STATE OF NEW YORK
________________________________________________________________________
7976
2009-2010 Regular Sessions
IN ASSEMBLY
May 1, 2009
___________
Introduced by M. of A. BENEDETTO -- read once and referred to the
Committee on Education
AN ACT to amend the education law, in relation to removing barriers to
educational success imposed on children of military families because
of frequent moves and deployment of their parents
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds, determines and declares that it is a matter of state concern and
3 in the interest of the people of the state to remove barriers to educa-
4 tional success imposed on children of military families because of
5 frequent moves and deployment of their parents by:
6 1. Facilitating the timely enrollment of children of military families
7 and ensuring that they are not placed at a disadvantage due to difficul-
8 ty in the transfer of education records from the previous school
9 district or districts or variations in entrance/age requirements.
10 2. Facilitating the student placement process through which children
11 of military families are not disadvantaged by variations in attendance
12 requirements, scheduling, sequencing, grading, course content or assess-
13 ment.
14 3. Facilitating the qualification and eligibility for enrollment,
15 educational programs, and participation in extracurricular academic,
16 athletic, and social activities.
17 4. Facilitating the on-time graduation of children of military fami-
18 lies.
19 5. Providing for the promulgation and enforcement of administrative
20 rules implementing the provisions of this act.
21 6. Providing for the uniform collection and sharing of information
22 between and among member states, schools and military families under
23 this act.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11272-01-9
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1 7. Promoting coordination between this act and other acts affecting
2 military children.
3 8. Promoting flexibility and cooperation between the educational
4 system, parents and the student in order to achieve educational success
5 for the student.
6 § 2. The education law is amended by adding a new article 18 to read
7 as follows:
8 ARTICLE 18
9 EDUCATIONAL OPPORTUNITY
10 FOR MILITARY CHILDREN
11 Section 850. Definitions.
12 851. Applicability.
13 852. Educational records and enrollment.
14 853. Placement and attendance.
15 854. Eligibility.
16 855. Graduation.
17 856. State coordination.
18 857. Interstate commission on educational opportunity for mili-
19 tary children.
20 858. Powers and duties of the interstate commission.
21 859. Organization and operation of the interstate commission.
22 860. Rulemaking functions of the interstate commission.
23 861. Oversight, enforcement, and dispute resolution.
24 862. Financing of the interstate commission.
25 863. Withdrawal and dissolution.
26 864. Severability and construction.
27 865. Binding effect.
28 § 850. Definitions. As used in this article:
29 1. "Active duty" means full-time duty status in the active uniformed
30 service of the United States, including members of the national guard
31 and reserve on active duty orders pursuant to 10 U.S.C. Section 1209 and
32 1211.
33 2. "Children of military families" means any school-aged children,
34 enrolled in kindergarten through twelfth grade, in the household of an
35 active duty member.
36 3. "Compact commissioner" means the voting representative of each
37 compacting state appointed pursuant to section eight hundred fifty-seven
38 of this article.
39 4. "Deployment" means the period one month prior to the service
40 members' departure from their home station on military orders through
41 six months after return to their home station.
42 5. "Educational records" means those official records, files, and data
43 directly related to a student and maintained by the school or local
44 educational agency, including but not limited to records encompassing
45 all the material kept in the student's cumulative folder such as general
46 identifying data, records of attendance and of academic work completed,
47 records of achievement and results of evaluative tests, health data,
48 disciplinary status, test protocols, and individualized education
49 programs.
50 6. "Extracurricular activities" means a voluntary activity sponsored
51 by the school or local educational agency or an organization sanctioned
52 by the local educational agency. Extracurricular activities include, but
53 are not limited to, preparation for and involvement in public perform-
54 ances, contests, athletic competitions, demonstrations, displays, and
55 club activities.
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1 7. "Interstate commission on educational opportunity for military
2 children" means the commission that is created under section eight
3 hundred fifty-seven of this article, which is generally referred to as
4 interstate commission.
5 8. "Local educational agency" means a public authority legally consti-
6 tuted by the state as an administrative agency to provide control of and
7 direction for kindergarten through twelfth grade public educational
8 institutions.
9 9. "Member state" means a state that has enacted legislation creating
10 an interstate commission on educational opportunity for military chil-
11 dren similar to the interstate commission created by this article.
12 10. "Military installation" means a base, camp, post, station, yard,
13 center, homeport facility for any ship, or other activity under the
14 jurisdiction of the department of defense, including any leased facili-
15 ty, which is located within any of the several states, the District of
16 Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
17 Guam, American Samoa, the Northern Marianas Islands and any other U.S.
18 Territory. Such term does not include any facility used primarily for
19 civil works, rivers and harbors projects, or flood control projects.
20 11. "Non-member state" means a state that has not enacted legislation
21 as prescribed by subdivision nine of this section.
