The Unlawful Randomness of Labor Arbitration 3020-a in New York City

re-posted from Parentadvocates.org:

TheUnlawful Randomness of Labor Arbitration 3020-a in New York City 

From Editor Betsy Combier: For 14 years I have observed and worked on the labor arbitration known in New York City as 3020-a. 3020-a arbitrators, one in each case, sit in judgment of a tenured employee of the NYC DOE and can exonerate, fine, suspend from employment without pay or terminate any charged person brought before them.The United Federation of Teachers and the New York City Department of Education run these hearings in such a way as to deny the charged employee their rights under New York State law.

On this website I have reviewed countless cases of arbitrator abuse and worked as a paralegal to overturn some of the worst (see the cases of Lisa Broad, where I assisted Attorney Candace Deamer, and David Suker, where I assisted Attorney Maria Chickedantz; see here as well). These are two of the 35 Appeals I have assisted with where New York State Supreme Court Judges overturned the decision of the arbitrator based on this decision being "excessive" for the crime or misconduct sustained at the hearing.

The trouble with all of this is that the process is random.

Every hearing is unique. I know, because I have attended/worked on at least 60 if not more, and I have reviewed hundreds of decisions of arbitrators and, before 1994, the Commissioner of New York State Department of Education. I find the randomness fascinating. How did one arbitrator find that a teacher was guilty of slamming a child against a wall to remove them from a fight in the classroom and give a $7500 fine, while another gets terminated for the same act, or less?

The fines, suspensions and terminations are not uniform or set to any standard. This is unlawful, because tenure in New York State is protected, public policy. There is a high standard for termination, and the arbitrators write their decisions often to get away with doublespeak on how egregious the charges were, to try to reach a justification for termination that they were told by a DOE person before the hearing began that they had to find. The case of Peter Principe went to the Court of Appeals on the issue of bias by Arbitrator Stuart Bauchner against him, and, as Peter insisted he was innocent of the misconduct, he would not be remorseful. Peter won .

Oh yes, folks, the permanent panel in New York City lends itself to all kinds of legal abuse. In other parts of New York State outside of New York City, when an tenured school employee is charged, these charges immediately go to a vote in an Executive Session of the school board on probable cause. As tenure is a property and liberty right in New York State, the Fourth and Fourteenth Amendment covers any unlawful seizure (I am not a lawyer, this is my opinion). have you been re-assigned, and told you must leave the school building immediately, leaving all your personal possessions in your classroom or elsewhere? You must get your belongings back or this is theft, and you should file a complaint with the police, not with the principal.

"C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property."

The Fourteenth Amendment:

"Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Try your best to find out if your stuff has been moved, where its been moved, and what is there. Request a visit to gather up your stuff, and if denied, file a grievance and then go to the police with a list of your property you dont have.

Any arbitrator who agrees to take a case handed to them, randomly - not - by the NYC DOE and the UFT, knows that they must meet a Constitutional Standard in their decision for/against penalty in each case.

Many arbitrators don't care, and do what is fair. My favorite arbitrator of recent years is Eugene Ginsberg. I believe that he was the most thorough, fair arbitrator on the panel. He was fired in September 2016.

He told me that if that was because of his decisions, so be it. See his decision in the case of Ann Legra.

Where some arbitrators will terminate anyone with so-called "excessive" absences, Arbitrator Ginsberg did not.

As I wrote above, some arbitrators have a problem being fair, and go along to get along with the Department of Education in order to stay on the permanent panel. When you are in a hearing, you can spot these arbitrators a mile away. I will write about them in a later post.

New York State Supreme Court Judge Lucy Billings has a problem with the randomness of the New York City 3020-a arbitrators in their penalties, as she wrote in the case of Moreno-Lieberman, which I use in all my closing arguments:

"IV.THE INVITATION TO ARBITRARY ASSESSMENT OF PENALTIES

In fact, the absence of any specific guidelines for the imposition of fines in teachers' disciplinary proceedings shocks the conscience and is a deficiency to be addressed by respondents or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decisionmakers must do so fairly, not arbitrarily. General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 (2004); Abraham & Strauss v. Tully, 47 NY2d 207, 213-14 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d 796, 804 (Sup. Ct. Bronx Co. 2008). Neither the Education Law, nor the Chancellor's Regulations, nor any other code fixes any "primary standard" or articulates any objective test or gauge, General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d at 254; Nicholas v. Kahn, 47 NY2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805, to guide respondents' or Hearing Officers' exercise of authority and discretion in their assessment of monetary penalties. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d 402, 407-408 (1997); Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805. See Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 405-406. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, e.g., Goodwin v. Perales, 88 NY2d 383, 392 (1996), yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty. Nicholas v. Kahn, 47 NY2d at 33-34; Levine v. Whalen, 39 NY2d 510, 518-19 (1976); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805-806.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decisionmaking. 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806. By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 408; Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806; Dawson v. Village of Spring Val., 151 Misc 2d 128, 134 (Sup. Ct. Rockland Co. 1991). See C.P.L.R. § 7803(3)."

So what is a teacher supposed to do who is charged with 3020-a? Fight. Don't  settle, resign or disappear. The charges will follow you for the rest of your career. But be wary of anyone who belittles you, your charges, or does not have experience in NYC 3020-a. NYC is a minefield with bizarre statements made on a consistent basis, which must be addressed on the spot, at the hearing. The DOE wants their witnesses to lie, if that is what it takes to terminate a charged employee. Catch the lie, and have your representative squeeze out the truth in cross examination. The record made is what you work with on appeal.

In my opinion there are NYSUT attorneys who know what to do, but don't do work on any case if at all possible; some NYSUT attorneys do a minimum amount of work but are reluctant and must be pushed, and then there are NYSUT attorneys who seem to work diligently, but nonetheless will not get all your requests (medical, witnesses, exculpatory evidence) into the record, which in my mind is absolutely required, if you are to win at the 3020-a or in appeal.

The process in NYC starts out on the wrong foot when, in the charging papers, the Notice of Determination of Probable Cause Pursuant to Education Law 3020-a, has no date for the Executive Session of the school board (in NYC the Panel For Educational Policy) required by Education Law 3020-a(2)(a). The reason is that the NYC Department of Education never allows or schedules an executive session for the NYC school board, because they don't want it.

Really,  and they get away with this in NYC because.

Just because you don't want to do something does not mean that you can allow a law to be ignored, but that is exactly what the NYC DOE does, and has done. In every case that I work on, we - the Attorney and I - submit a Motion To Dismiss the charges based on this procedural error. The arbitrator always dismisses this motion. But we use this in an appeal to the Supreme Court, and as I wrote above, we have overturned 35 decisions of arbitrators to date.

We have no secret on winning 3020-a. In every case the standard is to be respectful to the arbitrator but not to accept any Department nonsense without vigorously objecting, pointing out lies, submitting documentation about violations of law and UFT rules (there are always many in every case) and submit a dynamite closing argument that shows the arbitrator that the legal team - the Respondent, Attorney, paralegal - mean business, and will take any penalty seriously (and appeal, get media coverage of the arbitrator, etc.).

In sum, what I'm saying is that NYC 3020-a is a random and arbitrary mess, but it is entirely possible to clear the name of a charged employee , or avoid termination, by going to a decision of the arbitrator. The Respondent (charged employee)'s legal team MUST work together, sharing the transcripts as the hearing moves forward, and constantly working through the lies and violations of law and contract presented by the DOE. Then you can win.

Consultations are always free, and confidential.

Betsy Combier
betsy.combier@gmail.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

The 3020-a Arbitration Newswire: Digging Up The Garbage on the Vouchers Paid To Arbitrators

Welcome to the new series I am starting on the garbage that I have seen at New York City's 3020-a hearings which I have spent 13 years studying and researching. I have a Google+ Community called the Rubber Room, I have this blog and "Inside the 3020-a Teacher's Trials", and my website Parentadvocates.org, all of which have posts dealing with educators who I have worked with, researched, or heard about.
ALERT: The posts under this headline are my opinion of the facts and people whom I have seen and heard before, during, and after a 3020-a compulsory arbitration known as Education Law Section 3020-a Just Cause/Termination hearings.

David Pakter, left, with NYC Mayor Rudy Giuliani

Background:
Starting in 2003 I visited teachers in the Rubber Room at 25 Chapel Street after I met former teacher (at the High School for Art and Design) David Pakter when we were both asked to be on a Cable TV Show and he told me he was in the "Rubber Room".

I said, "WHAT IS A RUBBER ROOM"?

He described the room he was in as a long space with windows on one side and tables and chairs on both sides of the room with a walkway in the middle. He said that about 70-100 teachers were sitting there on a daily basis, after they were told that they were "re-assigned" from their classrooms and schools for some kind of misconduct, or unexplained horrible event that they supposedly caused. He told me he would sneak me in, and I agreed. I wanted to see what this was all about.

The long room on the 10th floor at 25 Chapel Street in Brooklyn had two doors, one at each end. The guards (yes, there were security guards) sat at one end of the room leaving the other door unguarded. In the very end of the room was the "office" where the "Principal" sat. So, David walked me in through the second door, and I immediately befriended the principal, who would look the other way when I came in to the room from the door next to his "office". I told him that I wanted to meet the now famous 'rubber roomers' to keep them company, and I am forever grateful for his permission to do that, despite the fact that my walking around was actually prohibited by those "in control". I have no idea who at the NYC Department of Education knew I was talking with the employees imprisoned in this room, but I do know that Randi Weingarten, the UFT Reps, and NYSUT knew I was visiting on a regular basis, because UFT Reps told me. I was not working in a full-time job, so whenever I had any time, I would go to the room, call someone from the lobby, and go in, unpaid by anyone.

I started sitting with the teachers and listening to their stories, however incomplete they were, on a weekly basis, and sometimes 2-3 times per week. No one could tell me exactly why they were there, only that they were waiting for an investigation to end, and then they would be put back into their school or ordered into a compulsory arbitration called "3020-a" after the Education Law Section 3020-a which is the Law upon which these hearings were based....at least that's what the UFT and NYSUT told these prisoners of whim. Whose whim? The Gotcha Squad.

Why do I call the Rubber Roomers "prisoners of whim"? Because you never know when or if you will be charged and with what deed of horror. Every teacher, no matter which school or school district you are teaching in, now looks behind his/her back as often as he/she can, because anyone can be a target. I attended David Pakter's hearing and started the 'open and public' hearings that now are common.

Then in 2007 I was hired by Randi Weingarten to be a UFT Special Representative overseeing all eight rubber room locations; see the blog FidgetyTeach and the post titled "If You Knew Betsy...".

 I still attend 3020-a, but now (since 2011) as the paralegal, rarely as a member of the public.

The Story of the 'GOTCHA SQUAD':

Randi Weingarten

I first heard the term "Gotcha Squad" from former UFT President (now AFT President) around 2006, when I assisted her in getting teacher whistleblowers to a City Council hearing on Whistleblower protection laws, but the title for all the NYC DOE administrators/officials/attorneys became a common word, according to my memory, after I was hired by Randi to be a Special Representative at the UFT for members in need. (August 2007)

One of my first important articles for my then-new blog, NYC Rubber Room Reporter (this blog) was, not surprisingly, "The Gotcha Squad and the NYC Rubber Rooms" (first posted in 2009), followed up by many posts on the Administrative Trials Unit, ("ATU") the Teacher Performance Unit ("TPU"), and the people who are involved in the business of terminating educators. All this is background for new readers to this blog.

3020-a arbitrators are paid, for most expenses, by New York State Education Department's Teacher Tenure Unit. But the NYC DOE seems to be outside of the control and authority of NY State, and has the right to hire arbitrators from out of state. For example, they fly in to NYC the worst arbitrator on the panel, Doyle O'Connor, from Chicago, and pay for his hotel, travel, and meals.

O'Connor has been sued in Federal Court twice.

Here is a sample of his billing for one 3020-a hearing:

The public (you and me, taxpayers), paid for O'Connor to be flown in from Chicago or Michigan. 

 Really? There is no person, lawyer, non-lawyer, arbitrator or mediator (an arbitrator does not have to be an attorney, and a Representative in New York State does not have to be a lawyer, either) in New York City who can be hired to do 3020-a? I guess not.

See here, for a few of the arbitrators who are now (O'Connell is not still on the panel, he was fired after a screaming fit at DOE Attorney Jordana Shenkman) or were (Joshua Javits, who lives in Washington D.C., quit the NYC panel in 2014). I filed a Freedom of Information request for all the vouchers submitted by NYC Arbitrators from 2013 to 2015:

NYC 3020-a hearings are under the control of the New York City Department of Education, namely Dennis DaCosta and Naeemah Lamont, two extremely nasty people who walk in hearing rooms whenever they hear something they dont like about an arbitrator from the DOE Attorney doing the hearing, or they feel they must threaten the Arbitrator into doing something. I recently spoke with an arbitrator who is no longer on the panel in NYC, and this person asked me whether Dennis Da Costa was still terrorizing everyone. I have seen this first hand, and it is frightening.

If you go to February 19, 2014 in the link here, you will see Naeemah Lamont dancing. I cannot find a picture of Dennis anywhere, but his letter to 37 DOE employees about a termination decision by Lana Flame is an outrageous example of Dennis' excessive arrogance. In the letter (see below) Da Costa told the 37 people on p. 2 that they all had to stop paying the teacher because Arbitrator Lana Flame terminated her on July 5 2013 - but he sent the letter May 28, 2013, a month and a half too early. I am lucky to have obtained a copy of this fraud. Lana Flame was fired.

 The problem in NYC is that the DOE and NYSUT agreed to set up a permanent panel. Why? For speed and control. Both parties want the charged employee in the "due process" hearing out and gone, as soon as possible. For this reason, many teachers and others charged find themselves initially convinced that the NYSUT attorney has his/her focus on a proper defense against the charges, but by the time the charged employee ("Respondent") starts presenting his/her case (after the DOE rests, or end presenting their case), NYSUT usually says "oh, you can't have any witnesses", or "I'm going to keep questions for you short, and I will do closing arguments the minute you finish the few questions which I have for you".

A good arbitrator allows three-four weeks after the end of testimony to allow both sides to read the transcripts of all the witnesses, but NYSUT gets away with quickie hearings. I do not do 3020-a hearings this way, but that will be clear in a later post. Shockingly, NYSUT shares the transcripts with the Respondent after the Arbitrator's decision is rendered, rather than in a timely fashion so that the Respondent can assist in finding errors and lies. All in the name of speed.

