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, 14th 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
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
