|UFT General Counsel Adam Ross, UFT President Mike Mulgrew, former |
Chancellor Carmen Farina, and former NYC DOE General Counsel
My suggestion is that every employee must take action to preserve his/her record and job starting right now, even if there is no sign that anyone is - or will - target you. All NYC Department of Education employees should consider what he/she would do when or if charged with either incompetency or misconduct WAY BEFORE any charges are served.
Here are some of my guidelines for establishing a strong defense against any charges brought against you. Again, I am not an attorney, but I have participated in 70 cases of 3020-a arbitration, and won most of the cases:
Remember these warnings:
*If you retire after being charged but before you go through the hearing, your license is terminated and the charges stay on your record.
*If you settle you cannot sue the NYC DOE for any action taken up to the date of signing, and you cannot appeal.
*If you do not testify at the hearing you will be terminated.
*As the 3020-a hearing process is not based upon the rules, laws, and regulations which you are told to rely on, you must do a lot of work on discovering the secret deals made by the UFT and the NYC DOE which have changed the way cases are done in New York City as opposed to elsewhere in New York State. For example, the charging papers for 3020-a have a page included in the packet served on a Respondent (tenured teacher) saying that probable cause for 3020-a charges have been determined at an Executive Session of the Panel For Educational Policy, the NYC school board. But there will be no date for an Executive Session listed in the papers served. (See the law, below). Outside of NYC the omission of a vote in Executive Session of the school board is grounds to dismiss the 3020-a. I know, I've done that.
There is no date because in NYC there was no Executive Session or vote on the probable cause. The UFT/NYSUT and NYC DOE want the hearings to be under their total control, and want the hearings to proceed quickly, so the right to a vote in Executive Session pursuant to Education Law 3020-a(2)(a) was waived, secretly, without the knowledge or consent of the employee who is served charges. For this reason a plethora of substitutions/excuses for the missing dates will be given, but the bottom line is that NYSUT will not argue in favor of an Executive Session and vote on probable cause. In my opinion, this action harms all charged employees and I always submit a Motion To Dismiss with supporting exhibits in every hearing.
See my post on this blog about a secret meeting held at NYC DOE headquarters on February 24, 2015. At this meeting for all NYSUT Attorneys and all arbitrators, former Chancellor Carmen Farina spoke about the need for speed and called all the assembled people her "army".
I filed a Freedom of Information request for all the paperwork on this meeting after an arbitrator on the incompetency panel told me about it.
In fact, NYSUT may pursue a probable cause hearing so that the Respondent/you can be taken off salary for two or more months. We have put a stop to these hearings, at least for now - we heard that the NYC DOE and NYSUT are looking for an arbitrator to hearing these cases brought to probable cause. I have sent the right questions to the right people about why these hearings are illegal.
*document everything. Write down in a journal everything that happens every day, and I am not kidding. When you get home from school, write down everything that you remember, everyone who entered your class, anything unusual and whatever lesson you were doing.
*If you are an ATR you are rated S/U. In NYC, the growing number of Absent Teacher Reserve (ATRs), speech teachers, and teachers of pre-k are all rated on the S/U APPR, not Danielson. So, the following procedure for formal observations stands. See Teaching For The 21st Century, Component B:
UFT-DOE Agreement on rubber rooms April 15, 2010
*If you are not an ATR but a full-time tenured employee, then you must fight the Danielson rating rubrics. There is a way to overcome the 60% given to observation ratings in the HEDI score.
*rebut all observations, letters to file, counseling memos, letters, emails.
*grieve all end-of-year ratings that are "ineffective"; rebut any "developing ratings.
*secretly tape all meetings/conversations with the administration, including observation feedback meetings. (I am not a lawyer, but would never advise anyone to violate a law! In New York State, a one-party state, it is legal to secretly tape anyone with whom you are in a conversation).
*decide who you want to represent you at a 3020-a, if you are charged. You have a choice as to whether or not you have a NYSUT Attorney or a private Attorney speak for you in these hearings. You can also go pro se and do it yourself, but if you are thinking about doing that, you need to have an advocate with you who can help with procedures. Some arbitrators are vicious and don't want to arbitrate a hearing with the Respondent representing him/herself. Call around, speak with people and go with someone who puts you first and wants to involve you in the process.
*ask for an open and public hearing to make sure that you have people who can watch the proceedings. Anyone who is a potential witness cannot be an observer, too.
*choose witnesses to testify for you, have your attorney subpoena them if they are currently working for the NYC DOE.
*when proceeding with the hearing, be a partner with the Attorney and/or legal team. Give all information about anything and everything that you think shows the false allegations and the true allegations. Admitting to something that you did is good, within a comprehensive examination of all the evidence and facts. Credibility is very important, and not appealable.
*ask your legal team/representative to send you all transcripts when they are emailed so you can spot any errors, as well as assist in making closing arguments.
*give your legal team points that you want to have in the hearing itself, or argued at closing, including any misconduct of the principal or other administrators.
Think about it. Your career is about to be changed without your consent. Don't let that happen.
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
Title IV Teachers and Pupils
Article 61 Teachers and Supervisory and Administrative Staff
NY CLS Educ § 3020-a (2015)
§ 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 eleven hundred two, and sections twenty-five hundred nine, 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 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.