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Saturday, April 19, 2014

How Bad Is NYSUT as Providers of Due Process at 3020-a Arbitration?

My opinion is that the NYSUT/UFT "play along to get along" with Mike Bloomberg has caused the destruction of the lives of hundreds, if not thousands of effective, professional, caring teachers and staff of the New York City Board/Department of Education ....all members of the UFT....for at least the past 10 years. Their goal was to get tenured teachers out of public schools because Mike Bloomberg hated tenure protections and the thought that someone could not be fired in a second for no reason other than that the administrator wanted this person gone. This is good business, says Mike and Jack Welch (pictured below).

I guess everyone knows that you do not have to use NYSUT to defend at 3020-a. Right?
You can use a private Attorney and team, use a friend/advocate as your assistant, or you can do the 3020-a yourself  "Pro se"  

My email address is, you can contact me to ask questions about how 3020-a arbitration works.

Thus you should find out what you need to know by seeking information on your own. A person brought to 3020-a arbitration is given paperwork with Education Law 3020-a when they are charged. Few read it. Everyone should, but teachers seldom are lawyers too, so they rely on their NYSUT Attorney to tell them what it says.

That's a mistake.

Why is it a mistake? Because your Union, the UFT, and the NYSUT lawyers contracted to protect your due process rights at 3020-a, neglect to do that. For example, if you are charged with misconduct, you may get an email from Virginia Lopreto, a criminal attorney who works on contract to NYSUT. If you actually get to speak with Ms. Lopreto you are lucky. She will tell OSI, SCI, OEO that you refuse to speak with any of them, and then you will never hear from her. Here is a letter written by a member who had that experience (I have removed the name of the member, because victim's names are not important):

"Dear Ms. LoPreto:
My name is                   (                    to you because you never got my name right). My case was assigned to you because I am a UFT member who has been a victim of a false accusation. I received an email sent by your secretary, which was a copy of the email you sent to Ron Vance, from the SCI.  The second and last email that you sent to me was a copy of an email you sent to Mr. Vance, stating that I have the right not to answer his questions. After that, I called your office several times with questions that were never answered. In fact, I could never get in touch with you either by phone or in person. You didn't offer me any support, knowing that I didn’t even have knowledge of the accusations leveled against me. I felt very uncomfortable when told by Mr. Vance, at the time that he had been trying to get my declaration over the phone without legal representation or witness,  that if the UFT lawyer will tell me not to provide information to him, that he would end up closing my case. I wanted to share that with you and I needed some of my questions answered, but it never happen. On May 14, I received the report of the investigation and a letter from the superintendent on May 23rd. I faxed both those documents to you. I called your office seeking advice on what to do next and you never even returned my calls. I kept calling until a substitute to your secretary called me back and said that you were not going to continue with my case and that if I wanted to proceed I just needed to go back to the UFT, something you did not even have the decency to tell me directly. I asked him if he could send an email stating your decision and he replied that you were not going to send me anything.

In sum, I really didn't appreciate your treatment. It is not you not proceeding with the case that is particularly troublesome, but you not even bothering to show due respect and consideration to people without whom you wouldn’t even be here. You work for the union because we make it possible for you to get a salary, and there is just no room or excuse for your lack of courtesy to people you have moral, professional, and ethical obligation to defend.
I cannot even say it was a pleasure meeting you because you did not even make that possible."

See an email from NYSUT Attorney Paul Brown, to a client who fired him when she received this:

"From: Paul Brown <>
Sent: Wed,  2013
Subject: Re: - WITNESSES

I have an ethical obligation not to put on witnesses that I believe will be damaging to your case.  I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....
Please call me should you have any further questions.

Paul K. Brown
New York State United Teachers
Below is the Education Law 3020-a (1) and (2)(a):

NY CLS Educ § 3020-a  (2014)

§ 3020-a.  Disciplinary procedures and penalties

   1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section [fig 1]
 eleven hundred two, and sections [fig 2] twenty-five hundred nine, [fig 3] twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section [fig 4] twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.
2. Disposition of charges.

a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying [i] the charges in detail, [ii] the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and [fig 1] [iii] the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.

