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Saturday, October 2, 2010

Winning Your 3020-a Arbitration: Fire Your NYSUT Attorney, Don't Settle

I think that it is time to get to the basic problem with the 3020-a process, as I, an observer for 7 years ( a member of the general public at an open and public hearing) see it: NYSUT lawyers and the arbitrators on the NYC panel do not protect your due process rights, and the hearings are not "fair". Due to the fact that most charges are being preferred by a principal, the arbitrator does not have the jurisdiction or authority to rule on the charges thus given to a tenured pedagogue due to Education Law 2590-j   which gives the right to remove and discipline a teacher to a community superintendent...not a principal. But there still must be a vote. 3020-a goes into how the school board must vote on specifications preferred against a teacher before the teacher is given the charges.

Therefore an argument can be made that the arbitrator does not have subject matter jurisdiction to determine Just Cause and the hearing must be delayed, thus effectively dismissing the charges. I have a Motion To Dismiss written by NYSUT New York Counsel Claude Hersh and Attorney Neil Dudich which says just that. Why wont NYSUT Attorneys bring this up at 3020-a hearings?

By the way, what happens to this clause when the person appointed to the title of Chancellor doesn't have a contract, as Joel Klein does not, and yet Education Law 2590-h says that he MUST? Read this:

"* § 2590-h. Powers and duties of chancellor. The office of chancellor of the city district is hereby continued. Such chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract. The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract....."

Please review my articles:
Look at Article 61 in A Personal View From Betsy Combier On NYSUT And What The Attorneys Do Wrong In The 3020-a Process;

I filed a freedom of information request for Mr. Klein's contract in 2005 and again in 2007:
The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender

 NYC Teacher Hipolito Colon Makes History and Sues the NYC BOE, The Panel For Educational Policy, and NYSUT For Violating His Rights

Mayor Michael Bloomberg as Co-Partner in Chief of the New York City Department of Education: Performance Review

Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man (7/7/2007)

Betsy Combier Speaks Out on the Constitutional Mess Created by Mayoral Control of the New York City Board of Education (7/22/2007)

Another issue that the NYSUT attorneys ignore is the right a teacher has to an open and public hearing. While this decision is a right given to the Respondent not only in 3020-a but also in the UFT contract, if the teacher going through the 3020-a does not ask for an open and public hearing at or before the pre-hearing conference, then he/she does not get it. The hearing will be closed. No NYSUT attorney discusses this unless the teacher brings it up. More often than not if a teacher brings up the issue, the NYSUT Attorney will say, "You better not have an open hearing because then the NYC DOE will bring in the press, and your story will be in the news."

Baloney. Press almost never comes to the 3020-a hearings of any teacher, unless asked by the teacher - aside from Steve Brill who was told by Joel Klein to attend the 3020-a hearing of teacher Lucienne Mohammed because she had filed a federal lawsuit against the NYC DOE and needed to be put into her place [of shame]. So, what is so scary about the press arriving at your hearing if you are innocent of all charges?? If you are innocent, and the news is that you are guilty, then you can take action and get damages. David Pakter just sued the New York Post and won release of the name of the person who told the newspaper that he was charged with "sexual misconduct". He is about to pursue an action against the person who was the source for the false claim.

Or, the NYSUT Attorney will say, "you shouldn't have an open hearing because I dont feel comfortable. (So? What are you trying to hide?) Or, "The arbitrator wont like you and will terminate you or give you a worse penalty than you would have had if you did not have an open and public hearing." (WHAT?? This is crazy).

Most people - including me - believe that an open and public hearing is the best way to honor your due process rights. If you have observers in the room with you, you have an extra set of eyes on what is going on, and this is always good. Of course, all people who attend the 3020-a should be silent at all times while the hearing is on the record, and should never make any movement that might seem in any way suggestive of comment. There is no passing of notes. But any lawyer who tries to keep a hearing closed is, we believe, saying, I want to hide something. In fact, on friday morning I was at 51 Chambers Street for a hearing and a NYC DOE attorney told me, "Betsy, are you coming to my hearing? All my hearings should be public, because I have nothing to hide." Exactly.