Reform is needed!

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice

The Wall Street Journal Says ATRs Are NYC's "Worst" Teachers

The article in the esteemed Wall Street Journal re-posted below is an opinion piece of the worst kind. The Editorial Board threw facts out of the window in order to attack the Absent Teacher Reservists (ATRs) who are, supposedly, NYC's "worst" teachers, and "ATR" is the new name for the miscreants who sat in the rubber rooms.

Wrong, ugly wrong. The NYC DOE charging process, or the Gotcha Squad re-assignment-3020-a procedure is wildly out of control because no one is in control. If a principal feels someone is close to exposing theft or wrong-doing by the admin at the school, or may be doing something wrong themselves, the tenured staff member is often thrown out of his/her classroom quickly, and then the principal calls "legal" and finds out what to do next. This should be the other way around, with probable cause found by the school board (the Panel For Educational Policy or PEP), and then the re-assignment, or investigation, followed by re-assignment. But it does not work this way. See Education Law 3020-a, especially Section 3020-a(2)(a) - which is not complied with at all.

At all times remember that speed is the only thing that matters to those at the top or in "legal" and involved with 3020-a:

The 3020-a Arbitration Newswire: Digging Up The Garbage On the UFT/DOE Partnership of Harm For Charged DOE Employees

NYC Chancellor Carmen Farina, Mayor Bill deBlasio

There are many errors in the WSJ article due to the lack of knowledge of the Editorial Board:

- first of all, it is very easy with the new set of arbitrators on the NYC permanent panel in NYC (and nowhere else is there a permanent panel) to fire anyone. If you do not know (as most private attorneys don't, especially if they are on their first 3020-a, or second-third) all the ins and outs of the UFT contract, the ATR agreement, buyout, Fair Student Funding, senior transfers and exactly how the Danielson rating system and HEDI fail, anyone can be fired at any time. 3020-a hearings are a minefield, even for my legal team after 14 years of observing and working on 3020-a cases. Every case has a WHAT???!!! moment that makes it unique and unforgettable. The charged Respondent can win, if the representative - the legal team - is experienced enough to know the minefield and how to defuse it.
Very unfortunately, however, sometimes the charged employee is the person who loses the case, by having a prior set of charges, admitting wrongdoing and making deals when the misconduct never occurred (NYSUT's fault) and testifying poorly (not answering the question, being arrogant, etc). There is a way to testify that works, and I think it is absolutely crucial to give pointers on how to testify before the charged employee goes on record. Notice that I don't say WHAT to testify about, that would be coaching testimony. But a guide to HOW to testify is what we do. As I have previously written on this blog, do not think that by not testifying you will not be terminated. If you do not put your side of what happened into the record, you will be terminated. Sometimes the Respondent won't listen, or the arbitrator is hell-bent on termination from day 1 (yes, I will tell you more about the bad ones on the panel on this blog and my website Parentadvocates.org, soon).

-secondly, many (not all, true) ATRs are senior teachers at the 20+ years into teaching, usually with all S ratings until the Danielson rubric raised its horrible head, Fair Student Funding put the budget of the school squarely in the hands of the principal and the principal decided the staff member was too expensive to keep on the school budget. Without senior transfers, the only way a principal can get an expensive employee out of the school is to charge that employee with anything, i.e., sharpening a pencil too long, if that's what kind of 3020-a charge which must be made up.

- third, the rubber room folk waited for 2-15 years to have their days in arbitration, and that was the fault of over-anxious principals dumping anyone who would not do something or, who would. Mayor Bloomberg woke up one day and realized that there were not enough hearings and too many people in the temporary re-assignment centers ("TRCs") . He did what all politicians do when confronted with a mistake they made: first, try to hide the facts from the newspapers (that did not work, I made sure of it when I used to work for the UFT), then, try to make the mistake go away (not necessarily fix it, because then it will look like you are admitting the mistake). But the rubber roomers are almost always folk who had not had a hearing yet. ATRs are employees who have been excessed after a school was closed, or who won the 3020-a and did not get fired. There is a reason why the tenured employee did not get fired!!!! Principals lie under oath, and tell their AP, parents, students, staff to lie as well. Everyone follows a script. In my opinion, most people are bad liars. You can spot a lie immediately, because the person who does not tell the truth gets confused, and loses track of what they said, and change their story. When I read the transcripts to prepare for closing arguments, the lies stand out as if there were red highlights.

- fourth, the Editorial Board did the easiest thing for people who have made their minds up and refuse to see anything different (which is surprising, considering that the Wall Street journal is widely respected): go with the prevailing theory. The Board is misinformed, but probably could not look at any other versions than what their funders wanted, which is disappointing.

