Ten of the twenty-four 3020-a Arbitrators Quit the NYC UFT/DOE Panel

On July 3, 2008, Jeff Kaufman made an excellent assessment of the flimsy Temporary reassignment center agreement" dated June 27, 2008. 

Very much worth reading to see how useless this "agreement" was, and how no one followed it (well, this you cannot tell from just reading it, but I can tell you that it was not adhered to by anyone, UFT/DOE/arbitrators).

Then came the April 15, 2010 "agreement" that no one paid any attention to either. Once in a blue moon an arbitrator would give 20 minutes to prepare for a witness' cross-examination at 3020-a, and I could always tell which way he/she was leaning when the 20-minutes was allocated, and it was not for lunch. See the agreement below.

Then, there were new rules effective April 1, 2012, which changed the way the arbitrators were paid, and guaranteed that none of them would be paid for the time they already spent hearing cases. Infuriated, ten of the 24 arbitrators on the UFT/DOE arbitration panel quit.

What effect this may have is anyone's guess, but one thing is for sure: the arbitrators are hopping mad, and they are not gonna take it anymore.

Stay tuned...

The April 15, 2010 "Close The Rubber Rooms" Agreement

April 15, 2010

Michael Mulgrew, President

United Federation of Teachers

52 Broadway, 14^th Floor

New York, New York 10004

Dear Mr. Mulgrew:

This letter will confirm the mutual understandings and agreements between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers (“UFT”).  Nothing in this Agreement shall constitute a waiver or modification of any provision of any collective bargaining agreement, letter (including but not limited to the June 27, 2008 letter from the Chancellor to the President of the UFT) or other agreement between the DOE and the UFT except as specifically set forth herein.  Nothing in this agreement shall be construed to convert non-mandatory subjects of bargaining into mandatory subjects of bargaining.  As used herein, the term “CBA” shall refer to the collective bargaining agreement covering teachers and corresponding provisions of other UFT-DOE collective bargaining agreements.

The long delays that have arisen in the current process of investigating alleged acts of misconduct and adjudicating charges pursuant to Education Law § 3020-a benefit neither the DOE nor the employees represented by the UFT.  The DOE and the UFT are committed to ensuring that the agreements reached here will be carried out so that those delays will be ended and the process outlined in the law, the contracts between the parties, and this Agreement will be adhered to.  

For purposes of this Agreement, all timelines shall be measured in calendar days, but shall not include the summer break, all recess periods and holidays.   

Reassignment

Misconduct Cases (i.e., any case deemed by the DOE to deal exclusively or primarily with an employee’s behavior, not his or her pedagogy):  Pending investigation of possible misconduct and completion of the § 3020-a hearing, the DOE may reassign an employee only to (i) a DOE administrative office to do work consistent with law (an “Administrative Office Assignment”) or (ii) an administrative assignment within his or her school with a program consisting of Professional or Administrative Activities (as listed in CBA Articles 7(A)(6)(a), 7(B)(8)(a), 7(C)(4)(g)(1), or 7(K)(3)(d)) other than items #1 (small group instruction), #2 (one to one tutoring), #3 (advise student activities such as clubs, teams or publications) and #7 (conflict resolution for students), which shall be scheduled consistent with CBA Article 7(B)(2)(c) regardless of the division in which the employee works (“Administrative School Assignment”).  Where the Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or serious financial misconduct involving more than $1,000 not be allowed to work in an Administrative Office Assignment or an Administrative School Assignment pending the outcome of the investigation, the DOE may suspend the employee with pay rather than reassign him/her.  The determination of the Chancellor or his designee to suspend an employee with pay shall be in writing.  Prior to a suspension from all duties with pay, the Chancellor or his designee shall consult with the UFT President or his designee. 

The DOE shall prefer charges pursuant to Education Law § 3020-a[1] within 60 days of an employee being reassigned or suspended, except in cases where the reassignment or suspension was caused by (i) an allegation of sexual misconduct as defined in CBA Article 21(G)(6) that is being investigated by the Special Commissioner of Investigation for the New York City School District (“SCI”), (ii) an allegation of serious financial misconduct involving more than $1,000 that is being investigated by SCI, (iii) criminal charges pending against the employee, (iv) an allegation of serious assault that is being investigated by SCI, (v) an allegation of tampering with a witness or evidence, where the allegation of tampering is being investigated by SCI.  In cases where the 60 day period does not apply, when SCI issues a report or, in the case of criminal charges, the employee notifies the DOE of the disposition of the criminal case pursuant to Chancellor's Regulation C-105, the DOE shall have 15 days to bring § 3020-a charges against the employee or return the employee to his or her prior assignment.  Nothing herein shall waive any limitations period for the bringing of charges pursuant to Education Law § 3020-a.  The Chancellor or his designee and the President of the UFT or his designee shall meet monthly, or less frequently if the UFT and DOE agree, to review the status of these cases.   At the end of the first year of this Agreement, and in subsequent years if requested by the UFT, the DOE and the UFT will meet to review the issue of investigations and reassignments extending beyond 60 days and, if there has been a significant increase in the number of such investigations and reassignments, to negotiate ways to address this issue.
 

Except in those cases where the DOE is not required to prefer charges within 60 days, should the DOE not prefer § 3020-a charges within 60 days, the employee shall be returned to his/her prior assignment.  If an employee is returned to his/her prior assignment, adverse action shall not be taken against the employee solely because of the reassignment.  If § 3020-a charges are preferred subsequent to the expiration of the 60 day period, the employee may then again be reassigned to an Administrative Office Assignment or an Administrative School Assignment or, where the Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or serious financial misconduct involving more than $1,000 not be allowed to work in an Administrative Office Assignment or an Administrative School Assignment pending the outcome of the investigation, suspend the employee with pay rather than reassign him/her pending determination of the § 3020-a charges.  The determination of the Chancellor or his designee to suspend an employee with pay shall be in writing.  Prior to a suspension from all duties with pay, the Chancellor or his designee shall consult with the UFT President or his designee.   An employee’s assignment pending investigation and/or a hearing shall not be raised at the hearing or deemed relevant in any way to the determination of the charges, any penalty issued or the adjudication of any issue in the hearing. 

