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Saturday, January 21, 2012

The "Confidential Investigator" Scam at 3020-a

Every case brought to 3020-a has a point person around whom the New York City Department of Education builds the case against the tenured employee targeted for termination. A good defense - the only defense - against this person's conclusions (that the respondent is guilty of all specifications) is to prove that the work done by the "confidential investigator"makes no sense, is inconsistent, couldn't be valid, etc.
I have seen NYSUT Attorneys and private lawyers not even try to do this, and I have seen arbitrators make the point person (the SCI, OSI, OEO "investigator") an "expert witness" or "completely credible" during a hearing, and at that moment the case is lost for the tenured employee. For example, Arbitrator Alan Berg found "extremely credible" both an "expert witness" who was called into a school to 'help terminate' a special education teacher who was complaining about special education fraud at her school and who also filed many grievances against the Principal for racial discrimination, and anyone else in the school administration who said anything bad about the teacher. The "expert witness" had no official role at the school, and was not a PIP+ observer. She testified that she had no notes or anything written down about this teacher's classroom management, teaching performance, interaction with the children, or any other data that could justify her conclusion that this teacher should be terminated. Mr. Berg took her advice. Mr. Berg is the same arbitrator who told me that after he awarded complete exoneration to a Queens teacher accused of sexually abusing a student in his classroom, the Gotcha Squad at the ATU punished him for giving such an award in that case.
Typically, the "investigation" looks like this:
1. An incident is emailed to the EIC at the NYC DOE, targetting a certain employee as the
2. The Principal or the agency - SCI, OSI, OEO, takes over the "investigation" and is delegated this 
3. The Principal gets together any personnel at the school who can obtain the name of any child in
    the classroom of the targeted teacher who saw what happened, is in trouble of a suspension, or
    needs higher grades
4. The Principal brings the child or children/students into his/her office for the writing of the
    statement that will 'prove' what the Principal wants proven. Any versions of statements that do not
    support what the Principal wants is/are discarded and thrown away.
5. The "confidential investigator" is given these statements
6. The "confidential investigator" goes to the school where the students are, and sits with the
    Principal to find out exactly what the Principal wants 'proven'
7. The Principal tells the AP or another staff member to bring to the office the children/students
    whose statements have been accepted by the Principal and substantiate the charge he/she wants
8. The "confidential investigator" asks each child whether or not the statement he/she has in his/her
     hand is the statement written by the student.
9. The "confidential investigator" leaves with the statements now confirmed, and goes back to the
    office to write the substantiation of the original allegation(s), which is/are no longer an 
    allegation(s), but now is a FACT.
If you read the transcripts of 3020-a hearings, as I do, you cannot fail to notice that the allegation(s) or specification(s) are written in such a way as to be conclusions, not allegations at all. Also, the specifications are followed by the page that says there is "Just Cause for termination".
So, how does the form letter concluding that the list of specifications become "JUST CAUSE"? How does this make sense?

It does, of course, to NYSUT Attorneys and DOE Attorneys who force the teachers/DOE employees brought to 3020-a to resign, retire, or pay fines in order to get their jobs back, or to move on (preferably the latter). JUST CAUSE is a term that covers seven tests:
1.         (i) NOTICE
3.        (iii) INVESTIGATION
5.        (v)PROOF

Thus when a 3020-a hearing begins, the alleged misconduct or incompetency has already changed into a fact, and the teacher/DOE employee charged has the secret burden of dis-proving the lie rather than proving his/her innocence.

No matter who the Arbitrators are, their "boss" when they do 3020-a cases in New York City is the New York State Education Department and the NYC Department of Education. I heard yesterday that the arbitrators are still not getting paid, but State Ed says thay "will", so they continue to make decisions. But many see no reason to abide by the guidelines last issued on April 15, 2011, mandating decisions within 30 days of the close of the hearing. In fact, the provisions of this agreement between the UFT and the DOE are routinely ignored, depending upon the whim of the Arbitrator and the Department with the full knowledge and awareness of the NYSUT Attorney and sometimes the private attorney. It's truly a setup, a public policy that denies due process.

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