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Saturday, February 26, 2011

New York State Senator John Flanagan's Bill, and "Gotcha Squad" Attorney Aeri Pang

The not surprising news to participants in the New York City public school system - employees/administrators/f status personnel/custodians/vendors/consultants/Tweedies/ (that is, all who have not had their heads in the sand for the past 5 years) - seniority rights ended many years ago.

In 1994 appeals of 3020-a arbitration decisions were legislated out of the office of the Commissioner of Education to the State Courts in the form of an Article 7511. This was a huge move in terms of denial of due process rights to those tenured teachers who were victimized by the arbitration and charging process. If you read decisions of the Commissioner (see NYSED decisions - type "3020-a" into  the search box, pick a year) you will be able to read analyses of why a principal cannot simply point at an employee and get him or her terminated, etc. Some decisions are very detailed about the absence (or not) of due process rights in the charging and Just Cause area, which is currently the problem in New York City. Read my book (I haven't sat in on open and public 3020-a hearings for 8 years for nuthin'). Another helpful link may be this one, Article 61 of Education Law, and in particular Section 3012.

Since 1994 the only remedy for a shockingly arbitrary or capricious decision handed down after 3020-a is to file an Article 7511 in New York State Supreme Court, within 10 days of receiving the decision of the arbitrator, or "award" (I dont like the way this term is used, as if termination is an award). Actually you get 25 days: 10 days to file an appeal notice and buy the Index number, then 15 days to file a Verified Petition and serve the Corporation Counsel the Notice and Petition, then file. The Corporation Counsel is located at 100 Church Street, and the service window is on the 4th floor. DO NOT simply drop off your notice and Petition at Tweed.

OMG, just how is a teacher supposed to do that, considering that in 99% of all cases where NYSUT was the counsel on the case, the attorney drops the client the minute the hearing decision is received? If you find an attorney or someone to write the Notice and Verified Petition, or you do it yourself Pro Se, which you can do, then you, as the Petitioner, must pay the $210.00 filing fee in the court, and the $95.00 for the Request For Judicial Intervention (RJI). Petitioners do not pay the $45.00 fee for motions.

The City Part of the New York State Supreme Court is notorious for loathing Pro Se litigants. And, the Corporation Counsel has the very same people working in the Court that worked for the Gotcha Squad. For example, look at Judge Cynthia Kern, City Part, 80 Centre Street. She is very pretty, blond, and a former law clerk in the Matrimonial Part with Judge Lobis. Kern knows very little about education law and about the denial of due process inside the 3020-a in New York City, and she has in her chambers the former NYCDOE Gotcha Squad Attorney Aeri ("Eddi")  Pang writing her decisions for her. Ms. Pang was transferred from the Gotcha Squad 3020-a hearings of arbitrator Joshua Javits to the Supreme Court in the spring of 2010. I have the honor of being an observer of a 3020-a with Javits and Pang, and in my opinion you wont find a more verbally abusive attorney than Pang, unless it's my old friend Dennis Da Costa. Mr. Da Costa still holds the Most Insulting And Loudest Screamer Award. Pang is in second place. Pang needs someone to read rules of Ethics, or the CPLR.

Here is Judge Kern's listing on the Court Judicial Directory:
HON. CYNTHIA KERN

Chambers: 80 Centre Street, Room 326
New York, New York 10013
Phone: (646) 386-3729
Principal Court Attorneys: Rachel J. Fremmer, Esq. and Aeri Pang, Esq.
Junior Court Attorney: Yael Wilkofsky, Esq.

The current law clerk in Judge Kern's courtroom is James Adamo, who, in another matter, decided to call me at home and on my cell to give me false information. I have preserved all of his messages and conversations, which may make sense to someone who supervises the law clerks at the court.

Here is the list of Attorneys who work at the NYC DOE Administrative Trials Unit (ATU=Gotcha Squad):
The Teacher Performance Unit (“TPU”) is a new unit comprised of experienced attorneys who will litigate incompetence cases against ineffective tenured pedagogues. TPU’s goal is to help improve teacher quality in schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

In partnership with the consultants of the Labor Support Unit (“LSU”), TPU will offer high quality and responsive support to principals, and other school officials in connection with cases involving previously identified tenured teachers in need of support and remediation. This support will include, among other things, providing these ineffective tenured teachers with quality professional development.

Additionally, TPU in consultation with the principal will make a determination, on a case by case basis whether to commence the 3020-a process. Thereafter, TPU and LSU will continue to provide counsel to the principal and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges.

• Contacts
• Florrie Chapin, Director
(212) 374-7930
FChapin@schools.nyc.gov

• Naeemah Lamont, Deputy Director
(212) 374-6034
NLamont@schools.nyc.gov

• Dennis DaCosta, Attorney
(212) 374-6035
DDaCosta2@schools.nyc.gov

• Elizabeth Cheung-Gaffney, Attorney
(212) 374-6026

Judge Kern and Gotcha Squad Attorney Aeri Pang (second from left)

• Aeri Pang, Attorney (pictured in red dress at right)
(212) 374-6036
Apang@schools.nyc.gov

• Frances Hopson, Attorney
(212) 374-7839
FHopson2@schools.nyc.gov

• Shareema Gadson-Shaw, Attorney
(212) 374-7830
SGadsonShaw@schools.nyc.gov

• Alex Johnson, Attorney
(212) 374-7973
AJohnson34@schools.nyc.gov

So, now that teachers appealing 3020-a decisions cannot appeal to the Commissioner, they must go to Court, and pay to be dismissed.

The State legislature is at fault here. Let me end with my mantra for "fixing" what's wrong with public education in NYC today: we must get rid of the Panel For Educational Policy, and get all members to resign, run away, and get them all tarred and feathered (just kidding about the tarred and feathered part); we must get an elected school board that can, if necessary, say "no" and "absolutely not" to the mayor and anyone else who tramples rights; we must take 3020-a appeals out of the Courts and give them back to the Commissioner of Education's legal team; we must give equal rights to all New York State residents, and preserve and honor these rights by giving oversight and management to a new organization whose sole purpose is to root out miscreants wherever they may be. We must terminate everyone at Tweed, give a few new people management positions and small offices without flags (Burt Sacks - where did you put that huge American flag that was outside of your office at 110 Livingston street?) and put people to work at what they say they do best: put children first. We really dont need to listen to Noguera, Ravitch, Meier, and anyone else. We need transparent strategies that rely on public opinion to remain in force and we need people who put their feet where their mouth is.

The UFT? They haven't been actively involved in preserving tenure and teacher rights for years. Tenure is over.

Betsy Combier

Maze of rules in bill to end seniority layoffs starts with U-rated

by Anna Phillips, Gotham Schools, February 24, 2011
LINK

Mayor Bloomberg’s fight against “last-in, first-out” layoff rules— the policy of laying off teachers by reverse seniority — has made its way to Albany.

Last night, State Senator John Flanagan introduced a bill that would end the practice and the same bill will be introduced in the Assembly by New York City Assemblyman Jonathan Bing.

The bill rules out seniority as the sole factor in determining who gets laid off. To replace the current seniority system, the bill offers eight pages of an extraordinarily complicated, prioritized list of which teachers and school supervisors would be first in line to be laid off.

Bing’s Chief of Staff Jake Dilemani said the bill was written with input from the mayor’s office, along with groups like Educators 4 Excellence — an organization of teachers who, with funding from the Gates Foundation, has put forward its own proposal to change teacher layoffs.

In a statement sent to reporters, United Federation of Teachers President Michael Mulgrew said that the bill would “send us back to the days before civil service protections, when people could be fired for being the wrong race or gender, too young or too old.”

Last year, when Bloomberg was threatening to lay off roughly the same number of teachers, Bing proposed a bill that would end seniority-based layoffs. At the time, opposition to the bill was so fierce that the bill was never voted on. But this year, anti-last in first out sentiments have reached a fever pitch, with the city’s four editorial boards lined up in favor of changes.

This year’s bill is substantially more detailed than the one Bing proposed last year.

If the bill is passed into law, there will be nine categories of school employees who will be laid off before their peers. Employees who fall into all of these categories would lose their jobs first, followed by those who fall into eight of the categories, and so on down the scale to employees who fall into two categories. If the city finds that it still needs the lay off people after that, the next rung of layoffs will hit teachers and supervisors who are in the first category — those with unsatisfactory ratings.

The categories, in order of layoff priority, are:

1. Teachers and supervisors who have received an unsatisfactory rating in the last five years. If the new teacher evaluation system is put in place before layoffs are carried out, then teachers labeled “ineffective” would be the first to go.

2. Teachers and supervisors who have been fined or suspended without pay in the last five years. This means that teachers who’ve been charged with misconduct or incompetence and have either pled guilty or been found guilty in the last five years would be laid off. For example, the Bronx principal who was found guilty of arbitrarily giving her teachers unsatisfactory ratings and was fined $7,500 would be laid off before another principal. Under the current system, a principal with less seniority would be laid off before her.

3. Teachers and supervisors who have been in the Absent Teacher Reserve pool for more than six months. These are school employees who were forced out of their jobs when their schools could no longer afford them and have not yet been hired by another school. They remain on the city’s payroll while some work in administration and others work as substitute or full-time teachers. Given that it’s rare for schools to excess staff in the middle of the year, the six-month deadline in the law would include most of the teachers in the ATR pool at the present time.

4. Any teacher or supervisor convicted of a crime in the last five years.

5. Teachers and supervisors who have been fined for being chronically absent or late in the last five years. Also includes employees who have been fined for “improper use or recording of leave time.” The terms “chronically absent” and “chronically late” are not defined in the teachers union contract as a set number of days, according to a spokesman for the UFT.

6. Teachers and supervisors who have been the subject of an investigation in the last five years that ended with the charges being substantiated. This covers school employees who have been investigated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity. Having charges substantiated translates to an indictment, but it does not mean that these people have been found guilty.

7. Teachers and supervisors who, by the August 31 of the year in which layoffs take place, have not completed their certification.

8. Teachers who, for two years or more, have been ranked in the bottom 30 percent of teachers based on their students’ test scores. These rankings, which measure students’ progress against a model that predicts what their test scores should have been, cover a small percentage of teachers. Only teachers who teach math and English in grades 4-8 receive teacher data reports.

9. Teachers and supervisors who were not granted tenure after three years, but were put on probation for the year preceding layoffs. Recently, the Department of Education has begun encouraging principals to extend teachers’ probation rather than offer them tenure if they believe the teacher shows promise, but is not yet ready for a lifetime commitment from the city. Anecdotally, I’ve heard from teachers who’ve had their probationary periods extended by one or two years when their schools had a series of new principals, each of whom requested an additional year to get to know her staff.

And we’re not done yet.

If the city lays off all of the teachers who fall into multiple categories, then proceeds to the first category — those with unsatisfactory ratings — but discovers that it only needs to lay off a fraction of these people, then new measures come into play. Employees with the most unsatisfactory ratings in the last five years will be laid off first, followed by those who have been given U-ratings, as they’re commonly known, most recently.

Employees in the Absent Teacher Reserve will be laid off based on how long they’ve been in the pool. And teachers and supervisors who have been convicted of a crime in the last five years will be laid off based on how recent the conviction was. Among those who fall in the low value-added score category, teachers with the lowest scores will be laid off first, unless they teach children with disabilities or who require special education services.

If the city makes its way through this labyrinthine process and still needs to lay off more teachers, the ball rolls into the court of the Board of Regents, who will get to decide what types of teachers are laid of next. The bill contains a measure meant to protect high needs schools — defined as those where 90 percent of students get free or reduced lunch — against being overly burdened by layoffs. It states:

Any such regulations must ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide.

If the Board of Regents does not come up with a layoff plan within 75 days, individual school principals will get to decide who to let go, using guidance from the city’s school chancellor. A committee of parents, teachers, and administrators is supposed to advise the principal in making this decision. However, if the city decides that it wants to eliminate all the positions within a certain license area (e.g. gym or art), it can overrule the Board of Regents and principals’ decisions.

and then read How Teaching Experience Makes A Difference