On or about May 21, 2013, teacher Francesco Portelos was served 38 charges at his reassignment location. With these charges was the form above. In the middle is a paragraph about a vote on probable cause. Where did this take place? What if there was no vote?
Sometime in April 2013 the Notice above made its appearance in the packet when charges were served. And curiously, now there is a statement that there WAS a vote in Executive Session!! Oh, really? I want to know who voted, when, where, what this person's title was, how he/she had the authority to vote, and proof that there was a vote.
While Francesco will challenge the validity of these allegations at a 3020-a arbitration some time in the future, I am right now challenging the right of the New York City Department of Education to serve the charges at all. Below is an excerpt of a Motion To Dismiss submitted in the case of J.J. in September 2012:
"Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a(2)(a), Article 61)). This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one. The requirements of NYS Education Law §3020-a, under which tenured personnel may be disciplined for “Just Cause” are absolute and require that before charges can be brought against a tenured educator, the School Board must:
a. Determine that there is “probable cause” for the proceeding with charges by a majority vote by the Board.
b. Make this determination within 5 days of the charges being filed with the Board.
c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.
Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.
The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law. Arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a. The relevant parts are as follows:
“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.”
Section 3020a(2)(a) of The NY Education Law states:
“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.”
Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a))."
Now if an arbitrator rules that indeed the Section 3020-a (2)(a) statute does not apply to New York City as the UFT bargained away the law, then they can proceed as if the argument had no basis, and they get paid their $1400/day in spite of the law. That's the nice and comfy way to do away with the due process rights of tenured teachers brought to 3020-a hearings. If an arbitrator agrees that there was an improper determination of probable cause, the hearing cannot go forward, and the arbitrator does not get paid.
As we all know, New York City does not have a Board of Education.
Here is my FOIL request: