Teachers As Role Models Teaching Character And Moral Values.
But What Are They Teaching?
Moral character or character is an evaluation of a particular individual's stable moral qualities.
The concept of character can imply a variety of attributes
including the existence or lack of virtues such as empathy,
courage, fortitude, honesty, and loyalty, or of good behaviors or habits.
Part 83 Determination of Good Moral Character
Section 83.1. Determination of good moral character.
(a) Any information indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the department.
(b) The appropriate official in school districts which by statute are empowered to grant teaching licenses shall notify the professional conduct officer of the revocation, annulment or suspension of any license issued under that authority, together with the reasons therefor.
(c) Information in the possession of any person indicating that an applicant for a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, may be referred to the executive director of the Office of Teaching Initiatives of the State Education Department. Information in the possession of any person indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, may be referred to the professional conduct officer of the department.
(d) The department shall review the findings and recommendations of hearing panels in hearings on charges against tenured teachers pursuant to Education Law section 3020-a and all such cases involving criminal convictions shall be referred to the professional conduct officer.
8 NY ADC 83.18 NY ADC 83.1
2008 WL 75116020
8 NY ADC 83.1
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The professional conduct officer shall direct that an investigation be done of the circumstances surrounding such conviction or act, and shall submit a report of the findings and a recommendation as to whether to proceed to a formal hearing to the State professional standards and practices board for teaching or to a subcommittee of such board, as determined in the bylaws of the board, composed of no fewer than five members approved by majority vote of the board, to consider such reports.
Section 83.3. Review by board.
If upon review of the report of the professional conduct officer, such board or subcommittee concludes that a certified individual's moral character is adequate to permit continued certification as a teacher, or that an applicant's moral character is adequate to permit certification as a teacher, a report to this effect shall be forwarded by the board or subcommittee to the executive director of the Office of Teaching Initiatives. If upon such review, the board or subcommittee concludes that a substantial question exists as to the moral character of a certified individual or an applicant, notice of the basis for this conclusion and a copy of this Part shall be sent by certified mail, return receipt requested, to the certified individual or applicant.
(a) If requested by the certified individual or applicant, in writing to the professional conduct officer within 30 days after receipt of said notice that a substantial question exists as to the individual's moral character, a hearing shall be held on the issue of whether the individual's certification should be revoked or suspended or whether another penalty should be imposed upon the certified individual as prescribed in section 83.6 of this Part or whether the application for certification should be denied. In the request for a hearing, the certified individual or applicant may request that the hearing be held solely before a hearing officer or, in the alternative, before a hearing officer and a three-member hearing panel. Upon receipt of a request for a hearing, a hearing officer shall be appointed by the commissioner to hear and recommend, and a hearing scheduled. In the order designating a hearing officer, the commissioner shall also designate the place where said hearing will be held. At least 15 days before the hearing, the hearing officer shall give to the certified individual or applicant written notice by mail of the time and place of said hearing.
(b) If a hearing panel has been requested, the members shall be selected in the following manner from the list maintained by the commissioner pursuant to the provisions of Education Law section 3020-a: one member shall be selected by the certified individual or applicant, one member shall be selected by the State professional standards and practices board for teaching or a subcommittee thereof, as determined in the bylaws of the board, and the third member shall be chosen by mutual agreement of the first two, or, if they fail to agree, by the commissioner. In the event that the certified individual or applicant has requested a hearing panel but fails or refuses to choose a hearing panel member within 30 days from the receipt of the panel list, the certified individual or applicant shall be deemed to have waived a hearing panel and the hearing shall be conducted before the hearing officer.
(c) The certified individual or applicant may be represented at the hearing by counsel and may produce witnesses and affidavits in proof of the individual's good moral character. The department shall have the burden of proof of lack of good moral character. The hearing officer may issue subpoenas on request of a party and shall conduct the hearing. A verbatim record shall be kept of the testimony.
(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. In the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character:
(1) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or
(2) any crime involving physical or sexual abuse of a minor or student; or
(3) any crime committed either on school property or while in the performance of teaching duties.
(e) In determining whether a certificate should be revoked or suspended or an application for certification should be denied based on a previous criminal conviction, the hearing officer or panel shall apply the standards for denial of a license application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753.
