August 18, 2008 Mandatory Teaching Certificate Revocation for Convicted Sex Offenders

KEEPING YOU INFORMED…

We are writing to inform you about recent amendments to New York law, which (1) require a school district or BOCES to terminate a teacher without providing an Education Law Section 3020-a disciplinary hearing and (2) require the Commissioner of Education to automatically revoke and annul a teacher’s teaching certificate, where the teacher has been convicted of a sex offense for which registration as a sex offender is required pursuant to the New York Correction Law (commonly known as “Megan’s Law”).

The amendments broadly define the term “teacher” to include any professional educator holding a teaching certificate. This includes, but is not limited to, a classroom teacher, teaching assistant, pupil personnel services professional, school administrator, school supervisor, and a superintendent of schools.

Upon receipt of a certified copy of a criminal history record showing a teacher’s conviction of a sex offense, or upon receipt of notice of such conviction from the district attorney or other prosecuting authority, the Commissioner of Education is now required to automatically revoke and annul the individual’s teaching certificate. Pursuant to the amendments, a sex offender is considered convicted if (s)he has pleaded guilty or nolo contendere to a sex offense charge, or if (s)he has been found guilty by verdict after trial or otherwise. The revocation and annulment is to be effectuated without providing the teacher with the right to a hearing. However, the teacher may notify the Commissioner, in writing within 25 days after receiving notice of the Commissioner’s revocation or annulment, that (s)he is not the same person as the offender identified in the criminal record or notice from the prosecuting authority. If the teacher provides proof to reasonably support this claim and the Commissioner is satisfied that the proof establishes the claim, then the Commissioner is required to restore the teacher’s teaching certificate retroactive to the date of revocation and annulment.

If a conviction is set aside upon appeal, or otherwise reversed, vacated or annulled, the Commissioner is required to conduct a hearing prior to determining whether to reinstate the teacher’s certificate.

The statute specifies two circumstances where the teacher must be reinstated to his/her position of employment in a public school, with full back pay and benefits from the date of the revocation and annulment of the certificate to the date of reinstatement. The first circumstance is where the termination of employment was based solely on the conviction of a sex offense, or the revocation or annulment of a certificate was based on such conviction, and the conviction has been set aside on appeal or otherwise reversed, vacated or annulled and the Commissioner has reinstated the teacher’s certification. The second circumstance is where the teacher’s termination was based solely upon the conviction and it has been determined that the teacher is not the same person as the convicted offender.

A public school is not required to reinstate a teacher and is not liable for back pay or benefits where the teacher’s termination resulted from a disciplinary proceeding and was based upon one or more grounds other than the sex offense conviction or license revocation or annulment.

If you have any questions about this new law, please do not hesitate to contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2008