination in accordance with paragraph (5) of
this subdivision, the department shall notify the prospective school employee
of this additional information and request that the prospective school employee
respond. For a response to be considered, the prospective school employee must
mail by regular first class mail or certified mail or submit by hand delivery a
response to the department's notification of this additional information within
25 calendar days of the mailing of the notification. After a review of the
information provided by the FBI and the response of the prospective school
employee, if any, the department shall either notify the prospective school
employee that no change in the original denial of clearance determination will
be issued by the department based upon the information obtained from the FBI or
issue to the prospective school employee modified determinations denying
clearance for employment and denying or terminating conditional clearance for
employment, which includes the information obtained from the FBI. The
notification of no change in the original denial of clearance determination and
the modified determinations shall be sent to the prospective school employee by
regular first class mail. The modified determinations shall not affect the
validity of the original determinations denying clearance for employment, and
denying or terminating conditional clearance for employment.
(x) Notwithstanding any provision of this
paragraph to the contrary, the Department may excuse the timeframes prescribed
in this paragraph for submission of responses by prospective school employees
where such late submissions are due to the COVID-19 crisis.
(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 a designee of the Commissioner of Education who did not
participate in the department's determination, 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.
(ii) Where the department has modified
original determinations denying clearance for employment and denying or
terminating conditional clearance for employment based upon additional
information obtained from the FBI, as prescribed in subparagraph (4)(ix) of
this subdivision, the subject of the appeal shall be the modified
determinations. In that case, the prospective school employee may submit
additional appeal papers addressing the modified determinations, provided that
they are mailed by regular first class mail or certified mail or hand delivered
to the address specified in the department's modified determinations within 25
calendar days of the mailing of such modified determinations.
(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 commissioner's
designee 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.
(iv) 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, the
commissioner's designee shall make a determination of whether clearance for
employment shall be granted or denied. In such appeal, the commissioner's
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 commissioner's 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.
(v) Notwithstanding any
provision of this paragraph to the contrary, the Commissioner's designee may
excuse the timeframes prescribed in subparagraphs (i) and (ii) of this
paragraph for submission of appeals and additional appeal papers by prospective
school employees where such late submissions are due to the COVID-19
crisis.