It is interesting to note that about two weeks ago I was asked to attend a hearing with a new arbitrator, Leona Barsky. I walked in the room with the Respondent and the private Attorney, and Ms. Barsky came up to my face and screamed, "Who are you? What is your name? Who sent you here? Who do you work for?" My replies were that I was a member of the general public, my name is Betsy Combier, and no one sent me, I am just an observer. She was not convinced. As it turned out, she immediately made the hearing a "pre-hearing" (which is closed) and I went to the hearing of another teacher who had asked for me to attend, starting at the same time. I wonder what Ms. Barsky is worried about. I'll be probably following her cases on this blog, as she seems clearly worried about the public watching her.

Even more important to the issue examined here is my suggestion (not legal advice, because I'm not an attorney) that if you are not guilty of any of the charges preferred against you, DONT SETTLE. Go through your 3020-a. This way you preserve your right to sue the New York City Department/Board of Education for actionable misconduct relevant to your specific circumstances (you should discuss this with a private attorney). Many teachers are discussing a class action and I have began searching for a large law firm.

By not settling you are establishing your rights to complain about the process that brought you to the 3020-a hearing in the first place, because this is where the NYC DOE fails. They created a mess by ignoring laws, rules and regulations that prevent angry principals from throwing false claims at people who work in their schools and have them stick. The New York City DOE knows this. For example, a teacher who was charged started his 3020-a and then was scheduled for "mediation." Simultaneously he decided to fire his NYSUT Attorney (Mitch Rubenstein) and hire a private attorney, who was going to accompany this teacher to the "mediation". The mediation was cancelled.

Now there could be many reasons for Theresa Europe (pictured above), head of the Gotcha Squad, to cancel the mediation at the last minute, but my guess is that she did not want the private attorney in the "mediation" session. The "mediation" that she is talking about seems, from the reports of many of the people who have gone through this, to be not what the average person would think of as mediation. Basically what happens is, a teacher is given a date to come to 51 Chambers Street and he/she meets with a "mediator" - an arbitrator on the UFT/DOE NYC panel who has been designated a 'mediator' for the case, but is NOT the arbitrator appointed to hear the teacher's 3020-a - and he/she is told "you better take the deal/pay the fine in the settlement agreement/retire/resign or else you will be terminated at your 3020-a".

Too few teachers are saying "Sorry, no" and walking out.

A private attorney probably would see immediately how wrong this is. Also, if a document is signed under duress, after extreme harassment or other actions that compel, then the document can be rescinded.

If you are a teacher who is extremely afraid of your 3020-a and all the threats that you have heard start making sense to you, take a deep breath and go into your alpha level and try to get back the sensibility to go through with your hearing to the end. A settlement may be good for a short while, but it may not be. Think about this:
- Does your settlement/deal include a clause that says that you will be immediately removed from the ineligible/inquiry list? Get this into your final settlement!

- Does your settlement/deal say that all charges will be removed from your file and will never be used at another hearing in the future?

I will give you an example:

In 2002 or thereabout, teacher X taught swimming at a school. He was tenured, and taught for many years. He typically started races by shooting a starter pistol. On one particular day a student who disliked him complained that he had shot a pistol in the school. He was brought up on disciplinary charges, and his attorney told him to just pay the fine and the charges would be dropped, and only a letter would be placed in his file. He agreed. (why, I dont know). In 2010 he was accused of saying something to a girl, thrown into a rubber room, and brought to 3020-a. His charge was saying something improper to a student, which he fervently denied, but then the NYC DOE handed in the prior charge of shooting a pistol in a school in 2002, and the arbitrator terminated his employment saying that these TWO wrongs showed a history of bad character. Yet the pistol event was never adjudicated at a 3020-a, this teacher only got a letter to file, and it was to end there.

Settlement is admitting guilt. If you are not guilty, why are you paying a fine and admitting that you did something wrong? What are you paying for?

The question of where the fines go remains unanswered, at least publicly. No one is answering this question - which I, for one, ask all the time. And, please tell me, all you NYC DOE readers, what District 65 is?

I'll find out eventually. Here is a funny story: a teacher went through her 3020-a and was fined by arbitrator Howard Edelman $8500. Only, he found her not guilty of any misconduct, he only wanted to stop her from turning around quickly in the classroom ever again. She appealed, and Judge Paul Fineman overturned Edelman's decision as "shocking to the court's conscience". However, before the decision came down, the NYC DOE demanded the money. Cheryl Smith, the NYC DOE Attorney on the case, told this teacher, "You can pay us in cash or by money order, but you cannot give us a check."

What did this teacher do? Paid her fine by check, and gave me a cancelled copy so that I could see what the Bank account of the NYC BOE was. I'm still seeking information on District 65, so please email me at if you have any information. I dont need your name.

To sum up, NYSUT attorneys are now trying to rush all their clients through the system, first by "mediation" that in my opinion ressembles extortion, then through unfair procedures enacted as part of an expedited 3020-a hearing.

Wikipedia defines extortion as follows:
"Extortion, outwresting, and/or exaction is a criminal offense which occurs when a person unlawfully obtains either money, property or services from a person(s), entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime groups. The actual obtainment of money or property is not required to commit the offense. Making a threat of violence which refers to a requirement of a payment of money or property to halt future violence is sufficient to commit the offense. Exaction refers not only to extortion or the unlawful demanding and obtaining of something through force, but additionally, in its formal definition, means the infliction of something such as pain and suffering or making somebody endure something unpleasant."

Everyone should dig his/her heels in the ground and put a stop to this rush to judgment and perfect storm of injustice by hiring an excellent private attorney who will use the law to stop the NYC DOE from taking away your career and stigmatizing your professional life. I have met and can suggest terrific people. Unfortunately, they are not 'free' (you've paid for legal representation with your mandatory dues to the UFT), but I guess I can say that the following applies here: "You get what you pay for".

Betsy Combier

PS: Fidgety, a fellow blogger, posted the following:

May 17, 2010

Why I fired my DOE (oops!) NYSUT Lawyer...

At our first meeting, I clearly requested an "Open and Public" hearing so that my lawyer could give notice to the arbitrator and DOE lawyer. I followed up on this request with an email asking for confirmation.

By our fourth meeting, I noted that my lawyer had still not solidified my request with the hearing officer and asked her why.

I said, "I sense that you don't want me to have and open and public hearing." "Well, she said, "You sensed right". She then proceeded to paint an ugly picture of an out of control hearing room filled with unruly reporters and friends of the Principal. "If you have an open hearing, the Principal can bring in anyone he wants to. Anyone. That may not be in your best interest. You never know who he might bring in". And, "Do you really want the press distorting your story the way they have done with other cases?"

Armed with the confidence that somehow, "The truth will set me free", I still insisted on an open and public hearing despite the obvious dismay of my lawyer.

I could only reach my NYSUT lawyer through the NYSUT office, that is... when it was open, which meant that I had to call when the office was open, even just to leave a message. The recording said that if you know the '3 digit code' of the person you are trying to reach, please enter it now. As a client, I asked my lawyer for her 3 digit code. Her response was, "Uh, what do you need it for? Has there been a gap in our communication?" "Yes,as a matter of fact. I called you five days ago and this is the first time you have returned my call." "Well...Is there a problem with that? I am very busy."(doesn't want to be bothered)"Yes, there are times when I would like to be able to leave you a message." Her response was, "I think that we've been emailing just fine, don't you?" "No". (Obviously I wouldn't be asking for your code if I was able to reach you, idiot).

After several months of sending emails with scant response from my lawyer,I was beginning to get nervous. When she called me on a Sunday night at 10pm on the last day of spring break, I asked her again for an alternative number. Again, she refused to give me one. Her excuse was that she'd had trouble in the past with clients(teachers) calling her at all hours of the night and had reservations about ever giving out her cell phone number to a teacher again...(I wondered if that reservation included calling her clients on a Sunday night at 10pm.)

When I asked what concerns she had, she responded that she'd rather not divulge that information, and... "Is this the reason you called me?- to pick a fight?"

My paranoid NYSUT lawyer wouldn't allow anyone to sit in on my meetings with her. I found it unusual that I couldn't be accompanied by someone, anyone of my own choosing. Her reason was that she had not established 'confidentiality' with that person. (They were my support system stupid, not yours.)

Before our third meeting, I asked my lawyer why she wouldn't allow me to bring someone in with me for support. Her response was that she didn't feel 'comfortable'. I said that, "It's not about 'you' feeling comfortable. I am the client. This is my case. I am choosing to bring this person in. I trust this person". As a client, I should be able to bring in anyone that I want. (Shouldn't I?) Her response was, "Well, what do you know about lawyers? How much experience have you had with lawyers anyway?"

Does this sound professional to you?

It started to become very clear to me that my DOE-(oops!)NYSUT lawyer was not working in my best interest when she divulged private information to my Chapter Leader without my permission. It seemed that she- my lawyer, needed assurance that the events I had described to her actually occurred the way that I described them. Who was breaching client-lawyer confidentiality now?

