From ADVOCATZ President Betsy Combier:
In my opinion, when any Attorney tells a client or convinces a person to give up on going through a 3020-a arbitration because he/she "will be terminated" or "lose his/her pension", as we hear so often from NYSUT and even some private attorneys, the due process rights of that individual is being denied to him/her.
How does an Attorney/advocate/representative know that the person charged will be terminated? Before that final judgment there is always mediation, settlement, negotiation.
I believe that most attorneys do not want to go through a 3020-a because it is time consuming, and a drain on time and money. Certainly, it is a lot easier to "convince" someone to give up, than to fight.
While I and the private attorneys that I work with do not go for the argument that someone will be terminated, there are never any guarantees. But we are willing to settle for a withdrawal of charges if the teacher wants to not pursue a full hearing. We have saved the jobs of more than 40 teachers who have hired us to represent them.
But to demand that a person give up his/her right to argue against false charges that will forever damage his/her reputation and future earnings? No thank you.
Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person.
Henry J. Friendly wrote about a fair hearing in his excellent essay, Some Kind of Hearing. Yet this is not what the DOE wants to provide at a 3020-a, and that is why you win in your defense. You must add the context and motive to the charges because the DOE will not do that. For example, the DOE attorney may obtain testimony that on X day you, a teacher, did not hand in a lesson plan, and suddenly you are charged with incompetency, conduct unbecoming a teacher, etc. There is not other evidence given. But let's say you were in the hospital, or the day you were supposed to hand in the lesson plan, you were absent? or, you did hand it in, and they want to say you didn't? Your defense and proof are what matters.
It seems to me that the DOE always presents the same case, no matter what the specifications, so the defense of innocence and giving testimony on motive/context becomes the key to winning. Of course, it also seems to me that ADVOCATZ is the only entity which cares about the process that is "due".
Here is a definition I like from Cornell University Law School Legal Information Institute:
Whether process is due
When process is due
What procedures are due
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and reasons for its decision.