Incompetence Cases (i.e., any case deemed by the DOE to deal exclusively or primarily with an employee’s pedagogy) – Pending the bringing of Education Law § 3020-a charges for alleged incompetence and completion of the § 3020-a hearing, the DOE may reassign an employee only to an (i) Administrative Office Assignment or (ii) an Administrative School Assignment.  The DOE shall prefer charges pursuant to Education Law § 3020-a within 10 days of an employee being reassigned.  Should the DOE not prefer § 3020-a charges within 10 days, the employee shall be returned to his/her prior assignment.  If an employee is returned to his/her prior assignment, adverse action shall not be taken against the employee solely because of the reassignment.  If § 3020-a charges are preferred subsequent to the expiration of the 10 day period, the employee may then again be reassigned to an Administrative Office Assignment or an Administrative School Assignment pending determination of the § 3020-a charges.     

  

Tolling:  If the DOE gives a reassigned employee 48 hours notice of an interview which may lead to disciplinary action and the reassigned employee either fails to appear on the scheduled day or fails to notify the DOE that s/he is invoking any right he/she may have to not answer questions, the DOE shall reschedule the interview within a reasonable period of time and the time between the originally scheduled interview and the rescheduled interview shall not count towards the applicable 60-day or 10-day limits on the length of time an employee may be reassigned or suspended with pay.  Where a principal schedules an interview which may lead to disciplinary action of an employee that has been given an Administrative School Assignment and 48 hours notice is not required by the CBA, Chancellor’s regulations, or law, the following shall apply:  If the reassigned employee either fails to appear on the scheduled day or fails to notify the principal that s/he is invoking any right he/she may have to not answer questions, the principal shall reschedule the interview within a reasonable period of time and the time between the first scheduled interview and the rescheduled interview shall not count towards the applicable 60-day or 10-day limits on the length of time an employee may be reassigned.  Nothing herein shall constitute a waiver or alteration of any right the DOE may have to compel an employee to attend an interview which may lead to disciplinary action or any right an employee may have to not answer questions.      

Service of Charges

In order to make the process as efficient as possible, service of notice of the nature of the charges and the actual charges shall be consolidated and served together upon an employee along with specifications and, in incompetence cases, a bill of particulars.  Nothing in this Agreement shall alter a Respondent’s entitlement, if any, to a bill of particulars in misconduct cases.    

Probable Cause Determinations

In addition to the enumerated acts set forth in CBA Article 21(G)(5), serious misconduct shall also include actions that would constitute a class A-I or A-II felony or any felony defined as a violent felony offense in NY Penal Law § 70.02.  An indictment on a class A-I or A-II felony, an indictment on any felony defined as a violent felony offense in NY Penal Law § 70.02, or a felony indictment on any other conduct that constitutes serious misconduct pursuant to CBA Article 21(G)(5) shall create a rebuttable presumption of probable cause.           

If a finding of probable cause was based on an indictment pursuant to CBA Article 21(G)(5), the employee shall remain off payroll pending the disposition of the criminal case.  The DOE shall have 15 days after the employee notifies the DOE of the disposition of the criminal case pursuant to Chancellor's Regulation C-105 to bring Education Law § 3020-a charges based on the same conduct as was at issue in the criminal case.  If the DOE prefers § 3020-a charges on the same conduct as was at issue in the criminal case within the 15 days, and the employee was convicted in the criminal case of any offense that constitutes serious misconduct, he/she shall remain off payroll until a decision in the § 3020-a case and such § 3020-a case shall be completed within the timeframes for hearings set forth in this Agreement.  If the DOE prefers § 3020-a charges on the same conduct as was at issue in the criminal case within the 15 days, and the employee was acquitted of all offenses that constitute serious misconduct, the DOE shall reassign the employee to an Administrative Office Assignment or an Administrative School Assignment, suspend the employee with pay (if permitted pursuant to this Agreement) or request a second probable cause hearing to continue the suspension without pay until the final outcome of the § 3020-a hearing and such § 3020-a case shall be completed within the timeframes for hearings set forth in this Agreement.  If the DOE does not bring Education Law § 3020-a charges within those 15 days, the employee shall be restored to the payroll effective as of the date the disposition of the criminal case and returned to his/her prior position.     

If a finding of probable cause was based on criminal charges pursuant to CBA Article 21(G)(6), the DOE shall have 15 days after the employee notifies the DOE of the disposition of the criminal charge pursuant to Chancellor's Regulation C-105 to bring Education Law § 3020-a charges based on the same conduct as was at issue in the criminal charge.  If the DOE brings such a § 3020-a charge, the employee shall remain off payroll until a decision in the § 3020-a case and such § 3020-a case shall be completed within the timeframes for hearings set forth in this Agreement.  If the DOE does not bring § 3020-a charges based on the same conduct as was at issue in the criminal charge within 15 days of the employee notifying the DOE of the disposition of the criminal charge pursuant to Chancellor's Regulation C-105, the employee

shall be restored to the payroll effective as of the date the disposition of the criminal charge. 

Nothing in this Agreement shall alter the provisions of CBA Article 21(G)(5) and (6) with respect to entitlement to back pay.    The DOE agrees to meet on a bimonthly basis with the UFT to assess the status of investigations extending beyond 60 days where the employee has been suspended without pay.    

Timeframe for Hearings

Within 10 - 15 days of DOE’s receipt of the request for a hearing from an employee charged under Education Law § 3020-a, a pre-hearing conference shall be held.  Both Education Law § 3020-a and the collective bargaining agreements require hearings, including closing statements, to be completed within sixty (60) days of the pre-hearing conference and a decision to be rendered within thirty (30) days of the final hearing date. The UFT and DOE agree this timeframe must be adhered to by all parties to the hearings and strictly enforced by hearing officers.  Hearing officers shall establish a trial schedule at the pre-hearing conference to ensure that hearings are completed within the required statutory and contractual timeframes and ensure an equitable distribution of days between the DOE and the charged employee. 
  

Education Law § 3020-a permits “limited extensions” beyond the 60 days where it is determined that “extraordinary circumstances” warrant.  “Extraordinary circumstances” shall be construed narrowly by hearing officers so that the granting of “limited extensions” allowing hearings to last beyond sixty (60) days is the exception and not the rule.  Pursuant to CBA Article 21, a hearing officer may be removed prior to the end of his or her one-year term only for good and sufficient cause, which may include failure to comply with this Agreement, upon mutual agreement of the UFT and DOE. 

If the hearing officer determines that a necessary witness is a former student who is unavailable because he/she is residing outside of New York City or a current student who is unavailable because he/she has left New York City for an extended period of time, this shall constitute an “extraordinary circumstance.”  In such a case, the hearing officer shall schedule the hearing to begin or continue as soon as possible given the availability of the witness as demonstrated to the hearing officer.       

Arbitrators serving on the competence panel must agree to provide seven (7) consecutive hearing dates as defined in CBA Article 21(G)(2)(a) per month for the months of September through June and two (2) hearing dates for the months of July and August.

Discovery and Testimony

In order to comply with timelines for hearings, the UFT and DOE agree that hearings must be held in as efficient a manner as possible.  Disputes relating to document production, witness lists and other procedural issues often consume hearing time and should be dealt with to the maximum extent possible in the pre-hearing conference.  To that end, the UFT and DOE have already agreed in the June 27, 2008 letter from the Chancellor to President of the UFT to certain discovery procedures. 

The hearing process itself can be conducted in a more efficient manner that allows for issues to be fully and fairly litigated.  To accomplish this, the parties to the hearings shall adhere to the following guidelines:

• 1.      It is the intent of the UFT and DOE that, to the extent practicable, hearing days shall be fully utilized, that hearing days not end before 5pm and the parties to the hearing have multiple witnesses ready to testify to avoid the loss of part of the day. 
• 2.      Where a hearing day is not fully used, the unused time will be counted towards the time allocated to the party that caused the delay. 
• 3.      Attorneys shall not meet with others between direct and cross examination for longer than 20 minutes, except in unusual circumstances.
• 4.      Hearing Officers shall ensure that cross-examination is not used by either party as a dilatory tactic in order to reduce one of the parties’ allotted time to present its case.
• 5.      Evidence shall be limited to relevant matters.
• 6.      Rebuttal shall be used only to deny some affirmative fact that the opposing party has tried to prove.  During rebuttal, a party to the hearing may not offer proof to corroborate evidence that has already been presented by that party or proof tending merely to support that party’s case after the opposing party has rested.     

If relevant and requested at the pre-hearing conference, either party may introduce (i) relevant background evidence about a witness by affidavit from the witness; (ii) an affidavit from a doctor’s office attesting to an employee’s visit or non-visit on a particular date; (iii) an affidavit attesting to the date of an employee’s arrest, the charge (if any) against the arrested employee, and the disposition of that charge.  Such a witness may be cross-examined regarding any matter discussed in an affidavit. 

If relevant, a (i) business record, (ii) attendance list from a faculty meeting, orientation and/or training session, or (iii) any human resource document submitted by a respondent (e.g., absence or sick note) may be admitted with an affidavit from a custodian of the record, without the need for live testimony from a witness to authenticate the document. 

A party to the hearing or the hearing officer may request an unedited copy of the relevant transcript if a certified transcript is not available when needed.  The unavailability of a certified transcript shall not excuse adherence to the time limitations for completion of a hearing and issuance of a decision.   

Non-Termination Cases

The expedited hearing process as described in CBA Article 21(G)(3) shall be utilized as set forth therein, with the following modification:  If the DOE decides not to seek a penalty of more than a suspension of 4 weeks or an equivalent fine, the case shall be heard under the expedited procedures provided in CBA Article 21(G)(3), without the need for the employee to accept an offer of expedited arbitration.

A separate track of “non-termination” cases will be established with a separate panel of additional hearing officers that exclusively hears expedited cases. 

Panel of Hearing Officers

The number of hearing officers shall be as follows:

            Incompetence Cases shall be heard by a panel of 14 hearing officers.

            Misconduct Cases shall be heard by a panel of 25 hearing officers.

            Expedited Cases shall be heard by a panel of hearing officers, the size of which will be set by the UFT and DOE as described below. 

Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators.  If the DOE believes there is a need for more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase.  

Decisions

Both Education Law § 3020-a and the collective bargaining agreements require decisions within 30 days of the completion of the hearing.

Meeting with the Panel of Hearing Officers

The Chancellor and the President of the UFT will personally, jointly meet with the panel of hearing officers annually to impress upon the hearing officers that both parties to this Agreement are serious about meeting the timelines in the law, the collective bargaining agreements, and this Agreement.  The Chancellor and the President will urge the hearing officers to strictly control the hearings and require all parties to the hearing to conform to the timelines provided herein.  They will assure the hearing officers that no hearing officer will be removed by either party to this Agreement for enforcing these rules.

Mediation of Education Law § 3020-a charges

This section, “Mediation of Education Law § 3020-a charges,” shall apply to all employees with pending Education Law § 3020-a charges on or before September 1, 2010 or being investigated on or before September 1, 2010 and the investigation results in § 3020-a charges.  The parties to the § 3020-a hearings shall begin mediating such cases upon the signing of this Agreement.

