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Thursday, April 5, 2018

Betsy Combier Unravels 3020-a Arbitration in New York City


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Betsy Combier 
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For fourteen years I have been researching the 3020-a Arbitration charging process used in New York City, and in particular the omission of a vote in Executive Session by the New York City Panel For Educational Policy which is mandated by Education Law 3020-a(2)(a). I ignored the verbal attacks by attorneys who chose to threaten me with doom if I continued to ask for the vote - and I went to both NYSUT and Department of Education Attorneys working on 3020-a cases.
Betsy Combier

  I have never received a rational response to "Betsy's Motion", until Judge Green stepped into the fray. On March 29, 2018, Judge Green in Richmond County Supreme Court granted the petition of Rosalie Cardinale wherein we argued that her right to a fair 3020-a hearing was denied by an unlawful determination of probable cause. Ergo, my argument that the 3020-a process in New York City has a lawless charging procedure.

What does that mean? What you want it to.
           
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Betsy Combier
ADVOCATZ
betsy.combier@gmail.com
917-596-1762

UPDATE April 7, 2018:

On April 5, 2018, a recently terminated teacher who used NYSUT for her 3020-a Arbitration, sent me the following email from /to her NYSUT Attorney:

"Date: April 5, 2018 at 12:23:45 PM EDT

"I spoke to a lawyer about the Staten Island decision and he had a warning shot for the UFT. I am not sure why i would have to hire a private lawyer to have my case revisited when the UFT has a duty to all terminated tenured teachers that can’t be brushed away in light of this decision.  The Uft opens itself up to personal liability if it fails to take action - such as intervening in the Staten Island case or bringing its own case against the DOE that is appropriate to protect the collective bargaining rights of tenured teachers who were improperly termination under the Staten Island decision. The UFT would be making a seriously unwise strategic decision if it were to do nothing simply because there are competing lower court decisions on the issue.  The UFT’s liability would be subject to appellate decision(s) that are unpredictable.  My case was never presented to the PEP and I would appreciate knowing how the Union intends to help people in my position in light of this decision.
Please advise."

The NYSUT attorney responded:

"I have now read the entire decision and the content of the Post article and any advice you are receiving which is the basis of your e-mail is misleading.

The Judge in the Staten island case did not rule that all 3020a cases have to be voted upon by the PEP in order to be validly brought. In fact, the Judge accepted the reasoning of other courts that the Chancellor (Farina) can delegate the authority to find probable cause and bring charges to Superintendents who can then delegate that authority to principals. What the Judge found was that in this case the DOE/ NYC Corporation Counsel failed to provide him with proof of such written delegations of authority.

The case you cite to is just the result of poor lawyering on the part of the DOE's counsel in the matter. The Delegation letters in question exist and my office has copies of those letters. When Chancellor Farina was installed we demanded copies of such letters from the DOE in order to ensure that the law was being respected/followed and that all cases were being properly brought. As a result, this office is satisfied that the law is being followed and that findings of probable cause underlying 3020a charges are being properly made.

I understand your frustration and anger. However, this decision is not a basis to challenge any 3020a result."

Hmmmm. First, I don't believe that Judge Green wrote that he 'accepted' that "Chancellor (Farina) can delegate the authority to find probable cause, and all the NYC DOE has to do is get the paper saying that the Chancellor delegates "...authority to [do anything]" and boom, probable cause is determined? That's just plain unfair and unjust.


I of course have the backstory on the "Delegation" statements by signed by Chancellors Klein, Black, Walcott, and Farina, submitted to countless arbitrators. They are worthless. Yep, that's what I have said, what I am saying, and what I will say, and I can prove it. In my work, I know that there is always a DOE Attorney and/or a NYSUT Attorney who will gladly say that I'm wrong, I don't know anything, I am not an Attorney, etc (I'm NOT an attorney, so that part is good), so I have spent 10 years coming up with facts and research to back up what I say and write.


How does the decision of Judge Green affect tenured teachers who have been given an unfair 3020-a decision in New York City?



We dont really know yet. What we do know is that we are ready to assist any DOE employee who has been charged with 3020-a in New York City (or New York State). We believe that every case is unique, and therefore we need to look at the circumstances in each case very carefully. Teacher trials are serious events.
As the paralegal for Attorney Jonathan Behrins in the Article 75 Appeal of Rosalie Cardinale, a teacher in Staten Island, we are saying that due to the Department' s desire for speed above rights, no vote in Executive Session took place at the Panel For Educational Policy, and therefore no arbitrator has subject matter jurisdiction and cannot hear evidence or decide on penalty. Our win in Staten Island for Rosalie changes the landscape of tenure rights and 3020-a, big time.

Jonathan and I have been working together on 3020-a hearings for more than two years (I have worked on about 58 cases over the past 7 years as an independent consultant/paralegal for several attorneys, except I no longer work with Attorneys Bryan Glass or Jordan Harlow, who would not agree with the premise and purpose of my Motion). We believe that Ms. Cardinale's termination at 3020-a arbitration in New York City was not rational, and Arbitrator Michael Lendino lawlessly took on the case (at $1400/day) despite our submission of "Betsy's Motion" to Dismiss For Lack of Subject Matter Jurisdiction, now cited by Staten island by Judge Green.


Jonathan Behrins
The NY POST got the story first:
DOE took illegal steps to fire tenured teacher: judge
Selim Algar, NY POST, April 3, 2018

City teachers facing termination have been thrown a legal life preserver.

In a precedent-setting decision, a Staten Island judge ruled last week that the Department of Education took illegal shortcuts in firing a tenured teacher.

Judge Desmond Green said that a termination hearing can take place only after a vote by the Panel for Educational Policy establishes probable cause.

Green said the DOE ignored that requirement in canning Rosalie Cardinale and ordered her reinstated.

Longtime advocate Betsy Combier, who worked on Cardinale’s case, said the DOE has ignored the law for more than a decade — and thinks Green’s ruling sets a precedent to challenge other firings.

“This is huge,” she said. “This is a protection we are supposed to be giving tenured teachers. For all these years, they have not gotten it. It’s not right.”

Neglecting the probable- cause vote “violates Petitioner’s due-process rights and violates New York’s strong public policy protecting the integrity of the tenure system,” Green wrote in his decision.

Cardinale’s lawyer, Jonathan Behrins, said the DOE purposefully avoids the PEP vote because it exposes dubious terminations to more scrutiny.

A city Law Department spokesman defended Cardinale’s firing.

“We believe DOE’s determination was appropriate and lawful,” said spokesman Nick Paolucci.
**************************
For 14 years as a teacher advocate in New York, my focus has been assisting educators with problems concerning their workplace, and/or, if they were tenured, researching the backstory of 3020-a charges served on them in the rubber room or reassignment.

In New York City, I knew that the controlling Law for 3020-a arbitration is Education Law 3020-a. It says so in the charging papers. But Ed Law 3020-a (2)(a) says that there must be an Executive Session and a vote by the school board (in NYC the "PEP") on probable cause for the charges before the charges are served. In NYC, this Executive Session never takes place and there is no date in the charging papers for this meeting and vote.

For many years teachers charged with 3020-a Specifications received the 3020-a charges ("Specifications") with APPENDIX A in the packet. I asked NYSUT and the DOE why this was sent out to all tenured charged educators if there was no compliance in NYC, and the answer was always, "that's the way it is".

I used to attend PEP meetings and spoke about the "Executive Session" being held before the public meeting began, which is a violation of Open Meetings Law #105.  I collected Agendas with this violation of Open Meetings Law from 2006-2013, and continuously asked 
why all the PEP members since I started attending the meetings have violated Open Meetings Law...why weren't they held accountable? I also spoke about my dismay that the charging process for teacher tenure hearings was a violation of the tenure law, in my non-attorney opinion. Please make note of the fact that I know some members personally, and have NO gripe against anyone personally, only as an official member of the PEP, where all New York State Laws are to be complied with.

When speaking at PEP meetings I carefully tried my best to take less than 2 minutes, leaving 45-50 seconds for former NYC schools Chancellor Joel Klein to give me an answer. He rolled his eyes, sometimes looked at DOE General Counsel Mike Best with his "there she goes again" look and took 10 seconds to tell me " your time is up, Ms. Combier, next speaker please" and 10 seconds for me to say "...but you didnt answer my question..."

I did not attend PEP meetings since then because they are useless, except for the PEP meeting on Feb 28 2018, where the two schools I was helping, MS 53 and PS/MS 42, were allowed to continue, open and free.

I have been writing about the PEP and teacher tenure on my blogs and websites since 2007, and I have submitted these issues to the DOE Attorneys as well as the Attorneys I work with and NYSUT, for at least that long, if not longer (I started working with teachers in 2003). I now assist at 3020-a as a member of the legal team (Im not an attorney). An educator charged with 3020-a does not need an Attorney in arbitration, but if anyone goes Pro Se, I highly recommend an assistant to help with the process. I do that, but I most often work with attorneys.

In 2003 I started asking all of the Attorneys I knew why there was no compliance with this section of Ed Law 3020-a. The answer I received always was, "...because that's the way it is", or "Don't worry about it". But I did worry about it, and when I began working on 3020-a hearings as an assistant to teachers who wanted to be pro se (without an attorney) or who wanted me and a private attorney to be the legal team, we always presented a Motion To Dismiss on the issue that if there was no vote on probable cause, then the arbitrator had no authority to proceed to a decision, and any decision was invalid.

We were denied on our Motion in the Supreme Court until Judge Desmond Green saw it differently:

“The DOE’s failure to make a finding of probable cause and adhere to the procedural protections guaranteed to Petitioner in Education Law § 3020-a violates Petitioner’s due process rights and violates New York’s strong public policy protecting the integrity of the tenure system.”

It appears that this decision unravels the 3020-a panels and nullifies the decisions made by any arbitrator who refused to grant the Motion To Dismiss on the basis of a lawless determination of probable cause signed by a Principal or Superintendent. There is no rule, law, or memo that specifically gives either Principals or Superintendents the authority to sign that paper, NOTICE OF DETERMINATION OF PROBABLE CAUSE.

I am writing a book about my experiences in 3020-a hearings after I brought up this issue.

The Department Attorneys have submitted responses, or Opposition to the Motion To Dismiss that range from the boring to the funny and ridiculous. One theme always appears: the Chancellor has the right to charge anyone, and can delegate this authority to anyone.

Again, I am not an attorney, but preferring, or serving, charges on tenured educators is not the same as determining "probable cause". My final answer.

25 comments:

Anonymous said...

Congratulations! And thank you for your persistence to go the long haul with this. It must have been very frustrating. Until now.
"Shall determine by a vote of all the members of such a board." Doesn't this also amount to checks and balances of power as well as a conflict of interest?

Anonymous said...

Does this ruling afford the teachers who were wrongfully terminated to file a case against the Department? Could there be a class action filed??

Anonymous said...

You are absolutely brilliant, great work, bravo!!!

Anonymous said...

My 8 year-old son had a meltdown yesterday behind putting together a lego project. That opportunity was just the beginning of me trying to impart on him that whole idea about never giving up in the face of what you know can or should be done. I put down what I was doing and got in there alongside him and he got it done. Persistence beats resistance. Thank you lady.

Anonymous said...

I am sooooooooooooo glad to hear this. I hope that this will help all the teachers who were terminated without due process. Let the lawsuits begin.

DAN RONEN said...

You have been doing a great job. Thank you for all your devoted efforts assisting and supporting educators over the years !!!