However, as NYC has no school board, NYC is not technically a member of NYSSBA. Several years ago I went to the NYSSBA annual conference as Press at the NY Sheraton Hotel, and sat at the only table with any seats, the NYC table. I sat next to Courtenaye Jackson-Chase. At the same table were leading names from the Office of Legal Services, such as Judy Nathan. In the program, my name and the name of the former General Counsel (before Courtenaye), Michael Best, Esq. were listed as representing New York City. I sent the post below to a listserv, nyceducationnews on October 28, 2007:

"To all:
As a paralegal and a non-Attorney, I attended an all-day seminar on School Law held at the Sheraton Hotel on Thursday, October 25, 2007. The seminar was part of the New York State School Boards Association conference.
The book that all participants received describes Open Meetings Law and the requirement that all Executive Sessions of a public body be voted on in a full meeting, and minutes are taken during the subsequent Executive Session where a majority votes on probable cause.
Therefore, all the votes taken and teachers terminated by a vote of the PEP members in Executive Session over the past 5 years are contrary to the law. The NYC BOE has required all persons interested in obtaining a copy of the tape of each meeting to file a Freedom of Information request, therefore the NYC BOE has substantiated the belief that the PEP is a public body. A powerless one, as Michael Best wrote to me “The PEP has no administrative or executive functions”.
Further news distressing to anyone in the New York City school district (NYC and boroughs) who would like to have any voice at all in creating policy or deciding complaints/issues: New York City has the largest school system in the nation, but was not represented at the NYSSBA conference. The only attendees listed from NYC Area 13 were me and Michael Best, a presenter of the “Contract For Excellence” session. Two other people from NYC (who kindly sat next to me at my table) were Ms. Judy Nathan and Ms. Courtenaye Jackson-Chase, both listed as “Attorney” for the NYC BOE.
We thus have a quasi-legal system set up to prevent any opposition to a resolution/vote/consent set by the Mayor/Mr. Klein.........
We have no right to get an independent decision on any complaints we may have, as everyone making decisions on grievances/special education hearings belong to Joel and Mike.
Gosh, how could we get in this position?"
David Bloomfield answered with Open Meetings Law, Sections 105 and 106
As we all now know, NYC does not have a school board/employing board and no longer has Executive Sessions at the PEP meetings. When the PEP did hold Executive Sessions, the group violated Open Meetings Law Section 105 by having the Session before the public meeting began. I used to speak at the public meeting part of the monthly PEP meeting, and ask for the reason for that, as well as a tally of each member's vote. Joel Klein would not nicely tell me to sit down, shut up and my time was up. I would say that my time was not up, but he would not give me an answer. Still don't have one.

In fact, if you look at the Notice of Determination of Probable Cause (paperwork sent to all teachers/employees charged with 3020-a), the date of the Executive Session at which probable cause was voted on, is blank. I posted the probable cause notice received by Francesco Portelos with his permission. There is no date for the Executive Session listed. Superintendent Erminio Claudia
Superintendent Cludia

testified at Francesco's 3020-a that there WAS an "Executive Session", namely when she met with "legal" on Francesco's case and they "found" probable cause for his charges. I would suggest that this meeting is not what is cited in the law, Open Meetings Law, or 3020-a(2)(a). Where did she get this version?

So in all cases brought to 3020-a arbitration, probable cause is determined improperly. Without the proper determination of probable cause according to Education Law 3020-a (1) and (2)(a), arbitrators appointed to hear 3020-a cases have no subject matter jurisdiction to decide on whether there is Just Cause for any penalty.

This is what NYSUT doesn't want you to know. In fact, your NYSUT attorney may rush you into a pre-hearing and then a full hearing/resignation/retirement/fine and settlement without any time to discuss the charges against you. NYSUT states in letters to those who opt to hire a private attorney or advocate, or do the 3020-a themselves:

"...changes to the Education Law negotiated by the UFT and the Board supercede the statutory provisions. Even though you are not utilizing NYSUT legal counsel, your case must be processed pursuant to the disciplinary procedures negotiated by the UFT and the Board. You do not have the right for your case to go forward pursuant to the Educational Law as it exists without the negotiated changes contained in Article 21 (G).(scroll to p. 113)."

No mention of probable cause found as required by Education Law 3020-a. But NYSUT isn't saying that the Law isn't there, just that you cannot use it for your case.


This is, in my thinking, the biggest error of NYSUT representation. Because without a probable cause determination in an Executive Session of the employing board, and a vote by a majority of members, you are left with anyone "finding" probable cause, and charging you with something that may or may not be true. The arbitrator hears only what the NYC DOE wants him/her to hear.

But arbitrators on the NYC permanent panel are paid $1400/day, and if they agree that probable cause has not been properly determined they wont get paid. So the arbitrators deny the dismissal of the case on any grounds, or there will be no payment coming their way.

Teacher discipline and termination are what the Department of Education calls "their business". It's not only a business, it's a partnership. With NYSUT and the UFT.

Sol Stern Responds To Diane Ravitch

The Real Common Core Story
A response to Diane Ravitch and others
17 April 2014
I couldn’t miss the eye-catching headline on Diane Ravitch’s influential blog: “Schneider Schools Sol Stern on the Common Core.” Mercedes Schneider, a Louisiana teacher, is one of Ravitch’s loyal allies in the education-reform wars. Ravitch thinks she’s a great investigator and often cites her work. Actually, what Schneider excels at is promulgating conspiracy theories and using guilt-by-association to discredit those with whom she disagrees—such as supporters of the Common Core State Standards, whom she accuses of being duped and bribed by a corporate, anti-public school conspiracy led by Bill Gates, with an assist from President Barack Obama.
Schneider’s denunciation of one of my recent articles defending the Common Core characteristically didn’t engage with my arguments, but it did provide a list of my nefarious “connections” and “involvements” with conservative organizations. With trumpets blaring, Schneider announced that the Manhattan Institute, where I am a senior fellow, has “a board of trustees noticeably heavy on hedge fund managers” and that “it should come as no surprise that MI promotes ‘economic choice’; ‘market-oriented policies,’ and ‘free market ideas.’” (Schneider doesn’t seem to have noticed that most supporters of free markets in education actually oppose the Common Core.) She also levies the bizarre allegation that “MI is a cousin to the [conservative] American Legislative Exchange Council (ALEC).” In another feat of investigative journalism, Schneider offers an inside scoop about me and my wife: “Stern is not a teacher, nor has he ever been a teacher. But he is married to a Manhattan, NY, high school teacher. Not sure if she is under the so-called Common Core State Standards (CCSS).” And I’m not sure what that even means.
Another of my defects, according to Schneider, is that I have written favorably about E.D. Hirsch’s Core Knowledge curriculum. She doesn’t explain what’s wrong with the Hirsch curriculum but instead alleges that Core Knowledge “was purchased by Rupert Murdoch’s Amplify in 2013.” If that were true, it would be considered a hanging offense in Schneider and Ravitch’s leftist circles, because Amplify is a “for-profit” company and Rupert Murdoch is, you know, Rupert Murdoch. But the Murdoch allegation is false. Schneider probably borrowed it from Ravitch, who published it on her blog last year before retracting the claim when confronted with the truth—that the Core Knowledge curriculum was licensed to Amplify for the sole purpose of distributing it to schools around the country (a good thing for American children.)
Normally, it wouldn’t occur to me to respond to Schneider’s fact-deprived attack—except that it appeared on Ravitch’s blog, which reaches tens of thousands of readers on some days. Ravitch is also the leader of a new left-wing education movement that has effectively exploited parental and teacher discontent with the Common Core Standards. It says something significant about the cause Ravitch now champions that she approves of Schneider’s methods and uses them herself in criticizing my politically incorrect views on education reform.
Like Schneider, Ravitch believes that readers need to know the highlights of my life story and my affiliations in order to evaluate properly my position on the Common Core. She begins by noting that we first met when we were fellows at the Manhattan Institute, which is true. She then goes on to assert as an uncontested fact that after serving as “an editor at the leftwing Ramparts” in the 1960s, I “had a political-ideological conversion experience” and “became a zealous conservative.” My transition from leftist radicalism toward a rather moderate conservatism took place gradually over many years and involved several important issues, including the defense of Israel, education, racial politics, and the failures of the welfare state. Tagging me as a “zealous” conservative is a calculated move on Ravitch’s part. I am no more zealous about conservative ideas than Ravitch was when she served in the administration of the first President Bush. Like her, I support gay rights, abortion rights, and other liberal positions. Indeed, if I really were a zealous conservative, I probably wouldn’t support the Common Core.
Dredging up my political loyalties from almost a half-century ago and my subsequent shift in thinking hardly seems relevant to understanding my views on the Common Core. Yet it does reveal Ravitch’s hypocrisy. I plead guilty to having flip-flopped once, from leftism to conservatism. But Ravitch has flip-flopped twice, from liberalism to conservatism and then all the way back beyond liberalism to her embrace of leftist doctrines—including her much-repeated claim that America’s “one percent,” the corporate elite, are now engaged in a conspiracy to dismantle or privatize the nation’s public schools.
Ravitch’s hypocrisy is even more pronounced when you consider her current fulminations against the Common Core Standards. Her two main (but contradictory) complaints are, first, that the standards are part of a “billionaire boys’ club” plot to destroy the public schools and, second, that the Obama administration is using the standards to impose a nationalized curriculum on the public schools. The irony in all of this is that, if I had to name one individual who, from 1988 to 2008, did the most to encourage education policymakers to support national standards and curriculum, it would be Diane Ravitch.