(f) Upon the conclusion of the hearing, the hearing officer shall submit to the commissioner and to the certified individual or applicant a report of the findings and recommendations or, if a hearing panel has been utilized, a report of the findings and recommendations of such panel, together with a copy of the transcript. The findings and recommendations of the hearing officer or the hearing panel shall be based solely upon the record and shall set forth the factual basis therefor.
8 NY ADC 83.48 NY ADC 83.4
2008 WL 75116023
8 NY ADC 83.4
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(a) Appeal by certified individual or applicant. The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.
(b) Review proceeding by commissioner.
(1) In cases involving convictions for any of the following acts constituting a crime in New York State, the commissioner may initiate review of the findings and recommendations of the hearing officer or hearing panel to determine whether such findings and recommendations should be adopted as the final determination of the commissioner:
(i) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or
(ii) any crime involving physical or sexual abuse of a minor or student; or
(iii) any crime committed either on school property or while in the performance of teaching duties.
(2) Such review shall be commenced by service of a notice of intent to review on the certified individual or applicant or the attorney of record of the certified individual or applicant, by certified mail, return receipt requested. The certified individual or applicant may file a written response with the commissioner within 30 days of being served with such notice, with proof of service by regular mail on the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of service of such notice, with proof of service by regular mail on the certified individual or applicant. In the event the certified individual or applicant files an appeal on or after the date the commissioner initiates review under this subdivision, the appeal shall be automatically consolidated with the review proceeding and the appeal papers shall constitute the written response of the certified individual or applicant under this subdivision.
(c) The commissioner shall review any appeal papers, or written responses filed, and the transcript and all evidence presented in the proceeding before the hearing officer or hearing panel. Based upon the record, the commissioner may affirm, adopt, reverse, or modify the findings and recommendations of the hearing officer or the hearing panel. If the commissioner determines to deny an application for certification, the commissioner shall communicate that decision to the applicant. If the commissioner determines to revoke or suspend a certificate, or to impose another penalty upon the certified individual as prescribed in section 83.6 of this Part, the commissioner shall execute an order to that effect and shall have the order served upon the certified individual. If no appeal is taken by a certified individual or applicant within the time prescribed in this section, and no review proceeding has been commenced by the commissioner, the conclusion of the hearing officer or the hearing panel shall be final and in the case of an annulment or suspension of a certificate or the imposition of another penalty upon the certified individual as prescribed in section 83.6 of this Part, the commissioner shall issue an order to that effect.
8 NY ADC 83.58 NY ADC 83.5
2008 WL 75116024
8 NY ADC 83.5
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(a) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character prior to November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the following penalties: denial of an application for certification, or suspension of a certificate, or revocation of a certificate.
(b) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character on or after November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the penalty of the denial of an application for certification; and the hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose one of the following alternative penalties upon certified individuals:
(1) revocation of a certificate; or
(2) suspension of a certificate:
(i) wholly for a fixed period of time;
(ii) partially, until the certificate holder successfully completes a course of retraining in the area to which the suspension applies; or
(iii) wholly, until the certificate holder successfully completes a course of therapy or treatment;
(3) limitation of the scope of a teaching certificate through revocation of an extension to teach additional subjects or grades;
(4) a fine not to exceed $5,000; or
(5) a requirement that the certified individual pursue a course of continuing education or training.
(c) The date of the mailing of the notice that a substantial question exists as to moral character shall be the date of service of such notice for the purpose of determining whether the penalties prescribed in subdivision (a) or (b) of this section shall apply.
8 NY ADC 83.68 NY ADC 83.6
2008 WL 75116025
8 NY ADC 83.6
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From the School Administrators' Association of New York State: PART 83
In a major victory, an appellate court recently agreed with our argument that a
district’s Part 83 referral to the State Education Department invoked a SAANYS
member’s right to a due process name-clearing hearing. The five appellate
judges unanimously granted our appeal, overturning a lower court’s earlier
adverse decision. This was an important advance in protecting you from
arbitrary and defamatory false allegations.