22 12. "Receiving state" means the state to which a child of a military
23 family is sent, brought, or caused to be sent or brought.
24 13. "Rule" means a written statement by the interstate commission
25 promulgated pursuant to section eight hundred sixty of this article that
26 is of general applicability, implements, interprets or prescribes a
27 policy or provision of this article, or an organizational, procedural,
28 or practice requirement of the interstate commission, and has the force
29 and effect of statutory law in a member state, and includes the amend-
30 ment, repeal, or suspension of an existing rule.
31 14. "Sending state" means the state from which a child of a military
32 family is sent, brought, or caused to be sent or brought.
33 15. "State" means a state of the United States, the District of Colum-
34 bia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
35 American Samoa, the Northern Marinas Islands and any other U.S. Terri-
36 tory.
37 16. "Student" means the child of a military family for whom the local
38 education agency receives public funding and who is formally enrolled in
39 kindergarten through twelfth grade.
40 17. "Transition" means:
41 (a) the formal and physical process of transferring from school to
42 school; or
43 (b) the period of time in which a student moves from one school in the
44 sending state to another school in the receiving state.
45 18. "Uniformed services" means the Army, Navy, Air Force, Marine Corps
46 and Coast Guard as well as the Commissioned Corps of the National Ocean-
47 ic and Atmospheric Administration, and Public Health Services.
48 19. "Veteran" means a person who served in the uniformed services and
49 who was discharged or released therefrom under conditions other than
50 dishonorable.
51 § 851. Applicability. 1. Except as otherwise provided in subdivision
52 two of this section, this article shall apply to the children of:
53 (a) active duty members of the uniformed services as defined in this
54 article, including members of the National Guard and Reserve on active
55 duty orders pursuant to 10 U.S.C. Section 1209 and 1211;
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1 (b) members or veterans of the uniformed services who are severely
2 injured and medically discharged or retired for a period of one year
3 after medical discharge or retirement; and
4 (c) members of the uniformed services who die on active duty or as a
5 result of injuries sustained on active duty for a period of one year
6 after death.
7 2. The provisions of this article shall only apply to local education
8 agencies as defined in this article.
9 3. The provisions of this article shall not apply to the children of:
10 (a) inactive members of the national guard and military reserves;
11 (b) members of the uniformed services now retired, except as provided
12 in subdivision one of this section;
13 (c) veterans of the uniformed services, except as provided in subdivi-
14 sion one of this section; and
15 (d) other United States department of defense personnel and other
16 federal agency civilian and contract employees not defined as active
17 duty members of the uniformed services.
18 § 852. Educational records and enrollment. 1. Unofficial or "hand-car-
19 ried" educational records. In the event that official educational
20 records cannot be released to the parent or parents for the purpose of
21 transfer, the custodian of the records in the sending state shall
22 prepare and furnish to the parent or parents a complete set of unoffi-
23 cial educational records containing uniform information as determined by
24 the interstate commission. Upon receipt of the unofficial educational
25 records by a school in the receiving state, the school shall enroll and
26 appropriately place the student based on the information provided in the
27 unofficial records pending validation by the official records, as quick-
28 ly as possible.
29 2. Official educational records/transcripts. Simultaneous with the
30 enrollment and conditional placement of the student, the school in the
31 receiving state shall request the student's official educational record
32 from the school in the sending state. Upon receipt of this request, the
33 school in the sending state will process and furnish the official educa-
34 tional records to the school in the receiving state within ten days or
35 within such time as is reasonably determined under the rules promulgated
36 by the interstate commission.
37 3. Immunizations. Compacting states shall give thirty days from the
38 date of enrollment or within such time as is reasonably determined under
39 the rules promulgated by the interstate commission, for students to
40 obtain any immunizations required by the receiving state. For a series
41 of immunizations, initial vaccinations must be obtained within thirty
42 days or within such time as is reasonably determined under the rules
43 promulgated by the interstate commission.
44 4. Kindergarten and first grade entrance age. Students shall be
45 allowed to continue their enrollment at grade level in the receiving
46 state commensurate with their grade level (including kindergarten) from
47 a local educational agency in the sending state at the time of transi-
48 tion, regardless of age. A student that has satisfactorily completed the
49 prerequisite grade level in the local educational agency in the sending
50 state shall be eligible for enrollment in the next highest grade level
51 in the receiving state, regardless of age. A student transferring after
52 the start of the school year in the receiving state shall enter the
53 school in the receiving state on their validated level from an accred-
54 ited school in the sending state.
