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Friday, July 17, 2015

In Los Angeles, "Teacher Jail" Statistics and Instructions for Skelly Review Officers

The teachers in LA have certain rights known as "Skelly" and the rules are basically the same as for 3020-a in NYC.

Most serious right now are the teacher tenure trials and the attack on tenure in the Vergara case.

Betsy Combier

Most in LAUSD ‘jail’ facing charges of sexual misconduct, violence
teacher jailDespite persistent concerns about teachers sexually harassing or abusing students in the classroom, only slightly more than a third of the teachers and other school personnel currently in LA Unified’s so-called “teacher jail” have been accused of sexual misconduct, according to the district’s latest accounting.
Almost the same number are facing accusations of “violence.”
As of July 1, a total of 174 district employees, the vast majority of them teachers, have been taken out of classrooms, awaiting the results of an investigation into charges. The total includes 65 accused of questionable sexual abuse or harassment, about 37 percent, while the rest face accusations on a variety of other issues, including 55 (or 32 percent) who have been cited for violent acts.
The total reflects 151 certificated employees and 23 classified, such as teacher assistants, library aides, janitors and other support staff.
The list, made available to LA School Report, is the first comprehensive breakdown of misconduct allegations being investigated by the district’s Student Safety Investigative Team (SSIT). And while it suggests that large numbers of personnel are still being taken out classrooms and schools for the goal of protecting students, it also shows that the district is making progress on clearing cases at a faster pace than in years past.
The district said today that the number of housed district employees reached a peak on April 9, 2013, with 322 teachers who were removed from classrooms.
“The district continues to deal with the housed teachers situation as quickly as possible, and they have expanded the staff and the scope for the investigations,” saidShannon Haber, the LAUSD district spokeswoman. “As of July 1, the SSIT is investigating all sexual and nonsexual allegations which have resulted in the teachers being reassigned.”
In a statement, UTLA said: “The ‘teacher jail’ system that ballooned under former Superintendent John Deasy was broken. In our new collective bargaining agreement with LAUSD, important changes were made that protect both students and due process rights of educators.”

On the other hand, the union still expressed concerns that the district was using teacher jail inappropriately.
“Allegations that do not involve safety should not result in an educator being removed from the classroom—a move that is disruptive to students,” the statement said. “Unfortunately educators have been stuck in ‘teacher jail’ over concerns about field trips and science experiments, or for simply questioning a principal’s decisions. We are hopeful that the changes we negotiated will put an end to these practices.”
Suzanne Spurgeon, the union spokeswoman, added, “UTLA will be meeting with LAUSD monthly to review cases under the new contract language.”
The issue of teacher jail — more formally know as “housed teachers” — has been a persistent and contentious issue between the district and the teachers for years. Throughout his campaign for the union presidency last year and again during negotiations for a new labor contract this year, Alex Caputo-Pearl demanded an end to teacher jail, insisting that the district intentionally delayed in resolving cases and unfairly denied teachers a full explanation of why they have been removed.
Through sustained pressure from the union, the district agreed to make the process more transparent and expedite case resolution.
The latest statistics show that 65 of classified and certified personnel were taken out of the classroom for sexual abuse or harassment allegations. The vast majority of the cases, 62, involved a minor while the other three involved another adult. In five cases, the incident happened to non-LAUSD victims.
The second-largest category was violence, accounting for 55 removals — almost 32 percent — although the district did not break down what sorts of incidents were involved. Another 14 people were removed in each of two infraction categories — “inappropriate language” and “below standard performance.”
Other reasons that teachers were taken out of the classrooms include: “Failure to report child abuse” (4), “Finances”  (3), “Accepted use policy violations,” for things like inappropriate software use (2)  and “Drugs/Alcohol” (2).
The school board in 2013 instructed former Superintendent John Deasy to set up a team of professional investigators to speed up investigations of allegations of abuse and sexual misconduct against teachers and other employees. At that time, the focus was primarily accusations of sexual abuse against students, in part, due to major scandals of misconduct by teachers the year before at Telfair Elementary in Pacoima and Miramonte Elementary in south Los Angeles.
By January 2014, the district created the SSIT to accelerate investigations with a staff of seven. But over the last year or so, the staff grew to 15 as the district expanded the mission to include investigations on a wider array of alleged violations.
For now, some teachers are allowed to stay at their homes during the period of investigation while other spend time at a district holding facility during school hours, and can return home by the end of the day. They are not allowed to have computer access or work on school activities while being reassigned.