- fifth, many ATRs that I know are the best in the business. They are intelligent, hard-working, terrific individuals who asked the right question (why do I have to change the grades? Where's the money?) to the wrong person, and before they can blink are being accused of harming a student, having sex with a child in the classroom, saying something that "upset" someone, etc. But, when you look deeper into the situation, you find out it never happened.

Anyway, articles like the one below are extremely harmful to all the wonderful ATRs out there, and I apologize for re-posting such an ugly piece of the WSJ's dislike of public school teachers because of the misinformation fed to them from their funders and allies. But I could not resist the urge to tell the Wall Street Journal Editorial Board that their opinion post below is just, plain, stupid.

Betsy Combier
 betsy.combier@gmail.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

NYC Chancellor Carmen Farina, NYC Mayor Bill De Blasio

The Teachers No One Wants

New York forces its worst teachers back into classrooms

By 

The Editorial Board

July 13, 2017 7:36 p.m. ET

136 COMMENTS

For decades the United Federation of Teachers has protected perverts, drunkards and other classroom miscreants from being fired. Now the union’s allies plan to put some of these teachers back in New York City schools.

On Monday the city’s Department of Education said it will require city schools to fill between 300 and 400 vacancies from the Absent Teacher Reserve, or ATR. This is the politically sanitized name for the “rubber rooms” where teachers who couldn’t be fired but no one wanted would sit from 8:15 a.m. to 3:15 p.m. collecting a paycheck as they napped or played cards. After a horrified public learned of the practice, the city abolished rubber rooms in 2010.

But many of those same teachers are now in ATR, which is no longer a physical room but remains a form of employment limbo. Some teachers are there because their last school closed. But trained, licensed teachers in ATR can apply for vacant positions in 1,700 other public schools. If a teacher can’t find another job in such a large system, there’s probably a good reason principals don’t want him.

Three years ago schools Chancellor Carmen Fariña vowed “there will be no forced placement of staff.” But now she would effectively mandate that schools take teachers they initially rejected. This includes teachers who end up in ATR because they drink too much, have abused students, or for some other misconduct that renders them unfit for the classroom.

The underlying problem is a tenure system that makes it all but impossible to fire teachers after they’ve spent four years on the job. Those suspended for misconduct continue to receive pay, pension contributions and benefits as disciplinary hearings stretch on and on, sometimes for years. Unions have the power each year to approve or reject the arbitrators who decide misconduct cases.

Under this rigged system, New York fired a mere 61 of its 78,000 teachers over a decade, the American Enterprise Institute found in 2014. Each teacher in ATR costs taxpayers about $100,000 a year, so no wonder many have declined the city’s $50,000 buyout offers.

The logical solution would be to make it easier to fire bad teachers, but Mayor Bill de Blasio is a wholly owned union subsidiary. Poor students will bear the real cost of his rubber-room rebound as their education suffers with a subpar teacher—or worse. No wonder tens of thousands of parents have put their children on waiting lists for charter schools that are free to hire and fire teachers on the merits, not by union diktat.

From Betsy Combier:

And then there is, of course, Chalkbeat, a well-known hater of teachers and teacher unions:

New York City principals balk at plan to place teachers in their schools; some vow to get around it

Many New York City principals are unhappy that the city is planning to place teachers directly into their schools — and in some cases, they’re vowing resistance.

Department of Education officials announced last week that they would place up to half of the 822 teachers who currently do not have positions into jobs that haven’t been filled by Oct. 15. Those teachers are part of the Absent Teacher Reserve, a collection of educators moved to the pool for disciplinary reasons or when their positions were eliminated. They remain on the city payroll in an arrangement that has generated political tension for years.

The move by the city reverses Chancellor Carmen Fariña’s promise in 2014 to avoid “forced placement” and raises questions about principals’ already fraying sense of autonomy. The city claims the plan is not forced placement because it would only apply to vacancies, as opposed to displacing teachers who are already employed. Regardless, many principals aren’t on board.

Some say they’ll avoid any attempt to place teachers at their schools, even if that means obscuring open jobs from the city’s hiring systems past October.

“I’m going to make sure my school doesn’t have a vacancy,” said one Bronx principal who wished to remain anonymous due to the sensitive nature of the topic. “I’m not going to post a vacancy if someone will place an ATR there. I’ll be as strategic as I can and figure out another way.”

Some principals raised concerns about the quality of the teachers in the pool. Education department officials could not readily provide the percentage of teachers in the pool who are there for disciplinary reasons, but a 2014 report estimated it at 25 percent. The same report said another third had received unsatisfactory ratings and half hadn’t held a classroom position in two years or more.

“Many of them have been coming from schools that have been closed down or subject areas that were cut,” said Scott Conti, principal of New Design High School in Manhattan. “The majority of them were at schools that were highly dysfunctional.” He noted that some may have been out of the classroom for years and not getting proper professional development, effectively hindering their performance as teachers.

