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Monday, August 30, 2021

Aimee Scott Teaches "Fairness" With Band-aids

Aimee Scott


""fair does not mean everyone gets the same thing, fair means that everyone gets what they need to be successful," They remember this lesson all year," 

Aimee Scott told FOX News

Teacher's viral 'Band-Aid lesson' is the simple way to teach kids fairness
By Genevieve Shaw Brown, Fox News, August 26, 2021

 A third-grade teacher from Utah has gone viral with a simple lesson she uses in her classroom. 

Aimee Scott told FOX News she decided to create the video of her "Band-Aid lesson" after meeting with several parents worried for their children at the start of the school year. The idea was to share it with other teachers so they could use it in their classrooms too.

"At the beginning of the year, parents come rushing in with their concerns about their children," Scott said. "They tell me all of the things that they are worried their children will be teased about. Type 1 diabetic children who need extra snacks to regulate their blood sugar and have beeping Dexcom monitors, students with ADHD who need flexible seating or fidget toys to help them concentrate, anxious students who need extra time on tests. The list is endless." 

On the first day of school, she asks her students who has ever scraped their elbow in the class. She lets one kid tell their story of how their elbow got hurt and then calls them up and puts a bandage on their elbow. 

Next, she asks who has ever bumped their head. She calls on one student to tell the story of the bumped head and then calls them to the front where she puts a bandage on . . . their elbow.

Repeat for a scraped knee. 

By this time, the kids are confused. She stops the lesson and has a conversation about how she gave everyone the "exact same thing in the exact same way, it wasn't helpful to them." That "fair does not mean everyone gets the same thing, fair means that everyone gets what they need to be successful," Scott said in her TikTok video, which has been liked nearly 800,000 times.

"After this lesson, students are much more understanding when their friends with diabetes need an extra snack, when their friends with autism need noise-canceling headphones, when their friends with ADHD need a fidget spinner and they can't have one," she said.

Scott told FOX News her kids "love this lesson." 

"Before I started my teaching career, another teacher told me that there would be days I would need to pretend I was an underpaid actress," she said. "I make a big deal when I give students a band-aid in the lesson, it's more engaging and fun that way. When I tell students, 'I am so sorry you bumped your head! Here's a Band-Aid for your elbow!' the whole classroom giggles. 

"I love the conversations we have at the end of the lesson to talk about how fair doesn't mean we all get the same things," Scott told FOX News. "One example I give is, 'Sometimes you might see a friend using a timer to help them complete an assignment, but that stresses you out, so you don't have to use a timer.' Every time I hear, 'Why does ______ get _____ ? That's not fair!' I just need to say, 'Remember Band-Aids?' They do. They remember this lesson all year."

 It's helpful for worried parents, too. 

"It calms their fears about sending their children to school," she said. They know they are going to be accepted by their peers if they need something extra in the classroom. Many parents have shown their child's teacher my video to help introduce them to the class. Those [comments][ make me the happiest because that is why I created the video."

Sunday, August 22, 2021

NYC Department of Education Settles With Four Students Who Claimed They Were Sexually Abused at Their School.

 

Tweed- NYC Department of Education 

The Office of Special Investigations is a unit of the NYC DOE's Office of General Counsel where so-called "investigations" are anything but that. We have been writing about OSI for a very long time, and we have seen proof at 3020-a hearings of exactly what misconduct by this agency looks like. OSI never investigates students, only staff, educators, and parents. Online Occurrence Reports System (OORS) reports go nowhere but to the desk drawer of an administrator.

I will give you a few examples:

A teacher gives a high school girl in his physical education class a failing grade. Soon after, a complaint of sexual abuse is filed against him by this girl. The complaint is sent to first the Special Commissioner of Investigation (SCI), then SCI randomly hands the case to OSI. The OSI "investigator" comes to the school and talks with the principal, who tells this "investigator" what to find and whom to interview. The principal wants the teacher removed from the school to please the parents, and show that "perverts" are not allowed to teach. Whether there is any truth to the allegation is not considered.

The "investigator" is given a room where he/she "interviews" the students sent there by the principal. The students/staff chosen to be interviewed often write statements or sign statements written for them, substantiating whatever "crime" the principal wants to be proven. Statements that have too many details about the incident and how the teacher was not guilty of doing anything (exactly what the principal does not want in the final report substantiating the misconduct) are not put into the report, lost, or ripped up.

