Enacts the education quality and teacher and principal protection act providing liability protection for public school educators; defines terms; provides that an educational entity shall not be subject to punitive and exemplary damages; imposes civil fines upon persons who falsely accuse an employee of an educational entity; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
3110
2013-2014 Regular Sessions
IN ASSEMBLY
January 23, 2013
___________
Introduced by M. of A. ORTIZ -- Multi-Sponsored by -- M. of A. CUSICK,
GALEF, HIKIND, MAGEE, PERRY, RIVERA, ROBINSON, WEISENBERG -- read once
and referred to the Committee on Education
AN ACT to amend the education law, in relation to establishing liability
protection for public school educators
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "education
2 quality and teacher and principal protection act".
3 § 2. The education law is amended by adding a new article 62 to read
4 as follows:
5 ARTICLE 62
6 EDUCATION QUALITY AND TEACHER AND PRINCIPAL
7 PROTECTION ACT
8 Section 3070. Legislative findings.
9 3071. Definitions.
10 3072. Liability.
11 3073. Punitive and exemplary damages.
12 3074. False reports.
13 3075. Frivolous actions; attorney's fees; cost.
14 3076. Contingency fees; penalty.
15 3077. Insurance.
16 § 3070. Legislative findings. The legislature finds that ensuring the
17 quality of primary and secondary public education is a compelling state
18 interest. The educational environment of students is often not conducive
19 to learning. Violence is sometimes a threat, while other times educators
20 may lack the authority to maintain safety and discipline in the public
21 schools. The filing of meritless lawsuits against school districts,
22 teachers, administrators, and other school employees interferes with
23 attempts to ensure the quality of public education, particularly where
24 such lawsuits arise out of the good faith efforts of educators to main-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06850-01-3
A. 3110 2
1 tain classroom discipline or address threats to student safety. Merit-
2 less litigation also diverts financial and personnel resources to liti-
3 gation defense activities and reduces the availability of such resources
4 for educational opportunities for students. The legislature further
5 finds that legislation to deter meritless lawsuits and sanction delib-
6 erately false reports against educators is a rational and appropriate
7 method to address this compelling public interest.
8 § 3071. Definitions. As used in this article, unless the context
9 otherwise requires, the following terms shall mean:
10 1. "Educational entity" means the department of education or any other
11 body, board or agency that governs one or more public primary or second-
12 ary schools.
13 2. "Employee" means any individual elected or appointed to an educa-
14 tional entity or who provides student-related services to that educa-
15 tional entity on a contractual basis. The term employee shall also
16 include an authorized volunteer who provides student-related services to
17 the educational entity.
18 § 3072. Liability. 1. An educational entity or its employees shall not
19 be subject to liability for taking any action regarding the supervision,
20 grading, suspension, expulsion or discipline of students while such
21 students are on the property of the educational entity or are under the
22 supervision of the educational entity or its employees. However, this
23 immunity shall not apply if such action violated an express statute,
24 rule, regulation or clearly articulated policy of the state or educa-
25 tional entity. The burden of proof of such a violation shall rest with
26 the party bringing the action and must be established by clear and
27 convincing evidence to the court as part of a summary proceeding.
28 2. An educational entity and its employees shall not be subject to
29 liability for making a report consistent with federal law to the appro-
30 priate law enforcement authorities or officials of an educational entity
31 if the individual making the report has reasonable grounds to suspect
32 that a student is:
33 (a) under the influence of an alcoholic beverage or a controlled
34 substance not lawfully prescribed to that individual;
35 (b) in possession of a firearm, alcoholic beverage or a controlled
36 substance not lawfully prescribed to that individual; or
37 (c) involved in the illegal solicitation, sale or distribution of a
38 firearm, alcoholic beverage or controlled substance not lawfully
39 prescribed to that individual.
40 § 3073. Punitive and exemplary damages. 1. An educational entity shall
41 not be liable for punitive or exemplary damages. An employee shall not
42 be liable for punitive or exemplary damages for acts or omissions within
43 the course and scope of employment.
44 2. For the purposes of this section, an employee who acts with specif-
45 ic intent to cause harm shall not be considered as acting within the
46 course and scope of employment.
47 § 3074. False reports. 1. Except as otherwise provided in this arti-
48 cle, any person eighteen years of age or older who acts with specific
49 intent in making a false accusation of criminal activity against an
50 employee of an educational entity to law enforcement authorities, school
51 district officials or personnel, or both, shall be subject to a civil
52 fine of up to two thousand dollars.
53 2. Except as otherwise provided in this article, any public school
54 student between the ages of seven and seventeen, inclusive, who acts
55 with specific intent in making a false accusation of criminal activity
56 against an employee of an educational entity to law enforcement authori-
A. 3110 3
1 ties, school district officials or personnel, or both, may, at the
2 discretion of the court, and in accordance with the provisions of the
3 federal individuals with disabilities education act, 20 U.S.C.A. §§ 1400
4 et seq., be subject to any of the following:
5 (a) expulsion;
6 (b) suspension for a period of time to be determined by the court;
7 (c) community service of a type and for a period of time to be deter-
8 mined by the court; or
9 (d) any other sanction as the court in its discretion may deem appro-
10 priate.
11 3. The provisions of this article shall not apply to statements
12 regarding individuals elected or appointed to a school board.
13 4. This article shall not be deemed to limit the civil or criminal
14 liability of those persons who make false statements alleging criminal
15 activity by others.
16 § 3075. Frivolous actions; attorney's fees; cost. 1. In any civil
17 action or proceeding against an educational entity or its employee in
18 which the educational entity or its employee prevail, the court shall
19 award cost and reasonable attorney's fees to the prevailing defendant or
20 defendants. The court in its discretion may determine whether such fees
21 and costs are to be borne by the plaintiff's attorney, the plaintiff, or
22 both.
23 2. Expert witness fees may be included as part of the costs awarded
24 under this section.
25 § 3076. Contingency fees; penalty. 1. No attorney shall charge,
26 demand, receive or collect for services rendered, fees in excess of
27 twenty-five percent of any civil judgement rendered against an educa-
28 tional entity or its employees, or any settlement entered into pursuant
29 to law.
30 2. Any interested person may file a civil action or petition with the
31 appropriate court to rescind any provision of the attorney fee contract
32 inconsistent with this section and to compel disgorgement of any fees
33 paid in excess of the amounts allowed under this section. In addition, a
34 court with jurisdiction over the matter shall impose a fine against the
35 attorney that is equal to or less than the amount of money sought by the
36 attorney in excess of the amount permitted by this section, but in any
37 event not less than two thousand dollars.
38 § 3077. Insurance. Unless otherwise provided by law, the existence of
39 any policy of insurance indemnifying an educational entity against
40 liability for damages shall not be considered a waiver of any defense
41 otherwise available to the educational entity or its employees in the
42 defense of the claim.
43 § 3. This act shall take effect November 1, 2013.