55 § 853. Placement and attendance. 1. Course placement. When the student
56 transfers before or during the school year, the receiving state school
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1 shall initially honor placement of the student in educational courses
2 based on the student's enrollment in the sending state school and/or
3 educational assessments conducted at the school in the sending state if
4 the courses are offered. Course placement includes but is not limited to
5 honors, international baccalaureate, advanced placement, vocational,
6 technical and career pathways courses. Continuing the student's academic
7 program from the previous school and promoting placement in academically
8 and career challenging courses should be paramount when considering
9 placement. This does not preclude the school in the receiving state from
10 performing subsequent evaluations to ensure appropriate placement and
11 continued enrollment of the student in the course or courses.
12 2. Educational program placement. The receiving state school shall
13 initially honor placement of the student in educational programs based
14 on current educational assessments conducted at the school in the send-
15 ing state or participation/placement in like programs in the sending
16 state. Such programs include, but are not limited to:
17 (a) gifted and talented programs; and
18 (b) English as a second language (ESL).
19 This does not preclude the school in the receiving state from perform-
20 ing subsequent evaluations to ensure appropriate placement of the
21 student.
22 3. Special education services. (a) In compliance with the federal
23 requirements of the Individuals with Disabilities Education Act (IDEA),
24 20 U.S.C.A. Section 1400 et seq, the receiving state shall initially
25 provide comparable services to a student with disabilities based on
26 his/her current Individualized Education Program (IEP); and
27 (b) In compliance with the requirements of Section 504 of the Rehabil-
28 itation Act, 29 U.S.C.A. Section 794, and with Title II of the Americans
29 with Disabilities Act, 42 U.S.C.A. Sections 12131-12165, the receiving
30 state shall make reasonable accommodations and modifications to address
31 the needs of incoming students with disabilities, subject to an existing
32 Section 504 or a federal Title II Plan, to provide the student with
33 equal access to education. This does not preclude the school in the
34 receiving state from performing subsequent evaluations to ensure appro-
35 priate placement of the student.
36 4. Placement flexibility. Local educational agency administrative
37 officials shall have flexibility in waiving course/program prerequi-
38 sites, or other preconditions for placement in courses/programs offered
39 under the jurisdiction of the local educational agency.
40 5. Absence as related to deployment activities. A student whose parent
41 or legal guardian is an active duty member of the uniformed services, as
42 defined by this article, and has been called to duty for, is on leave
43 from, or immediately returned from deployment to a combat zone or combat
44 support posting, shall be granted additional excused absences at the
45 discretion of the local educational agency superintendent to visit with
46 his or her parent or legal guardian relative to such leave or deployment
47 of the parent or guardian.
48 § 854. Eligibility. 1. Eligibility for enrollment.
49 (a) Special power of attorney, relative to the guardianship of a child
50 of a military family and executed under applicable law shall be suffi-
51 cient for the purposes of enrollment and all other actions requiring
52 parental participation and consent.
53 (b) A local educational agency shall be prohibited from charging local
54 tuition to a transitioning military child placed in the care of a non-
55 custodial parent or other person standing in loco parentis who lives in
56 a jurisdiction other than that of the custodial parent.
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1 (c) A transitioning military child, placed in the care of a non-custo-
2 dial parent or other person standing in loco parentis who lives in a
3 jurisdiction other than that of the custodial parent, may continue to
4 attend the school in which he or she was enrolled while residing with
5 the custodial parent.
6 2. Eligibility for extracurricular participation. State and local
7 educational agencies shall facilitate the opportunity for transitioning
8 military children's inclusion in extracurricular activities, regardless
9 of application deadlines, to the extent they are otherwise qualified.
10 § 855. Graduation. In order to facilitate the on-time graduation of
11 children of military families, states and local educational agencies
12 shall incorporate the following procedures:
13 1. Waiver requirements. Local educational agency administrative offi-
14 cials shall waive specific courses required for graduation if similar
15 coursework has been satisfactorily completed in another local educa-
16 tional agency or shall provide reasonable justification for denial.
17 Should a waiver not be granted to a student who would qualify to gradu-
18 ate from the sending school, the local educational agency shall provide
19 an alternative means of acquiring required coursework so that graduation
20 may occur on time.
21 2. Exit exams. States shall accept: (a) exit or end-of-course exams
22 required for graduation from the sending state;
23 (b) national norm-referenced achievement tests; or
24 (c) alternative testing, in lieu of testing requirements for gradu-
25 ation in the receiving state.
26 In the event the above alternatives cannot be accommodated by the
27 receiving state for a student transferring in his or her senior year,
28 then the provisions of subdivision three of this section shall apply.
29 3. Transfers during senior year. Should a military student trans-
30 ferring at the beginning or during his or her senior year be ineligible
31 to graduate from the receiving local educational agency after all alter-
32 natives have been considered, the sending and receiving local educa-
33 tional agencies shall ensure the receipt of a diploma from the sending
34 local educational agency, if the student meets the graduation require-
35 ments of the sending local educational agency. In the event that one of
36 the states in question is not a member state, the member state shall use
37 its best efforts to facilitate the on-time graduation of the student in
38 accordance with this section.
