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Sunday, May 21, 2017

Federal Judge Deborah Batts Gives the UFT a Win in Allowing the Union To Proceed With Arbitration For KIPP Academy Charter School Teachers

Campbell Brown, The 74
Another defeat of a case brought by Campbell Brown against the unionization of schools. The UFT wins the right to arbitrate union benefits for KIPP Academy teachers.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Federal Judge Denies NYC KIPP School’s Effort To Block Arbitration of Teacher Grievances
Parentadvocates.org, Betsy Combier, Editor May 21, 2017

A federal judge has blocked an attempt by a South Bronx charter school, part of the national KIPP network, to prevent its teachers from having an arbitrator hear their workplace grievances at the request of the city teachers union. The ruling by Judge Deborah Batts on Thursday in U.S. District Court for the Southern District of New York means that a June 14 arbitration hearing on behalf of the KIPP Academy Charter School teachers can likely move forward. They would be represented by the United Federation of Teachers.

Federal Judge Denies NYC KIPP School’s Effort To Block Arbitration of Teacher Grievances
LINK

A federal judge has blocked an attempt by a South Bronx charter school, part of the national KIPP network, to prevent its teachers from having an arbitrator hear their workplace grievances at the request of the city teachers union.

The ruling by Judge Deborah Batts on Thursday in U.S. District Court for the Southern District of New York means that a June 14 arbitration hearing on behalf of the KIPP Academy Charter School teachers can likely move forward. They would be represented by the United Federation of Teachers.

The union announced the development Friday in a statement, saying the judge’s ruling amounted to “KIPP’s third loss in its battle with its unionized employees.”

“The question of whether this case can go to arbitration has been resolved. We now look forward to an arbitrator ruling on the substance of the educators’ claims,” UFT general counsel Adam Ross said in a subsequent message to The 74.

Most charter schools are not unionized, but KIPP Academy is a rare exception. It is one of only four remaining charters in New York City that converted from a district school and so automatically retained union representation of its teachers.

KIPP Academy was established in 2000 but the collective bargaining issues only became publicly contentious recently, after some among the 80-member staff complained to the UFT last year that their bosses failed to provide summer vacation pay, appropriate sick time, prep time, and breaks during the work day, among other issues.

The KIPP school filed a federal complaint against the UFT March 14, arguing that the union contract governing working conditions for tens of thousands of city teachers doesn’t apply to teachers at its academy. The charter network has its own employee contract that governs scheduling and related issues.

But Batts’ ruling essentially rejected that argument. The judge denied KIPP’s request for a preliminary injunction to stay arbitration, explaining that a state court had had already came to that conclusion and KIPP could not try to argue the same issue again at the federal level.

KIPP has appealed that earlier ruling to the state appellate court.

Superintendent Jim Manly, who oversees all 11 New York City KIPP schools, defended the rights of KIPP Academy teachers to “decide who best represents their interests.” KIPP has said that despite collecting dues, the union has never actually carried out representative functions for staff in the school’s 16-year existence, nor objected to its policies.

This decision was not based on the underlying merits of our case but rather a jurisdictional technicality which the UFT used, once again, to block KIPP Academy teachers from having their voices heard,” Manly said in an email Friday. “This comes down to the UFT trying to impose a contract on a group of teachers while depriving those teachers of the opportunity to determine whether they want the UFT to represent them.”

The school currently serves 800 students in grades K-8.

In a separate but related dispute that preempted the federal complaint, the UFT in January accused KIPP Academy officials of violating federal labor law by actively encouraging employees to decertify the UFT as their collective bargaining representative. KIPP has said it violated no laws and will address the UFT’s allegations before the National Labor Relations Board.

KIPP Academy has fought unsuccessfully for independence from the union in the past. A 2009 decertification effort was dismissed by a state judge who accepted the UFT’s argument that decertification was subject to a vote by the majority of the 75,000 teachers in the entire city school system at that time, rather than just KIPP teachers.

Disclosure: The KIPP charter network and The 74 both receive funding from The Walton Family Foundation, The Doris & Donald Fisher Fund, Karsh Family Foundation, The Eli and Edythe Broad Foundation, and The Bill & Melinda Gates Foundation.