The UFT and DOE shall agree on hearing officers on the rotational panel that shall serve as mediators one day per month (in addition to their required hearing days that month).  The UFT and DOE may also jointly select mediators not currently on the panel of hearing officers.   

Each case subject to mediation shall be assigned, on a rotational basis, to a mediator, other than the hearing officer assigned to decide the case.

The employee (and the employee’s representative, if any) and a representative of the DOE with authority to negotiate settlement agreements (subject to final supervisory approval) shall meet with the mediator.  The mediator shall work informally to assist the charged employee and the DOE in reaching, if possible, a voluntary, negotiated resolution of the Education Law § 3020-a charges.  The mediator shall not decide the merits of the Education Law § 3020-a charges or impose a decision.  Instead, the mediator shall help the charged employee and the DOE to, if possible, agree on a mutually acceptable resolution.      

No mediator shall be compelled to or voluntarily disclose (including in any subsequent proceedings under §3020-a of the Education Law) any information learned during the mediation.

Backlog

Effective the first day of the 2010-2011 school year, all employees who, prior to August 31, 2010, have been (i) removed from their positions and assigned to a temporary reassignment center or (ii) charged pursuant to Education Law § 3020-a shall be reassigned to an Administrative Office Assignment or an Administrative School Assignment or suspended with pay (if permitted by this Agreement).     

For all employees charged prior to August 31, 2010, the requirement that the pre-hearing conference be scheduled within 10-15 days of the charge shall not apply, but the § 3020-a hearing and decision shall be completed by December 31, 2010. 

For all employees who were assigned to a TRC prior to August 31, 2010 and were not charged prior to August 31, 2010, the 10 or 60 day period to charge an employee or return him/her to his/her prior assignment, shall run from September 1, 2010.

Effective September 1, 2010, the parties will implement the new timelines set forth in this Agreement, which shall apply to all cases charged after September 1, 2010. 

 Sincerely,

Joel I. Klein

Chancellor

New York City Department of Education

 Agreed and Accepted By:

_____________________

Michael Mulgrew

President

United Federation of Teachers

[1] Probationary employees will be reassigned in the same manner as tenured employees under this Agreement, i.e, to an Administrative Office Assignment, Administrative School Assignment, or suspension with pay (if permitted by this Agreement).  This Agreement shall not be construed to create tenure or Education Law § 3020-a rights for an employee.       

Vacating a Section 3020-a arbitration award

Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, App. Div., Second Dept., 275 AD2d 411

It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.

As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.

The district filed certain disciplinary charges against David Ziparo (see below). The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.

Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.

On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;

3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.

Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.
By Harvey Randall, Esq. on Wednesday, June 27, 2007

Appeal of administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
LINK

In a proceeding pursuant to CPLR article 75 to modify a determination of a Hearing Officer made pursuant to Education Law § 3020-a, dated February 3, 1999, which, after a hearing, sustained certain charges against the respondent David Ziparo, suspended him for one year without pay, and conditioned his return to teaching upon a certification of psychiatric fitness, the Board of Education of the Westhampton Beach Union Free School District appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered August 19, 1999, which denied the petition and confirmed the determination.

Ordered that the the judgment is affirmed, with costs.

The Supreme Court properly confirmed the Hearing Officer's determination since the petitioner did not demonstrate any basis for vacating it under CPLR 7511 (see, Education Law § 3020-a [5]; Matter of Roemer v Board of Educ., 268 AD2d 479; cf., Matter of Board of Educ. v Yusko, 269 AD2d 446). The Hearing Officer's determination has a rational basis and is supported by the record (see, CPLR 7511; Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560).

The petitioner's remaining contention is without merit.

Mangano, P. J., O'Brien, Sullivan and H. Miller, JJ., concur.

The Appellate Division affirmed Supreme Court Justice Floyd ruling, set out below:

ORDERED that this application by Petitioner seeking to modify and/or vacate a certain arbitration award is considered under Education Law 3020-a and CPLR 7511 and is denied. The petition is dismissed. The award is confirmed.

The Respondent is a tenured physical education teacher for the past 23 years within the Petitioner’s school district. On April 8, 1998, Petitioner school district proffered charges against the teacher which included, inter alia, conduct unbecoming a teacher and insubordination for inflicting corporal punishment against several students by striking them with a belt. On another occasion, the teacher allegedly “pushed” a student and issued “vulgarities.”

Following a hearing pursuant to Education Law 3020-a, the hearing officer, in a 55 page written decision, found the teacher “guilty of a number of charges” including the use of corporal punishment. However, because of an otherwise 23 year unblemished teaching record, the hearing officer did not recommend the teacher’s termination. Rather, the hearing officer recommended that the teacher be suspended without pay for one year from February 1, 1999 until January 31, 2000 subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.

On the instant petition, the Petitioner seeks to modify the recommendation of the hearing officer by directing that the teacher be terminated from his employment contending, inter alia, that the recommendation is irrational, violative of public policy and subject to review under Article 78 asserting that the award is arbitrary, capricious and an abuse of discretion. The Respondent demurs and does not dispute the hearing officer’s findings but urges that judicial review is limited to the confines of Article 75 rather than Article 78.

Education Law 3020-a(5) provides in part the following:

5. Appeal. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court’s review shall be limited to the grounds set forth in such section.

In view of this unambiguous legislative mandate, this Court must apply the standard of review of Article 75, that is, CPLR 7511 and not that of Article 78.