Conti said he did hire a teacher from the ATR pool three years ago, through the standard procedure he would use to hire other teachers. He objects to the idea of being forced to hire someone whose effectiveness he could not fully judge.

“It’s never good when somebody from outside a school decides to fill in a vacancy in a school,” Conti said. “ It’s scary that some teacher could be put in your school that you have no choice about.”

Other principals were more harsh. One Bronx principal said multiple experiences working with ATR teachers sent to the school for monthly rotations in the past left the impression that those in the reserve are “not qualified, with very few exceptions.” Other principals agreed, suggesting that if the teachers were high-quality candidates, they probably would have found positions on their own.

To circumvent the new policy, some principals said they might check in with all their teachers early in the hiring period to be aware of potential future vacancies. If there is a vacancy in October, others said they’d consider hiring a long-term substitute to fill the position rather than leaving it open to an ATR placement.

The city says the new approach will be more stable than having teachers in the ATR rotate monthly, and will allow schools to more closely support and supervise the teachers in their building. It plans to work closely with principals on the hiring.

“We will work to find the right fit, and hear and work through concerns that they might have,” education department spokesman Will Mantell told Chalkbeat last week. “But ultimately, we do have discretion to place an educator in a vacancy that exists, and it kind of makes sense.”

Schools will still have final say over whether the teachers are permanently hired. If at the end of the school year, the teacher is rated as “effective” or “highly effective” in the observation portion of their evaluation — performed by principals or other school administrators — that teacher will be permanently hired to that school.

It is unclear if any of the ATR teachers placed into schools this coming fall could have a background of poor disciplinary conduct, or if the teachers placed would come solely from the share that are in the pool because they were excessed.

“The DOE has discretion on which educators in the ATR pool are appropriate for long-term placement, and may choose not to assign educators who have been disciplined in the past,” education officials said.

Last year, the city offered an incentive system to encourage schools to hire from the ATR pool. During that school year, 372 teachers were hired from the ATR pool under a DOE policy that subsidized the cost of the teachers’ first-year salaries by 50 to 100 percent. Those incentives will not be offered with the placements expected this fall.

Daniel Russo, principal of Walton Avenue School in the Bronx, said he has had positive experiences with the two teachers he hired from ATR pool in previous years. He added that though ATR teachers sometimes have a gap because they are coming from a different school — and sometimes not a high-performing school — his school is able to fill that gap and assimilate the teacher to the school’s culture and expectations.

Still, he noted, finding the right fit between candidates and schools could be a “challenging undertaking” for the city.

New Design’s Conti fears that challenge will disproportionately fall on schools like his that struggle with fluctuating enrollment.

“These teachers are not going to end up at Lab, they will end up at places like New Design where the positions will open up,” Conti said, referring to the selective and successful NYC Lab School for Collaborative Studies. “Schools with the most unstable populations, serving the neediest kids is where the low-functioning teachers will end up.”

Attorney Michael Francis: Suborning Perjury at 3020-a

Do you believe that people never lie under oath?

Sadly, many people in the re-assignment centers or who have been charged and are done with their 3020-a hearing have heard about, or seen directly, the Department’s Attorney supporting lies at the hearing, either in forged documents or perjured testimony.

This last category is called suborning perjury.

Another serious problem with 3020-a is the lack of accountability, and the DOE attorneys know that they will not be held accountable for any of their actions. Knowing this, I created The E-Accountability Foundation (not connected in any way with this blog or any of my other blogs or website) to hold people accountable for their actions. Good people who selflessly help others get the A For Accountability Award (I own the trademark, so don't even think about copying, FP); those who harm others are exposed and written about. We also contact proper authorities.

I have decided it is time to hold the Attorneys and Arbitrators who work on 3020-a hearings in  NYC accountable for unjust and unethical decisions. Therefore, I have added a new Section to this blog and on my other social media outlets titled: The NYC 3020-a Arbitration Panel Attorneys.

Of course I cannot write about a 3020-a Arbitrator or DOE attorney while I am assisting in a case. But after a decision is made by the arbitrator, I can give my opinion about the allegations and the actions of anyone who lies, cheats or steals due process rights from a charged employee. The individual charged will not be named, because he/she is not important to make the point that anyone who allows or encourages perjury are unethical, violate their professional responsibility and must be fired.

I want to start with an Attorney who works at 100 Gold for the DOE on 3020-a cases, Michael Francis. I filed a FOIL request for his personnel file, and received them in 2013. He encourages his witnesses to lie. He submits documents in 3020-a which he has changed in order to fit his goal to terminate the Respondent. He should be disbarred.

My opinion is that he is the worst attorney working on 3020-a, and here is why:

In 2013 I was hired to work on a 3020-a with an Attorney named Victor Schurr, who I do not recommend anyone hire for any reason. Nonetheless, when I am asked to assist at a 3020-a a charged employee, I work 100% on their defense despite an awful attorney.