KIPP Complaint
KIPP Motion For an Injunction
UFT Motion To Dismiss
UFT Unfair Labor Practice Complaint
ORDER - Judge Batts

Tuesday, May 16, 2017

Monika Garg Ousted as Principal of Central Park East 1. Community Power Wins The Day

It is a wonderful thing. The Community of parents, teachers and friends of Central Park East 1 joined together to remove Principal Monika Garg based upon the facts of her wrongdoing, and succeeded.

This rare occurrence is wonderful to see, and will send a message to all those other miscreants lurking in the vast forest of principals who put children last. Stop, or community power will stop you.

Congratulations to the many people who made this happen!

Monika Garg

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


Harlem Principal Is Out After a Yearlong Civil War at an Elementary School

After a yearlong civil war inside Central Park East I, a progressive elementary school in East Harlem, the school’s embattled principal has stepped aside, the city’s education department said on Monday, handing a victory to parents who had accused her of seeking to dismantle the school’s traditions.

The principal, Monika Garg, will retain her title and salary as a principal but will no longer have a school to run. The department said the change was effective immediately.

That was a sudden about-face from Friday, when the Education Department announced that it was giving Ms. Garg a new supervisor but said that she would remain the principal.

The conflict has consumed the school since last year, dividing the parents and the staff. What the groups are fighting over has at times been hard to discern amid the volleys of accusations and counter-accusations. The parents and teachers who opposed Ms. Garg said she was trying to squelch the school’s progressive spirit by bringing it in line with department rules. They also accused her of instigating investigations against teachers who defied her.

Parents who supported Ms. Garg, on the other hand, said that the school, which was originally intended to provide a rich, arts-filled education to the children of East Harlem, had over the years become exclusionary and that its traditions had calcified. They said the investigations of teachers were justified and were not pursued out of animus.

For months, the city’s schools chancellor, Carmen FariƱa, had resisted calls to remove Ms. Garg. Things seemed to change in recent weeks, when a group of parents occupied the school overnight and then began following Mayor Bill de Blasio around the city. Even so, when the mayor was asked about the situation at an unrelated news conference on Thursday, he did not give any hint that he was pushing the chancellor one way or the other on the issue, saying that parents and teachers were divided and that the loudest group did not have “a monopoly on the truth.”

Afterward, the Education Department had seemed to waver about what to do. On Friday came the announcement that a supervisor had been placed over Ms. Garg at the school. Then, on Monday, Ms. Garg did not return to the school. In a brief interview there in the early afternoon, her new supervisor, Dolores Esposito, said she could not say why Ms. Garg was not there or whether she would continue as principal.

“We can’t answer that,” she said as she hurried away from a reporter.

The Education Department did not immediately name an interim leader but said Ms. Esposito would continue to oversee the school.

Central Park East I was founded in 1974 by Deborah Meier, a leader in the small schools movement, who started several other schools and won a MacArthur fellowship, known as a “genius grant,” in 1987.

Sunday, May 14, 2017

Probationary Teacher Nayana Vyas Failed to Overturn Her U-Rating or Prove Retaliation (2015)

Another probationary teacher who cannot reach the standard for bad faith or retaliation.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.

14367 In re Nayana Vyas, Index 102253/12
Petitioner Appellant, -against  - City of New York, et al., Respondents-Respondents. Glass Krakower LLP, New York (Jordan Harlow of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.

Judgment, Supreme Court, New York County (Kathryn E. Freed, J.), entered June 25, 2013, insofar as appealed from as limited by the briefs, granting respondents’ cross motion to dismiss, pursuant to CPLR 3211(a)(7), the petition seeking the annulment of respondents’ denial of petitioner’s appeals of her unsatisfactory ratings (U-ratings) for the 2009-2010 and 2010- 2011 school years, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner, who was formerly employed by respondent New York City Department of Education (DOE) as a probationary teacher, brought this proceeding under CPLR article 78 to annul her U ratings for the 2009-2010 and 2010-2011 school years. In lieu of answering the petition, respondents made a cross motion, pursuant to CPLR 3211(a)(7), to dismiss the petition for failure to state a cause of action. Because petitioner has not pleaded any specific facts giving rise to a fair inference that the U-ratings were arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure, Supreme Court properly granted the cross motion and dismissed the petition.