39 § 856. State coordination. 1. Each member state shall, through the
40 creation of a state council or use of an existing body or board, provide
41 for the coordination among its agencies of government, local educational
42 agencies and military installations concerning the state's participation
43 in, and compliance with, this article and interstate commission activ-
44 ities. While each member state may determine the membership of its own
45 state council, its membership must include at least: the state super-
46 intendent of education, superintendent of a school district with a high
47 concentration of military children, a representative from a military
48 installation, one representative each from the legislative and executive
49 branches of government, and other offices and stakeholder groups the
50 state council deems appropriate. A member state that does not have a
51 school district deemed to contain a high concentration of military chil-
52 dren may appoint a superintendent from another school district to repre-
53 sent local educational agencies on the state council.
54 2. The state council of each member state shall appoint or designate a
55 military family education liaison to assist military families and the
56 state in facilitating the implementation of this article.
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1 3. The compact commissioner responsible for the administration and
2 management of the state's participation pursuant to this article shall
3 be appointed by the governor or as otherwise determined by each member
4 state.
5 4. The compact commissioner and the military family education liaison
6 designated in this section shall be ex-officio members of the state
7 council, unless either is already a full voting member of the state
8 council.
9 § 857. Interstate commission on educational opportunity for military
10 children. The department hereby creates the "interstate commission on
11 educational opportunity for military children". The activities of the
12 interstate commission are the formation of public policy and are a
13 discretionary state function. The interstate commission shall:
14 1. Be a body corporate and joint agency of the member states and shall
15 have all the responsibilities, powers and duties set forth in this
16 section, and such additional powers as may be conferred upon it by a
17 subsequent concurrent action of the respective legislatures of the
18 member states in accordance with the terms of this article.
19 2. Consist of one interstate commission voting representative from
20 each member state who shall be that state's compact commissioner.
21 (a) Each member state represented at a meeting of the interstate
22 commission is entitled to one vote.
23 (b) A majority of the total member states shall constitute a quorum
24 for the transaction of business, unless a larger quorum is required by
25 the bylaws of the interstate commission.
26 (c) A representative shall not delegate a vote to another member
27 state. In the event the compact commissioner is unable to attend a
28 meeting of the interstate commission, the governor or state council may
29 delegate voting authority to another person from their state for a spec-
30 ified meeting.
31 (d) The bylaws may provide for meetings of the interstate commission
32 to be conducted by telecommunication or electronic communication.
33 3. Consist of ex-officio, non-voting representatives who are members
34 of interested organizations. Such ex-officio members, as defined in the
35 bylaws, may include but not be limited to, members of the representative
36 organizations of military family advocates, local educational agency
37 officials, parent and teacher groups, the United States department of
38 defense, the education commission of the states, the interstate agree-
39 ment on the qualification of educational personnel and other interstate
40 compacts affecting the education of children of military families.
41 4. Meet at least once each calendar year. The chairperson may call
42 additional meetings and, upon the request of a simple majority of the
43 member states, shall call additional meetings.
44 5. Establish an executive committee, whose members shall include the
45 officers of the interstate commission and such other members of the
46 interstate commission as determined by the bylaws. Members of the execu-
47 tive committee shall serve a one year term. Members of the executive
48 committee shall be entitled to one vote each. The executive committee
49 shall have the power to act on behalf of the interstate commission, with
50 the exception of rulemaking, during periods when the interstate commis-
51 sion is not in session. The executive committee shall oversee the day-
52 to-day activities of the administration of this article including
53 enforcement and compliance with the provisions of this article, its
54 bylaws and rules, and other such duties as deemed necessary. The United
55 States department of defense shall serve as an ex-officio, non-voting
56 member of the executive committee.
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1 6. Establish bylaws and rules that provide for conditions and proce-
2 dures under which the interstate commission shall make its information
3 and official records available to the public for inspection or copying.
4 The interstate commission may exempt from disclosure information or
5 official records to the extent they would adversely affect personal
6 privacy rights or proprietary interests.
7 7. Give public notice of all meetings and all meetings shall be open
8 to the public, except as set forth in the rules or as otherwise provided
9 in this article. The interstate commission and its committees may close
10 a meeting, or portion thereof, where it determines by two-thirds vote
11 that an open meeting would be likely to:
12 (a) relate solely to the interstate commission's internal personnel
13 practices and procedures;
14 (b) disclose matters specifically exempted from disclosure by federal
15 and state statute;
16 (c) disclose trade secrets or commercial or financial information
17 which is privileged or confidential;
18 (d) involve accusing a person of a crime, or formally censuring a
19 person;
20 (e) disclose information of a personal nature where disclosure would
21 constitute a clearly unwarranted invasion of personal privacy;
22 (f) disclose investigative records compiled for law enforcement
23 purposes; or
24 (g) specifically relate to the interstate commission's participation
25 in a civil action or other legal proceeding.
