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Saturday, March 14, 2015

3020-a Arbitration and Calling in Witnesses For Respondent's Defense

Calling witnesses to a 3020-a hearing for the defense of a Respondent is very important. My company, ADVOCATZ, protects a Respondent's right to have witnesses appear at his/her 3020-a, and protects the witness from retaliation as well.

For these reasons, I filed a lawsuit against ATU Attorney Michael Francis in August 2014.

My Company, ADVOCATZ, believes that 100% zealous advocacy gives the most probability for winning any case, and this necessitates calling in witnesses for our clients, the Respondents. We issue non-judicial subpoenas for any student and anyone who works for the Department in any capacity.

Arbitration is not a Court of record. You do not have to be a lawyer to work in arbitration, nor to represent/assist at arbitration in New York State. Several arbitrators on the NYC 3020-a Panel are not attorneys and at least one is not licensed to practice in New York State. 

Of course the Department of Education - and, I might add, NYSUT-  attorneys  often want a case to be as short as possible. That is, if they (NYSUT) cannot settle the case with the Respondent being "convinced", without any rational basis, to resign/go away, they may have the Respondent testify, but seldom do they 'allow' the Respondent to call in several witnesses.

ATRs brought to 3020-a arbitration are in serious trouble in this area. Unless you have the name and contact number of a student or a parent from each class you teach, how can you call a witness if, three or more weeks after you have left the school, you are charged with misconduct, corporal punishment, and/or verbal abuse?

I remember the case where the DOE called in a 7-year old to testify against her teacher, but this little girl loved the teacher, and refused to testify against her until after the DOE Attorney took her outside and "reminded" her that she MUST testify that they teacher touched the nose of the student and "hurt" her.

The very wise and terrific arbitrator Earl Pfeffer asked this little girl if she wanted to draw while she testified. She said yes.
Earl Pfeffer

Earl gave her a sheet from his yellow pad, and a red marker, and she started doodling while she was asked about what happened. When she finally said that the teacher had touched her nose, the questions stopped, and there were none from the Respondent. Then Earl asked the little girl if she would give him what she drew, and she handed the sheet back.

On the sheet, in big red letters, was written, "NO".

Earl dismissed all charges. He is a great arbitrator but is no longer working on the NYC Panel. The DOE attorney on that case, Julianne Newman, also no longer works at 49-51 Chambers Street. She was moved here:

Julianne Newman , Senior Field Counsel - Networks: 403, 405, 409, 410, District 75 schools
(212) 356-3738

Of course not all witnesses are as good as this little girl, however witnesses are important.

But people are scared that there will be retaliation, especially if they are still working within the DOE. This is a valid concern, even though the US Supreme Court has ruled that retaliation against a person who testifies for a public employee is prohibited:

US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation

Protection for witnesses is sometimes violated by the DOE Attorneys.

On or about June 4, 2013, NYC DOE Administrative Trials Unit (ATU) Attorney Michael Francis screamed at the Attorney throughout the hearing I was working with in a case for a Respondent accused of hugging a girl student in his class. He wanted, I believe, to intimidate everyone in the room. The Respondent called in 7 witnesses, all of whom felt strongly that he was innocent (I did too) and wanted to testify for him. 

After a particular witness finished, and left the hearing room, I noticed Mr. Francis get up quickly and also leave the room. I decided to see what this was about, so I left the hearing room as well, and saw Mr. Francis leave the hallway outside of the 7th floor hearing rooms. I followed him, and I saw him standing in the face of the witness who was waiting for the elevator. Mr. Francis was screaming very loudly, "You are going to be sorry for coming in today!", "you are going to regret this!". While Francis was screaming at the witness, I was standing behind him. When Francis finished, he turned around very quickly, almost pushing me to the ground, then walked quickly to the hearing room and told the Attorney to "get that bitch out of my face". The witnesses waiting to testify were terrified.
On August 13, 2014, after filing a Notice of Claim, I sued Francis in Manhattan Supreme Court for tortious interference, tampering with witnesses, and verbal abuse, holding Michael Francis accountable for his improper actions.

The only way to stop people from deliberately violating the rights of another person or group, it seems, is to hold the person doing the harm accountable for his/her actions. I wish people would do the right thing the first time!

Betsy Combier


1 comment:

Chaz said...

I was present at the hearing when the little girl came in as a witness against the teacher. What Betsy said is the truth. Furthermore, when the little girl first saw the Respondent, she bellowed a loving hello to her and hugged her. At that point I knew the DOE had lost their case.