This particular case was about a much beloved Dean who was gay, but nevertheless he was accused of trying to have a relationship with a girl in one of his classes. This girl was roaming around the school, and when she showed up – which was not very often – in class,  she was with a bad crowd. She did not work, and was failing in most of her subjects. But she needed my client’s class to graduate. So, she made up that he put his arm around her and did certain other things which made her tell her father that this teacher was harassing her. The father filed a complaint with the principal, and boom! Before anyone could blink, the teacher was re-assigned to a rubber room in a building across the street from the school.

On the first day of hearing, before the first witness came in, Mr. Francis gave Victor and me a document which he said was the statement of the girl who my client had “abused” by putting his arm around her. He had crossed out the first and last name of the individual, which gave us no idea whatsoever who this person was. We objected. We at least wanted the initials. Michael Francis argued that we could not have any information because this would violate the student's privacy rights.

While Mr. Francis was trying to get this statement into evidence without any identifying information, I looked closely at some faint writing at the top of the page. I saw that the faint writing was a fax number, and the date was 2006. I pointed this out to Attorney Schurr, and told him to say something. He did. Attorney Francis flew into one of his many screaming fits, but in the end, the document was withdrawn. But Mr. Frances put on a frightening show.

The girl came in and performed just as the script required, getting teary at the awful acts of the Dean, and how she was afraid to go to class.

Then, I brought in 9 witnesses for the defense. One of the witnesses, a teacher still at the school, started testifying by saying,
"How come you are charging this wonderful person, who is gay, with trying to become friendly with a girl in his class? How outrageous is that?"

Arbitrator John Woods told him just to answer the questions.

At the end of his testimony, this witness again expressed his dismay over the torture of the Respondent, and walked out of the room. I saw Mr. Francis get up and also walk out of the room. I thought to myself, ugh - I don't like the way that looks. So I got up and walked behind Francis as he made his way to the elevator, where the witness was standing. Suddenly, Francis
started yelling at the top of his voice at the witness words to the effect of
"YOU ARE GOING TO BE SORRY THAT YOU CAME HERE TODAY"
"I'M GOING TO GET YOU FOR THIS"

Francis suddenly turned around and as he had not seen me standing behind him, almost threw me to the floor. He grunted in disgust and ran over to Victor, and told him to go into an empty room with him. A few seconds later you could hear, "KEEP THAT BITCH (I guess that was me) AWAY FROM ME!"

In my opinion, witnesses are very important to a 3020-a defense because if for some reason the arbitrator does not believe the testimony of the charged employee, then his or her information can be given little weight or ignored altogether when the arbitrator considers whether the employee is guilty of any of the allegations charged in the case. Other people who testify about what happened in the classroom or school can help stop the arbitrator from totally disregarding any testimony of the Respondent employee.

It is illegal for anyone who is working in litigation to retaliate against an individual who testifies at a public hearing. See here:

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

During his closing argument Mr. Francis made his point that the teacher was not gay at all, simply lying about this, and while making this argument he was extremely emotional, hitting the table in anger that this teacher would be such a creep. Very unprofessional.

So there you have it, why I believe Michael Francis is an unethical attorney who violates his professional responsibility as a member of the Bar.

He should be fired from the NYC Department of Education and the 3020-a panel.

If anyone reading this article has a case with him, please email me and I will call you to discuss. We all must expose wrong-doing by anyone who deliberately harms another person.

In NYC, lies by DOE witnesses under oath at a 3020-a are plentiful, encouraged by the DOE, and easily made without any accountability. The DOE must support their case no matter what it takes as it is their burden to prove the allegations.

David Suker

In NYC there are many oddities and errors which deny any charged employee the due process guaranteed to him/her as part of the tenure laws cited in Education Law 3020-a.

A third problem with the current 3020-a process in New York City is the permanent panel.

The UFT and the Department of Education created the permanent panel under Mayor Bloomberg in order to first, speed up the process of charging and finishing cases, and second, to maintain control over the process to make sure there were as few surprises as possible when a decision in a case is made by an Arbitrator.

The NYC arbitrators are chosen by NYSUT and the ATU/TPU, and my source says that deals are made by each side. Some arbitrators have a leaning toward supporting the UFT and Unions in general, and others are pro-Department. These pre-existing biases are clear to anyone who is in the room during a hearing, and can be used for an appeal. See the case of Peter Principe, for example. I attended Peter's hearing, and the first day I could see that Arbitrator Stuart E. Bauchner did not like Peter, after hearing that he used to work on Wall Street. Bauchner terminated Peter but the decision was overturned in the Supreme Court, the First Department, and the Court of Appeals. Bauchner is no longer on the 3020-a panel in NYC.

Very often, NYSUT attorneys convince the charged member to settle his/her case by resigning, because then there is no record of any hearing or decision and no appeal. The charges are permanently on the record of the charged employee, and no one can hold the attorney accountable.