With regard to the U-rating for the 2009-2010 school year, petitioner’s primary complaint is that she was evaluated based on assignments to teach science classes, which were outside her area of certification (mathematics). However, DOE was entitled to assign petitioner (who holds a medical degree) to teach science classes, notwithstanding that her certification is in mathematics. The provision of the Rules of the Board of Regents that prohibits assigning a teacher “to devote a substantial portion of [her] time in a tenure area other than that in which [she] has acquired tenure or is in probationary status, without [her] prior written consent” (8 NYCRR § 30-1.9[c]) is “not . . . applicable to city school districts located within cities having a population in excess of 400,000 inhabitants” (8 NYCRR § 30- 1.2[e]), such as DOE (see Steele v Board of Educ. of City of N.Y., 40 NY2d 456, 463 n 2 [1976]).

Since DOE was entitled to make the teaching assignments in question, its evaluation of petitioner based on those assignments does not give rise to an inference that the resulting U-ratings were arbitrary, capricious, or made in bad faith, nor were the U-ratings issued in violation of lawful procedure. Further, given that petitioner was a probationary teacher who could have been discharged at any time, for any lawful reason or no reason at all under Education Law § 2573(1)(a) (see Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, 525 [1978]), bad faith cannot be inferred from the fact that the U-rating was issued after the school principal insisted that petitioner sign an agreement consenting to an additional year of probation to avoid being discharged.

The petition’s remaining allegations concerning the 2009-2010 school year also fail to raise an inference that her U-rating for that year was issued in bad faith or was otherwise improper. The only basis alleged in support of petitioner’s challenge to her U-rating for the 2010-2011 school year is the contention that it was issued in retaliation for her having filed a complaint with the State Department of Education against the principal who issued her U-rating for the previous year, when she was teaching at a different school.

This fails to state a cause of action for annulment of the rating because petitioner’s imputation of a retaliatory motive for the U-rating is entirely speculative; the specific facts alleged do not give rise to a fair inference that the U-rating was improperly motivated (see Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [1st Dept 2011]).

Notably, petitioner admits that she was assigned to teach within her area of certification during the 2010-2011 school year, and she alleges no procedural irregularities that might have undermined the integrity or fairness of the rating process for that year (cf. Matter of Kolmel v City of New York, 88 AD3d 527, 529 [1st Dept 2011]).


THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 17, 2015 _______________________

RE: the Appeal of Suzanne Varriale, Who Did Not Testify At Her 3020-a Case

Automatic termination. That's the penalty in any case where the Respondent does not testify.

Why?This leaves no appeal, as an Article 75 Petition filed in the Supreme Court to overturn a 3020-a arbitrator's decision is called. The arbitrator in her case had nothing to look at about whether or not the charges were untrue.

I don't know of any 3020-a decision won by a Respondent(charged employee) who did not testify. All the cases I have show termination.

In the case of J.S., who filed an Article 75 to overturn his arbitrator's decision but he did not testify, New York State Supreme Court Judge Alice Schlesinger reprimanded him for not testifying. She told us that she needed something from the Petitioner at the 3020-a to use if she denied the Corporation Counsel's Motion To Dismiss. I was in her chambers, invited by her after I went with J.S. to his oral argument. She told us that she had to sustain the termination, even though she didn't want to, because J.S. had a witness who testified that he was an excellent teacher. She dismissed the Petition.

In sum, do not go to a 3020-a and not testify. Give your side of the story.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


2017 NY Slip Op 02513

IN RE SUZANNE VARRIALE, Petitioner-Appellant,

v.

CITY OF NEW YORK, ET AL., Respondents-Respondents.