As a deputy education secretary in the George H.W. Bush administration, Ravitch’s main assignment was to use the federal government’s bully pulpit to push for national standards. She subsequently wrote a book for the Brookings Institution titled National Standards in American Education: A Citizen’s Guide. Ravitch insists that there is no inconsistency here, since she had only supported “voluntary” standards, whereas the Common Core, she says, represents a federal mandate (because the Obama administration awarded funds to some states for adopting the standards). But adopting the Common Core remains voluntary. Five states initially declined to adopt, and more are likely to discard them in the near future. None will suffer federal penalties for doing so.
Moreover, Ravitch has never confronted the most glaring contradiction stemming from her long-time advocacy of national standards. On November 7, 2005, she published a widely discussed (and brilliant) op-ed in the New York Times declaring that “Americans must recognize that we need national standards, national tests and a national curriculum.” (Emphasis added.) Ravitch expressed frustration with the failure of President George W. Bush to follow up on the efforts of the previous Bush and Clinton administrations to move toward national standards and national tests. Because of the Republican Party’s “philosophy of localism,” wrote Ravitch, Bush “adopted a strategy of ‘50 states, 50 standards, 50 tests,’” which failed to bring about improvements in the schools. Ravitch cited the poor results of that year’s federal NAEP tests to support her contention that the “varying state standards and tests are inadequate,” and that there would be no improvement in students’ academic performance as long as the administration continued to follow “a strategy of letting the states choose their own standards and tests.” Nor, Ravitch concluded, “will we reach that goal [of academic improvement] if we pretend that mathematics taught in Alaska or Iowa is profoundly different from the mathematics taught in Maine or Florida, or for that matter, in Japan and Hungary.” Ravitch never used the word “voluntary” to qualify her support for national standards and tests, so it’s hard to take seriously the rationalization she has since offered for opposing the Common Core.
But even more remarkable was Ravitch’s unequivocal endorsement of a national curriculum. The curriculum issue has always been the third rail in any discussion of national education standards in the United States. (Most other industrialized nations have national curriculums.) That’s not only because of the Republican Party’s “philosophy of localism” in education, as Ravitch noted, but also because U.S. education law clearly prohibits the federal government from “exercising control” over the development of curriculum by states or school districts. With that restriction in mind, the authors of the Common Core included specific language saying that the standards were not to be regarded as a curriculum and, moreover, that each state should develop its own grade-by-grade curriculum materials aligned with the standards.
With her endorsement of a national curriculum, as well as national standards and tests, Ravitch was arguably even more “zealous” than other champions of standards reform at the time. And because of her reputation as one of the nation’s most esteemed education scholars, her Timesarticle provided encouragement to the Washington-based organizations—including the National Governors Association and the Council of Chief State School Officers—that were beginning to push for the adoption of national standards, and whose efforts led a few years later to the creation of the Common Core. Borrowing from Ravitch, these groups argued that the United States couldn’t improve the public schools if it continued to follow a strategy of “50 states, 50 standards, 50 tests.”
In her recent blog post, Ravitch wrote that she wasn’t “sure that Stern understands the Common Core standards.” Specifically, she faulted me for “think[ing] that the Common Core implements the ideas of E.D. Hirsch Jr.” I have never made such a claim. What I didwrite, almost two years ago, was that the Common Core Standards deserved support—among other reasons, because they were “creating a historic opportunity to introduce Hirsch’s curriculum to many more schools and classrooms.” So far, some progress has been made along those lines: New York State has made the Core Knowledge English Language Arts curriculum for the early grades available to all schools; 71 New York City elementary schools are using the Core Knowledge curriculum; the Louisiana Education Department has designated Core Knowledge as the preferred curriculum for the state’s elementary schools; and Amplify will soon distribute the Core Knowledge curriculum on electronic tablets to classrooms around the country.
In my writing, I have suggested that education reformers of all stripes could help convince states and districts to adopt Core Knowledge or some variant of the Hirsch curriculum as part of their implementation of the Common Core Standards. I had once hoped that Diane Ravitch would do so—despite her generally negative opinion of the Common Core—because for almost her entire professional life, she has been a fervent advocate of Core Knowledge and, more recently, an advocate for a national curriculum in the United States. Instead, she has decided that it would be better for American education if the Common Core were brought down entirely. And after a quarter-century of supporting Core Knowledge (including serving on its board), Ravitch has suddenly discovered that Hirsch’s early-grade curriculum is “developmentally inappropriate” for young children.
If Diane Ravitch and other anti-Common Core campaigners on both the left and right succeed in their destructive mission, we will go right back to “50 states, 50 standards, 50 tests.” Ravitch and her allies can then celebrate their political victory—but the children in America’s schools will be the losers.