You
probably know that a Part 83 report is the means by which districts are required
to report information raising questions about an educator’s moral
character. Should a hearing panel confirm the
allegations and conclude that they constitute a sufficient lack of moral
character, SED may impose penalties on the educator, including revocation of
all certifications. The latter results in current employment termination
and forecloses all future employment opportunities in the educator’s chosen profession.
The Part
83 process is notable by its failure to define moral character. The
standard exists only in the subjective eye of the beholder; neither the statute
nor the regulations provide any guidance as to what constitutes insufficient
moral character. For example, the governing regulation, 8 NYCRR § 83.1,
merely mandates districts report to the department behavior “which raises a
reasonable question as to the individual’s moral character.”
This
failure puts you at risk. First, unfortunately, many individuals,
including many in positions of power and authority, hold what may be charitably
described as excessively narrow views of others’ personal choices, including
choices of intimacy and religion, which may serve as the primary motivation for
a moral character referral. Second, any allegation, even those identifying
what are commonly perceived as immoral practices, may be unsupported by
credible evidence. In either case, the report could conceivably lead to termination and foreclose future job opportunities.
The process initially focuses on the current employment. A SAANYS member
is confronted with damaging and potentially job termination
allegations. If probationary, the member is given a choice to resign
quietly or to be terminated in short order and publicly by school board
resolution; if tenured, the member is given a choice to resign quietly or to be
served with 3020-a charges. Unknown to the member, the district
simultaneously files the Part 83 referral with SED, whose jurisdiction remains
regardless of whether the member resigns.
The continuing jurisdiction is the Part 83 problem. If the member resigns
and seeks employment in another district, the member will have to disclose in
the employment application that he or she resigned in lieu of termination or charges. If
the member overcomes that hurdle, the hiring district will report the hiring to
SED. As the Part 83 process continues, SED may advise the hiring district
of the ongoing investigation and seek access to the now probationary employee’s
computer and other work records as part of its continuing
investigation. The stigma is reasonably likely to result in the member’s
immediate termination from the new position. It was this continuing
stigma that prompted our lawsuit.
One of
your fellow SAANYS members, serving in a probationary capacity in a new
district, was accused of placing pornography on the district computer server
and then using his district supplied laptop for pornographic purposes. He
denied the allegations and requested a name-clearing hearing, including
opportunity for an independent computer forensic expert to asses the
evidence. The district refused! Instead, he was summarily
terminated. We later learned the district had filed a Part 83 referral
even before terminating the member.
We sued
the district, seeking a due process name-clearing hearing in which the
independent expert could review evidence the district had refused to
disclose. Our basis was that even probationary staff have what is known as
a liberty interest due process right to a name-clearing hearing. This
constitutional right ensues when employment termination is coupled with the
employer’s publication of defamatory allegations, the substance of which the
employee denies. The rationale for the hearing is that otherwise the
publication precludes further employment in the chosen
profession.
The
subsequent legal arguments in this case focused on whether the Part 83 referral
qualified as ‘publication’ for purposes of requiring the hearing. We
argued the ongoing Part 83 process effectively discourages any district from
hiring the member. We knew that was the referral’s practical
effect. The name clearing hearing, including an expert’s review of the
previously non-disclosed evidence, could serve to possibly terminate the Part
83 process and also to restore the member’s reputation with potential
employers.
Prior
cases over the years had established that placement of stigmatizing allegations
in employees’ personnel files qualifies as publication because potential future
employers would request access to the file before making a final hiring
decision. We believed the Part 83 referral similarly constituted
publication because it, too, would become known to the potential future
employer, and, similarly, the stigma would foreclose the employment
opportunity. Further, we knew that if the employee failed to find
re-employment, SED had little incentive to conclude the investigation, denying
the member any opportunity to confront the false allegations, forever
precluding re-employment.
The judge
rejected our argument, holding that the member could rebut the allegations at
any subsequent Part 83 hearing. In other words, rebuttal would be reserved
for a process and hearing that might never occur. We then appealed his
decision to the Appellate Division of Supreme
Court.
The five
judge appellate division panel unanimously reversed the judge below, holding
that the Part 83 referral provides “a sufficient potential for public
disclosure to establish petitioner’s entitlement to a name-clearing
hearing.” Due to the district’s initial denial of our requested
constitutional due process relief, the appellate court also required the
district to pay our attorney fees for the litigation. That was a pretty
good day here in SAANYS legal-land.