My NYSUT lawyer was completely overwhelmed with too many cases and it was adversely affecting the preparation of my hearing. As the amount of documents that I submitted to her grew, so did her disorganization. Each time that I met with her, it was like starting from square one. As we were going through the documents I had submitted to her at previous meetings, I came across one that didn't seem familiar. As I began to read it aloud, her response was, "Oh that's not yours", grabbing it out of my hand. "I was wondering where that document was! I don't know how that paper got in there". That document, that 'confidential document', was from another teacher's case that she was working on. I began to wonder how many of my documents had been mixed up or 'fallen' somewhere that they shouldn't be... And she was the one concerned about "confidentiality?".
It was obvious that my lawyer had her own set of rules which she felt didn't apply to her. I had no confidence that she was working for me and not the DOE or some other ultimate plan. Three weeks before my hearing, I fired my DOE-oops! 'NYSUT' lawyer and hired a private one. I believe that it was the best decision that I have ever made. There was no doubt that the new lawyer had the experience and knowledge that the NYSUT lawyer was clearly lacking. He was one step ahead of the DOE and UFT's tricks which I believe included assigning me a ridiculous and severely inept NYSUT lawyer.

Must Teachers Be Saints?

Teachers: Must we be Saints or Sinners?

By Anthony Cody on October 1, 2010 12:29 PM

Our national focus on education driven by Waiting for Superman and NBC's Education Nation programming is drawing to a close, and it leaves me with a disturbing concept of what it means to be a teacher in America today. One source is Geoffrey Canada, urging teachers to donate an extra hour a day to their schools. He was quoted as saying to one teacher, "You ought to stay until the job is done."

We have arrived at a disturbing concept of what it means to be a "good teacher" in America - especially if you choose to work in schools where the students live in poverty. When you accept this poorly paid job, you are expected to take full responsibility for the 160 students in your classes, and that means you should make yourself available to them at all hours, give up your lunch and free time, and stay at school ten hours a day. You must be "effective," which means that you are able to move their test scores up fast enough to recover the years they are behind and put them on track for admittance to a university. You must not worry about the fact that your school has no supplies and a reduced support staff, due to budget cuts, and you must use your own money to purchase supplies and even food for your students.

When you speak of your work, you may describe some incremental success you have had, but then you must acknowledge that whatever you have achieved "isn't good enough," because you still have students who are working below grade level. You must disavow the need for any job security because it sometimes means "bad teachers" are protected. You place blind faith in the administration's ability to know YOU are a GOOD teacher, and speak critically of others who cling to such protections.

This self-sacrificing stance allows you to claim the sainted title "good teacher." But of course, there can be no saints without sinners. The sinners in our schools are the teachers who arrive, put in their day's work, and clock out by 4 or 5 pm. Then they selfishly go home to their own children, and leave the school's children to fend for themselves for the rest of the day and night. They take home papers to grade, and they call parents when necessary, but they do not give their students their cell phone number. When students are below grade level and need extra help, they refer them to the after school tutoring program, rather than staying late to work with them themselves. Their students gain, on average, about a year's academic growth during their year in their class - but this is plainly immoral, because the students are below grade level, so these bad teachers are not closing this gap. Their classrooms are sometimes lacking in supplies because they do not spend much of their own money to buy them, instead selfishly spending their money on clothing and food for their own families.

I do not know if this duality is related to America's strain of religious beliefs, but it reinforces a very simplistic view of our profession. Coupled with the fact that our profession has traditionally been mostly female, this suggests that teachers are being asked to be society's self-sacrificing saints, taking on for all of us the burden we are unwilling to bear.

I have no problem with teachers who do many of the things the saintly teachers do. I have done many of them myself. But if I choose to spend my weekend taking my students on a field trip, or stay after school to help them with their homework, or spend part of my meager salary on classroom supplies, I want it to be out of choice, rather than to preserve my "goodness."

It is true that without extraordinary effort, students in poverty will have trouble succeeding in large numbers. But I have several problems with placing all this responsibility on the shoulders of our teachers.

• First of all, I remain skeptical about the viability of sending all our students, or even significantly more of them, to four year colleges. I see statistics that indicate the areas with the most job growth continue to be service sector positions, so I wonder if the jobs for college graduates will actually be there, and with costs rising, I think many high school students drop out when college admittance is made out to be the sole purpose for their education.

