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Wednesday, April 27, 2011

The Teacher Advocacy Initiative

On June 29, 2009, Maria Colon and I met with UFT Staff Director Leroy Barr about what I and Maria believed was a solution to the problem destroying the lives of many tenured teachers, namely false claims made about innocent teachers by principals, with subsequent harm to the teacher's life and future career.

Maria and I worked on and presented The Teacher Initiative which I copy below. I also gave it once again to Ellie Engler and Mike Mulgrew the day after they told me that they no longer needed my advocacy at the UFT, and I would be dropped from the staff on July 22, 2010. David Hickey was at the goodbye and good riddence meeting. Then the UFT put my proposal on the website as something that a teacher can count on when a principal is harassing him/her. Oh, really? I have never heard of any UFT rep. helping a member with the harassment by the principal. Never. I was also told never to question SCI or OSI agents. Is this because Mike Mulgrew and Emma Mendez were never investigated when they left Grady High School in 2004? Donald Herb the custodian at the time knows the answer.

Anyway, the UFT did, it is nice to know, adopt my proposal after they got rid of me, so I want to share my proposal with all of you not to say hey, it was my idea, but to encourage the implementation and discussion of how to end the Rubberization Process once and for all. all comments are welcome - if they are constructive and not destructive. I mentioned this proposal when I spoke on FOX News.


Betsy Combier

A Proposal for the UFT given to Leroy Barr, Ellie Engler and Mike Mulgrew in June 2009 and again in July, 2010

The process of re-assigning teachers to “Rubber Rooms” has become an explosive issue that the general public no longer wants continued. The press plays into this by writing about how scarce public education funds are spent on housing ‘bad’ teachers for months and/or years outside of the classroom when ‘these people’ should just be fired. We know that this is, in many if not most cases, simply the opposite of the truth. The Advocacy Initiative outlined below has teamwork as the central theme for UFT staff and Executive Board, District Representatives, Special Reps., members and advocates. The Advocacy Team provides closely followed case management as a support for all UFT staff and members and works to stop injustice before it starts.

We know that hard-working, excellent and caring UFT members are being unfairly charged on a whim of a Principal, other administrators, or in accordance with a “just get rid of somebody” mandate from higher authorities. There is an immediate need to address the practice of finding misconduct without presentation of valid and substantive evidence where “you are guilty and therefore you have to prove you are innocent.” The Advocacy Team would provide a much needed intervention in the rush to judgment.

There is, of course, still a need to find out who is guilty of misconduct and who is not, or who needs training and who does not, in an educationally sound manner. What the Advocacy Team could provide is early intervention to establish collaboration of all personnel in seeking accurate information at the beginning of the assessment process.

The New York City Board of Education is placing many Principals and APs in positions of making subjective judgments about personnel without the training and educational background necessary to validate their decisions. There is no standard to apply, and no accountability for the actions taken. For example, many Principals are writing “gotcha reports” instead of accurate comments on what happened in the classroom during an observation. These “gotcha” reports are used at 3020-a hearings. By this time, the process has already taken a toll on the teacher…and it is too late to turn the clock back.

The Advocacy Team would partner with the Principal and AP in the school to create a holistic approach to labor relations within the building by not waiting to quickly create an adequate defense after the TAC memos have been written, or after events and circumstances have made it impossible to repair the morale of all staff. Studies in this area have found that a “good” teacher has a positive relationship with the children/young adults in his or her class. If we can provide students of any age with techniques for personal self-discipline, responsibility, concern for others, communication skills, mutual respect, cooperation, problem-solving skills, and life skills supporting and reflecting good character, then we are on the path to assist in developing lesson plans and an education policy for children and young people who will be assets to our society and not liabilities.

If positive classroom relationships work, and this is a quality of “good” teaching, then we must expect our teachers, administrators, and staff to exemplify/model these qualities in the classroom and outside. When any administrator maintains a tough stance that employees perceive to be punitive, useful information that could provide students and school staff with tools to improve performance are hidden, kept secret, lost and discarded.