CPLR 7511(b) (1) sets forth the criteria upon which a Court may vacate or modify an award:

(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

Here, this Court discerns no basis under CPLR 7511(b) (1) to modify or vacate the hearing officer’s recommendation. Indeed, the hearing officer made findings of fact consistent with those facts as asserted by Petitioner. Petitioner urges termination upon the basis that the hearing officer’s determination to suspend the Respondent for one year rather than terminate his employment with the school district is “irrational.” Although neither party to this proceeding has submitted a transcript of the entire hearing, a review of the record now presented fails to reveal that the hearing officer’s recommendation is “irrational.” Rather, the record and the hearing officer’s recommendations reflect the seriousness of the charges and notes that except for the current charges, no other charges have ever been filed by the District against the Respondent in the prior twenty two years of tenured service to the district.

Moreover, Education Law 3020-a(4) (a) permits a hearing officer to impose a variety of penalties to include a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. In lieu of the foregoing, the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment. The hearing officer was well within his authority to direct the suspension of the Respondent for one year and that his return to his teaching duties would be conditioned upon being certified as fit for duty by a psychiatrist. Given the charges and the Respondent’s otherwise unblemished record, the hearing officer’s determination imposing a one year suspension without pay is a significant financial penalty, reflects the seriousness of the charges proffered and proven by the district and cannot be construed by this Court as irrational.

Further, the hearing officer was also within his authority to condition Respondent’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. Such condition is remedial in nature, does not violate Education Law 913 and insures that the District’s, the hearing officer’s, and the Respondent’s concerns regarding his fitness to continue his profession are judged by an impartial objective evaluation.

Accordingly, the hearing officer’s determination reflects a balanced decision based on the facts and well within his authority as defined by Education Law 3020-a. The remainder of Petitioner’s arguments are without merit and the petition is dismissed. The hearing officer’s determination is confirmed.

Submit order confirming the hearing officer’s award.
Posted by Plain English Legal Publications at Wednesday, August 22, 2007

Vacating a disciplinary arbitration award

Roemer v NYC Bd. of Ed., App. Div., Second Dept., 268 AD2d 479, Motion for leave to appeal denied, 94 NY2d 763

The Roemer decision serves as a reminder that the grounds for appealing a Section 3020-a disciplinary determination are very limited. In order to overturn a Section 3020-a arbitration award, it is necessary to prove that one or more of the statutory reasons set out in Article 75 of the Civil Practice Law and Rules for vacating the award exist.

Under Article 75, [Section 7511.b] an arbitrator’s award can be vacated if a court finds that the rights of a party were violated because of corruption, fraud or misconduct in obtaining the award; the arbitrator was not impartial; to one party; the arbitrator exceed his or her powers or so imperfectly exercised them that a final determination was not made or the arbitration procedures were not followed [unless the party objecting to the award continued with the arbitration without objection after becoming aware of the defect].

Here David Roemer, a New York City schoolteacher, was terminated after the Section 3020-a arbitrator found him guilty of charges of incompetence and insubordination. He attempted to vacate the award. However, the Appellate Division sustained the Supreme Court’s dismissal of Roemer’s petition to vacate the award because Roemer “did not demonstrate” any basis for vacating the award under Section 7511.

In addition to the limited grounds for vacating the arbitration award set in Section 7511, Section 3020-a set a very short statute of limitations for filing a petition to overturn or modify the award as well as settling other limitations in such cases. Section 3020-a.5 sets out the following limitations with respect to challenging a Section 3020-a disciplinary determination:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed final for the purpose of such proceeding.

3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Point 3 is particularly significant as it allows the appointing authority to impose the penalty determined by the arbitrator while the decision is being challenged.

By Harvey Randall, Esq. on Friday, May 11, 2007

Betsy Combier Unravels 3020-a Arbitration in New York City

Lawline

Betsy Combier 
Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 

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.

           

Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 
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 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.

I have been working on 3020-a hearings for more than 17 years (I have worked on about 107 cases) 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.


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.

Education Law Fraud and the Omission of Probable Cause

 

Betsy Combier

betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

From the desk of Betsy Combier, re-posted from ADVOCATZ.com: 

In this post, I will explain why excellent educators are charged with false allegations and then terminated for doing something that they did not do or not removed from their employment for harmful acts that they did do. The charging procedures and outcomes were very confusing when I first started examining them 18 years ago.

Education Law  §3020 states in relevant part:

No  person enjoying  the   benefits   of  tenure   shall  be  disciplined  or  removed  during  a  term  of  employment  except   for  just   cause   and   in   accordance   with   the   procedures  specified in section three thousand twenty-a  of  this article

and,

"The tenure statutes reflect the intent and purpose of the Legislature to protect educators who have successfully completed a probationary period from being disciplined summarily without the safeguards of Education Law § 3020-a. As stated by this Court in Holt v. Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625 (1981): At one time, teachers in this state had only so much job security as could be bargained for in their contract of employment. When that contract expired, the decision as to whether or not to continue the teacher's employment was completely within the discretion of the school district. The Legislature, recognizing a need for permanence and stability in the employment relationship between teachers and the school districts which employ them, enacted a comprehensive statutory tenure system, the purpose of which was to provide some measure of security for competent teachers who had rendered adequate service for a number of years. One of the bulwarks of that tenure system is section 3020-a of the Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice. Id., 52 N.Y.2d at 632"

From In the Matter of Roseann Kilduff, Respondent,v.Rochester City School District, et al., Appellants, Court of Appeals No. APL-2013-0029:

"In Matter of Boyd v. Collins, 11 N.Y.2d 228 (1962), this Court had annulled an agreement between a board of education and a teacher under which the teacher would resign after a stated period in lieu of charges. The Court plainly stated that the "statutory tenure terms can be changed by the Legislature but never by a board of education." Id. at 233. As summarized by the Court in Mannix, supra, "[i]t was made clear in [Boyd] that no act of a board of education could effect a method of bypassing the tenure statute." Mannix, 21 N.Y.2d at 459. Although Boyd was subsequently overruled in Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450 (1979), it was overruled solely on the ground that the law does not absolutely forbid a tenured teacher from waiving the protections of the tenure statutes if the record establishes a truly knowing, open and voluntary waiver. Id. at 455."

NYSUT lists changes to tenure in Chapter 56, 2015

In NYC, there is no voluntary waiver, and the Constitutional protection of tenure has been modified to fit the whims and fancy of a principal or superintendent who says to the legal department, "get rid of that person." Yet the NYC Department of Education pursues termination at the §3020-a arbitration under color of law, without any authority or waiver of a teacher's rights. No change has been made to Education Law §3020-a(2)(a), citing a probable cause determination by a vote of the Board of Education (PEP in NYC). The PEP BYLAWS do not give the Chancellor authority to vote on any issue, rendering any delegation of the vote to a Superintendent or principal by the Chancellor meaningless paper. Most shocking of all is the fact that the New York City Department of Education ("NYC DOE") and the Unions (UFT/NYSUT, CSA) have collaborated in this scheme that deliberately violates lawful procedures, is arbitrary and capricious, an abuse of discretion, and affected by an error of law. I believe that extortion might be the right word. 

Educators are brought to §3020 hearings without being told any of this. This is the fraud that I write about here, and what we - all of us in the community of the world - have to change. False statements published in bad faith against a person destroy that person's life forever. No apology after the fact can change that.

Nonetheless, if you know who you are, you will get to where you want to be. Knowledge is power but you need to know what to do with it.

As Lewis Carroll wrote,

"If you don’t know where you’re going, any road will get you there."

Many educators ask, "How could this happen?" "How could I be terminated/given a fine/suspended for something I did not do?"

Tenured employees of the NYC DOE at any level, unaware that their tenure rights under the  §3020-a statute have been illegally implemented or omitted, rely on the same people at their Union who have created the procedures cited here as illegitimate. Suppose an accused educator demands that their Union attorney or advocate submit a Motion To Dismiss the arbitration hearing based on this argument. In that case, the lawyer or representative will immediately quit or threaten to drop your case.

I always suggest that accused educators rely on their own beliefs and common sense. Just rely on yourself. Find out and believe in who you are and what you want, and if your intent is strong and your goals are "right" - as opposed to unlawful or harmful to another person or animal - you will reach your goals. This process must be constantly renewed, so do not rest on what you have done. Keep planting new ideas on your path. Who you are now will change tomorrow, just as you were a different person yesterday.

The Backstory of Education Law §3020-a in New York City

In the compulsory Arbitration known as Education Law Section §3020-a ("§3020-a") in New York City, there are significant and unlawful procedural and substantive deficiencies in the pre-hearing process that interfere with the public policy protections for teachers with tenure. These blatant violations of the tenure law deny a fair hearing to all individuals who are accused of an act of misconduct or incompetency and are charged with §3020-a charges (called “Specifications”).

"New York public employees enjoyed disciplinary due-process protections long before they won collective bargaining rights with the 1967 passage of the Public Employees Fair Employment Act, also known as the Taylor Law. But in requiring public employers to negotiate “terms and conditions” of employment, the state Legislature set the stage for union contracts to become obstacles to disciplining public employees."

Tenure is public policy in New York City. New York State unions are supposed to be the warriors who protect Constitutional rights to a full and fair hearing. But employers want "at-will" employment for everyone, and therein lies the problem.

Questions union members should be asking are, "Why doesn't my Union fight for my rights?" "Why do my Union Reps. seem to play along with the Department of Education?"

You can see this struggle between employer-unions here:

See Double Insulation: How New York  Law Shields Public Employees From Accountability

What happens then is that policymakers write "manuals" on what to do, devoid of circumstances, which people are supposed to use as a Guide. General statements of rules of law or Agency Agreements are only as good as their implementation.

See New York Department of Civil Service Manual For Administrative Law Judges and Hearing Officers (2002):

"Chapter 3: Due Process of Law
Introduction
Both the United States and New York
Constitutions guarantee that no person shall be deprived
of "life, liberty or property, without due process of law."
The concept of due process imposes a fundamental
obligation upon all organs of government, including state
agencies. At its base, due process means that no person
can be subject to an individualized proceeding in which
they stand to lose one of the protected interests – in
the context of administrative law, either property or liberty
– without sufficient procedures to ensure that the
governmental action is fundamentally fair."

The New York City Department of Education ("NYC DOE"), with the support of the Unions, has instituted a deceitful practice of skipping over the proper determination of probable cause codified in Education Law §3020-a(2)(a). The Statute has been ignored in favor of a false and misleading process that does not give an arbitrator subject matter jurisdiction to hear and decide any case or find “just cause” for the charges.

Here is Education Law §3020-a(2)(a):

"2. Disposition of charges.  a. 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 (i) the charges in detail, (ii) 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 (iii) 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."

Yet all NYC DOE employees receive a page with the title "Notice of Determination of Probable Cause" that does not have a date for an Executive Session in the box on the right. I started asking about this in 2004, and I remember Former NYSUT Counsel Claude Hersh telling me, "that's the way it is." I stayed with the thought that "that's the way it shouldn't be" and kept researching what happened.

In 2016 I was lucky to have received a lot of information about 3020-a procedures after filing a Freedom of Information request (FOIL) for all attendees and the content of an unpublished meeting of all the arbitrators, NYC DOE, and NYSUT Attorneys held on February 24, 2015. See documents posted on the blog NYC Rubber Room Reporter (2016) and Parentadvocates.org.

Hearing Request-Waiver

In the charging packet is a form with two boxes on it, one for requesting a hearing and one saying that a hearing is not requested. (See above document, with accused educator's name deleted). One box must be checked and delivered to the UFT/CSA within 10 days of receipt. If the 10 days' deadline is not met,  the accused will be terminated by members of the PEP meeting in an Executive Session. Welcome to a Catch-22:  either participate in an unlawful arbitration or lose your job without going to a hearing. I always suggest that you hire a private attorney or legal team and testify to your side of the story, then Appeal the decision if you think it is incorrect.

See Chancellor's Regulations C-205 (24):

"24. Dismissal for Cause, Resignation, or Retirement While Charges Are Pending -

This subdivision applies to persons who were dismissed pursuant to Section 3020a of the New York State Education Law or who resigned or retired while such charges were pending. All licenses and/or certificates held by such a person at the time of separation from service shall terminate permanently. No such person shall be eligible to apply for any new license or certificate, nor for reemployment by any unit of the City District or of any community school district without the recommendation of the Executive Director of the Division of Human Resources and the express written authorization of the Chancellor."

In other words, if you retire or resign after you are served with §3020-a charges, your license to teach in the NYC school district is revoked permanently.

Instead of complying with the Education Law §3020-a(2)(a), the NYC DOE, CSA (Union for administrators, principals), and NYSUT (gives free representation to UFT Members for §3020-a hearings, lawsuits) have collaboratively relied on so-called "Delegation Memos" (I have collected them, see my collection: Delegation Memos 2011-2018) which  DOE attorneys INSIST (I put this in caps because the perseverance to these memos is so fierce) removes the vote of the Panel For Educational Policy (PEP) in an Executive Session from the charging procedure in Education Law §3020-a(2)(a) in NYC. Oh, really? The truth is that nowhere in the memos is "probable cause" mentioned because the Chancellor cannot delegate a vote on probable cause to anyone. Also, there is no law, rule, or regulation that permits the NYC DOE to deny a Constitutional right, as the vote in Executive Session is, without the signed waiver of the person who is being denied that right. No educator brought up on charges has ever signed such a waiver, as far as I know.

Also, the insistence by the unions and NYC DOE that the Executive Session and vote on probable cause are unnecessary and that they were given the right to change the procedures for charging tenured teachers in NYC by the State legislature is a false statement. In the Commissioner's decision #15,482 (Appeal of the New York City Department of Education, on behalf of Community School District 13, concerning a disciplinary proceeding brought against Alfonzo Forrest, a/k/a Alphonzo Forrest, Principal of P.S. 256, under Education Law §3020(3), October 1, 2006), the Commissioner was very clear that Education Law Section  §3020-a could be modified or replaced by agreements negotiated between the city school district and the CSA after December 1, 1999, except the provisions of subdivisions one and two shall not apply to any agreements negotiated pursuant to this subdivision" (emphasis added - Ed.). 

See:  Decision No. 15,482

Yet NYC DOE, CSA, and NYSUT attorneys go along with the premise that the so-called "Delegation" memos have replaced the Executive Session with a constructive, but silent, waiver, to give the power and authority to find probable cause for the charges to the exact same person who created these charges in the first place, namely the Principal (or, in some cases, the Superintendent). 

It is patently absurd to think that the Legislature intended for the Chancellor, a singular individual, to have the authority to "find" probable cause, create the charges, and testify to the veracity of these exact charges. There is nothing ambiguous in the statutory text of Education Law §3020a or Education Law §2590h. The statutes say: (1) there must be a determination of probable cause by a vote in an executive session; and (2) the Chancellor, a nonvoting member of the PEP, cannot delegate a vote to anyone at any time. (PEP BYLAWS, Article 3.2). 

In the first paragraph of §2590-h, you can read the following:

"He or she shall exercise all his or her powers and duties in a manner not inconsistent with the city-wide educational policies of the city board."

There you are. End of the subject, proof that only the process described in detail in Education Law §3020-a(2)(a) to comply with the State-mandated due process for educators in NY State and City.

Even if the law said that a vote on probable cause is not needed (the law never suggests this, but the NYC DOE makes this one of their main arguments supporting the fraudulent charging papers), an Executive Session must be held. A determination of probable cause must be made by two or more people, never a single person.

When an arbitrator makes a decision in a case, they act outside of any lawful authority and choose to put the $1400/day salary above the facts or law of the case they are about to hear. Instead, the arbitrator should withdraw all charges, recuse themselves from the matter, or adjourn the case until a proper determination of probable cause is made by the PEP vote in an Executive Session. 

But this is never done. All arbitrators agree with their employer, the NYC DOE, and deny the Motion To Dismiss For Lack of Subject Matter Jurisdiction to keep their position on the hearing panel. They also agree that the finding of probable cause can be delegated to a single person as per Education Law §2590-h(19),(38). Sorry, but no.

Sadly, no arbitrator will jeopardize their $1400/day hearing cases brought to them by the NYC DOE at least 5 days/month, making their decisions appealable.

It gets worse. To speed up the removal of teachers from the rubber rooms during the early period of Mayor Michael Bloomberg's reign as chief of the Department under Mayoral control, the UFT took away the right of any tenured, accused teacher to choose the arbitrator for their §3020-a hearing. (NYCRR, Title 8, Section 82-3.5). See (h): "The provisions of this subdivision shall not apply in city school districts in cities with a population of one million or more with alternative procedures adopted pursuant to section 3020 of the Education Law."

This is true only for UFT members. CSA members in NYC (Assistant Principals and Principals) charged under §3020-a pick their arbitrator for their §3020-a hearing. How did this law become so narrowly defined, and why are teachers treated differently from administrators? No one complains, or the accused are not told they have this right.

The NYC DOE, CSA, and UFT/NYSUT adherence to this fraud is shocking.

See the decision by Judge Desmond Green in the case of Rosalie Cardinale (Article 75, Index number 85165/2017), who vacated the termination given to Ms. Cardinale by her §3020-a Arbitrator, Michael Lendino. I wrote the Petition papers for the Attorney.

No one at any agency or Union will represent anyone who makes the arguments I have made here. See my post on the "Gotcha Squad": the TPU (Teacher Performance Unit) or ATU (Administrative Trials Unit)

But the denial of the Motion can be used to show bias by the arbitrator in an Appeal. See "Appealing 3020-a Decisions."