Anonymous said...

Will you contact and represent people who were fired? I know several people who were terminated after a 3020 hearing. There should be a follow up story on what could be done. The union should be sued for allowing this to go on.

Betsy Combier said...

Anyone who has a decision from a U-rating appeal, 3020-a, or Court that they want to discuss please contact me at betsy.combier@gmail.com. I am not an Attorney but I collaborate with several attorneys and we, together, try to fix injustice wherever it appears.

Anonymous said...

Things are so bizarre of the DOE attempts to circumvent the rights of teachers that even teachers completing a successful study sabbatical have been known to be brought up on incompetency charges signed off by Principals who literally never ever met the teacher ( in real life ) , and the teacher never having even a day of opportunity to implement the teaching skills learnt on sabbatical.

Anonymous said...

Now they are bringing ATRs to termination hearings on incomoerence even though they do not have regular classes.

Rupert Green said...

I am one of the railroaded ones and I will definitely be going further.

Anonymous said...

Our Union by not negotiating in good faith has impacted that a group of teachers called ATRs are treated in a different way under rules that were not voted, and are denied a fair chance to find permanent jobs because they are in disvantage with respect to new teachers. The ATR pool was never created to be a dumping ground for the most experienced teachers. Therefore we require a new agreement with the input, and vote of ATRs in compliance with the Roberts Laws. We also require a new agreement that prevents any targeting, harassment, or abuse from any type of supervisor with the sole purpose of terminating ATRs. Observations should not be used in a arbitrary, and capricious way to penalize or to terminate an ATR.

Anonymous said...

Shouldn't the lawyers that worked with you help the teachers that were fired. They need a legal response to this story

Betsy Combier said...

I think it is clear that we are ready to assist anyone who wants to pursue this issue for their own individual case. All that anyone has to do is email me and I will respond. My email
is betsy@advocatz.com. All communications are confidential, always.
Betsy Combier

Anonymous said...

I wish the union would follow up on this story. Many people don't know about this case. The only way for people who were terminated or reprimanded is for their lawyer to follow up and contact them. They can't email anyone if they don't know about it. I hope they get justice.

Anonymous said...

Field supervisors have a blank check to go after ATRs, they know that the UFT will not challenge any type of observations on ATRs, or unfair circumstances. Out of license, in a bad class, students the ATR just met, ATRs having close to 8 days absent or excessive days absent.... Everything even unfair observations, and circumstances are good to terminate an ATR. Any reason is good to make an ATR uncomfortable.

As long as these field supervisors can carry their dirty agenda on high expectations that are unreachable everybody is happy. At the same time they need to hire new inexperienced fellow teachers to replace all those experienced teachers that are becoming ATRs. It is a perfect plan designed by our leaders and Union. The plan is to make ATRs useless, overwhelmed and discouraged.

For the ATRs its bad enough that the DOE wants to terminate us but it seems the UFT leadership is helping the DOE thin the ATR herd by stabbing us in the back. That is why the DOE and UFT agreed to the field supervisors in 2012 as another chance to make the ATR problem go away. Again everybody is happy. Our Union knows everything is fine.

Anonymous said...

Unfortunately NYSUT lawyers are looking the other way.

Anonymous said...

The NYSUT lawyers do not seem that they are acting in good faith.

Anonymous said...

That definitely violates the due process.

Anonymous said...

The Union and the NYSUT are working with the DOE to get rid of experienced teachers.

Anonymous said...

The NYSUT is in the business of getting rid of experienced teachers as the DOE.

Anonymous said...

The Union is perfectly aware that many experienced teachers are being pushed out on very questionable tactics.

Anonymous said...

Certainly the DOE is intimidating and harassing older teachers everywhere because of the budget.

Anonymous said...

NYSUT is definitely looking the other way.

Anonymous said...

Well they can find a legal way to improve their budget. Such as firing the 2000 lawyers that don't belong on a school systems payroll.