3572, 652189/14.
Appellate Division of the Supreme Court of New York, First Department.
Decided March 30, 2017.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 10, 2015, which, after a hearing, denied the petition to vacate the determination of respondent New York City Board of Education, dated July 7, 2014, which terminated petitioner's employment as a tenured school teacher, and dismissed the proceeding, unanimously affirmed, without costs. Although petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been preferred against her, in light of the seriousness of the allegations herein, the penalty of termination was not shocking to one's sense of fairness (see Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656, 657 [1984]). The record showed that petitioner strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence. Even after security personnel defused the situation by removing the student from the classroom, petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning, to the student's scheduled class in the gymnasium, although the student, having been suspended from school, was not there (compare Riley v City of New York, 84 AD3d 442 [1st Dept 2011]). Further, as noted by the hearing officer, had the student been in class that morning, the possibility of violence occurring was very real, and petitioner conveyed a message to other students that she could not rely upon school authorities to control threats of violence against a teacher by a student.
Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondents.
Before: Tom, J.P., Moskowitz, Feinman, Gische, Kapnick, JJ.
Petitioner also showed no remorse nor appreciation for the seriousness of her conduct (see e.g. Matter of Villada v City of New York, 126 AD3d 598, 599 [1st Dept 2015]) to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record (Matter of Carangelo v Ambach, 130 AD2d 898, 900 [3d Dept 1987], appeal denied 70 NY2d 609 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Saturday, May 13, 2017

New Jersey Judge Dismisses a Lawsuit Challenging State Rules Requiring School Districts to Base Teacher Layoffs on Seniority

74 co-founder and board member Campbell Brown
Campbell Brown loses another lawsuit aimed at ending the tenure protections of teachers. Her latest attempt involved stopping the "last in first out" excessing, where senior teachers stay and newbie teachers leave if there are layoffs.

See the Lawline episode on that with me, Attorney Bryan Glass (who asked for my participation for this show) and former DOE prosecutor Attorney Michael Mazzariello:

Lawline TV: Teachers Unions & the Last In First Out Rule

Enjoy.

Betsy Combier





HG v. Harrington Legal Filings


New Jersey Judge Tosses Parents’ Lawsuit Claiming Last In, First Out Layoff Rules Harm Students

New Jersey judge swiftly dismissed a lawsuit Wednesday that challenged state rules requiring school districts to base teacher layoffs on seniority regardless of performance in the classroom.
New Jersey Superior Court Judge Mary C. Jacobson told a Trenton courtroom that the plaintiffs had failed to establish how seniority-based layoff rules known as “last in, first out” were harming their children.
“I don’t see any link other than speculation and conjecture between the LIFO statute and the denial of a thorough and efficient education to these 12 children,” Jacobson said.
The lawsuit, HG v. Harrington, was filed in November on behalf of a dozen Newark students, claiming that “last in, first out” mandates governing teacher layoffs violate their right to a “thorough and efficient” and “equal” education system under the state Constitution.
The complaint was sponsored by The Partnership for Educational Justice, a national education reform nonprofit founded by 74 co-founder Campbell Brown. Named defendants include the New Jersey State Board of Education and Newark Public School District.
The American Federation of Teachers and the New Jersey Education Association, considered “intervening” defendants in the case, filed the motion to dismiss.
(Read: New Jersey Parents File Lawsuit to End First-In, Last-Out Layoffs)
The parent plaintiffs charged that children attending Newark Public Schools and other poverty-ridden districts are denied an equitable education because statutes requiring “quality-blind” layoffs force those districts to lay off effective teachers rather than ineffective ones, or to cut spending elsewhere in the budget rather than lay teachers off.
In recent years, Newark Public Schools avoided layoffs by refusing to assign ineffective educators to any job, placing them instead in the Educators Without Placement Sites (EWPS) pool.
Even without a job, those educators are still paid — a cost that ballooned from $6.4 million in the 2011–12 school year to $22.6 million in the 2013–14 school year. Newark Public Schools Superintendent Chris Cerf, who was appointed in 2015, has since transitioned hundreds of those unassigned educators back to the classroom. Newark Public Schools plans to spend about $8 million for an estimated 80 educators in the EWPS pool next school year, according to the district.  
Kathleen Reilly, a lawyer for the plaintiffs, called the EWPS pool a “work-around” that “diverts the district’s already limited resources” to pay the salaries of ineffective teachers.
But union lawyers argued that because Newark Public Schools has not laid off teachers recently or announced a plan to do so in the immediate future, the plaintiffs did not establish negative consequences of the rules.
“They don’t name a single program or resource or opportunity that any individual plaintiff has been denied and which has caused that individual plaintiff harm,” said Steve Weissman, a lawyer for the AFT. “There is absolutely no specificity here.”
Reilly said the plaintiffs might appeal the dismissal to the appellate court or replead the case.
“I don’t think these parents want us to move on” from the case, she told reporters after the hearing.
HG v. Harrington is the third lawsuit filed by the PEJ challenging teacher tenure protections. In 2014, the group filed Wright v. New York, which is currently before the state Supreme Court. Last year, the group filed Forslund v. Minnesota, but it was dismissed by a judge who said issues governing teacher layoffs should rest with state lawmakers. The plaintiffs in that case have since appealed the judge’s decision.
Editor’s Note: 74 co-founder and board member Campbell Brown founded the Partnership for Education Justice. The Walton Family Foundation partially funds The 74 and PEJ

