The way we at ADVOCATZ win 3020-a is to prove that there is bad faith by the DOE in creating the charges, as well as procedural errors and substantive violations in pursuing them.
Winning 3020-a means that throughout the hearing, an Appeal (Article 75) is imbedded in every witness testimony and argument. A winning argument is, we believe, showing and proving why the principal charged the Respondent, i.e. because of malice, retaliation or just outright stupidity. I believe in researching everything about the school and the administrators before the 3020-a begins. This is necessary in order to understand the motive behind the actions of the charging agent, Complainant/ DOE. Unfortunately, lawyers dont do that. That's why a legal team rather than just an attorney is important, especially in situations of incompetence, where an observation is 100% subjective. There are no facts in observations according to the ruling in Kings County Supreme Court and the Second Department Appellate Division of the Supreme Court (Elentuck v Green) . I always use this case when working on dismissing all charges for an incompetence hearing based on observations. NYSUT seldom, if ever, uses this in their defense, why I dont know - see Courtenaye Jackson-Chase's letter to Harvey Elentuck. I am absolutely opposed to the new HEDI ratings, because 95% of the 60% of the HEDI rating is based upon the opinions given in the observations. Therefore, teachers are being charged and terminated because someone thinks the educator is "bad".
You can win an Appeal and a 3020-a by proving that this cannot support any penalty. There must be more than just an opinion.....there must be data, student outcomes, statistics. Context. Facts. Circumstances.
The First Department Appellate Division wrote in the Principe v NYC DOE decision:
"Accordingly, we find that, in determining the penalty of termination, the Hearing Officer failed to consider all of the circumstances and relevant evidence, leading the Hearing Officer to view the incidents in isolation and divorcing them from the context in which they took place."
Sometimes, the Arbitrator is pre-disposed to terminate the Respondent, and nothing would work, no matter how much work the legal team put in. Then, you can overturn any decision made by this arbitrator, as in the case of Peter Principe. In my opinion, Arbitrator Michael Lazan is not a fair arbitrator. he was hired for the NYC Panel of Arbitrators for 3020-a hearings two years ago. He should be let go.
Below is a precedent setting decision of an Article 75 Appeal which I assisted the pro se Petitioner in writing, Lisa Broad. She hired Stagg Terenzi to do the First Department arguments when the Corporation Counsel filed for an Appeal of the Supreme Court Appeal, decided in Lisa's favor by Judge Alice Schlesinger, the best judge, ever. I think my dad worked with her.
After Lisa's case I have posted the case of Naomi Davies, who lost her Appeal. I talked with Ed Wolf when Naomi was going through the 3020-a, but other than those conversations, I had no involvement.
The work you put in to a 3020-a hearing can win, but you must convince the Arbitrator and/or the Judge with well-written, substantive arguments.
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice
In the Matter of Lisa Broad v The New York City Department of Education
Alice Schlesinger, J.
Joseph Taddeo ("Taddeo") is PS 2's principal, and has held this position since 2003. He has worked at PS 2 since 1998, first as a teacher, then as an assistant principal and finally, as principal. The assistant principals during the School Years were Amy Goldman ("Goldman") and Gerard Palazzolo ("Palazzolo"). Palazzolo is no longer an assistant principal, and has "since gone back to being a teacher after differences with Mr. Taddeo" (Lazan Decision, p. 6).
The Specifications and This Court's Conclusions [FN8]
Specification Two: [Petitioner] neglected her duties, used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she provided false and inaccurate grades on students' report cards, as referenced in a letter dated November 21, 2011.
Specification Three: [Petitioner] neglected her duties, used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she failed to properly complete students' report cards, as [*5]referenced in a letter dated March 8, 2013.
Specification Four: [Petitioner] neglected her duties, used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she included false and/or inaccurate information on her students' running records,[FN9]as referenced in a letter dated November 21, 2011.
Specification Five: [Petitioner] used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she provided false information to school administrators regarding her completion of students' assessments, as referenced in a letter dated November 21, 2011.
Specification Six: [Petitioner] neglected her duties, used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she failed to properly and/or timely provide parents with her students' graded exams, exam scores, and/or information regarding students' academic [*6]progress, as referenced in a letter dated January 24, 2012.
Specification Seven: [Petitioner] neglected her duties, used poor judgment, engaged in unprofessional conduct and/or failed to fulfill her professional responsibilities, in that she failed to properly and/or timely provide parents with her students' graded exams, exam scores and information regarding students' academic progress, as referenced in a letter dated March 23, 2012.This specification was dismissed by Lazan based on his finding that BOE's witness called to prove this charge ("Le. Du.") was not credible, due to inconsistencies within her testimony.
Specification Eight: [Petitioner] neglected her duties, failed to follow directives, and/or failed to fulfill her professional responsibilities, in that she failed to timely provide parents with students' progress reports, as referenced in a letter dated January 18, 2013.
Specification Nine: [Petitioner] failed to follow directives and/or engaged in unprofessional conduct, in that she failed to timely complete students' running records, as referenced in a letter dated February 17, 2012.
Specification Ten: [Petitioner] used poor judgment and/or engaged in unprofessional conduct, in that she brought a knife to school on March 7, 2012.
Specification Eleven: [Petitioner] neglected her duties, used poor judgment, and/or engaged in unprofessional conduct, in that she failed to completely and/or properly use her instructional period on March 20, 2012.
Specification Twelve: [Petitioner] failed to follow directives, engaged in insubordinate conduct and/or neglected her duties, in that she failed to follow the administration's directive to complete her lesson plans using a specific format, as referenced in a letter dated March 27, 2012.
Specification Sixteen: [Petitioner] used poor judgment and engaged In unprofessional and/or insubordinate conduct, in that she provided false information to a school administrator regarding her students drafting and/or completing writing pieces, as referenced in a letter dated May 25, 2012.
Specification Nineteen: [Petitioner] used poor judgment, engaged in unprofessional conduct and/or theft of service, in that she left the school for two hours without following proper procedure and/or notifying school administrators on June 27, 2012.
Specification Twenty: [Petitioner] used poor judgment, failed to follow school policy and/or engaged in unprofessional conduct, in that she improperly used student "community service monitors" to clean her classroom, as referenced in a letter dated December 3, 2012.
Specification Twenty-One: [Petitioner] used poor judgment, failed to follow [*10]school policy and/or engaged in unprofessional conduct, in that she hugged a student, as referenced in a letter dated December 3, 2012.
Specification Twenty-Two: [Petitioner] used poor judgment, failed to follow school policy and/or engaged in unprofessional conduct, in that she failed to monitor and/or observe students' behavior while they were in her classroom, as referenced in a letter dated December 3, 2012.
Specification One: [Petitioner] failed to properly, adequately and/or effectively plan and/or execute lessons during the [School Years], as observed on: a. November 17, 2011; b. March 27, 2012; c. April 2, 2012; d. November 9, 2012; e. January 10, 2013; f. March 15, 2013.
Specification Twenty-Three: [Petitioner] failed, during the [School Years], to fully and/or consistently implement directives and/or recommendations for pedagogical improvement and professional development, provided in observation conferences with administrators and/or outside observers, instructional meetings, action plans, one-on-one meetings with administrators, school based coaches and/or outside observers, as well as, school-wide professional development, with regard to: a. proper planning, pacing and execution of lessons; b. using appropriate methods and techniques during lessons; c. including differentiation of instruction in lessons; d. proper assessment of students' progress; e. proper classroom management; f. implementing appropriate classroom rituals and routines; g. incorporating higher [*11]order thinking [FN11]into lessons; and h. providing meaningful feedback to students.
General Conclusions Applicable to All Specifications
The charges that were proven are substantial and directly related to [petitioner's] competency to teach and her ability to provide her students with a valid educational experience. The evidence demonstrates that [she] is a teacher who has not provided appropriate, professional educational services to her students. In particular, [she] has been unwilling or unable to consistently provide her students with appropriately written lesson plans, appropriately executed lesson plans, appropriately differentiated instruction, rigorous instruction, engaging instruction, appropriate assessments, and appropriate feedback. She also has not managed her classroom appropriately in terms of establishing rituals and routines, orderliness, neatness, noise levels, and student behavior.
Q: Every teacher has a different style. Is that correct? I assume you have a different style than the other 29 in the school as Ms. Broad has a different style. Isn't that correct?
Q: Okay. Does a teacher — in your experience both as a teacher and an administrator — sort of embellish on the plan as they're going through the lesson where they don't necessar[ily] say, "And at this point in time do this?" They just do it? I'm taking an experienced teacher.
A: Yes, we make adjustments as you go.
Q: Yeah, exactly. It doesn't have to be in the lesson plan, does it, for it to be an effective lesson?
A: No. (Tr. 810)
Q: When you observed the classes, what was the rapport between Ms. Broad and her students?
A: Ms. Broad was very kind to her students.
Q: Okay, thank you. And did you experience the children really loved her?
A: Yes. (Tr. 816)
Q: With regard to younger students, kindergarten to second grade, is rapport a very important aspect of the — of the teaching, to support the teaching between the student and the teacher?
Q: Thank you. And you did say that Ms. Broad had an excellent rapport with the students?
A: Yes. (Tr. 818).[FN12]
Dated: October 20, 2015
Footnote 1:The hearing was held over 11 separate days from June 3, 2014 to September 18, 2014. Both BOE and petitioner were represented by counsel at the hearing and presented evidence and arguments in support of their respective positions.
Footnote 2:Petitioner, who was originally pro se, obtained counsel at the time of oral argument on the petition. Following oral argument, the court permitted petitioner's counsel and BOE to submit supplemental memoranda of law.
Footnote 3:These facts are not merely derived from petitioner's testimony, but also from the testimony of Gerard Palazzolo, an assistant principal and one of petitioner's supervisors, who was called to testify on BOE's behalf. As discussed below, Lazan found Palazzolo to be the most credible witness at the hearing.
Footnote 4:Thereafter, petitioner filed a motion to dismiss, arguing that an arbitrator lacked jurisdiction to decide the matter based on her contention that BOE did not convene an executive session to determine probable cause. However, a different arbitrator, Marc Winters, Esq., to whom this matter was previously assigned, denied petitioner's motion at an August 22, 2013 pre-hearing conference. In his decision, Lazan sustained Winters's decision, finding that Section 2590-h of the Education Law granted the New York City Schools' Chancellor the authority to principals so as to permit principals to initiate specifications against tenured teachers. Although petitioner initially raised this issue in her petition, she abandoned the issue in her final submission, a supplemental memorandum of law dated July 29, 2015. The court will not further discuss this issue, and declines to disturb Lazan's finding in this regard.
Footnote 5:Petitioner called this witness in support of her position that Taddeo improperly interfered with subpoenas intended to be served on PS 2 staff to obtain testimony at the hearing. Because this court can rule on the merits of the instant petition in petitioner's favor, it declines to address petitioner's argument in this regard.
Footnote 6:Petitioner further maintains that Lazan was biased in favor of BOE in this matter, but the court rejects this line of argumentation. There is no evidence suggesting that Lazan was biased in this matter. Although the court ultimately takes issue with his findings, the fact that he gave more credit to the testimony supporting BOE's position than that supporting petitioner's does not suggest that he was "biased" in some way in favor of BOE.
Footnote 7:With respect to the provisions of Article 78, "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency. Further, courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise." Matter of Peckham v Calogero, 12 NY3d 424, 431 (2009) [internal citations, quotation marks, and emendation omitted].
Footnote 8:Except for Specifications 1 and 23, the Specifications are discussed in order.
Footnote 9:A "running record" is an assessment of a student's reading ability by evaluating his or her skills at comprehension, accuracy and vocabulary to determine the child's reading level. It is to be done three times per years, and teachers were to keep such records for comparison.
Footnote 10:In any event, termination based on this charge, even if Lazan's finding is accepted, would be inappropriate.
Footnote 11:Palazzolo testified that "higher order thinking" refers to a dialogue between a teacher and students that is more than "short recall responses", and which requires development of a conceptual understanding of the content being taught.
Footnote 12:Additionally, Palazzolo testified that Taddeo was a very difficult supervisor to work for, so much so that he gave up his assistant principal position to return to teaching. His testimony in this regard supports petitioner's claim that Taddeo was an insatiable superior.
Footnote 13:Further, the decisions cited in BOE's legal memoranda are distinguishable. Russo v New York City Dep't of Educ., 119 AD3d 416 (2014) consists of a one sentence opinion that does not address any of the issues before this court aside from stating that termination in that matter did not shock the Court's conscience. Moreover, a review of the First Department's decision in Russo shows that the petitioner therein did not dispute several of the serious charges asserted against him. That is not the case here. Similarly, in Davies v New York City Dep't of Educ., 117 AD3d 446 (1st Dep't 2014), the petitioner did not challenge many of the specifications asserted against her. Lastly, Asch v New York City Board/Department of Education, 104 AD3d 415 (1st Dep't 2013) is inapposite because that matter concerned allegations of serious sexual harassment/misconduct.