The media has often exposed the lies of the Department employees and we at ADVOCATZ have helped terminated employees get their jobs back by pointing out lies at 30020-a, as you can see below from a few of the many cases put into newspapers and won in the Supreme Court:

Principal faked classroom observations at HS: staffers

By Susan Edelman

Charlette Pope, the principal of Banana Kelly High School in the South Bronx.

The principal of Banana Kelly HS in the South Bronx has faked classroom observations of her faculty, staffers charge.

“She’s destroyed the integrity of the whole evaluation system,” an insider told The Post of Charlette Pope.

The accusations come as Mayor de Blasio this month named Banana Kelly one of 94 low-performing “Renewal Schools” to share $150 million for extra classroom time, after-school and summer programs, and teacher training.

In one case, Pope allegedly fabricated a formal observation of a teacher who had called in sick on the deadline to file the reviews.

“The observation never happened. It’s unethical,” the teacher said. When she refused to sign the dummied-up papers, Pope retaliated by rescinding a summer-school job, she said.

After repeatedly demanding to see her personnel file, the teacher was shocked to find a second fake observation, she said.

In another case, Pope submitted nearly identical observations of two teachers — both for the same eighth period last Oct. 23, records show. She rated both teachers “effective” or “developing” in the same categories.

One of the two teachers said Pope never came to her classroom to formally observe her all school year.

“Charlette Pope had a history of being openly aggressive with teachers,” the staffer said. “I feared that by confronting her, I would not be rated fairly.”

In addition, Pope’s observations lift boilerplate language from DOE grading guidelines without citing specifics about the teachers’ lessons. She also failed to conduct teacher conferences required before and after observations, staffers said.

Staffers reported the alleged misconduct to special schools investigator Richard Condon, who launched a probe last week.

On Friday, after investigators spoke with Pope and collected records, she took steps to fire one of the whistleblowers, an untenured teacher.

Reached by phone Friday, Pope said, “I’m not allowed to speak to the press,” and hung up.

Pope, 40, became principal of Banana Kelly in December 2012, making $137,190.

While the school lacks laptops, paper and other supplies, staffers said, Pope handed out iPads — in custom cases engraved with a Maya Angelou quote — to 43 June graduates, at an estimated cost of $17,000.

Previously, she raffled off mini-iPads, an Xbox and Beats headphones to students who attended a Regents prep session. The DOE forbids schools to give “incentive” prizes costing more than $25 each.

Ron Smolkin

Boss faked letter to ax me: teacher

By Kathianne Boniello

May 12, 2013 | 4:00am

A Manhattan principal tried to get rid of one of his teachers by concocting — and misspelling — a letter from a “conserned” parent accusing the educator of pedophilia, according to a lawsuit.

The May 2012 missive, allegedly received by the principal and placed in teacher Jennifer Levy’s personnel file, charged her with “improper flirtations with students,” making inappropriate remarks on her Facebook page, and “act[ing] sexy in front of her class.”

But the letter actually was penned by Independence HS Principal Ron Smolkin, Levy claims in a $2 million Manhattan Supreme Court lawsuit filed last week.

It’s the second time Smolkin, 48, has been accused of writing a fake letter to sandbag a teacher.

Michael McPherrin, who retired from the school last year, claims the principal targeted him after McPherrin, a teachers-union rep, tried to suggest improvements at the school.

Smolkin allegedly sent an anonymous, handwritten letter to McPherrin’s co-op board, accusing the teacher and his partner, Andre Lopes, of “lur[ing] young boys” to “infect them with AIDS,” according to the couple’s 2011 Manhattan Supreme Court lawsuit. Handwriting analysis later confirmed Smolkin had written the letter, McPherrin charges.

“It’s shocking that this man has not been removed,” said McPherrin, who’s seeking $2 million.

A city Department of Education spokesman said Levy’s allegations are under investigation. The city says McPherrin’s complaint was “unsubstantiated.”

Smolkin did not return a message seeking comment.

Guidance Counselor Glen Fox Wins His Supreme Court Petition To Overturn His Termination By Former DOE Arbitrator Lana Flame, Esq.

The 3020-a Arbitration Newswire: Winning and Losing Appeals and the Teacher-Principal Relationship

The 3020-a Arbitration Newswire: Winning and Losing Appeals and the Teacher-Principal Relationship

 The New Evaluation Process Fails UFT Members; The Case of Mike Mullen

The Farina-Mulgrew-de-Blasio Triumvirate Put Tenured Teachers Into Rubber Rooms On The Public Dime Without Accountability

Recently, ATR W.P. won his 3020-a case by our exposing Nimita Dwarka's lies and fraud. (By the way, Peter Maliarakis came in to testify after we subpoenaed him, although his Attorney Bryan glass told him not to testify to help us). There are more than 40 other cases where the lies of the DOE administrators have been exposed by ADVOCATZ. It's hard work, and not all Arbitrators see our point, but the Courts do!

Betsy Combier
betsy.combier@gmail.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