The short term effect of this punitive environment is to obtain scores on tests that may not reflect student abilities, increase the number of students suspended and placed in the school-to-prison pipeline, and terminations/resignations of staff. The long-term effect of this path may be possible lawsuits, parents and children fleeing the school, and an ultimate lack of qualified personnel to fill needed positions.

At times such as this (economic depression) all of us who advocate for public education must try to work on protecting people’s lives and careers against any rush to judgment based on unstated values and presumptions rather than fact. James A. Gross wrote an excellent book, “Teachers On Trial” with the following relevant passages:

“Fairness as well as effectiveness require that values be made explicit and that fact rather than assumption be the basis for assessing blame for deficiencies in education and formulating solutions…identifying and eliminating unfairness in the current disciplinary system for tenured teachers will require school districts to develop hiring, evaluation, promotion, and disciplinary policies and practices that can be validated with competent evidence. “ (p.2)


"Attempting to determine what constitutes improper conduct and unsatisfactory teaching performance of necessity requires an explicit or at least an implicit statement about what constitutes proper conduct and satisfactory teaching performance. Well-meaning generalizations about educational excellence do not do that. An analysis of the nature of the standards used (or not used) in making these determinations, of course, has implications not only for educational policy but also for all judicial or quasi-judicial decision-making.” (p. 5)

An Advocacy Team trained in personnel management and conciliation techniques who addresses a problem at it’s inception would provide an added step in reaching the positive, enriching and successful outcomes sought by the New York City Department of Education, parents and all stakeholders. The purpose is to create win-win situations and not win-lose. Arbitration has a role to play in this process, but after other steps to conciliate/settle have been tried. Arbitration offsets a power imbalance, is based upon a need to decide past events, addresses a high number of disputes, compels participation, is speedy and effectively brings closure to the matter at hand.

If a teacher has been given tenure, this means that he/she has been in a classroom more than three years, and has been rated “satisfactory.” A conciliation meeting that is held at the start of some friction/harassment/negative reviews would preserve continuing relations in the school building before negative comments/actions forever close that door. The conciliation effort would put an emphasis on future dealings, not past events, would assist all parties involved in avoiding win-lose decisions, would leave all parties in total control of the process, and would promote resolution of problems without involving legal claims/entitlements.

The Advocacy Team would prioritize conciliation as a first cause of action. This is, we believe, key to the initiative’s success, and cannot be left to individual whim. How the Advocacy Initiative might work is:

When a problem arises, (and/or before there is any negative actions or harassment) either a teacher or a Principal may make a call to the Team asking for a conference to discuss the issues of concern to any party in the school. The chapter leader and District Rep. may also be invited to attend, depending upon the severity of the problem at hand.

All participants must have a chance to speak about “The Problem” and present any documentation available. The meeting serves to provide all parties a moment to decide what the issues are, and how to proceed. A record is made and suggestions are made on the spot or within a few days, on possible remedies.

All parties agree that the issues they have raised are truthful, and each person involved is required to commit to the implementation of solutions that are found to be reasonable.

No retaliation against any party after the presentation of any issue will be allowed.

The Advocacy Team must have trained personnel who have an office outside of a school yet call on the skills and advice of UFT reps. in the school when a problem starts there. A Team member is called in as needed and then follows a case throughout the year, and works to assist the member during the 3020-a process if the member wants the support.

In conclusion, we believe that if we intervene in a conciliatory and professional manner at the beginning of a possible problem, we can prevent the unnecessary removal of excellent and caring teachers from New York City public schools.


Here is the UFT published version that they are/will be implementing (or not):

Know your rights: Special complaints
NY Teacher newspaper, published April 14, 2011

Unfortunate though it is, at times UFT members report being harassed or subjected to intimidation by their supervisors.

These acts of intimidation may take many forms, which is why it is important that you contact the union for help.

