|Howard Friedman, NYC DOE General Counsel|
The New York City Law Department and NYC Department of Education have many hearings going on at any one time: the 100 Gold (3rd floor) Manhattan Office of Legal Affairs (3020-a/3012/Time and Attendance) arbitration, 65 Court Street (Office of Appeals and Reviews, OAR) and 131 Livingston Street (Impartial Hearings) in Brooklyn. All hearings are recorded and the transcripts are given to each party, usually within two weeks of the date the testimony was heard. Ubiqus, a global company located at 61 Broadway in New York City, has been on contract to prepare the transcripts for more than ten years.At least there were many hearings at any of these offices before they all shut down from March to October 2020 due to the coronavirus. The transcripts are the lifeblood of any hearing. Any party who appeals a decision or sues in State or Federal Court cannot use anything that is not on the record. When the pandemic hit NYC and hearings at 100 Gold Street in Manhattan were put on hold, I was wondering what would be the game plan.
We had dates scheduled for witnesses in December, but suddenly all hearings were canceled. Why? Because on December 4, 2020, Ubiqus was hacked, and all their data held as ransomware.
A ransomware attack is a form of malware attack in which an attacker seizes the user’s data, folders, or entire device until a ‘ransom’ fee is paid. Ransomware attack exploits the open security vulnerabilities by infecting a PC or a network with a phishing attack, or malicious websites.Ubiqus issued a statement on the cybersecurity incident at Ubiqus Group:
The Ubiqus Group was hit by a ransomware-type cybersecurity incident in the morning on the 4th December 2020.
As a precautionary measure, we have shut down all our IT systems across all our operating sites.
Ubiqus is in close contact with the competent authorities as well as our clients and partners.
We are working on a technical recovery plan with key IT-partners and cybersecurity specialists.
We continue to assess and manage the situation to minimize the impact on our operations, clients, and partners from the current situation.
To ensure secure email exchanges with our clients, we have chosen to use an email service that is hosted on a professional platform with enhanced security measures.
This new inbox has been in operation since Tuesday 8 December 2020. It is secure and nothing has been retained from the previous version.
All emails received from Ubiqus from 8 December 2020 are completely secure: replying to them or opening attached files does not present any risk.
To investigate further, I called the NY State Education Department (NYSED) where I was told that a forensic cyberteam was investigating what happened and by whom, but since the beginning of December, no hearings have been held. This event has affected 3020-a hearings throughout New York State, not just NYC, and is very serious, as the transcripts hold people's lives and careers in their clutches. Transcripts don't clutch, of course, but anyone that speaks into the record and/or reads each transcript cover to cover as I do knows how important this record evidence is when an educator is charged.
We have no updates, but we have been told that no data already given has been lost, even though we do not have the transcripts.
Gosh, I sure hope this is accurate information, that no data has been lost! The two cases we are doing right now have had the testimony of the Respondents and their witnesses, and we got really good stuff.
I'll let you know what the deal is. Hopefully soon.
Susan Edelman at the NY POST posted this today:
Memorandum of Agreement between the
Board of Education of the City School District of the City of New York and the United Federation of Teachers, Local 2, AFT, AFL-CIO
1. 3020-a Hearings:
a. Nothing in this Memorandum of Agreement (“MOA”) shall constitute a waiver or modification of any provision of any memorandum of agreement, collective bargaining agreement (and the documents incorporated therein by reference), letter, or other agreement between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers, Local 2 (“UFT”), or past practice except as expressly set forth herein.
b. This MOA is intended to address the extraordinary conditions presented by the novel coronavirus pandemic and the risk of COVID-19. This MOA will sunset on June 30, 2021, unless both parties agree to extend, in writing, this MOA no later than May 1, 2021, or upon such time as school resume full in-person instruction, whichever is earlier. Notwithstanding the foregoing, either party may terminate this MOA for cause on 10 days’ notice, provided however that, prior to provision of such notice, the party seeking to terminate must have first raised the issue in question in consultation under Section 1(d) of this MOA and have escalated the issue to the General Counsel of the DOE and the General Counsel of the UFT. If no agreement is reached, the Chancellor and the UFT President will decide. For the purposes of this MOA “cause” is defined as either (a) an order issued by the Governor of New York in which all 3020-a hearings are held in abeyance; (b) an order or directive issued by the Chancellor pursuant to which schools are closed and staff are not working remotely, or (c) the Chancellor and UFT president agree that hearings cannot proceed in a manner consistent with this MOA and Education Law Section 3020-a.
c. The parties acknowledge that the situation regarding reopening offices is fluid and that New York City began Phase One reopening as described in Governor’s Executive Orders on June 8, 2020, and has proceeded and may proceed through reopening phases, or not, depending on a number of factors including the rate of new infections of the virus. The parties agree that as they transition back to holding hearings in person, there may be a need for one or more of the participants to appear remotely, resulting in a hybrid in-person/remote hearing. To the extent possible and permitted under all existing DOE safety rules as determined by the joint DOE/UFT Central Committee, the parties will proceed with in-person hearings. However, if in-person hearings are not possible then the parties will proceed remotely for the term of this MOA, whether with a hybrid model or completely remote.
d. The Director of the Administrative Trials Unit (“ATU”) and the Director of the Teacher Performance Unit (“TPU”) shall meet monthly with the UFT or the UFT’s designee to consult regarding the implementation of this MOA.
