ATR Meeting November 11

The Two Parts of 3020-a: Evidence/proof of Charges, and Penalty - Case of Jay Dubner

Re-posted from
 "Inside 3020-a"

Thursday, October 2, 2014

Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerningcharges brought against him by the Board of Education of the City School District of the City of New York.

Decision No. 13,021

(October 15, 1993)

Neal Howard Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.

On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).

On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.

On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.

A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.

This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.

There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.

Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.

Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.

Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.

With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).

With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.

With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.

Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.

With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.

Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambach, supra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.

In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.

I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.

Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.

In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.

END OF FILE

Protecting Tenure and the Story of Agustin Morales

MONDAY, OCT 13, 2014 06:59 AM EDT

“Poster child for tenure”: Why teacher Agustin Morales really lost his job

LINK

A teacher in Massachusetts spoke up when his students' rights were being violated. Here's how he paid the price

SARAH JAFFE

TOPICS: TEACHER, EDUCATION, ADMINISTRATION, EDITOR'S PICKS, TENURE, LABOR, WORKERS,MASSACHUSETTS, PARENTS, REFORM, STANDARDIZED TESTING, BUSINESS NEWS, POLITICS NEWS

(Credit: diane39 via iStock)

It was the “data walls” that drove Agustin Morales, an English teacher at Maurice A. Donahue Elementary School in Holyoke, Massachusetts, to speak up.

Last February, Morales and some of his colleagues, as well as parents whose students attend Holyoke public schools, spoke at a school committee meeting (the equivalent of a school board) and protested a directive from higher-ups to post students’ test scores on the walls of their classrooms, complete with the students’ names. Paula Burke, parent of a third-grader at Donahue, called the walls “public humiliation.” Some teachers questioned whether posting data publicly violated the Family Educational Rights and Privacy Act. As I reported at the time for In These Times, the superintendent tried to turn the tables on teachers, saying that they were never told to use students’ names and that the directive did not come from the administration, but the teachers released a PowerPoint from their training session that clearly showed photos of sample data walls, with first names and last initials.

Now, Morales thinks his standing up to the administration has cost him his job. And a preliminary finding from the Massachusetts Department of Labor Relations backs him up. In September, the board found that there was probable cause to believe that the non-renewal letter he received in June from the district was because of his protected union activity.

Morales tells Salon that for the first two and a half years he taught in Holyoke, the western Massachusetts town where he grew up, his evaluations were stellar. But after the school committee meeting last February, his evaluations “just got so unbelievably negative.” He was elected president of the Holyoke Teachers Association, a local chapter of the Massachusetts Teachers Association, in May as a reform candidate, part of the Educators for a Democratic Union (EDU) caucus that also elected Barbara Madeloni president of the state union. A month later, he was fired.

“All of a sudden I start speaking out and I can’t do anything right,” he says. “I can’t write good lesson plans, I can’t control my classroom, I’m doing everything possible wrong. All of a sudden. The writing for me was on the wall.”

Dan Clawson, a member of EDU and a prominent labor sociologist at the University of Massachusetts-Amherst, connects Morales’s firing to the larger struggles going on nationwide around teacher tenure. In June, a California judge ruled in Vergara v. California that teacher tenure and seniority laws were unconstitutional. Thoughlegal experts questioned the legal reasoning of the decision, anti-union education reformers declared victory and announced plans to move on — Campbell Brown, former CNN anchor turned professional anti-teacher campaigner, launched a similar lawsuit in New York despite sending her own children to private school.

“In some sense, Gus is the poster child for why teachers need tenure,” Clawson tells Salon. “Without tenure, we are all Gus Morales: if we speak up for students, we will be fired, even if what we are pointing to are violations of the law by the school system.”

In Massachusetts, a teacher achieves “professional teacher status,” equivalent to tenure, after three years in one school district. Morales, who has been teaching for seven years, was just on the cusp of having this protection in Holyoke. It’s worth noting that tenure or its equivalent is not what Brown and other campaigners like to call it, a guaranteed job for life — the school district can still fire you, they’re just required to give you due process first.

Morales finds the attack on him frustrating because, he says, by speaking out he hoped to make things better. “Even in some of my speeches, you can go back and listen to them, I said ‘This is not about any one person or any one policy, it’s about a system that’s broken,’” he says. “I’m doing my job as a teacher, but because of my extracurricular activities speaking against some of the reforms, all of a sudden, my livelihood gets tied to my extracurricular activities and that’s just so inappropriate. Because here you have kids that are in front of me, and if I witness bad things, am I not supposed to report those things?”

The initial finding from the Labor Department was a relief for Morales, though he says he never doubted that his firing was retaliation. “Even though people were very supportive of me, still there was that doubt in the air. What this did, a third party that has nothing to do with Holyoke Public Schools and has nothing to do with the Holyoke Teachers Association, they’re a separate entity, they found the probable cause after both sides presented their case. A completely removed, unbiased party, finding probable cause for retaliation in the district.”

The complaint, issued by the Department of Labor Relations and provided to Salon by Morales, explains that there is “probable cause” to believe that a violation of the law occurred and lists the possible violations to be discussed at the hearing, including the possibility that “the School Committee has discriminated against Morales for engaging in concerted activity protected by Section 2 of the Law in violation of Section 10(a)(3) of the Law.”

Parents, other teachers from the district and across the state and the Pioneer Valley Labor Council all came out to support Morales at the press conference they held when they got the news from the labor department. But for now, all they can do is wait. The full hearing will be scheduled for November or December, and Morales notes ruefully that without the income from his teaching job, he’s had to sell his house and move into a smaller apartment. Still, he says, “You don’t get into a fight like this and not expect to get hit. This is a hit for me, but I’m still standing.”

Meanwhile, he says, he’s got his hands full as president of the union. Teachers and students are stressed out constantly over high-stakes testing, and poorer districts like Holyoke face the brunt of the “reforms.” “From my district alone, we’re losing teachers, and not just teachers that are being bullied either,” Morales says. “We’re losing good teachers that are being left alone for the most part but they just can’t witness it anymore. They can’t deal with all the crying, they can’t deal with all the stress, they can’t deal with the anxiety. You have all these teachers who are so anxious, the anxiety is so thick it’s actually, at points for me, it feels like it’s tangible, like I can actually touch the anxiety.”

He continues, “I get emails constantly from teachers saying ‘I’m looking for another job; I can’t do this anymore.’ And it bothers me because I know they love their job, they really do, they love teaching, what they don’t love is the bureaucracy that has been intertwined with teaching, that has no place in teaching but now it pretty much has taken up teaching.”

Around the state and around the country, though, teachers are standing up and getting more support from parents as it becomes clear that education “reform” based on endless testing rather than equitable funding is not helping children.

For Morales, there’s no other choice.

“There’s definitely some consequences and there are some dangers to it but if we keep allowing these things to happen, if we don’t stand up to any of these dangers — data walls is just one of them, high-stakes testing is another one — if we don’t start fighting back, my biggest worry, the thing that keeps me up at night, is that there’s not going to be a teaching profession in five years. It’s all going to be minimum wage employees basically running the schools with scripts. That’s the biggest danger posed to us, and if our leaders, if our superintendents, if our principals, if they don’t start questioning what’s going on, we’re all done.”

MORE SARAH JAFFE.