• Teachers have families as well, and ought to be allowed to enjoy and nurture them. They ought to be able to spend their spare time with their own children, and likewise not be expected to sacrifice their own family's budget to buy classroom supplies.

• Many students DO need extra help, but this should be organized and funded by the school system, and not rest on unpaid volunteer hours from teachers.

• A teacher's primary job ought to be to organize and engage his students in powerful lessons. This is a challenging thing, which requires imagination, collaboration with colleagues, engagement in professional growth, and time to plan. If a teacher is taxed with late days tutoring, he is not going to have the energy to plan an innovative and exciting curriculum.

• The very idea that schools are the only solution to intractable poverty in society seems a flawed one. If we simply produce more children ready for college, but college costs more than families can afford, what have we accomplished? If we produce more college graduates, but the jobs that used to be the foundation for the middle class are evaporating, how has this helped?

• We seem to have turned a basic concept on its head. Our schools ought to prepare students for a bright future that beckons them. But in our neighborhoods of poverty, no such future beckons. Unemployment and hunger surround these schools, but they and their teachers are expected to conjure hope up out of thin air.

We are a profession suffering a bit of traumatic shock from the public assault to which we have been subjected. There is most likely a political/economic drive underway to strip from us the due process protections we have secured in some states. We have even seen teachers publicly named as ineffective by a major newspaper.

Individual teachers may be able to reach the level of self sacrifice that has been demanded for a few years, but this is not sustainable over a career. We see evidence of this in the very high turnover rates in many high-poverty schools, and in charter schools such as KIPP especially, where ten to twelve hour days are the norm.

We need to reclaim and reassert what it means to be a good teacher. Of course good teachers can make a huge difference in the lives of our students. But we cannot be expected to deliver entire communities from the grip of generational poverty singlehandedly. And we must reject the need to be martyrs, sacrificed to atone for the sins of our selfish society.

What do you think it means to be a "good teacher" today? Should we redefine this?

plthomas wrote:

Anthony, A key strategy of the myth-bearers (neoliberals, conservatives, et al.) is to NORMALIZE exceptionality. . .thus MOST people are doomed to fall short. . .thus we can assign the locus of blame to the people themselves. . .

This distracts any possibility of system weaknesses, social failures, or cultural weaknesses. . .

This strategy has been used to marginalize women, minorities, etc. . .

It is possible and needed to clarify what it means to be a good teachers. . .and that definitions can be both achievable by most and rigorous without being distorting and self-defeating. . .

10/1/2010 1:46 PM EDT on EdWeek
Voting Citizen wrote:

This questions depends on whose perspective.

The FED's perspective: Do you as you a told. No asking questions.

The kids' perspective: Do you accept me for who I am warts and all?

The parents' and guardians' perspective: Depends on who you are speaking with.

The general public: My school has good teachers; other schools don't
So, what it takes from my perspective to be a good teacher is to know your theory re: child and adolescent development, language acquisition, the importance of books and access to books, dealing with the whole child and the child's family, engaging students in learning with purpose and joy, teach them how to observe, question the status quo, and generally use critical thinking to understand all the propaganda coming at us these days. A good teacher helps students question.

10/1/2010 1:58 PM EDT on EdWeek
Tonym wrote:


As always, a well-written commentary. I can feel your frustration and angst and appreciate your efforts to defend our profession. These are troubling times for teachers and I feel that the worse is yet to come. But remember that the truth you speak will eventually win the day. Saints and sinners need each other to balance the scale and to point fingers.

10/1/2010 6:56 PM EDT on EdWeek
vpientka wrote:


Another well stated commentary. I would further add that as we have become the unofficial parental replacements, without any of the entitlements of consequences I might add, we undermine the joy, frustration, and determination that goes along with the job of parenting school age children. It is the expectation that we replace mom/dad sitting down with us at the dinner table, until we learn the math facts/times tables, spelling words, etc. This is how parents come to know their our own children from another lens, and we as teachers are put into the position of assuming this role that should not be ours. True, the middle class has been squeezed either out of jobs, or into working two jobs to stay afloat, but teachers have their own burdens in their own families.

Someone said education is the civil rights issue of our time. With the exception of the wealthy, this statement is true. Children of poverty come into the school system with extreme disadvantages. Middle class children are also showing the wear and tear of "pre-occupied with survival" parenting. And yet, because our profession is not respected in this society, it is assumed that teachers will mediate for societies' injustices.
It shouldn't, can't and won't happen

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