The Unlawful Randomness of Labor Arbitration 3020-a in New York City

re-posted from Parentadvocates.org:


From Editor Betsy Combier: For 14 years I have observed and worked on the labor arbitration known in New York City as 3020-a. 3020-a arbitrators, one in each case, sit in judgment of a tenured employee of the NYC DOE and can exonerate, fine, suspend from employment without pay or terminate any charged person brought before them.The United Federation of Teachers and the New York City Department of Education run these hearings in such a way as to deny the charged employee their rights under New York State law.

On this website I have reviewed countless cases of arbitrator abuse and worked as a paralegal to overturn some of the worst (see the cases of Lisa Broad, where I assisted Attorney Candace Deamer, and David Suker, where I assisted Attorney Maria Chickedantz; see here as well). These are two of the 35 Appeals I have assisted with where New York State Supreme Court Judges overturned the decision of the arbitrator based on this decision being "excessive" for the crime or misconduct sustained at the hearing.

The trouble with all of this is that the process is random.

Every hearing is unique. I know, because I have attended/worked on at least 60 if not more, and I have reviewed hundreds of decisions of arbitrators and, before 1994, the Commissioner of New York State Department of Education. I find the randomness fascinating. How did one arbitrator find that a teacher was guilty of slamming a child against a wall to remove them from a fight in the classroom and give a $7500 fine, while another gets terminated for the same act, or less?

The fines, suspensions and terminations are not uniform or set to any standard. This is unlawful, because tenure in New York State is protected, public policy. There is a high standard for termination, and the arbitrators write their decisions often to get away with doublespeak on how egregious the charges were, to try to reach a justification for termination that they were told by a DOE person before the hearing began that they had to find. The case of Peter Principe went to the Court of Appeals on the issue of bias by Arbitrator Stuart Bauchner against him, and, as Peter insisted he was innocent of the misconduct, he would not be remorseful. Peter won .

Oh yes, folks, the permanent panel in New York City lends itself to all kinds of legal abuse. In other parts of New York State outside of New York City, when an tenured school employee is charged, these charges immediately go to a vote in an Executive Session of the school board on probable cause. As tenure is a property and liberty right in New York State, the Fourteenth Amendment covers any unlawful seizure (I am not a lawyer, this is my opinion):

"C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property."

Thus any arbitrator who agrees to take a case handed to them, randomly - not - by the NYC DOE and the UFT, knows that they must meet a Constitutional Standard in their decision for/against penalty in each case.

Many arbitrators don't care, and do what is fair. My favorite arbitrator of recent years is Eugene Ginsberg. I believe that he was the most thorough, fair arbitrator on the panel. He was fired in September 2016.

He told me that if that was because of his decisions, so be it. See his decision in the case of Ann Legra.

Where some arbitrators will terminate anyone with so-called "excessive" absences, Arbitrator Ginsberg did not.

As I wrote above, some arbitrators have a problem being fair, and go along to get along with the Department of Education in order to stay on the permanent panel. When you are in a hearing, you can spot these arbitrators a mile away. I will write about them in a later post.

New York State Supreme Court Judge Lucy Billings has a problem with the randomness of the New York City 3020-a arbitrators in their penalties, as she wrote in the case of Moreno-Lieberman, which I use in all my closing arguments:

"IV.THE INVITATION TO ARBITRARY ASSESSMENT OF PENALTIES

In fact, the absence of any specific guidelines for the imposition of fines in teachers' disciplinary proceedings shocks the conscience and is a deficiency to be addressed by respondents or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decisionmakers must do so fairly, not arbitrarily. General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 (2004); Abraham & Strauss v. Tully, 47 NY2d 207, 213-14 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d 796, 804 (Sup. Ct. Bronx Co. 2008). Neither the Education Law, nor the Chancellor's Regulations, nor any other code fixes any "primary standard" or articulates any objective test or gauge, General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d at 254; Nicholas v. Kahn, 47 NY2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805, to guide respondents' or Hearing Officers' exercise of authority and discretion in their assessment of monetary penalties. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d 402, 407-408 (1997); Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805. See Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 405-406. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, e.g., Goodwin v. Perales, 88 NY2d 383, 392 (1996), yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty. Nicholas v. Kahn, 47 NY2d at 33-34; Levine v. Whalen, 39 NY2d 510, 518-19 (1976); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805-806.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decisionmaking. 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806. By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 408; Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806; Dawson v. Village of Spring Val., 151 Misc 2d 128, 134 (Sup. Ct. Rockland Co. 1991). See C.P.L.R. § 7803(3)."

So what is a teacher supposed to do who is charged with 3020-a? Fight. Don't  settle, resign or disappear. The charges will follow you for the rest of your career. But be wary of anyone who belittles you, your charges, or does not have experience in NYC 3020-a. NYC is a minefield with bizarre statements made on a consistent basis, which must be addressed on the spot, at the hearing. The DOE wants their witnesses to lie, if that is what it takes to terminate a charged employee. Catch the lie, and have your representative squeeze out the truth in cross examination. The record made is what you work with on appeal.

In my opinion there are NYSUT attorneys who know what to do, but don't do work on any case if at all possible; some NYSUT attorneys do a minimum amount of work but are reluctant and must be pushed, and then there are NYSUT attorneys who seem to work diligently, but nonetheless will not get all your requests (medical, witnesses, exculpatory evidence) into the record, which in my mind is absolutely required, if you are to win at the 3020-a or in appeal.

The process in NYC starts out on the wrong foot when, in the charging papers, the Notice of Determination of Probable Cause Pursuant to Education Law 3020-a, has no date for the Executive Session of the school board (in NYC the Panel For Educational Policy) required by Education Law 3020-a(2)(a). The reason is that the NYC Department of Education never allows or schedules an executive session for the NYC school board, because they don't want it.

Really,  and they get away with this in NYC because.

Just because you don't want to do something does not mean that you can allow a law to be ignored, but that is exactly what the NYC DOE does, and has done. In every case that I work on, we - the Attorney and I - submit a Motion To Dismiss the charges based on this procedural error. The arbitrator always dismisses this motion. But we use this in an appeal to the Supreme Court, and as I wrote above, we have overturned 35 decisions of arbitrators to date.

We have no secret on winning 3020-a. In every case the standard is to be respectful to the arbitrator but not to accept any Department nonsense without vigorously objecting, pointing out lies, submitting documentation about violations of law and UFT rules (there are always many in every case) and submit a dynamite closing argument that shows the arbitrator that the legal team - the Respondent, Attorney, paralegal - mean business, and will take any penalty seriously (and appeal, get media coverage of the arbitrator, etc.).