26 8. Shall cause its legal counsel or designee to certify that a meeting
27 may be closed and shall reference each relevant exemptible provision for
28 any meeting, or portion of a meeting, which is closed pursuant to this
29 provision. The interstate commission shall keep minutes which shall
30 fully and clearly describe all matters discussed in a meeting and shall
31 provide a full and accurate summary of actions taken, and the reasons
32 therefor, including a description of the views expressed and the record
33 of a roll call vote. All documents considered in connection with an
34 action shall be identified in such minutes. All minutes and documents of
35 a closed meeting shall remain under seal, subject to release by a major-
36 ity vote of the interstate commission.
37 9. Shall collect standardized data concerning the educational transi-
38 tion of the children of military families under this article as directed
39 through its rules which shall specify the data to be collected, the
40 means of collection and data exchange and reporting requirements. Such
41 methods of data collection, exchange and reporting shall, insofar as is
42 reasonably possible, conform to current technology and coordinate its
43 information functions with the appropriate custodian of records as iden-
44 tified in the bylaws and rules.
45 10. Shall create a process that permits military officials, educa-
46 tional officials and partners to inform the interstate commission if
47 and when there are alleged violations of this article or its rules or
48 when issues subject to the jurisdiction of this article or its rules are
49 not addressed by the state or local educational agency. This section
50 shall not be construed to create a private right of action against the
51 interstate commission or any member state.
52 § 858. Powers and duties of the interstate commission. The interstate
53 commission shall have the following powers:
54 1. To provide for dispute resolution among member states.
55 2. To promulgate rules and take all necessary actions to effect the
56 goals, purposes and obligations as enumerated in this article. The rules
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1 shall have the force and effect of statutory law and shall be binding in
2 the compact states to the extent and in the manner provided in this
3 article.
4 3. To issue, upon request of a member state, advisory opinions
5 concerning the meaning or interpretation of the interstate commission,
6 its bylaws, rules and actions.
7 4. To enforce compliance with the provisions of this article, the
8 rules promulgated by the interstate commission, and the bylaws, using
9 all necessary and proper means, including but not limited to the use of
10 judicial process.
11 5. To establish and maintain offices which shall be located within one
12 or more of the member states.
13 6. To purchase and maintain insurance and bonds.
14 7. To borrow, accept, hire or contract services of personnel.
15 8. To establish and appoint committees including, but not limited to,
16 an executive committee as required by subdivision five of section eight
17 hundred fifty-seven of this article, which shall have the power to act
18 on behalf of the interstate commission in carrying out its powers and
19 duties under this article.
20 9. To elect or appoint such officers, attorneys, employees, agents, or
21 consultants, and to fix their compensation, define their duties and
22 determine their qualifications; and to establish the interstate commis-
23 sion's personnel policies and programs relating to conflicts of inter-
24 est, rates of compensation, and qualifications of personnel.
25 10. To accept any and all donations and grants of money, equipment,
26 supplies, materials, and services, and to receive, utilize, and dispose
27 of it.
28 11. To lease, purchase, accept contributions or donations of, or
29 otherwise to own, hold, improve or use any property, real, personal, or
30 mixed.
31 12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or
32 otherwise dispose of any property, real, personal or mixed.
33 13. To establish a budget and make expenditures.
34 14. To adopt a seal and bylaws governing the management and operation
35 of the interstate commission.
36 15. To report annually to the legislatures, governors, judiciary, and
37 state councils of the member states concerning the activities of the
38 interstate commission during the preceding year. Such reports shall also
39 include any recommendations that may have been adopted by the interstate
40 commission.
41 16. To coordinate education, training and public awareness regarding
42 this article, its implementation and operation for officials and parents
43 involved in such activity.
44 17. To establish uniform standards for the reporting, collecting and
45 exchanging of data.
46 18. To maintain corporate books and records in accordance with the
47 bylaws.
48 19. To perform such functions as may be necessary or appropriate to
49 achieve the purposes of this article.
50 20. To provide for the uniform collection and sharing of information
51 between and among member states, schools and military families under
52 this article.
53 § 859. Organization and operation of the interstate commission. 1. The
54 interstate commission shall, by a majority of the members present and
55 voting, within twelve months after the first interstate commission meet-
56 ing, adopt bylaws to govern its conduct as may be necessary or appropri-
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1 ate to carry out the purposes of this article, including, but not limit-
2 ed to:
3 (a) Establishing the fiscal year of the interstate commission;
4 (b) Establishing an executive committee, and such other committees as
5 may be necessary;
6 (c) Providing for the establishment of committees and for governing
7 any general or specific delegation of authority or function of the
8 interstate commission;
9 (d) Providing reasonable procedures for calling and conducting meet-
10 ings of the interstate commission, and ensuring reasonable notice of
11 each such meeting;
12 (e) Establishing the titles and responsibilities of the officers and
13 staff of the interstate commission;
14 (f) Providing a mechanism for concluding the operations of the inter-
15 state commission and the return of surplus funds that may exist upon the
16 termination of the interstate commission after the payment and reserving
17 of all of its debts and obligations; and
18 (g) Providing "start up" rules for initial administration of the
19 interstate commission.
