N.Y. Comp. Codes R. & Regs. Tit. 8 §§ 82-2.11

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

Section 82-2.11 - Conduct of hearings

(a) Cine photographs, still photographs, videotape recordings and audiotape recordings may not be taken at private hearings, and may be taken at public hearings only when permitted by the chairperson of the panel.

(b) Public hearings shall be open to members of the public and to representatives of the news media, except that the chairperson of the panel 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.

(c) An adjournment of a hearing shall be granted at the discretion of the chairperson of the hearing panel only in the interests of justice and upon good cause shown by the party requesting such adjournment. For hearings of charges filed on or after September 13, 1991, adjournments shall be limited to two adjournments for each party over the duration of the proceedings. No adjournment may be granted for a period in excess of 15 days, provided that the final day of testimony may be adjourned for a longer period upon a showing of exceptional cause, which shall include but not be limited to unavailability of a witness and incapacity of an attorney for a party.

(d) The chairperson of the panel shall have the power to consolidate with the pending charges amended or additional charges against an employee as to which the board has found that probable cause exists no later than five days before the date of the hearing, provided that the employee may file a waiver of hearing concerning such amended or additional charges with the chairperson of the panel.

(e) The chairperson of the panel shall decide all motions and objections, but he or she may not dismiss the charges with prejudice, without the consent of the complainant or his or her attorney. However, the chairperson of the panel may grant a motion to dismiss the charges, without prejudice to the filing of more specific charges, if such motion is made within the time specified in this subdivision, and if he or she finds that the charges are not sufficiently specific to enable the employee to prepare a defense to such charges. Any motion concerning the sufficiency of the charges shall be made to the chairperson of the panel no later than 20 days after receipt by the employee of the statement of charges or five days after receipt of notice of the selection of the chairperson of the panel, whichever shall later occur, upon notice to the complainant or his or her attorney. The decision of the chairperson of the panel upon such motion shall be in writing.

(f) If the chairperson of the panel determines that the absence of a hearing panel member is likely to delay unduly the prosecution of the hearing, he or she shall order the replacement of such panel member. If the party who selected such panel member fails to select a replacement within two days, the commissioner shall select such replacement. If the panel member to be replaced is the chairperson of the panel, and if the commissioner determines that the panel members selected by the parties cannot agree on a replacement, the commissioner shall select a replacement. In no event shall a hearing proceed except in the presence of three panel members.

(g) Members of the hearing panel may question witnesses and parties, subject to the right of the chairperson of the panel to disallow such questions if he or she deems them improper. No questions may be addressed to the employee unless he or she has been sworn as a witness with his or her own consent.

(h) At the conclusion of the testimony, the chairperson of the panel may adjourn the hearing to a specified date not more than 14 days after the conclusion of the testimony, to permit preparation of the transcript, submission by the parties of memoranda of law, and deliberation by the panel members. The chairperson of the panel shall provide for the preparation and delivery of one copy of the transcript of the hearing to each panel member, to the employee and the board, if requested. The complainant may order copies of the transcript directly from the stenographer.

(i) The findings of the panel on each charge, and the recommendations of the panel as to disciplinary action shall be based solely upon the record in the proceedings before the hearing panel, and shall set forth the reasons and the factual basis for the determination. The chairperson of the panel shall declare the hearing concluded, and shall forward the findings and recommendations, together with the three copies of the transcript, to the commissioner. The commissioner shall forward a report of the hearing, including the findings and recommendations of the hearing panel and their recommendations as to the penalty or punishment if one is warranted, together with a copy of the transcript of the proceedings before the hearing panel, to the employee and to the clerk or secretary of the employing board, should either the employee or the board of education not have received a copy of the transcript previously.

(j) For hearings of charges filed on or after September 13, 1991, no panel member will be authorized to serve who has not filed with the commissioner a written commitment to commence the hearing on the date specified by the commissioner, and to devote to the hearing not less than three consecutive days beginning with the first day of the hearing. A copy of each such commitment shall be filed within five days after the selection of each panel member.

N.Y. Comp. Codes R. & Regs. Tit. 8 §§ 82-2.11