You do not have to — nor should you — tolerate such harassment or acts of intimidation. A special complaint process was expanded in the 1990s to protect you from harassment or intimidation by your supervisors.

If you believe that you are the victim of supervisory harassment, tell your chapter leader immediately. You should also notify your UFT district representative.

The first thing you will need to do is to keep an anecdotal log indicating the place, time, date and any witnesses who were present during each incident. It is important to make this log as factual as possible, simply a recitation of the events as they occurred.

Article 23 of the UFT Teachers’ Collective Bargaining Agreement and corresponding articles in other UFT agreements set out a procedure to follow in cases of special complaints. It was designed to set up an expedited process for speedy resolution of special complaints not covered by the grievance procedure.

A special complaint will be filed with the chancellor by the UFT. Within 24 hours after it is filed, the Department of Education will inform the union of its representative to the joint investigating committee.

The joint investigating committee will be set up, composed of both DOE and UFT representatives. Its purpose is to reach a prompt resolution of disputes without having to resort to formal procedures.

The joint investigating committee will use a private meeting space at your school to discuss the issue and should complete its investigation in no more than one school day. The joint investigating committee will meet with you, the alleged harasser and witnesses to the alleged harassment that you notify them of. The purpose of these interviews is for the committee to gather enough information to help resolve the matter.

If the complaint is not resolved by the joint investigating committee, the union will determine if the matter has sufficient merit to request a hearing before the chancellor or the chancellor’s representative.

At the chancellor’s level meeting, the chancellor’s representative is required to “make every effort to informally resolve” the complaint. The joint investigating committee will report its findings and all persons involved will have the opportunity to be heard. According to the contract, the chancellor or his/her representative will make a decision within 72 hours of the close of the hearing.

If the complaint is not resolved by the chancellor, the union will review the matter to determine if it should be submitted for a fact-finding hearing before an arbitrator. Once the hearing has been held, the fact finder is required to issue his or her recommendation within 72 hours.

The UFT has filed a grievance, which is now in arbitration, to ensure that cases are completed in this expedited manner.

If you have a special complaint, you should be prepared to answer questions that come up with the joint investigating committee and you should focus primarily on the big issues — your most serious concerns.

Always be respectful and listen to all parties. You should also have witnesses to the harassment who can speak about what they saw or heard. Be prepared to prioritize your witnesses in case time runs short.

Think of what you want the resolution of the problem to be. This can include being treated fairly and respectfully, or more specific remedies that address your particular situation.

You should be aware that the joint investigating committee has no authority to discipline the alleged harasser. The goal is to resolve the problem going forward.

Source URL:

The Rights of Kids, Texas Style

Wednesday, September 17, 2008

Why Just Having the Right to a Jury Trial Matters

Recently, I had a jury trial that reminded me why having the right to a jury trial matters, and why it is blatantly unfair that juveniles do not have that right, and yet their convictions from juvenile court can count significantly in sentencing decisions for crimes they may commit as adults.

My client was charged with stalking. I don't want to get into all the details, but I will say that, based on my interpretation of the stalking statute, I did not believe my client was guilty. Even assuming all the facts as laid out in the police report were true, I did not believe that my client committed the crime of stalking under any reasonable interpretation of the stalking statute. In Washington, this allows us to file a motion before trial, arguing that the charge should be dismissed. For the purpose of the hearing, you concede that everything in the police reports are true, but say that all of that information is insufficient to prove the crime charged. So, I filed that motion. The judge and the prosecutor each had their own different but equally unreasonable--in my opinion--interpretation of the statute, and so my motion was denied. My client was disheartened, but I told him I still thought we should win in a jury trial.

So, we went to a jury trial. This time, I made essentially the same argument in a motion to dismiss after the state rested its case. My legal argument was the same, but the judge this time was deciding whether the evidence actually presented at trial--as opposed to what the police reports said--was sufficient for any reasonable jury to convict my client of the crime. Again, I made my argument, and once again, the prosecutor had his unreasonable interpretation, and the judge came up with a strange interpretation of the evidence to go along with his strange interpretation of the law, and denied me again.

