N.Y. Comp. Codes R. & Regs. tit. 8 § 535.9

Current through Register Vol. 46, No. 43, October 23, 2024

Section 535.9 - Notice, hearing and determination of charges against students

Applies to charges for violation of the rules prescribed by or referred to in this Part heretofore served which have not been finally determined within 60 days after the adoption hereof, which charges shall be referred to the committee constituted pursuant to said section 535.9 for determination in accordance therewith, and said section shall apply to all charges for violation of such rules hereafter made, whether for violations heretofore or hereafter committed. [Education Law, §355(2)(b) ]Education Law, §355(2)(b)

(a) The term chief administrative officer, as used in these rules, shall be deemed to mean and include any person authorized to exercise the powers of that office during a vacancy therein or during the absence or disability of the incumbent and for purposes of this section shall also include any designee appointed by said officer.

(b) Whenever a complaint is made to the chief administrative officer of any State-operated institution of the university of a violation by a student or students of the rules prescribed in this Part (or of any rules adopted by an individual institution supplementing or implementing such rules) or whenever he has knowledge that such a violation may have occurred, he shall cause an investigation to be made and the statements of the complainants, if any, and of other persons having knowledge of the facts reduced to writing. If he is satisfied from such investigation and statements that there is reasonable ground to believe that there has been such a violation, he shall prepare or cause to be prepared charges against the student or students alleged to have committed such violation which shall state the provision prescribing the offense and shall specify the ultimate facts alleged to constitute such offense.

(c) Such charges shall be in writing and shall be served on the student or students named therein by delivering the same to him or them personally, if possible, or, if not, by mailing a copy of such charges by registered mail to such student or students at his or their usual place or places of abode while attending college and also to his or their home address or addresses, if different.

(d) The notice of charges so served shall fix a date for hearing thereon not less than 10 or more than 15 days from the date of service which shall be the date of mailing where necessary to effect service by mail. Failure to appear in response to the charges on the date fixed for hearing, unless there has been a continuance for good cause shown, shall be deemed to be an admission of the facts stated in such charges and shall warrant such action as may then be appropriate thereon. Before taking such action the hearing committee, hereinafter referred to, shall give notice to any student, who has failed to appear, in the manner prescribed in subdivision (c), of its proposed findings and recommendations to be submitted to the chief administrative officer and shall so submit such findings and recommendations 10 days thereafter unless the student has meanwhile shown good cause for his failure to appear, in which case a date for hearing shall be fixed.

(e) Upon demand at any time before or at the hearing, the student charged or his representative, duly designated, shall be furnished a copy of the statements taken by the chief administrative officer in relation to such charges and with the names of any other witnesses who will be produced at the hearing in support of the charges; provided, however, that this shall not preclude the testimony of witnesses who were unknown at the time of such demand.

(f) The chief administrative officer may, upon the service of charges, suspend the student named therein, from all or any part of the institution's premises or facilities, pending the hearing and determination thereof, whenever, in his judgment, the continued presence of such student would constitute a clear danger to himself or to the safety of persons or property on the premises of the institution or would pose an immediate threat of disruptive interference with the normal conduct of the institution's activities and functions; provided, however, that the chief administrative officer shall grant an immediate hearing on request of any student so suspended with respect to the basis for such suspension.

(g) There shall be constituted at each State-operated institution a hearing committee to hear charges against students of violation of the rules for maintenance of public order prescribed by or referred to in this Part. Such committee shall consist of three members of the administrative staff and three members of the faculty, designated by the chief administrative officer, and three students who shall be designated by the members named by the chief administrative officer. Each such member shall serve until his successor or replacement has been designated. No member of the committee shall serve in any case where he is witness or is or has been directly involved in the events upon which the charges are based. In order to provide for cases where there may be such a disqualification and for cases of absence or disability, the chief administrative officer shall designate an alternate member of the administrative staff and an alternate member of the faculty, and his principal designees shall designate an alternate student member, to serve in such cases. Any five members of the committee may conduct hearings and make findings and recommendations as hereinafter provided. At any institution where the chief administrative officer determines that the number of hearings which will be required to be held is, or may be, so great that they cannot otherwise be disposed of with reasonable speed, he may determine that the hearing committee shall consist of six members of the administrative staff and six members of the faculty to be designated by him and of six students who shall be designated by the members so designated by him. In such event the chief administrative officer shall designate one of such members as chairman who may divide the membership of the committee into three divisions each to consist of two members of the administrative staff, two faculty members and two students and may assign charges among such divisions for hearing. Any four members of each such division may conduct hearings and make recommendations as hereinafter provided.

(h) The hearing committee shall not be bound by the technical rules of evidence but may hear or receive any testimony or evidence which is relevant and material to the issues presented by the charges and which will contribute to a full and fair consideration thereof and determination thereon. A student against whom the charges are made may appear by and with representatives of his choice. He may confront and examine witnesses against him and may produce witnesses and documentary evidence in his own behalf. There may be present at the hearing: the student charged and his representatives and witnesses; other witnesses; representatives of the institutional administration; and, unless the student shall request a closed hearing, such other members of the institutional community or other persons, or both, as may be admitted by the hearing committee. A transcript of the proceedings shall be made.

(i) Within 20 days after the close of a hearing, the hearing committee shall submit a report of its findings of fact and recommendations for disposition of the charges to the chief administrative officer, together with a transcript of the proceedings, and shall at the same time transmit a copy of its report to the student concerned or his representative. Within 10 days thereafter the chief administrative officer shall make his determination thereon. Final authority to dismiss the charges or to determine the guilt of those against whom they are made and to expel, suspend or otherwise discipline them shall be vested in the chief administrative officer. If he shall reject the findings of the hearing committee in whole or in part, he shall make new findings which must be based on substantial evidence in the record and shall include them in the notice of his final determination which shall be served upon the student or students with respect to whom it is made.

[FN*] Applies to charges for violation of the rules prescribed by or referred to in this Part heretofore served which have not been finally determined within 60 days after the adoption hereof, which charges shall be referred to the committee constituted pursuant to said section 535.9 for determination in accordance therewith, and said section shall apply to all charges for violation of such rules hereafter made, whether for violations heretofore or hereafter committed.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 535.9