20 2. The interstate commission shall, by a majority of the members,
21 elect annually from among its members a chairperson, a vice-chairperson,
22 and a treasurer, each of whom shall have such authority and duties as
23 may be specified in the bylaws. The chairperson or, in the chairperson's
24 absence or disability, the vice-chairperson, shall preside at all meet-
25 ings of the interstate commission. The officers so elected shall serve
26 without compensation or remuneration from the interstate commission;
27 provided that, subject to the availability of budgeted funds, the offi-
28 cers shall be reimbursed for ordinary and necessary costs and expenses
29 incurred by them in the performance of their responsibilities as offi-
30 cers of the interstate commission.
31 3. Executive committee, officers and personnel. (a) The executive
32 committee shall have such authority and duties as may be set forth in
33 the bylaws, including but not limited to:
34 (i) Managing the affairs of the interstate commission in a manner
35 consistent with the bylaws and purposes of the interstate commission;
36 (ii) Overseeing an organizational structure within, and appropriate
37 procedures for the interstate commission to provide for the creation of
38 rules, operating procedures, and administrative and technical support
39 functions; and
40 (iii) Planning, implementing, and coordinating communications and
41 activities with other state, federal and local government organizations
42 in order to advance the goals of the interstate commission.
43 (b) The executive committee may, subject to the approval of the inter-
44 state commission, appoint or retain an executive director for such peri-
45 od, upon such terms and conditions and for such compensation, as the
46 interstate commission may deem appropriate. The executive director shall
47 serve as secretary to the interstate commission, but shall not be a
48 member of the interstate commission. The executive director shall hire
49 and supervise such other persons as may be authorized by the interstate
50 commission.
51 4. The interstate commission's executive director and its employees
52 shall be immune from suit and liability, either personally or in their
53 official capacity, for a claim for damage to or loss of property or
54 personal injury or other civil liability caused or arising out of or
55 relating to an actual or alleged act, error, or omission that occurred,
56 or that such person had a reasonable basis for believing occurred, with-
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1 in the scope of interstate commission employment, duties, or responsi-
2 bilities; provided, that such person shall not be protected from suit or
3 liability for damage, loss, injury, or liability caused by the inten-
4 tional or willful and wanton misconduct of such person.
5 (a) The liability of the interstate commission's executive director
6 and employees or interstate commission representatives, acting within
7 the scope of such person's employment or duties for acts, errors, or
8 omissions occurring within such person's state may not exceed the limits
9 of liability set forth under the Constitution and laws of that state for
10 state officials, employees, and agents. The interstate commission is
11 considered to be an instrumentality of the states for the purposes of
12 any such action. Nothing in this paragraph shall be construed to protect
13 such person from suit or liability for damage, loss, injury, or liabil-
14 ity caused by the intentional or willful and wanton misconduct of such
15 person.
16 (b) The interstate commission shall defend the executive director and
17 its employees and, subject to the approval of the attorney general or
18 other appropriate legal counsel of the member state represented by an
19 interstate commission representative, shall defend such interstate
20 commission representative in any civil action seeking to impose liabil-
21 ity arising out of an actual or alleged act, error or omission that
22 occurred within the scope of interstate commission employment, duties or
23 responsibilities, or that the defendant had a reasonable basis for
24 believing occurred within the scope of interstate commission employment,
25 duties, or responsibilities, provided that the actual or alleged act,
26 error, or omission did not result from intentional or willful and wanton
27 misconduct on the part of such person.
28 (c) To the extent not covered by the state involved, member state, or
29 the interstate commission, the representatives or employees of the
30 interstate commission shall be held harmless in the amount of a settle-
31 ment or judgment, including attorney's fees and costs, obtained against
32 such persons arising out of an actual or alleged act, error, or omission
33 that occurred within the scope of interstate commission employment,
34 duties, or responsibilities, or that such persons had a reasonable basis
35 for believing occurred within the scope of interstate commission employ-
36 ment, duties, or responsibilities, provided that the actual or alleged
37 act, error, or omission did not result from intentional or willful and
38 wanton misconduct on the part of such persons.
39 § 860. Rulemaking functions of the interstate commission. 1. Rulemak-
40 ing authority. The interstate commission shall promulgate reasonable
41 rules in order to effectively and efficiently achieve the purposes of
42 this article. Notwithstanding the foregoing, in the event the interstate
43 commission exercises its rulemaking authority in a manner that is beyond
44 the scope of the purposes of this article, or the powers granted under
45 this article, then such an action by the interstate commission shall be
46 invalid and have no force or effect.