High-Profile California Lawsuit on Teacher Protections Begins

Los Angeles
A controversial and potentially precedent-setting trial begins in Los Angeles Superior Court this week, with the plaintiffs essentially looking to overturn three of the teachers' unions holy grails: seniority, tenure, and dismissal procedures.
The lawsuit, Vergara v. California, stands to have implications far beyond the Golden State. It's a touchstone for some of the most heated debates in K-12 education, particularly how to promote effective teaching—and whether policies relating to teacher employment help or hinder that effort.
Brought by nine California students and their parents, the suit charges that five sections of the education code run counter to the state's constitutional guarantee to an equitable public education. The statutes in question, they say, mean that most teachers are granted tenure before they've established a successful track record, that it's virtually impossible to fire abysmal teachers, and that  seniority rules concentrate "grossly ineffective" teachers in schools serving low-income and minority students.
url.jpeg"You have someone voted the Teacher of the Year one day and a couple years later is laid off because she's junior compared to other people," said Theodore Boutrous, one of the litigators representing the plaintiffs, in a conference call last week with reporters. "It's really creating an irrational, unequal process that the political system hasn't been able to fix."
The lawsuit is being bankrolled by an advocacy group, Students Matter, set up by David Welch, a Silicon Valley technology entrepreneur. Its board includes several figures who have a reputation for battling the unions on policy, and such ties have led the California Teachers Association to paint the suit as a thinly veiled attack on unions.
"It's disappointing because putting professional rights of teachers on trial hurts students," CTA President Dean E. Vogel said in a statement. "This most recent shenanigan by corporate special interests and billionaires to push their education agenda on California public schools is resulting in a waste of taxpayer dollars and time—time that should be spent focusing on providing a quality education to all students as the economy improves." 
The CTA and the California Federation of Teachers—the state affiliates of the National Education Association and the American Federation of Teachers, respectively—were not named in the suit, but chose to join it as "intervenors" in March of last year.
Legal Issues 
There's plenty of star power on display: The plaintiffs have hired a team from the law firm Gibson, Dunn & Crutcher, and they include former U.S. Solicitor General Theodore Olson, fresh off his Supreme Court win in the Prop. 8 case on same-sex marriage.
Legal arguments in the case are likely to hinge on whether the statutes themselves deny students' constitutional rights, or whether they have merely been poorly implemented by administrators.
The trial is by far the most sweeping of several lawsuits related to teacher quality filed in the state, but that's no guarantee of success. As Education Week reported previously, some legal experts wonder whether the scope of the lawsuit might work at cross purposes for judges, who might favor a more narrowly tailored form of relief.
If the court rules in favor of the plaintiffs, it isn't clear how teachers and districts would be immediately affected. That's in part because whichever way the ruling goes, it's likely to be appealed to the state Supreme Court. And it is further complicated because the tenure rules and dismissal processes for California teachers are layered on top of existing protections, known as Skelly rights, that protect all public employees from arbitrary dismissals.
Witness Lists
The case is expected to last up to 20 days, which means testimony will go through February. Witness lists released by the parties provide some clues as to what kinds of evidence each side will offer. (Education Week reached out to several witnesses for comment. Most demurred, citing their status as witnesses; others have already recorded depositions.) 
Slotted to be called by the plaintiffs are several researchers who have conducted studies on the impact of teachers on student outcomes. They include Raj Chetty, a Harvard professor whose 2012 study with two colleagues found that students taught by effective teachers, as measured by student test scores, had higher lifetime earnings and were more likely to attend college; Thomas Kane, the Harvard professor and researcher behind the Bill & Melinda Gates Foundation's Measures of Effective Teaching study, which examined value-added and other evaluation tools; and Stanford University's Eric Hanushek. Hanushek is no stranger to the witness box, having argued in several school-finance cases that more educational spending by itself doesn't significantly correlate to better learning. And he's the author of a controversial thought-piece suggesting student achievement would significantly improve if districts fired the bottom 10 percent of teachers each year.
Most of those researchers probably won't be called until the trial's second week. Expected to be among the first up on the stand is Los Angeles Superintendent John Deasy, who has pressed the district to include measures of academic progress in teachers' evaluations. 
The defense, meanwhile, plans to call Linda Darling-Hammond, the chairwoman of the state's teacher-credentialing board and an opponent of using value-added measures in teachers' evaluations; Jesse Rothstein, a University of California, Berkeley, assistant professor whose research has found fault with "value added" approaches to gauging teacher effectiveness, and who has written several papers critical of the Gates MET work; and Steve Zimmer, who serves on the board of the Los Angeles district. Zimmer has dismissed the Vergara lawsuit as an attack on teachers' unions.
A Gradual Shift
Beyond the immediate action in California, the trial marks the latest in a gradual shift in the definition of educational equity. Once, that concept was thought of almost exclusively in terms of access to integrated schools, more funding, or adequate facilities. Teachers' unions have been important supporters of such lawsuits.
A decade of research has shown, though, that of the factors within schools' control, teacher quality is both the most important for learning—and widely variable across classes. In California, such findings have gradually been building the case that the constitutional right to an equitable public education includes access to good teaching
It is clear, also, that the plaintiffs are already eyeing how to take any victory statewide.
"Even though we're focused in California constitutional provisions, we think it could provide a model for challenging the laws of other states that have the same arbitrary unequal effects on rights of students," said Boutrous, the plaintiffs' lawyer. He notes that the legal team has received inquiries from other jurisdictions and states.
Education Week will be closely following this lawsuit, so stay tuned to this blog and

ADVOCATZ and Eisner & Associates, P.C., Stop The NYC Department of Education From Charging Teachers More Than 3 Years After the Alleged Misconduct

ADVOCATZ and the excellent law firm of Eisner & Associates, P.C., have won a precedent-setting decision in the NY State Supreme Court and the First Department Appellate Division prohibiting the NYC DOE from serving 3020-a charges on a Respondent which cite alleged misconduct taking place more than 3 years before the Specifications were served.
David Suker

David Suker's daughter was accepted into an Upper West Side school although he was not a resident in the area, more than 5 years before Theresa Europe of the Gotcha Squad tried to frame David's act as criminal. The school never had a problem. The Gotcha Squad made it one 5 years later.

I attended the 3020-a of teacher David Suker, and I was appalled by the lack of defense of NYSUT Attorney Steve Friedman and the horrific, insulting, and improper yelling of Gotcha Squad Attorney Nancy Ryan as she made David into a criminal.

Due to Attorney Steve Friedman's disastrous performance as David's attorney, Eleanor Glanstein, herself a biased and narrow-minded arbitrator, in my opinion, sympathized with Nancy Ryan's theatrics and argument that David was a criminal for getting his daughter accepted into this school on the Upper West Side when he did not live in the catchment. Arbitrator Glanstein ignored the 3-year time bar for charges, and terminated David. He appealed to the NYS Supreme Court and won:

Here is the decision of New York State Supreme Court Judge Alice Schlesinger (July 25, 2013)

and here is the recent ruling by the First Department, after the NYC DOE Appealed Judge Schlesinger's decision:

Matter of Suker v New York City Board/ Dept. of Educ.
2015 NY Slip Op 04940
Decided on June 11, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 11, 2015 
Tom, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

15398 103742/12 
[*1] In re David Suker, Petitioner-Respondent, — 


The New York City Board/ Department of Education, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for appellant.

Eisner & Associates, P.C., New York (Maria L. Chickedantz of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered August 23, 2013, which, in this proceeding brought pursuant to CPLR article 75, granted the petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained the third set of charges against petitioner and imposed the penalty of termination of his employment as a tenured New York City public school teacher, and remanded the matter to respondent New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty, unanimously affirmed, without costs.
There is no evidence in the record to support petitioner's claims that his due process rights were violated, since he was

provided with the third set of charges more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him. Even though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised petitioner of the basis of the alleged misconduct (see Duncan v New York City Dept. of Educ., 124 AD3d 463, 464 [1st Dept 2015]).

Nevertheless, Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(1) as a defense in the disciplinary proceeding. Where, as here, "a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a [s]tatute of

[l]imitations which must be asserted by way of defense" (Lincoln First Bank of Rochester v Rupert, 60 AD2d 193, 196 [4th Dept 1977]). Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(1) or that the crime exception to the time requirement applied (see Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, 999-1000 [1990]). DOE failed to meet its [*2]burden. The record shows that the alleged misconduct, petitioner's submission of false documentation to DOE in order to improperly obtain his daughter's admission to DOE schools for which she was not zoned, occurred more than three years before DOE brought the third set of charges against petitioner. Although DOE requested that the Hearing Officer take judicial notice of two sections of the Penal Law and repeatedly characterized petitioner's conduct as "criminal," the Hearing Officer never found that the conduct constituted a crime, and there is no basis for making such a finding. Accordingly, the third set of charges were time-barred.

As the DOE essentially conceded at the disciplinary hearing, the first and second set of charges against petitioner do not

support the penalty of terminating petitioner's employment with DOE. Accordingly, Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.



ENTERED: JUNE 11, 2015

Below is my previous post about David's win in the NYS Supreme Court:

Monday, September 30, 2013

NYC Teacher David Suker Fought The Gotcha Squad - Department of Education in NYC - and Wins His Case in Court by Betsy Combier

David Suker

re-posted from

David was fired from his teaching position at his "teacher trial" or 3020-a, by the deadly team of Arbitrator Eleanor Elovich Glanstein, Department Attorney Nancy Ryan, and New York State United Teachers (NYSUT) Attorney Steven Friedman. This lethal team violated David's due process and, writes New York State Supreme Court Judge Alice Schlesinger, the law, and then she vacates the termination.