2. Remote Hearings (Process and Protocols)
a. The parties are committed to having these cases heard in an expeditious manner. The parties agree to conduct remote hearings according to the protocols set forth in this MOA so that all issues are fully and fairly litigated.
b. If a Respondent requests, the UFT will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If the UFT is unable to provide a Respondent with a location on a given hearing date, counsel for the Respondent will make every effort to provide the DOE with two (2) days’ notice and the DOE will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If UFT and the DOE are unable to provide a location to the Respondent, the hearing will be canceled, and the parties will split any cancellation fees. If a hearing is scheduled within 48 hours of the hearing date (e.g., as the result of a settlement of another matter), and the UFT is unable to provide Respondent with a location, the UFT will notify the DOE as soon as possible. Under these circumstances, should the DOE be unable to provide a private and secure location the parties agree to mutually reschedule the hearing date?
c. The parties agree to make every effort to pre-mark exhibits, identify witnesses, stipulate to undisputed facts, and minimize the issues of fact to be tried remotely.
d. Remote hearings for both ATU and TPU cases will resume and proceed in the order of their case queues/case assignments before their current hearing officers in a manner that is consistent with the Collective Bargaining Agreement. To the maximum extent possible the parties agree to ensure that the cases are managed timely.
e. In the event, a hearing is canceled or interrupted as a result of an individual party’s technical issues, including but not limited to the party’s failure to have the proper equipment, that party will bear the cost of any cancellation fees for the hearing date.
a. The parties agree that all remote hearings will occur on a single platform: Zoom Pro.
b. The Hearing Officer (hereinafter “HO”) will be responsible for costs of using the Zoom Pro platform.
a. Subject to paragraph 2(b), each party shall be responsible for ensuring their own equipment is properly functioning prior to the hearing date.
b. The HO shall ensure that the court reporter can access the hearing to make the transcript of the hearing.
c. The HO shall be the only “host” of the proceeding on the chosen platform and will ensure that each party has a confidential virtual break out room.
d. The HO as host will ensure that the following participants will have access to virtual breakout rooms and that additional breakout rooms are made available for other participants/parties as needed, including:
o Respondent and Counsel
o Counsel and Witness
o Counsel and Counsel
o Counsel and HO
e. A party shall be allowed to disconnect from the hearing to attend to administrative matters and the amount of time by a party spent off the record shall be in accordance with the CBA.
f. Counsel shall make every effort to minimize any delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.
g. The parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants with a right to such access.
h. The SED official transcription service shall be the sole method of transcribing the proceeding. The SED official transcription company shall only access the audio recording feature of the platform and shall be prohibited from accessing the video recording feed of the platform.
i. No party, witness, or other participant in the hearing may record via audio or video, transcribe, or photograph the proceeding.
j. No party, witness, or other participant in the hearing shall use any chat feature of the chosen platform.
a. Proposed exhibits in the format in which the exhibit will be entered shall be emailed, using a secure platform, to opposing counsel five (5) days in advance of the entry of the exhibit.
b. Counsel for the parties shall confer two (2) days prior to the hearing date to make best efforts to stipulate to the exhibit’s entry. If the parties agree to the entry of an exhibit, the exhibit shall be pre-marked. If the parties are unable to stipulate to the entry of the exhibit, the proposed exhibit shall also be pre-marked.
c. Prior to the hearing, counsel responsible for entering the exhibit shall email, using a secure platform, to the HO and opposing counsel, any exhibits which have been pre-marked and/or stipulated to. The provision to the HO of a pre-marked exhibit for which the parties have not agreed to entry shall be without prejudice to arguments or objections as to admissibility, weight, and/or relevance. Nothing herein prevents either party from introducing an exhibit or witness that was not pre-marked or identified.
a. The parties agree to mediate as many cases as possible or appropriate from ATU and TPU.
b. The mediations shall also be remote and shall be complete by December 21, 2020. A second round of mediation will take place in 2021. Once the first round of mediation has concluded, the DOE will make every effort to identify additional cases for mediation to begin in March 2021.
c. The arbitrators will be chosen by mutual selection of the parties.