47 2. Rulemaking procedure. Rules shall be made pursuant to a rulemaking
48 process that substantially conforms to article two of the state adminis-
49 trative procedure act as amended, as may be appropriate to the oper-
50 ations of the interstate commission.
51 3. Not later than thirty days after a rule is promulgated, any person
52 may file a petition for judicial review of the rule; provided, that the
53 filing of such a petition shall not stay or otherwise prevent the rule
54 from becoming effective unless the court finds that the petitioner has a
55 substantial likelihood of success. The court shall give deference to the
56 actions of the interstate commission consistent with applicable law and
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1 shall not find the rule to be unlawful if the rule represents a reason-
2 able exercise of the interstate commission's authority.
3 4. If a majority of the legislatures of member states rejects a rule
4 by enactment of a statute or resolution, then such rule shall have no
5 further force and effect in any member state.
6 § 861. Oversight, enforcement, and dispute resolution. 1. Oversight.
7 (a) The executive, legislative and judicial branches of state government
8 in each member state shall enforce this article and shall take all
9 actions necessary and appropriate to effectuate this article's purposes
10 and intent. The provisions of this article and the rules promulgated
11 under this article shall have standing as statutory law.
12 (b) All courts shall take judicial notice of this article and the
13 rules in any judicial or administrative proceeding in a member state
14 pertaining to the subject matter of this article which may affect the
15 powers, responsibilities or actions of the interstate commission.
16 (c) The interstate commission shall be entitled to receive all service
17 of process in any such proceeding, and shall have standing to intervene
18 in the proceeding for all purposes. Failure to provide service of proc-
19 ess to the interstate commission shall render a judgement or order void
20 as to the interstate commission, this article or promulgated rules.
21 2. Default, technical assistance, suspension and termination. If the
22 interstate commission determines that a member state has defaulted in
23 the performance of its obligations or responsibilities under this arti-
24 cle, or the bylaws or promulgated rules, the interstate commission
25 shall:
26 (a) Provide written notice to the defaulting state and other member
27 states, of the nature of the default, the means of curing the default
28 and any action taken by the interstate commission. The interstate
29 commission shall specify the conditions by which the defaulting state
30 must cure its default.
31 (b) Provide remedial training and specific technical assistance
32 regarding the default.
33 (c) If the defaulting state fails to cure the default, the defaulting
34 state shall be terminated from the interstate commission upon an affir-
35 mative vote of a majority of the member states and all rights, privi-
36 leges and benefits conferred by this article shall be terminated from
37 the effective date of termination. A cure of the default does not
38 relieve the offending state of obligations or liabilities incurred
39 during the period of the default.
40 (d) Suspension or termination of membership in the interstate commis-
41 sion shall be imposed only after all other means of securing compliance
42 have been exhausted. Notice of intent to suspend or terminate shall be
43 given by the interstate commission to the governor, the majority and
44 minority leaders of the defaulting state's legislature, and each of the
45 member states.
46 (e) The state which has been suspended or terminated is responsible
47 for all assessments, obligations and liabilities incurred through the
48 effective date of suspension or termination including obligations, the
49 performance of which extends beyond the effective date of suspension or
50 termination.
51 (f) The interstate commission shall not bear any costs relating to any
52 state that has been found to be in default or which has been suspended
53 or terminated from the interstate commission, unless otherwise mutually
54 agreed upon in writing between the interstate commission and the
55 defaulting state.
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1 (g) The defaulting state may appeal the action of the interstate
2 commission by petitioning the United States District Court for the
3 District of Columbia or the federal district where the interstate
4 commission has its principal offices. The prevailing party shall be
5 awarded all costs of such litigation including reasonable attorney's
6 fees.
7 3. Dispute resolution. (a) The interstate commission shall attempt,
8 upon the request of a member state, to resolve disputes which are
9 subject to this article and which may arise among member states and
10 between member and non-member states.
11 (b) The interstate commission shall promulgate a rule providing for
12 both mediation and binding dispute resolution for disputes as appropri-
13 ate.
14 4. Enforcement. (a) The interstate commission, in the reasonable exer-
15 cise of its discretion, shall enforce the provisions and rules of this
16 article.
17 (b) The interstate commission may by majority vote of the members,
18 initiate legal action in the United States District Court for the
19 District of Columbia or, at the discretion of the interstate commission,
20 in the federal district where the interstate commission has its princi-
21 pal offices, to enforce compliance with the provisions of this article,
22 its promulgated rules and bylaws, against a member state in default. The
23 relief sought may include both injunctive relief and damages. In the
24 event judicial enforcement is necessary the prevailing party shall be
25 awarded all costs of such litigation including reasonable attorney's
26 fees.
27 (c) The remedies provided in this section shall not be the exclusive
28 remedies of the interstate commission. The interstate commission may
29 avail itself of any other remedies available under state law or the
30 regulation of a profession.
31 § 862. Financing of the interstate commission. 1. The interstate
32 commission shall pay, or provide for the payment of the reasonable
33 expenses of its establishment, organization and ongoing activities.
34 2. The interstate commission may levy on and collect an annual assess-
35 ment from each member state to cover the cost of the operations and
36 activities of the interstate commission and its staff which must be in a
37 total amount sufficient to cover the interstate commission's annual
38 budget as approved each year. The aggregate annual assessment amount
39 shall be allocated based upon a formula to be determined by the inter-
40 state commission, which shall promulgate a rule binding upon all member
41 states.
42 3. The interstate commission shall not incur obligations of any kind
43 prior to securing the funds adequate to meet the same; nor shall the
44 interstate commission pledge the credit of any of the member states,
45 except by and with the authority of the member state.
46 4. The interstate commission shall keep accurate accounts of all
47 receipts and disbursements. The receipts and disbursements of the inter-
48 state commission shall be subject to the audit and accounting procedures
49 established under its bylaws. However, all receipts and disbursements of
50 funds handled by the interstate commission shall be audited yearly by a
51 certified or licensed public accountant and the report of the audit
52 shall be included in and become part of the annual report of the inter-
53 state commission.
54 § 863. Withdrawal and dissolution. 1. Withdrawal. (a) Once effective,
55 membership shall continue in force and remain binding upon each and
56 every member state; provided that a member state may withdraw from
A. 7976 14
1 membership by specifically repealing the statute, which enacted the
2 state's membership.
3 (b) Withdrawal from membership shall be by the enactment of a statute
4 repealing the same, but shall not take effect until one year after the
5 effective date of such statute and until written notice of the with-
6 drawal has been given by the withdrawing state to the governor of each
7 other member jurisdiction.
8 (c) The withdrawing state shall immediately notify the chairperson of
9 the interstate commission in writing upon the introduction of legis-
10 lation repealing this article in the withdrawing state. The interstate
11 commission shall notify the other member states of the withdrawing
12 state's intent to withdraw within sixty days of its receipt thereof.
13 (d) The withdrawing state is responsible for all assessments, obli-
14 gations and liabilities incurred through the effective date of with-
15 drawal, including obligations, the performance of which extend beyond
16 the effective date of withdrawal.
17 (e) Reinstatement following withdrawal of a member state shall occur
18 upon the withdrawing state reenacting its membership or upon such later
19 date as determined by the interstate commission.
20 2. Dissolution of membership. (a) This article shall dissolve effec-
21 tive upon the date of the withdrawal or default of the member state
22 which reduces the membership to one member state.
23 (b) Upon the dissolution of membership, this article becomes null and
24 void and shall be of no further force or effect, and the business and
25 affairs of the interstate commission shall be concluded and surplus
26 funds shall be distributed in accordance with the bylaws.
27 § 864. Severability and construction. 1. The provisions of this arti-
28 cle shall be severable, and if any phrase, clause, sentence or provision
29 is deemed unenforceable, the remaining provisions of this article shall
30 be enforceable.
31 2. The provisions of this article shall be liberally construed to
32 effectuate its purposes.
33 3. Nothing in this article shall be construed to prohibit the applica-
34 bility of other interstate memberships to which the state belongs.
35 § 865. Binding effect. 1. Other laws. (a) Nothing in this article
36 prevents the enforcement of any other law of a member state that is not
37 inconsistent with this article.
38 (b) All member states' laws conflicting with this article are super-
39 seded to the extent of the conflict.
40 2. Binding effect of this article. (a) All lawful actions of the
41 interstate commission, including all rules and bylaws promulgated by the
42 interstate commission, are binding upon the member states.
43 (b) All agreements between the interstate commission and the member
44 states are binding in accordance with their terms.
45 (c) In the event any provision of this article exceeds the constitu-
46 tional limits imposed on the legislature of any member state, such
47 provision shall be ineffective to the extent of the conflict with the
48 constitutional provision in question in that member state.
49 § 3. This act shall take effect upon the enactment into law by at
50 least ten other states of legislation having an identical effect with
51 this act, but if at least ten other states shall have already enacted
52 such legislation, this act shall take effect immediately; provided that
53 the commissioner of education shall notify the legislative bill drafting
54 commission upon the occurrence of the enactment of the legislation
55 provided for in section two of this act in order that the commission may
56 maintain an accurate and timely effective data base of the official text
A. 7976 15
1 of the laws of the state of New York in furtherance of effectuating the
2 provisions of section 44 of the legislative law and section 70-b of the
3 public officers law.