In sum, what I'm saying is that NYC 3020-a is a random and arbitrary mess, but it is entirely possible to clear the name of a charged employee , or avoid termination, by going to a decision of the arbitrator. The Respondent (charged employee)'s legal team MUST work together, sharing the transcripts as the hearing moves forward, and constantly working through the lies and violations of law and contract presented by the DOE. Then you can win.

Consultations are always free, and confidential.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


Teacher Marilyn Martinez is Cleared of All Charges in Her 3020-a, Proving CPE1 Principal Monika Garg's Vindictiveness

and proving that Principals can, and do, use 3020-a labor arbitration as a tool to remove teachers from their school who speak up, are too expensive, or otherwise a pain in the a__.

Retired teacher Norm Scott and the wonderful, dedicated New York teachers and parents and friends of Central Park East 1 (CPE1) have done it! Through their amazing reporting and participation on exposing the unlawful charges filed against Marilyn Martinez , a teacher at Central Park East 1, there was an exceptional outcry against the NYC Department of Education and the United Federation of Teachers for allowing this to happen. Everyone should rush to his blog and review his posts on exactly what happened.

It takes a community, sometimes, to win a case.

Norm has not worked on 3020-a and does not have any first hand information about how it works or about any of the arbitrators, however he never mentions me, my blog, or blog posts on his blog Ed Notes Online, or posts any of my information on 3020-a.

I don't have all the first hand information about NYC schools and the Department that Norm has, so we are not competitors in any way.

Luckily, I dont need Norm's stamp of approval for my work, as my experience and expertise is 3020-a, and I do not have the same animosity towards him. So, I commend him for his work on this case! Norm and all the supporters of Marilyn Martinez, who showed up at 100 Gold Street despite the fact that Marilyn did not have an open and public hearing, showed arbitrator Burrell that the charges were based on nothing but Principal Garg's unconscionable vindictiveness and retaliation.

I also praise Arbitrator Dean Burrell for his excellent decision.

Arbitrator Dean Burrell

He is new to the permanent panel in NYC, and is one of the best arbitrators currently there.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
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DOE/Legal Rushes to 3020a Kangaroo Court for Central Park East 1 Chapter Leader Starting Today: Parents to Rally OutsideEd Notes Online

Supporters of Marilyn Martinez in the waiting room at 100 Gold Street, 3020-a arbitration hearing office


SATURDAY, MAY 13, 2017

You might be asking why the constant reporting on CPE1? Because the story contains the essence of so much that is going on in the NYC DOE and the UFT. 
Abuse by principals and superintendents and Farina at the top in targeting schools and senior teachers.
They follow a  blueprint that the UFT doesn't share with its members.
Teachers and parents at first accept the principal who lies and manipulates -- it takes them months since they had never seen anything like that before. 
UFT ignores situation for over a year with teachers charging the Dist Rep with showing favoritism toward the principal and the Supt over them.
In desperation, teachers contact MORE despite being warned by UFT that MORE is only interested in using them. Or any other lies they can make up.
UFT says it is working behind the scenes but will not call publicly for Garg's removal nor use its PR machinery to promote the story.
Here is where we diverge from the typical story. 
Parents take charge -- not a small group -- like the Garg supporters -- but a massive outpouring. We suggest they go to the PEP meetings when we met with them in Feb. 2016. They weren't even clear what PEP meetings were but they learned fast and have attended every one since March 2016. They even begin going to the Delegate Assembly to pass out leaflets.
MORE/NA elect 7 HS Ex Bd reps who begin bringing them to Ex Bd meetings soon after Marilyn - the CL - removed in February-- the impact hits union leaders right in the face.
We expect the hearing officer to split the baby and fine Marilyn, thus preventing her return to the school. But she wins outright.
The return of Marilyn Martinez to the classroom this Monday and the appointment by Farina of a Superintendent who may not have the same buddy buddy relationship that existed between the current Dist 4 Supt Alexandra Estrella and Monika Garg.
Later today the parents are throwing a party for Marilyn at a restaurant in East Harlem to celebrate but the struggle against Garg will continue because she had broken trust with everyone.