Theresa Europe's email to OSI Director Regina Loughran
 From the desk of Betsy Combier:

David Suker taught for 14 years at Offsite Educational Services which transitioned into GED Plus, without ever being brought to 3020-a prior to the proceeding described here, namely the 3020-a arbitration hearing, which was brought against him by the New York City Department of Education in 2012. I knew David from the Rubber Room at 25 Chapel Street in Brooklyn, New York. I started walking into this room with David Pakter around 2004, and talked with teachers who were there and followed their stories (see Steve Ostrin and Polo Colon, for example). 

David Suker was and is an excellent teacher and a cult hero among students. He was a leader of Occupy Wall street, and had a run-in with the police which became misconduct charged against him. He had the very unfortunate circumstance of taking NYSUT's offer of representation, and not hiring a private attorney. NYSUT Assistant General Counsel Claude Hersh appointed Senior Attorney Steven Friedman. Steve worked in a deadly partnership with Attorney Eleanor Elovich Glanstein and DOE prosecuting Attorney Nancy Ryan. Why do I call this threesome "deadly"? Because their goal was to terminate those people brought before them. See the case of  Nicola De Marco). Recently, sources tell me, Eleanor Glanstein was fired or removed from the UFT-DOE Panel. Nancy Ryan and Steve Friedman were moved to other Arbitrators. Thank goodness this team was broken up. I was fortunate enough to watch the three of them for several years, and, most recently, see how Nancy Ryan destroyed a Department of Labor Unemployment Hearing in August 2013. More about that in a later post.

Eleanor Glanstein is a very small woman who shrugs off violations of law and contract. She dismisses Nancy Ryan, a constant screamer and hysteric, as part of the order of business. Everything Nancy says is what Eleanor writes in her decision at the end of the 3020-a. Eleanor had a lot of power and was able to get away with her irrational rulings because her brother Larry Elovich was a political Somebody out on Long Island. 

The way the Ryan-Friedman-Glanstein termination process worked was as follows: Nancy Ryan would pursue any and all charges with a vengeance that left everyone in the room stunned. Her attacks are personal and vicious, and she continues now, only with a new arbitrator. There are no rules, laws, or contracts that she cares about. Indeed, these are always discarded as wrongly placed barriers to getting to the core of the case, namely, terminating a "criminal" (the poor employee/victim). Nancy must be a very unhappy person to be so malicious. All allegations against a person are "facts", which Nancy defends with her lifeblood. Steve Friedman basically plays along to get along. His defense is the worst of any NYSUT Attorney whom I have observed since I started attending 3020-a hearings in 2003-4. He has none. Steve presents some evidence, but he really would like his client to resign, retire, or go away. He permits, by doing nothing to stop her, Nancy's hysterics. While Steve sits there not doing much of anything and Nancy is screaming that the teacher/employee is criminally insane, Eleanor shrugs off Nancy but almost always terminates the charged employee. Eleanor refuses to concern herself with any issues of probable cause and procedural error. It is good that she is no longer on the panel. No one will miss her....except maybe Nancy.

David was brought up on three sets of charges, the first two sets were unsubstantiated and/or minor, but Eleanor Glanstein found almost all specifications were valid. Then Steve allowed Nancy and Terri Europe to bring forth a third set of charges about David's daughter's school to which she had been admitted more than 7 years earlier, and Eleanor consolidated this set with the previous two. Former Director of the Administrative Trials Unit, the Gotcha Squad, Theresa ("Terri") Europe, heard from Nancy that David had placed his daughter in an upper west side elementary school and then gave an address for himself which was not supposedly in the district (he did not have a permanent address at the time). According to A-101, the Department of Education had 30 days to investigate. David was not told of any investigation. By the time he was charged with 3020-a, his daughter was in high school, where residence did not matter. David's daughter's mother lived in Bronx the entire time. In other words, this issue was a non-issue. 

3020-a charges may go back only 3 years, unless the act charged was a crime when committed. David was not accused of a crime when his daughter started school. Thus, when Nancy told Terri that she had discovered the misconduct of David ten years earlier, Terri told Regina Loughran, Deputy Commissioner of the Special Commissioner of Investigation (SCI)  that she wanted an investigation of David, but this violated 3020-a law. 

This type of targeting is a violation of law. Yet, Eleanor Glanstein, with Steve Friedman's permission, charged David with the "misconduct" and David was terminated for fraudulently putting his daughter in a school without living in the district of the school.

David asked us at Advocatz to help him appeal this decision. We gladly contributed. At 3020-a, the Department, "Respondent" , had the burden of proof, and failed to provide a minimum amount of evidence that could justify the determination of termination as a just and equitable award. Certainly there was a clear failure to provide "preponderance of the evidence", which is the required standard pursuant to Education Law Section 3020-a. 

Glanstein's irrational conclusion was that Petitioner's acts were deliberately planned to throw his long and successful career as a tenured teacher out the window. In other words, Glanstein made a determination reeking of bad faith where she ignored the testimony of David Suker, "Petitioner", that he knew nothing about any residency requirement for Columbia Secondary, and that his satisfactory teaching performance showed he was an excellent teacher, to find that David inexplicably committed fraud on his employer. This made no sense. To be fraudulent, a false statement must be made with the intent to deceive the victim. And, the false statement must be made with the intent to deprive the victim of some legal right, and the victim's reliance on the false statement must be reasonable. Therefore, it would have been reasonable for Columbia Secondary School to question/investigate/address Petitioner's residency within the 30-day period cited in the Regulation, A-101, but not have the NYC DOE Office of Legal Services charge him five(5) years later. 

When David filled out the admission forms to Columbia Secondary School for his daughter he gave the address at which he and his daughter were staying in 2007. He did not lie. No one from the school ever questioned him about this address, and the only requirement for the school admissions is that first consideration goes to those students who live above 96th street. Students in the school population come from throughout the New York City area. Here, David never intended any fraud. No misconduct existed then or now, and no notice was given to David about possible wrong-doing, so he could address the issue, until it was "too late", and he was charged by Theresa Europe with 3020-a.

Ms. Europe had no authority, as the Attorney for the Department and Supervisor of the Administrative Trials Unit, to charge David five years after Columbia Secondary accepted his daughter. David invoked the doctrine of laches. From Wikipedia: "Laches is an "unreasonable delay pursuing a right or a way that prejudices the (opposing) party." When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the (Petitioner's) original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches. Laches is a form of estoppel for delay.

Ironically, while David was charged with filling out erroneous records for his daughter, the Department refused to give him the requested records of the students whose complaints in 2009 led to some of his charges. Here is an excerpt from the transcript:
"Mr. Friedman: Okay, Madam Hearing Officer, pursuant to your previous ruling, I now call for production of any counseling records, disciplinary records, attendance records and anything else that would have been from December of 2008 to April of 2009 and again, pursuant to your prior ruling, I reserve the right to recall this witness in the event that anything in those documents turns up to be material relevant in this case.

Ms. Ryan: I have already asked for those documents, that's what he got...That's the extent of what they have...Yeah, what do you think I asked for. You think I asked them to pick out three papers?" (Transcript, "T" pp. 127-128)

Mr. Friedman: "If I understand correctly, there's absolutely no record of that student being in the program then. Nothing. No test results, no applications, no records that she shows" (T146)
Hearing Officer: "I've heard you both...but I will not strike the student's testimony. The application is denied" (T146-147).

Mr. Friedman: " Then can I respectfully request then that the Hearing Officer take notice that we are very, very hampered in our defense?" (T147)

Glanstein didn't care.

But luckily, New York State Supreme Court Judge Alice Schlesinger did care. She threw out the third set of charges about David's daughter and her admission to the West Side school, and remanded back to the Department for a penalty that was less than termination. Schlesinger mentioned Nancy Ryan in her decision:

"However, in the two-month period between the dates that Mr. Suker was informed of these two Charges, a related but somewhat unusual communication occurred. Nancy Ryan, the attorney prosecuting the matter for the Administrative Trials Unit of the Office of Legal Services (ATU) contacted Theresa Europe, Deputy Counsel to the Chancellor for the NYC Department of Education, and gave her “interesting” information relating to Mr. Suker’s daughter which Ms. Ryan had noted while preparing the case.*
...Ms. Europe ended her letter: “Can you open an investigation? We are scheduled to start trial but I can try to put it off if your office will investigate. Let me know and thanks.”....The findings from this investigation then formed the predicate for the final Charge, notice of which was sent to Mr. Suker on April 20, 2012, after the 3020-a hearing had begun...I thus find that all of the acts in this Charge, in all three Specifications, are time-barred; because the conduct has not been proven to specifically constitute a “crime when committed,” the acts fall outside the three-year limitations period for disciplinary charges under § 3020-a."

Last week, the New York Law Department filed an Appeal with the Appellate Division. David remains off the payroll until the resolution of this appeal.

See more about Regina Loughran below:

Law and Disorder: Special Victims Unit

Investigators say the city's independent schools watchdog has often failed to bark

 Tom Robbins

published: December 06, 2005 Back in 1997 police arrested a man named Ronald Taylor, who worked as an assistant public school principal in Harlem. Taylor, 50 years old at the time, easily ranked as a parent's worst nightmare. His arrest came after the mother of a student walked into a local police precinct and reported that Taylor had lured her 15-year-old son to his apartment with an offer to play with his video game collection. He then proceeded to sexually molest him. When cops went to investigate they found Taylor had tricked up his West Harlem apartment as a kids' game room. They also found some 400 X-rated videos.

illustration: Glynis Sweeny
See also:
Too Hot to Handle
How a crooked congressman got a pass from school probers
by Tom Robbins , Village Voice

Unlike a score of school-personnel sex-abuse cases from that era, Taylor's arrest got little news play. The Times ran a short item on an inside page and the Daily News carried one as well, on page 79. The lack of attention was partly because the arrest did not emanate from the efficient publicity machine of Edward Stancik, the late special commissioner for investigation for city schools.

For 12 years until his death in 2002, Stancik's gaunt features were a staple on TV newscasts as he told of corrupt bureaucrats and twisted sex abusers nailed by his office. Such cases made Stancik wildly unpopular in the teachers' union offices and the old Board of Education headquarters on Livingston Street in Brooklyn, where he was viewed as a merciless inquisitor, a publicity hound whose investigations were measured mainly for their TV and news-ink potential.

On the other hand, many politicians, journalists, prosecutors, and parents adored him, viewing Stancik as a valiant warrior against an intractable bureaucracy. So what if he knew how to use the media? What better way to send a message to the public and bad guys alike that wrongdoing won't be tolerated? When Stancik died at age 47 of heart failure in March 2002, there were some misgivings expressed about his occasional overzealousness. But the editorial call was to make sure the watchdog office he'd led didn't lose its fangs.

But a few months after Stancik's death, something unusual in the world of law enforcement happened. A former top investigator in his office, an ex-detective who had been a supervisor there for five years, sat down and wrote two lengthy letters to city officials alleging that a top Stancik deputy named Regina Loughran had dropped the ball in several important cases, either delaying arrests or letting the bad guys get away altogether. In some instances, it was alleged, Loughran had changed cases from being "substantiated" to "unsubstantiated."

The complaints were investigated by city attorneys, and several were confirmed. Yet Loughran today remains as powerful as ever, serving as the $151,000 number two official in the special investigators' office. Former and current investigators, both men and women, who spoke under condition of anonymity, told the Voice they were puzzled by the inaction. "If we had caught someone in the education system behaving this way, they'd be long gone," said one former investigator.

Among the cases the investigators cited was that of Ronald Taylor.

According to the former detective and others familiar with the case, nearly a year before Taylor's arrest by police, investigators in Stancik's office had asked permission to launch a probe of the school official. The request was made after a prison social worker contacted the investigations office to say that an inmate was claiming to have been sexually abused by Taylor, his former teacher. Investigators initially dismissed the charge as one more prisoner trying to reduce his sentence. But the details of the story were disturbingly precise: Taylor had asked the student, then 15 years old, to carry a crate of milk up to his apartment. Once he got him inside, Taylor had sexually assaulted him. The inmate described the apartment in detail.

Investigators drove to upstate Green Haven Correctional Facility to interview the inmate, who convinced them that a sexual predator was loose in the schools. The statute of limitations had expired on the earlier assault, but the inmate said he was willing to wear a recording device to a meeting with Taylor to see if he could get him talking about other victims. The investigators relayed that offer to Loughran, then the attorney-in-charge of the child sexual-abuse unit and a key figure in the office. Loughran refused.

"The issue for her seemed to be, 'Why spend the time and money to get this kid out of jail and wire him up for a case that's too old,' " a former investigator told the Voice. "We argued that if we have this one person there are probably others out there at risk."

Loughran was adamant. But the investigators, most of them retired NYPD detectives who lived by chain of command, declined to appeal the decision over her head. The case was closed. Nine months later, the outraged mother of another victim filed her complaint with police. Taylor was immediately arrested and later sentenced to serve up to three years in prison. Under questioning, he said something that chilled both cops and school investigators. He said he was HIV-positive.

Ed Stancik's public posture was of a manager with a stern "the buck stops here" policy. But according to the former detective and others, the often ailing commissioner ceded wide authority to Loughran, a hardworking former sex-crimes prosecutor whose ability to turn out clearly written reports was highly prized by Stancik and his successor.

Investigators said Loughran was also often tempestuous, given to sudden rages and sulks. What made their jobs most difficult, however, was her apparent skittishness about dealing directly with outside prosecutors who were needed for any criminal referrals. "She just seemed intimidated or something," said one veteran ex-detective who worked in the office for years. "If we had a tape we needed to get to the D.A. she would have you drop it off with the officer in the lobby, rather than make a call to the prosecutor personally."

As a result, the investigators said, the case of the predatory assistant principal was just one of the instances in Stancik's old office where the system simply broke down.

There was the case of the art instructor accused of having displayed nude photos of himself to disabled students, confiding that "what a girl wants is a big dick." (The photos weren't found, and Loughran decided the students' testimony was "problematic," ordering investigators to change their findings from "substantiated" to "unfounded." When Board of Ed administrators asked for investigators to testify against the teacher to bar him from further employment, Loughran refused to allow it.)

There was the 48-year-old male teacher who admitted driving a 17-year-old female student to a funeral home parking lot in the Bronx and asking her, "What if I told you I wanted to go down on you?" (The teacher said he was trying to help her learn to fend off improper advances. The principal vouched for the teacher, and the girl later admitted she'd neglected to say they were also drinking beer at the time. Loughran said her testimony was inconsistent and ordered the case dropped.)

And there was Paul Kerner, a 61-year-old teacher at Sheepshead Bay High School who romanced an 11th-grade girl, taking her to Atlantic City casinos and a motel where he coerced her into performing fellatio and other sex acts. The investigator on the case urged Loughran to make a quick criminal referral to prosecutors, but the deputy balked. "I don't know what to do, let's hold off," she said, according to a report of the incident.

The office dithered so long that the victim called the investigator, complaining that Kerner was now stalking her, and asking why he hadn't been arrested yet. The investigator asked Loughran for permission to take the case to a friend at the FBI. Loughran expressed skepticism that the bureau would be interested, but reluctantly agreed. But when the FBI came seeking the backup documents for the case, Loughran balked again, forcing agents to get a grand jury subpoena. (Kerner was eventually convicted in federal court, where he received a 33-month sentence. Annoyed at the investigator who had called the bureau, Loughran allegedly had him transferred out of the sex-crimes unit.)

Yet another disturbing case posed an investigative challenge, one that Stancik's former detectives readily accepted, given the stakes, but which Loughran flat-out rejected. In that instance, a former city high school student, now a grown man and a member of the Army Reserves, called the office to say that his former principal had repeatedly sexually abused him a few years earlier. According to his story, he had been a fatherless youngster whom the principal had taken under his wing, bringing him on camping trips to Lake George and elsewhere where he had repeatedly molested him. On the advice of his therapist, the man had decided to confront and report his abuser. Once he did, the principal immediately resigned.

The Stancik investigators were able to get a consensually recorded telephone conversation in which the principal admitted his sexual abuse of the former student. Like the Ronald Taylor case, however, the acts were too old to prosecute. But investigators said the ex-principal (a Boy Scout troop leader who still lived with his mother) fit the profile of "a classic pedophile," and they believed he had to have preyed on others.

The next step, they proposed to Lough-ran, would be to wire up the ex-student and have him meet with the former principal to see if they could pick up leads on other victims. They would also talk to teachers and students at the principal's school to find out if other boys had been similarly "befriended." Loughran wouldn't hear of it. According to two former investigators, she said, "He is out of the system. Shut it down." (Loughran has denied using those words.)

In an effort to try to breathe new life into the case, one of the investigators reached out to a federal prosecutor he knew who was familiar with sex-crime statutes to ask if there was any other law the ex-principal might have violated. Loughran later said she was "upset" and "embarrassed" by the call, which she said duplicated her own research and had been made without her permission. Investigators said it was much more dramatic than that. "She was livid," said one of them. When the investigator was asked why the call had been made, he responded: "Because I'm trying to catch the son of a bitch."

According to the investigators, Lough-ran retaliated by shifting one of the two probers who had worked the case, considered one of the office's most productive teams, out of the sex unit. Loughran later insisted the assignment change had been made by Stancik, not her.

But it still wasn't over. The former principal, concerned at possible civil liabilities, offered to purchase a $250,000 house for the victim in exchange for a promise not to pursue further legal action. When Loughran learned of the offer, she allegedly said that the victim might be arrested for extortion, a suggestion that appalled the investigators. (As it happened, the deal fell through.)

"He had been a principal for 20 years, he had such power," said one of the investigators recently. "All he had to do was find another weak kid. We felt there had to be other victims. It was so egregious to shut it down. Pedophiles don't do it once and then go home. You don't have to be Columbo to figure that out."

The two letters detailing the complaints about the bungled past cases landed on the desk of city department of investigations commissioner Rose Gill Hearn in early 2003.

Hearn technically oversees the schools investigation unit (its offices are located in the same Maiden Lane building as DOI), but because of its sensitive mission it operates largely independently. Still, Hearn took the complaints seriously, assigning a pair of senior attorneys to look into them. Over the course of several months, the attorneys interviewed 10 current and former employees of Stancik's old special commissioner's office, including Loughran. During the interviews, the attorneys turned up another instance, in which a complaint about a Bronx teacher accused of sodomizing several young male students had been confirmed by the Stancik office but had somehow never been referred to prosecutors.

