Arbitrators balk at slow pay from state

Former NYC Arbitrator Paul Zonderman

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ALBANY — An increasing number of impartial arbitrators who hear disciplinary cases for tenured teachers and administrators are refusing to serve because it can take roughly 18 months to get paid, according to state education officials.

The agency’s deficit in the account for arbitrators has grown in recent years and is as high as $9.5 million. There’s no relief in sight because the 2012-13 state budget only includes $3.8 million.

The $3.8 million will first go to hearings heard under a revamped system included in the budget to control costs. Stenographers — who charge about $1,000 per hearing day — have to get paid because they are hired under a competitive contract. Whatever is left will pay hearing officers with past-due bills, state officials said.

“For the past two years, the Board of Regents sought a number of reforms to the tenured teacher hearing process to address spiraling costs and the extraordinary length of time to resolve cases,” Valerie Grey, the Education Department’s deputy executive commissioner, said in a statement to Gannett’s Albany Bureau.

“We are pleased that the recently adopted state budget includes a number of important programmatic and fiscal reforms, and the department has already begun implementing these changes.”

Last May, when Grey testified before a Senate committee, the lag time in pay was about 15 months.

The Education Department’s account for what’s known as 3020-a hearings has had a deficit for the past five or six years, education officials said. It wasn’t until the 2008-09 fiscal year that it surpassed $1 million, they said.

The deficit can be attributed to continued under-funding of the account, combined with the high cost of arbitrators and disciplinary charges that take years to resolve.

Jay M. Siegel, an independent arbitrator from Cold Spring, Putnam County, said he has a few outstanding disciplinary cases and will not be accepting any new ones.

“The payments are extraordinarily delayed, often two years,” he said.

Another reason is the new procedures that were put in place with the budget, “which appear to have unrealistic timelines attached to them,” Siegel said.

The 2012-13 state budget, which took effect April 1, authorizes the education commissioner to set maximum daily rates for arbitrators. Currently they range from $900 to $1,800 for a five-hour day. The commissioner can limit the number of case “study” hours arbitrators can bill for and remove them from the list if they take too long to complete hearings.

Other time limits under the new system include 15 days for both parties in non-New York City districts to choose an arbitrator. Otherwise, the commissioner will name someone. Before April 1, the parties had 45 days to agree on someone.

Another new requirement is all evidence must be submitted within 125 days of when the district files charges, except in extraordinary situations.

State education law requires arbitrators to make decisions within 155 days, but few cases are decided in that time period, a recent review by Gannett’s Albany Bureau found.

Martin Ellenberg, a hearing officer from White Plains, Westchester County, said he takes one or two 3020-a cases each year. “I won’t tell you that we’re being paid promptly,” but the lag time is not too bad, he said.

“The system works. Sometimes it works slowly, but it works,” he said.

The average time to settle non-New York City cases in 2011 was 287 days, down from 338 in 2010, state education statistics show. The average for not-guilty decisions was 1,070 days, more than double the previous year’s average. Guilty decisions took an average of 632 days, down from 742.

The time it took for New York City case decisions in all three areas dropped dramatically. The average time period for guilty verdicts was 299 days in 2011, half of the 598 days in 2010. Not-guilty decisions took an average of 323 days, 37 percent less than the average of 516 days in 2010. Cases were settled in an average of 241 days in 2011, 33 percent less than the 362 days for 2010 cases.

Much of the decline can be attributed to the agreement New York City reached with the United Federation of Teachers to streamline the disciplinary process and eliminate “rubber rooms,” where teachers spent their days while waiting for cases to be resolved, a city Department of Education spokeswoman said Monday. The new system took effect in September 2010.

Most teachers accused of misconduct or incompetence in New York City are now assigned to administrative or non-classroom tasks. The Department of Education can use an expedited, three-day disciplinary process in some non-termination cases.

New York City increased the number of hearing officers from 23 to 39 two years ago and increased from five to seven the number of days they hear cases each month. Additional arbitrators are hired for non-termination cases subject to the expedited disciplinary process.

Non-New York City districts draw from a pool of about 190 hearing officers registered with the American Arbitration Association, agency spokesman Tom Dunn said.