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Monday, September 27, 2010

A Personal View From Betsy Combier On NYSUT And What The Attorneys Do Wrong In The 3020-a Process

To all NYSUT Attorneys who know me and wish I had never attended any 3020-a hearings: stop belittling me to your clients. It never ceases to amaze me that you feel that you can threaten, yell at, and otherwise intimidate your clients and think that they will not talk to me and others about every word you have said. Some of you say I am a terrific advocate, but all of you tell your clients not to talk with me, and certainly not to listen to me because I dont know what I'm saying. Teachers, dont listen to this. It's their fear that compels them, their fear of ending up on this blog or somewhere else, with a true picture of their wrong-doing in the 3020-a hearing (yours) when a decision comes back saying that you have been terminated or suspended without pay for a year after your defense successfully proved your guilt. That's right, you are guilty until proven innocent at these hearings.

NYSUT attorneys are not doing their job of proving that the charges brought against you do not rise to the level of termination, a year without pay, or some other award. A point of clarification: if you are guilty of maliciously harming a child, deliberately deceiving or stealing  from someone, I am not talking about you. Let's assume for the rest of this post I am referring to all tenured folk who never did anything wrong, or accidentally touched a shoulder or some accident happened that got you into the guilty column at the NYC headquarters.

Back to the wrong-doing. I'll give you some examples to think about. Did your NYSUT attorney tell you that he/she will subpoena your principal and AP so that you can get direct testimony from the people who charged you? (Cross-examination only allows your representative/lawyer to ask questions relative to what opposing counsel asked already). Were all exhibits you provided your attorney that showed your innocence submitted to the arbitrator as exhibits in your defense? Is your attorney arguing that as 3020-a states that your charges must be voted on by a school board before you are charged (look at your packet for 3020-a, APPENDIX A), your charges must be dismissed? If not, perhaps you should think about getting other representation.

I'm not an attorney, it's true. I'm an advocate, which means that I am a person who "assists, defends, or pleads for another...An assistant...pleader of causes." (Black's Law Dictionary, 6th Edition - p.55 -thanks, Polo). I read law books, I do my legal research at all the law libraries in town, due to the kind donations of wonderful folk who contribute to my work. I do not represent anyone in a courtroom, nor do I give legal advice. Legal information easily accessible on the internet, and what I see and hear with my own two green eyes and my ears is mine to give to whomever I want to talk to, which is everybody.

More than a year ago I asked Claude Hersh, chief counsel at NYSUT NY (52 Broadway, 9th floor, 212-533-6300), to please ask Attorneys Mitchell "Mitch" Rubenstein and Melinda Gordon to stop threatening dire consequences if their clients spoke to me. Neither of these attorneys stopped, and I have heard that both are being fired by their clients (not just because they say not to speak with me) as a result of their perceived incompetence or intimidating tactics. In fact, later today, September 27, 2010, I have been asked to attend an open and public hearing where the client fired Melinda last week, and found a new private attorney. I defend rights, and I cannot and will not be silent when the due process rights are denied to anyone. This is the bottom line.

And what's even better, I get to decide when, where, and by whom these rights are being violated, on these pages, and on my website Parentadvocates.org and my other blogs, including New York Court Corruption, another topic that breaks my heart (and caused my heart to almost stop on July 22, 2006).

So, back to NYSUT and what the attorneys do wrong. I'm not going to list everything here, I'll just leave you with a few examples. Maybe my speaking out will make things worse, maybe better. What matters is that if you are yelled at and treated without respect by your NYSUT attorney - or anyone, for that matter - tell me. Tell someone. It's not ok.

To all readers who have been fortunate enough not to have this experience, let me give you a general picture, taken from seven (7) years of attending 3020-a hearings at the request of respondent tenured teachers who know that it is their right to have an open and public hearing. Read the contract for rules of the 3020-a arbitration. Oh yes, let's not forget that no attorney wants you to have an open and public hearing. Think about it. If you are allowed to have people -unknown people - come into your hearing and sit there, this person or these people can watch your attorney do his/her job, and that's not a good thing if you are the attorney, and you know that you are not doing a good job, not following the law or your ethical mandate, and/or the deal has been pre-set as to penalty before you ever begin. You dont want any extra eyes watching you, unless you know you are doing an excellent job of defending your client. At least that's what I think. I, for one, know who you are.

Below is Article 61, Section 3020-a, copied and pasted exactly as it is on the internet. Read it, and if your charges were not voted on by the New York City school board (Panel For Educational Policy), then how  come the arbitrator thinks that he/she can determine Just Cause?

Think about it.

Betsy Combier
September 27, 2010

New York Education - Article 61 - § 3020-A Disciplinary Procedures and Penalties

§ 3020-a. Disciplinary procedures and penalties. 1. Filing of charges.


All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred
seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board
during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section two thousand five hundred
seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

2. (a) Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges,
the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.

(b) The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has
entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical abuse of a minor or student.

The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter.

(c) Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel. All other charges shall be heard by a single hearing officer.

(d) The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing.

Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner of education of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.

3. Hearings. a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner of education shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner of education shall forthwith send a copy of both simultaneously to the employing board and the employee.

b. (i) Hearing officers. All hearings pursuant to this section shall be conducted before and by a single hearing officer selected as provided for in this section. A hearing officer shall not be eligible to serve as such if he or she is a resident of the school district, other than the city of New York, under the jurisdiction of the employing board, an employee, agent or representative of the employing board or of any labor organization representing employees of such employing board, has served as such agent or representative within two years of the date of the scheduled hearing, or if he or she is then serving as a mediator or fact finder in the same school district. Notwithstanding any other provision of law, the hearing officer shall be compensated by the department with the customary fee paid for service as an arbitrator under the auspices of the association for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties. All other expenses of the disciplinary proceedings shall be paid in accordance with rules promulgated by the commissioner of education.

(ii) Not later than ten days after the date the commissioner mails to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.

(iii) If the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from said list and so notify the commissioner within ten days after receiving the list from the commissioner, the commissioner shall request the association to appoint a hearing officer from said list.

(iv) In those cases in which the employee elects to have the charges heard by a hearing panel, the hearing panel shall consist of the hearing officer, selected in accordance with this subdivision, and two additional persons, one selected by the employee and one selected by the employing board, from a list maintained for such purpose by the commissioner of education. The list shall be composed of professional personnel with administrative or supervisory responsibility, professional personnel without administrative or supervisory responsibility, chief school administrators, members of employing boards and others selected from lists of nominees submitted to the commissioner by statewide organizations representing teachers, school administrators and supervisors and the employing boards. Hearing panel members other than the hearing officer shall be compensated by the department of education at the rate of one hundred dollars for each day of actual service plus necessary travel and subsistence expenses. The hearing officer shall be compensated as set forth in this subdivision. The hearing officer shall be the chairman of the hearing panel.

c. Hearing procedures. (i) The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under this section. Such rules shall not require compliance
with technical rules of evidence. Hearings shall be conducted by the hearing officer selected pursuant to paragraph b of this subdivision with full and fair disclosure of the nature of the case and evidence against the employee by the employing board and shall be public or private at the discretion of the employee. The employee shall have a reasonable opportunity to defend himself or herself and an opportunity to testify in his or her own behalf. The employee shall not be required to testify. Each party shall have the right to be represented by counsel, to subpoena witnesses, and to cross-examine witnesses. All testimony taken shall be under oath which the hearing officer is hereby authorized to administer. A competent stenographer, designated by the commissioner of education and compensated by the state education department, shall keep and transcribe a record of the proceedings at each such hearing. A copy of the transcript of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved.

(ii) The hearing officer selected to conduct a hearing under this section shall, within ten to fifteen days of agreeing to serve as such, hold a pre-hearing conference which shall be held in the school district or county seat of the county, or any county, wherein the employing school board is located. The pre-hearing conference shall be limited in length to one day except that the hearing officer, in his or her discretion, may allow one additional day for good cause shown.

(iii) At the pre-hearing conference the hearing officer shall have the power to:

(A) issue subpoenas;

(B) hear and decide all motions, including but not limited to motions to dismiss the charges;

(C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements), investigatory
statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.

(iv) Any pre-hearing motion or application relative to the sufficiency of the charges, application or amendment thereof, or any preliminary matters shall be made upon written notice to the hearing officer and the adverse party no less than five days prior to the date of the pre-hearing conference. Any pre-hearing motions or applications not made as provided for herein shall be deemed waived except for good cause as
determined by the hearing officer.

(v) In the event that at the pre-hearing conference the employing board presents evidence that the professional license of the employee has been revoked and all judicial and administrative remedies have been
exhausted or foreclosed, the hearing officer shall schedule the date, time and place for an expedited hearing, which hearing shall commence not more than seven days after the pre-hearing conference and which shall be limited to one day. The expedited hearing shall be held in the local school district or county seat of the county or any county, wherein the said employing board is located. The expedited hearing shall not be postponed except upon the request of a party and then only for good cause as determined by the hearing officer. At such hearing, each party shall have equal time in which to present its case.

(vi) During the pre-hearing conference, the hearing officer shall determine the reasonable amount of time necessary for a final hearing on the charge or charges and shall schedule the location, time(s) and date(s) for the final hearing. The final hearing shall be held in the local school district or county seat of the county, or any county, wherein the said employing school board is located. In the event that the hearing officer determines that the nature of the case requires the final hearing to last more than one day, the days that are scheduled for
the final hearing shall be consecutive. The day or days scheduled for the final hearing shall not be postponed except upon the request of a party and then only for good cause shown as determined by the hearing
officer. In all cases, the final hearing shall be completed no later than sixty days after the pre-hearing  conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension.

4. Post hearing procedures. (a) The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forthwith forward a copy thereof to the commissioner of education who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall
be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

(b) Within fifteen days of receipt of the hearing officer's decision the employing board shall implement the decision. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph (b) of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his pay and other emoluments restored, for the period from the date of his suspension to the date of the decision.

(c) The hearing officer shall indicate in the decision whether any of the charges brought by the employing board were frivolous as defined in section eight thousand three hundred three-a of the civil practice law
and rules. If the hearing officers finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the state education department the
reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the state education department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges.

5. Appeal. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the
decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

1 comment:

moriah said...

Cancer patients have advocates and support groups. Do their doctors scream at them and act as if they have done something wrong? We need the same thing. The only thing the union has ever done for us as a group is to sign us up for workshops on stress management. We need workshops on how to prepare for our hearing and how to defend ourselves to the best of our ability. We aren't lawyers. Suddenly we are forced to become our own lawyers. I don't know where to even begin to look for a competent labor attorney. I have heard the cost of hiring one will be in the tens of thousands of dollars. We are forced to deplete our retirement savings if we don't want to be represented by a NYSET attorney.

I firmly believe that reassigned teachers should organize support groups, hire advocates if not attorneys and work as a group to support one another.

I sat in Rubber Room 1 for 13 months and have heard stories that make my skin crawl--not about child abuse but about serious violations of human and civil rights that sound like they are coming out of the deep south in precivil rights times. I am going to begin to post these stories on my blog.