Fact is both Estrella and Garg have committed acts of a vendetta that should get them both fired. But we know supervisors will never go away -- like Townsend Harris' Rosemary Jahoda is sitting somewhere waiting for a new assignment -- and there are rumors she was offered some principalships which is like putting Willie Sutton in charge of running a bank.

Mulgrew - you can say we all put enough pressure on him -- did play a role behind the scenes in demanding Marilyn Martinez be returned to the classroom -- but that is her legal right - and any teacher winning a 3020a should be returned -- it shouldn't take a massive parent protest, sit-ins and boycotts.

That the issue was about Marilyn supposedly giving a parent advice on getting into the school was the cause of the youngest children losing their teacher for 2 months and 3020a firing charge- with Garg luring in a parent and taping her - while telling parents she had no role in the removal of Marilyn - should cause her instant dismissal and charges filed against her. She did the same with the other teacher who has been out of there for 15 months - using a more serious charge of corporal punishment -- also made up - the parent of the child testified for the teacher. I think the teachers have grounds for a personal law suit against Garg and Estrella and possibly Farina.

This is where the UFT is failing -- failing to call public attention to these outrages.

The NY Times' Kate Taylor has another poorly reported and biased story today:

https://www.nytimes.com/2017/05/12/nyregion/after-protests-harlem-elementary-school-principal-gets-new-supervisor.html?smprod=nytcore-iphone&smid=nytcore-iphone-share

Examine these 2 paragraphs:
For more than a year, a group of parents [massive group of parents representing the majority] at the school has been demanding the removal of the principal, Monika Garg, who started in 2015. The parents seeking her removal have accused her of watering down the school’s progressive approach and instigating investigations that led to the temporary removal of two teachers. [Does she know that these removals are often not temporary?]

Another group of parents, and some of the school’s teachers, [a giant wtf - a small group of parents and a few teachers] support Ms. Garg, saying that she has tried to bring order to a school that long flouted department rules.They say that there were inequities in admissions and that some students were underperforming.
Note how Taylor gives the pro-Garg talking points but not the major talking points against Garg -- like a mile long.

Now let's look at this:
The department had sought to remove Ms. Martinez, citing accusations that she had attempted to assist a parent in violating the schools admissions policies, according to a person familiar with the charges.
But an arbitrator found the accusations unsubstantiated and dismissed the charges.
Does Taylor know about the impact of 3020a charges to dismiss instead of putting a letter in her file? Does she even question the idea of the cost to the DOE for trying to get Marilyn fired for "attempt[ing} to assist a parent in violating the schools admissions policies"? Another giant WTF.
The case against the other teacher, Catlin Preston, is still pending. The department is seeking to remove him on charges that he meted out corporal punishment.
Now this -- essentially slandering Catlin by mentioning corporal punishment - but not reporting that the parent was lied to and in fact testified for Catlin. The parent has made public statements and I believe has told Taylor the story. This is not only bad reporting but dishonest, biased reporting.

What about the UFT role?
And then there's the role the district rep, Servia Silva played favoring Garg and Estrella, something we witnessed in person when she gave the pro-Garg crew that showed up at the Ex Bd meeting an effusive greeting while she ignored the vet teachers who have been fighting Garg. We saw no sign of Silva meeting after meeting when parents en masse showed up. I never saw Silva at one of the hearings for Marilyn.

Let's be clear -- all tenured teachers were under investigation by Garg starting in the fall of 2015 -- no red flag at the UFT? They came to MORE in frustration in Feb/March 2016 but after that they took control on their own --some of us came out to support them when we could. They came back to MORE for help in March 2017 after Marilyn was facing 3020a hearings- and we suggested they come to the Ex Bd. But before that there was no reaction at the UFT --- I know - they will claim behind the scenes -- but in fact with these flimsy charges against a CL who fought the principal, the UFT should have raised the riot act when she was removed and charged -- there are many teachers under investigation who remain teaching as long as children aren't involved.

Why did it take the UFT over a year to take note of this situation? Why does so much of the UFT hierarchy seem to be in bed with administrators?

The lesson is that we must shine the light on the cockroaches to flush out the UFT leadership into taking some action, even if weak.