|UFT General Counsel Adam Ross, UFT President Michael Mulgrew,|
NYC Chancellor Carmen Farina, former NYC DOE General Counsel Courtenaye Jackson-Chase
On February 24, 2015, the New York City Department of Education held a mandatory meeting at TWEED at 4:00pm for all NYSUT, all DOE Attorneys, and all arbitrators working on the NYC rotating permanent panel for 3020-a hearings (both misconduct cases under ATU and incompetency cases under TPU).
I was told about this meeting by an Arbitrator several days before the February 24 date, and at my suggestion a private lawyer with whom I work on 3020-a hearings sent an email to the creator of this meeting, former General Counsel Courtenaye Jackson-Chase, asking for an invitation. Courtenaye answered with "sorry, you are not invited to this meeting, but we will be scheduling a future meeting for all private lawyers."
She never did have this meeting for non-union teacher defenders, so I filed a FOIL request for the information, and was shocked to get a reply that I would have to pay someone $29.95/hour to download emails. I posted all this on my blog, and then the NYC Records Access office relented and sent me the video, the transcript from the video, and the emails on who was present/invited, all posted below.
Why I write "distressing" is: the emphasis on speed and efficiency trample important procedural and substantive due process rights, such as:
1. ignoring Education Law 3020-a(2)(a) with the requirement of the determination of probable cause by a vote in an Executive Session of the school board take place before the charges are served on the charged party. In NYC this never occurs, in fact, these steps are simply overlooked. The Office of Legal Services creates the charges, serves them, assigns an Arbitrator after the charged party asks for a hearing, and goes immediately into a pre-hearing. The principal signs off on the probable cause, and then the Respondent cannot argue that this is improper. The tell-tale sign of this "speed and efficiency" garbage is the empty box on the right, above the "Please be advised that at a meeting in executive session on the above date..."
This box, the date of the Executive Session, is never filled in. NYSUT, the UFT, and the DOE don't want to take the time. Respondents should object, then use this in any Appeal. The rest of what Adam, Mike, Carmen, and Courtney are saying in the video and the transcript is also meaningless garbage. They do not mean that they want fairness, just speed. This same argument was used by UFT Attorney Carol Gerstl in or about 2008 when she stopped anyone in NYC from having a three-member arbitration panel. This took too much time.
2. The arbitrators and DOE/NYSUT Attorneys are together for hearings through the school year, and make deals behind the charged party's back, as well as cut out any private attorney hired to replace the NYSUT attorney. This creates a closed club, and when a private attorney may have to adjourn dates due to other commitments, the arbitrators won't let this happen.
3. In NYC the arbitrator is assigned by the Director/Deputy Director of the Unit whose case it appears under (ATU or TPU). Outside of New York City the charged party may participate in choosing the arbitrator. Not in NYC. Speed counts.
4. Witnesses brought in by the NYC DOE are scheduled without problem, but when the charged party starts his/her case, there is a rush to finish, and all witnesses must be given "offers of proof" - i.e. the DOE and the Arbitrator don't want to "slow things down" by having witnesses for the charged party.
5. Closing arguments are done when testimony is finished, preferably the same day. The charged party does not have the transcripts because the Respondent's case always goes second. The charged party feels rushed, unable to bring in all the documents and evidence he/she believes prove the case against the DOE.
At all times, the Arbitrator, DOE, and NYSUT (if NYSUT is not replaced by a private law team, as happens frequently) work together to make sure that nothing "irrelevant" is brought in to be discussed or examined. What is "irrelevant"? Yep, that's right, whatever the DOE wants it to be.
Here are the emails and documents sent to all Attendees (Arbitrators) on the Joint Education Law 3020-a Panel.
In the video above you can see that UFT General Counsel Adam Ross (UFT Lawyer -far left), UFT President Mike Mulgrew (second from left), NYC Department of Education Chancellor Carmen Farina (second from right) and former NYC DOE General Counsel Courtenaye Jackson-Chase, all believe that speed is the most important mandate for all participants in the 3020-a process (except of course the charged employee/Respondent). I am not the only one who has seen the UFT-NYSUT-DOE chumminess.
I have written quite often about my dislike of how NYSUT Attorneys do 3020-a hearings.
I LIKE most of the NYSUT attorneys as people, I don't really know any of them "well". David Pakter took a picture with me and his NYSUT Attorney Chris Callagy in 2009:
|Betsy and Chris Callagy, about 2009|
In my opinion, an informed, well-experienced advisor/Representative who has won many 3020-a is the best bet for a strong defense in 3020-a, but that is my biased opinion, being in that group (We have many non-termination awards, and more than 9 full exonerations - no penalty).
I have seen and heard NYSUT attorneys in a shouting match with the charged person to get him/her to resign, settle, go away. This ain't right. The only chance that a Respondent has to say what happened and tell his/her side is if he/she goes through the 3020-a and testifies. Sometimes the NYSUT Attorney convinces the Respondent not to testify. This is automatic termination. Arbitrators must terminate, as there is nothing heard as far as evidence from the charged party, therefore everything that the Principal/AP/DOE witness testified to must be held as fact.
Remember I'm not an attorney. But to not testify on your own behalf is absurd. I was invited into the chambers of a NY State Supreme Court Judge on this issue, with a Respondent (and the DOE Attorney, NYC Law Department) who appealed his termination after he was fired by the Arbitrator at his 3020-a. The Judge said that this was a real problem, and that HE SHOULD HAVE TESTIFIED.
We do win cases - my point is, put everything on the table and in the record!
See the case of David Suker, I helped him with the appeal of his termination:
The New York City Rubber Room Anti-Teacher Charging Process Shows How Corrupt the Carmen Farina-Bill De Blasio Department of Education Really Is. by Betsy Combier
My point is that there are many twists and turns in the proceedings known as 3020-a, especially in New York City with the permanent panel of arbitrators, a very bad idea. More about that in another post.
Here is the full transcript of the video above, sent to me as part of the FOIL request: