GOOD MORAL CHARACTER

A difficult, hopefully not frequent, role for a Board of Education is terminating a certified employee – teacher, administrator, superintendent. When this occurs, school board members often ask, “How can we ensure the person does not work elsewhere and do the same thing?” While a person could surrender their certificate, that is unlikely. In most instances, the board must engage the Part 83 process.

What exactly is Part 83, and how impactful is the process?

The Education Commissioner’s regulations require “the chief school administrator to:

refer 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 about the individual's moral character, to the professional conduct officer of the department. [8 NYCRR 83.1(a)]

This applies to every certified person working in a public school. SED’s Office of School Personnel Review and Accountability (OSPRA) investigates allegations concerning the moral character of individuals who hold or apply for New York State certificates. School superintendents must report any knowledge that a certificate holder has been convicted of a crime or committed an act that raises a reasonable question about the individual's moral character.

While this mandate is absolute, neither law nor regulation defines, ‘reasonable question about moral character.’ Sixty years ago, Justice Stewart famously said, “I know it when I see it” referring to pornography. That same rubric may apply to moral character. Engaging in a relationship with a student? Of course. Theft? Certainly. Aggravated DWI (with minor in the car)? Probably. A single DWI? Probably not. Typically, we advise superintendents if they are asking whether they should report under Part 83 -- report! It is better to be overinclusive. OSPRA can determine whether to pursue the matter but a superintendent who reports has satisfied their obligation under law.

What does that mean for schools?

Improper employee actions give rise to two parallel processes. One is termination. A superintendent and board determine if formal disciplinary charges (e.g. §3020-a charges/hearing) should be filed. If charges are filed, a hearing seeking termination of employment ensues. The employee’s same actions may also raise questions about moral character, prompting the Part 83 moral character process.

The first process results in formal discipline and potential termination of employment from that one school district. The second process could result in the person losing their certificate and disabling them from teaching anywhere. The Part 83 process answers the question, “How do we ensure the person does not do the same thing elsewhere?”

Procedurally, when a school files under Part 83, the OSPRA office investigates. They request the school provide all information related to the actions, and the school must provide the information it has on the matter. OSPRA also has subpoena power. The investigator ultimately issues a report indicating whether to proceed to a formal hearing. If a hearing is recommended, the State Professional Standards and Practices Board for Teaching conducts the hearing. This process continues even if an employee resigns. The employee has a right to a hearing under Part 83 as a certification cannot be taken away without due process.

Implementing Part 83

School boards should recognize flaws in the efficacy of the Part 83 process. SED investigators are diligent seeking information in response to a Part 83 filing. It is common for investigator information requests to be received only a couple weeks after schools files. However, Part 83 filings languish for years – even for the most egregious offenses. Filings made in 2020 are still unresolved with no hearing scheduled. Further, after the district provides the requested information, they do not receive any updates on the progress of the matter.

Despite the slowness and lack of follow up, superintendents must continue their duty of filing under Part 83 where appropriate Schools must remain hopeful the process will improve and those who should not be in education will not be permitted to remain.

Ghandi once said: “Whatever you do may seem insignificant, but it is most important you do it.”

We hope you find our insights instructive and informative. Please direct questions or follow up to Douglas Gerhardt (dgerhardt@honeywelllawfirm.com) or the Honeywell Law Firm attorney with whom you most frequently work with.

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