This
victory is important to all SAANYS members because it provides for future
instances a legal foundation for demanding districts provide name-clearing
hearings on a timely basis. That’s important because, while victory is
sweet, a lawsuit and its appeal take enormous resources and time. Further,
the wheels of justice move slowly. The member was terminated in the summer
of 2008. The lower court decision denying our lawsuit was issued in
February, 2009. The appeals court reversed the lower court in July of this
summer, 2010. The hearing we have now been granted has not yet
occurred. But next time this issue arises on behalf of a SAANYS
member we can cite this appellate decision in insisting a district honor SAANYS
members’ due process rights to a name-clearing hearing.
So the
win was a good day not just here in legal-land, but also for each of
you. The extensive time and work it required, including the many
negotiations, affidavits, memorandums of law and court appearances, are another
example of our commitment to protect the rights of all members by asserting the
rights of a single member. Thank you for that
opportunity.
One of the more frustrating legal challenges any certificated member may face is a State Education Department moral character hearing. This is a proceeding available to certificate holders about whom the department believes there exists a substantial question as to the certificate holder’s moral character. This process is known as a Part 83 hearing (the formal legal designation is 8 NYCRR 83) and, because an adverse hearing outcome precludes both continued and future employment in any public school K-12 certificated capacity, the potential outcome is much more serious than that of 3020-a charges. Whereas 3020-a charges immediately affect only a person’s current employment, a Part 83 hearing outcome may result in revocation of all required professional certifications . While the person’s participation in the hearing is optional, failure to appear and successfully prove sufficient moral character may result in revocation of all education certifications. Absent certification, one’s public education career is over, immediately.
Current and prior professional competence is not a defense; it has no bearing on the moral character question. The sole issue is whether the certificate holder possesses sufficient moral character. Thus, a record of competent performance and inspired leadership is irrelevant to whether the administrator also has sufficient moral character.
Perhaps surprisingly, the regulation governing this process contains no definition or guidance as to what constitutes sufficient or insufficient moral character. Instead, after hearing the evidence, a hearing officer or three-person panel makes a recommendation as to whether the administrator possesses sufficient moral character to retain certification, and the recommendation is forwarded to the commissioner of education who may affirm, reject, or modify the penalty.
We in your SAANYS Legal Department believe the recommendation of sufficient or insufficient moral character is based primarily on the hearing officer or panel’s personal morality standards. And the question as to sufficient moral character was referred to hearing only because the department found certain acts morally suspect, again absent any legal definition in the applicable regulation.
So what actions might result in a Part 83 hearing? Some are obvious and generally fall into the category that all interested observers of public school education likely would agree should exclude such persons from continued employability in public school education, such as theft of district funds, engaging in sex with students, or providing drugs to students.
A question of moral character may result from many other acts that, although wrong or even criminal, may not initially appear to many observers as sufficiently related to the education profession to warrant certification revocation. For example, driving while intoxicated during non-school hours; engaging in an illicit sexual affair during a work, but off-premises overnight conference; or soliciting a prostitute while on an off-premises school errand. Other likely candidates for Part 83 action include those using a school issued computer to access pornography or to email graphic or other offensive content, regardless of whether the computer use was during the school day or during non-school time, such as from home. This includes emailing racially or sexually offensive material.
While many of us would agree that professional educators should not engage in any of the above behaviors, it is important to note that the punishment for any that are illegal may include not just the criminal sanction, if any, but also loss of one’s career.
From our perspective, there are two important lessons here. First, never let a record of competent leadership lull one into a false sense of security that one could engage in actions some might find morally inexcusable – such as driving while intoxicated, passing on an inappropriate email, or using a school issued computer to learn if pornography is as widely available on the web as rumor has it. Second, remember that the ‘delete’ key doesn’t actually hide the ‘deleted’ material from a computer forensic expert. Such material is a candidate for déjà vu your career can’t afford.
Are you being held to a higher standard? Probably so, but remember that certification – as is any license – is a privilege easily lost.
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