Those findings were in turn forwarded to Stancik's successor, Richard J. Condon, a former police commissioner who in the past headed investigative squads for the Manhattan and Queens district attorneys. When Condon took over in June 2002, he retained Loughran, bumping her up a notch to first deputy commissioner. A DOI spokesperson, Emily Gest, said the office hadn't ordered any changes or discipline for Loughran, but had "shared the facts and findings of its investigation, for Commissioner Condon to take any necessary remedial actions."

Condon said that he too took the complaints seriously, spending hours wading through old investigative files. "I was not a witness to this history," he said. "Most of these things happened years before I got here."

The standard he used in examining the cases, Condon said, was whether Loughran had had a "rational basis" for her decisions. In two instances—that of the art instructor who had shown the nude photos, and the teacher who had posed the obscene remarks to the student—Condon said he disagreed with Loughran's actions, but cautioned that even this conclusion was "probably unfair."

As for the failure to make a criminal referral in the Bronx sodomy case, Condon said the explanation was simple. "She screwed up. It happens." He noted that the office had handled a total of 1,800 cases during the period under review. Loughran also later told DOI's inquiry that she was "baffled" how she had failed to make the referral, but said if she was to blame so were her former bosses, Stancik and Robert Brenner, who served as Stancik's first deputy commissioner. (Brenner, now with the investigations firm Kroll Inc., did not return calls.)

At the end of the day, however, Condon said he chalked up the complaints to honest disagreements. "I am used to investigators and prosecutors arguing over whether cases should be prosecuted," he said.

Condon told the Daily News' Kathleen Lucadamo, who asked about the probe last month, that he considered Loughran "one of the straightest, most hardworking prosecutors I have ever worked with."

He told the Voice that he'd encountered none of the erratic behavior by Loughran described by the investigators. "I have been here three and a half years working next door to this woman and I have never seen the behavior these people describe," he said.

In a letter to DOI, however, Condon said he had changed office procedures to make sure he personally reads all complaints that come into the office and examines "every substantiated and unsubstantiated case."

Loughran, who declined to speak to the Voice, wrote Condon a lengthy defense of her actions, insisting that her decisions at the office had been "common-sense based and not capricious by any rational standard."

The investigators, past and current, remain unconvinced. "This isn't just disagreeing over cases," said one. "Yeah, there's always tension [in other investigative offices] between the investigators and the prosecutors. But it's always motivated by respect, and everyone understands they're a team. Here, you don't get that. And they're supposed to be about helping the kids."

Santiago v New York City Department of Education: Union Mishandling Grievance Does Not Merit Review

Santiago v New York City Dept. of Educ.
2015 NY Slip Op 05779
Decided on July 2, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 2, 2015 
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.

103976/12 15584 15583 

[*1] Justine Santiago, Plaintiff-Appellant, 


The New York City Department of Education, et al., Defendants-Respondents.

Law Office of Robert S. Powers, North Babylon (Robert S. Powers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for The New York City Department of Education and the City of New York, respondents.

Robin Roach, New York (Deena S. Mikhail of counsel), for District Council 37, respondent.

Orders, Supreme Court, New York County (Margaret A. Chan, J.), entered August 19, 2013, which granted defendants' motions to dismiss the complaint, unanimously affirmed, without costs.
The court correctly dismissed the complaint as against defendant New York City Department of Education (DOE), because plaintiff failed to exhaust the administrative remedies set forth in the collective bargaining agreement (see Matter of Plummer v Klepak, 48 NY2d 486, 489 [1979], cert denied 445 US 952 [1980]; Matter of Ray v New York City Dept. of Correction, 212 AD2d 387, 387 [1st Dept 1995], lv denied 85 NY2d 810 [1995]). Plaintiff was not excused from this requirement by simply alleging that the union had mishandled her grievance, because she could have instituted the grievance procedure herself, yet she failed to do so. This is not a case where the union had sole, exclusive authority over the grievance process (see Matter of Lewis v Klepak, 65 AD2d 637, 638 [3d Dept 1978], lv denied 46 NY2d 711 [1979]).
Defendant the City of New York is not a proper party to this action, as it cannot be held liable for the DOE's alleged wrongdoings (see Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007], lv denied 10 NY3d 708 [2008]).
Plaintiff's claim against the union was not brought within the applicable four-month statute of limitations (see CPLR 217[2][a]). The statute of limitations was not tolled under CPLR 205(a), because the initial federal action, which was dismissed for lack of subject matter jurisdiction, was itself untimely. Moreover, plaintiff was not entitled to the 30-day toll created by the application of Education Law § 3813(1) and CPLR 204(a), because the union is not an entity covered by Education Law § 3813(1).