So what? You say.

The reasons why the points made above are essential for purposes of understanding the denial of rights at a §3020-a: first, the person accused is automatically assigned a problem code with a permanent flag on their fingerprints; second, the arbitrator can give any penalty they want to provide, despite the facts and circumstances, which becomes a permanent part of the accused person's personnel file. 

The Department supports arbitrators who terminate for minor acts of no consequence. The Department also supports the arbitrators if they ignore the evidence and terminate the accused because the educator was "not credible."  Rules of law for evidence and witness tampering are not considered. The Department has the right of way, and most arbitrators abide by the terms of the agreement with New York State and New York City to serve on the panels in NYC if, and only if, they give termination as the choice of penalty. Any arbitrator who gives decisions that are "too lenient" is taken off the panels and misses out on the $1400/day salary.  Thus, I believe a bias is embedded in the hearing officer before, during, and after the arbitration concludes.

Thus the omission of probable cause in the charging procedures for §3020-a arbitration in New York City allows the Department to bring charges against a tenured educator that are serious and valid, or silly, untrue, the product of retaliation, discrimination,  or just plain hate because no comprehensive, factual investigations are done to validate any charges before the hearing begins. There are no investigators who look into most of the charges at any of the "investigating" agencies: the Office of Special Investigations (OSI), the Office of Equal Opportunity (OEO), and the Special Commissioner of Investigation (SCI). Please note the OSI official name on all Investigative Reports: "Chancellor's Office of Special Investigations" at the bottom of every page.

OSI, SCI, and OEO  "investigators" are anything but that. See some of the cases I have written about on this website and my blog NYC Rubber Room Reporter: Glen Storman; David Suker; David Pakter (pictured below waiting to go into his 3020-a hearing at 51-49 Chambers Street with Arbitrator Martin Scheinman); Teddy Smith; Eileen Ghastin. I have worked on more than 120 cases and have won decisions that saved the tenured employment or exonerated most of the accused.

In all misconduct cases where there is an "Investigative Report" submitted into the record, an in-depth review always shows some error of the investigator or false statements and documents used to support the conclusion. Why? Because the NYC DOE can and do present whatever they find/create to terminate the accused, which is the goal 100% of the time. Arbitrators have asked me why the NYC DOE always goes for termination, even for the most ridiculous charge. I tell them that it seems to be a situation where the top of the ladder needs to stand on a firm ground no matter how weak it is because they are already on the roof and/or if the charging party throws enough mud at the wall, something may stick.

 Most of the so-called "investigators" at OSI, SCI, and OEO are retired detectives getting their second pension by setting up employees at a school whom someone has complained about and the principal wants to get rid of. There is a set procedure where a parent, child, staff member, AP, or principal can make up that they saw someone do something to somebody, then (1) the principal must report it (no students are reported to OSI); (2) OSI sends someone to the school to find out from the principal what they want to prove; (3) the principal gives permission for students to leave class who will agree to write statements making the targeted person guilty; (4) the principal writes a disciplinary letter which is handed to the accused at a meeting with a representative from the accused person's Union - or not, this is up to the accused to decide; and (5) the technical assistance conference (TAC) memos are created which end up as §3020-a charges.

The title "investigator" does not define what the hired guns at OSI, SCI, and OEO do. I have many stories of unfair, incomplete, and corrupt investigations. See the Wei Liu case. I also wrote about what happened to Glenn Storman after Investigator Dennis Boyles got involved. Here is a big problem. Without a complete and accurate investigation, an arbitrator must decide on the truth of the charges and the credibility of the testifying witnesses. I have found that this does not work, particularly if the Respondent does not speak English very well. The arbitrator has an implicit bias against the Respondent, the accused educator because the Department has put a lot of money and time into creating a case that superficially makes sense. (Thanks to R.W. for giving me the information on this crucial issue). Truth and facts are not relevant to an arbitrator whose goal is to seem fair while doing what the NYC DOE wants.

Most importantly, accused educators must do their own investigation or have their legal team do it and then present the report at the hearing. Bottom line, anyone charged with anything MUST write a rebuttal if there are false statements made against him/her. If the UFT representative or administrator suggests that an accused should not write a rebuttal, ignore this advice.

Additionally, §3020-a  is codified in Education Law Article 61, whereas §2590 is placed in Article 52(a). This placement dichotomy is not a trivial distinction but instead reflects a legislative determination (and intent) to separate the powers of the Chancellor from the statutory due process template applicable to the termination of tenured teachers. (Attorney Roger Adler's Statement). The New York State Legislature never intended on giving any arbitrator the right to ignore the omission of a proper finding of probable cause to pursue a penalty for an educator. Yet, the Department, CSA, and NYSUT lawyer representatives always ignore this defect in the charging procedure, to the detriment of the accused employee.

Having been involved in these hearings for 18 years, I have seen everything from false statements, lies under oath to actual harm. In the cases where the accused has committed some allegedly "abusive" act, I will help them fight for a just and fair penalty, considering all circumstances. If the accused has done something extremely harmful without any justification, I choose to decline to take the case at all. These people should leave the profession of education with the NYC DOE.

The §3020-a arbitration described above has a foundation in fraud. An accused educator is found guilty before entering the door or starting the first Zoom meeting. From that point on, the educator must convince the arbitrator of their innocence. Huh? This is backward. The accused educator is supposed to be innocent until proven guilty.

In sum, do not let the NYC DOE step on your parade. Despite all the shoddy acts cited in this post, the solution is not to resign, retire, not tell your side of the story, or not show up at the hearing. All employees accused of whatever bad acts someone charged them with should stay focused on winning the §3020-a arbitration, clearing their name in the record, and going forward with their life and career as they, no one else, planned.