And so, I was left to argue the law to the jury. I had not disputed any real fact presented by the state. I gave a 5-7 minute closing argument. I just wrote the key words from the definitions in the statute and explained why, no matter what they thought of what my client did, they could not find that what he did was the crime of stalking. I was, essentially, making the exact same arguments on the law that I had made to the judge to the jury. The prosecutor made his arguments about why what my client did fit the statute and he argued his interpretation of the statute.

The jury deliberated for about 45 minutes, and found my client not guilty. This, despite the fact that the victim of the alleged stalking was a police officer.

When asked by the prosecutor afterwards why they acquitted, they said that the definitions made it pretty clear that what my client did wasn't stalking. A few days later, a friend of mine told me that a woman she knew had been on my jury, and that she had said that it took them a while to vote on who the foreperson would be, but that the "not guilty" verdict was easy.

And yet, if my client, like a juvenile, had no right to a jury trial, he probably would have been found guilty. He may have won an acquittal on appeal, but that likely would have been after he had done at least a significant amount of his probation and probably all of his detention time. Sometimes, even when your whole case is about a correct interpretation of the law, you need to have 12 citizens who can read two or three definitions, put them together, apply them to the virtually undisputed facts, and say, "not guilty." Sometimes, you need the jury to tell the judge that his interpretation of the law is wrong.
Thursday, September 11, 2008
Long time, no blog . . .

Yeah, I know you've heard that before. I apologize. Circumstances have conspired against me. So, here's an update:

I have moved from juvenile court to adult felonies. I was really torn when I was asked to make the move. It was considered an advancement in the office, but I had really grown to love juvenile work. I missed being able to do jury trials (and having my clients have the RIGHT to a jury trial), but I knew I would miss the kids. So far, though, I am happy where I am. I have been back in front of a few juries with pretty good results so far.

I am still busier than ever--the life of a public defender. And things at my office are far from perfect. But, what has inspired me to get back into blogging is what is going on at my old office in Dallas. They are really suffering. They are being messed with in the extreme by the political forces in the county, and good, experienced public defenders are quitting because they don't believe they can meet their ethical obligations to their clients under the quota system that has been imposed there.

My thoughts go out to all my former colleagues there in Dallas, whether they have chosen to leave or are trying to stick it out. I don't know what I would do if I were still there. On one hand, I respect those who have quit because they do not believe that they can fulfill their ethical obligations to provide zealous representation under the overly burdensome caseload standards that have been imposed. On the other hand, I respect those who are staying because they know that good, ethical attorneys need to be there to represent the indigent accused. I wish them all the best and hope that changes will be coming. (For more information about the situation in Dallas, check out Grits for Breakfast. As per usual, he is all over the issue.)

Hopefully, it won't be another year before my next post!

Lack of Remorse Not Sufficient To State A Claim To "Shocking The Conscience"

Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination

Cipollaro v New York City Dept. of Educ., 2011 NY Slip Op 03131, Appellate Division, First Department

Barbara Cipollaro was served with disciplinary charges pursuant to §3020-a of the Education Law by her employer, the New York City Department of Education, alleging that she had knowingly defrauded Department of $98,000 over a two-year period by enrolling two of her children in New York City public schools while she and her family lived in Westchester County.

The hearing officer found Cipollaro guilty of the charges and she was terminated from her position.

Cipollaro filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating hearing officer decision and the penalty imposed.

The Appellate Division ruled that there was no basis to disturb the Hearing Officer's determination. Significantly the court said that in view of Cipollaro’s “lack of remorse and failure to take responsibility for [her] actions, as well as the harm caused by her actions, the penalty of dismissal, even if there was an otherwise adequate performance record, cannot be said to shock the conscience” [of the court].

The decision is posted on the Internet at: