Wednesday, February 1, 2012

Ithaca Lawyer NYS Teacher Certification and Marijuana Charges

As a criminal defense attorney I really believe that my job is all about protection. The problem is that most people (me included) can't protect against unseen or unknown enemies. Studying the law (the statutes) gives you a keen insight into anticipating issues. Criminal or even non-criminal charges involving drugs, marijuana, and controlled substances are a powder keg (a ticking time bomb) to those that have professional licenses and/or certifications. In this blog I really want to focus on New York teachers and their certifications. I'm straight from Brooklyn so NYS is near and dear to my heart. I recognize that some of the New York rules, laws, and statutes can be antiquated to many people.

In NYS any violation (of law) is professional misconduct for a professional license holder. One overlooked profession (in more ways than one) are teachers. They must have teaching certifications to teach. If they have any misconduct involving specific offenses they face loss of this certification. Those seeking licensure (certification) also must deal with any of their past convictions. Remember the focus of this blog is on the administrative issues not the criminal ones even though they integrate with one another. Administrative sanctions have a much lower standard (level) of proof. It is just a bit higher than the civil standard of preponderance of the evidence. This is also referred to as a little more likely than not that something is or isn't.
Some have referred to this as the substantial evidence standard. It is a far cry from proof beyond a reasonable doubt used in criminal matters. A license is merely a permission and does not rise to the standard of a protected right. You have NO right to teach or do any other profession.

How Many Professional (working) People Smoke Pot?

I don't know the answer to that question but I can tell you alot. In the last 10 years I have been offered more pot by more adults at social gatherings than you may imagine. My pot days are behind me but I understand the desire of people to chill out whether with a drink, a smoke, or a relaxing substance. Drugs have been around for thousands of years, they are not going away anytime soon, and used responsibly they can be life savers and life enhancers.

So What's the Problem?

What many people don't know is that a seemingly innocuous pot charge (even at the violation level) can lead to severe discipline to a teacher's livelihood. A mere marijuana violation (penal law section 221) and subsequent conviction for smoking, and/or possessing pot will lead to a rebuttable presumption that you are unfit (lack moral character) to teach.

This is under NYSED Part 83 Determination of Good Moral Character. If you are convicted of any of the specifically enumerated offenses (a marijuana violation is one of them) then you are presumed immoral and unfit. This rebuttable presumption is one in which you are presumed to be morally guilty.

Section 83.4. Hearing.

(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.

Then it is your job to prove your fitness and morality to the board. If you are applying for a license there is NO rebuttable presumption. The statute specifically reserves that for those who already have certification and then commit a crime subsequent to that certification.

The potential penalties are highlighted below:

Section 83.6. Penalties.

(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 (for new applicants); and the hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose one of the following alternative penalties upon certified (for those with certifications) 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.

What Can One Do?

Prepare to stop it ALL at the root cause: the criminal and/or drug and/or pot conviction level.

First, if facing any criminal charges and/or violations of law consult with a knowledgeable attorney.
Second, you should always seek to obtain a NON-criminal disposition to your charges.
Third, if you cannot get a NON-criminal disposition then seek a NON-drug related disposition to the charges.

Level two: Be proactive, Get an Eval, and folow through.

If there is no way to prevent a conviction for the criminal and/or drug charge then get a drug/alcohol assessment/evaluation by a NYS certified evaluator ASAP. Follow through on the appropriate recommendations. Go for a 2nd opinion if you think they are off base. They are like any other health care providers, some may think everyone is messed up and needs extensive treatment. See the OASAS website for certified NYS evaluators. The site below is extensive but you must do your research, not all evaluators are equal. Some charge an arm and a leg for a simple evaluation, some may see as an opportunity to get a patient, be careful. Some may say the same things of me but hey I warned you.

If You Have a Hearing Prepare for It

Go into the board fully armed to prove your value, your worth, your good deeds, your history, and any proactive steps you have taken. Do not allow anyone to take something you have worked so hard to obtain without a fight. Licenses are precious, they are more than just pieces of paper, they allow people to serve in a great many capacities, and they need to be valued. Do you need a lawyer? That is a million dollar question. Actually, if you have a lawyer at the lower level (legal defense) you may not ever get to a license hearing. Every case and situation is different and unique. Always best to consult with counsel (what did you think I would say?, I'm a lawyer).

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850