The "investigator" hands his/her handwritten notes to an attorney or higher up at OSI who writes the report based upon what the principal wants to prove, and the alleged 'crime' is substantiated, if that is what the principal wants or was told by the Superintendent or Chancellor's rep. that that's what they want.

Then the principal calls in the teacher who allegedly committed the 'crime' and has a disciplinary meeting. At this meeting, the principal and/or UFT Rep. may tell the teacher "this may lead to your termination" and/or "this will be a letter to file, don't worry". The teacher is led to believe that there is no need to write a rebuttal, because this is the end of it. Make note of the fact that nothing the accused teacher says is heard ("listened to" is different than "being heard"), and no amount of "I am innocent" "I did not do this" will make any difference. The accused teacher should write a detailed rebuttal and send it to everyone at the meeting by the next day, or within a few days. No one will tell you this from the UFT.

These lies told to the accused at the disciplinary meeting help the lawyer at the District to craft Technical Assistance Conference (TAC) memos, which become charges. The lawyers at the Office of Legal Services (NYC DOE Office of General Counsel) send the "Notice of Determination of Probable Cause Pursuant to Education Law 3020-a" to the principal (or, sometimes the Superintendent) to sign but not date. The principal sends the signed fraudulent notice back to the lawyer writing the charges, who dates all the papers and takes the rest of the papers (i.e. "Rights of Tenured Educators" ) off a shelf. 

The teacher who was accused of wrongdoing is served the charges, re-assigned to a rubber room, and within 10 days must submit his/her request to the UFT for a 3020-a hearing or be voted out and terminated by the Panel For Educational Policy (PEP). All this occurs despite the fraudulent charging procedure without proper determination of probable cause by the PEP in an Executive Session, which is kept secret. Why? Because both the NYC DOE and the UFT have kept the fraud going for 20 years since Bloomberg put the NYC DOE under Mayoral control. If either the NYC DOE or UFT agrees that the charging process is illegally done, then what happens to all the 3020-a cases brought to a hearing in NYC? (Outside NYC, all charges have a vote on probable cause by the school board before the charges are served on the accused educator, as cited in Education Law 3020-a(2)(a)).

The lies of the charging process are held onto and pursued against the interests of the accused educator as part of the goal to get rid of tenure. Thus, the fraud of OSI doing any "real" investigations was never planned or allowed, unless the accused knows someone in the political sphere of the DOE or NYC/federal government. It's always a matter of who you know, not what you know. Under no circumstances could the NYC DOE allow charged educators to go free or be found not guilty after a complaint is made by a staff member, parent or child.

See previous posts:

The Chancellor's Office of Special Investigations (OSI) Mess




Secret Emails About Office of Special Investigations Being in Chaos 2014




BY 

The New York City Department of Education has settled a case with four students who claim the school system failed to protect them against sexual harassment and assault, according to a settlement brief filed in the U.S. District Court of Eastern New York on Friday. Along with a $700,000 monetary settlement split amongst the plaintiffs, the education department also agreed to reform how it investigates and responds to allegations of sexual assault.

“I want justice for everybody,” said the mother of “Jane Doe,” a student with autism who alleged she was raped by a classmate in a school stairwell in the Bronx in 2018.

“Due to that traumatic event, my child suffers every day,” the mother said in an interview with WNYC/Gothamist. She added that the settlement won’t “cure” what happened to her child, but it may prevent others from suffering.

Legal Services NYC filed the suit representing four female students of color with disabilities in spring 2019. Their names have been withheld because of their ages and the nature of the incidents. At the time of the assaults, the students ranged from ages 12 to 18.

Jane Doe and another plaintiff alleged they were raped by classmates after harassment that intensified over months. Two other plaintiffs claimed they were taunted, groped and assaulted by other students.

The suit alleges that, even though the students had been repeatedly harassed by their peers leading up to the assaults, the schools did not intervene effectively, investigate adequately or notify parents in a timely manner. The education department’s “indifference and inaction” denied students their right to education under Title IX and the Individuals With Disabilities Education Act (IDEA), the lawsuit read.

The education department had already tightened some policies. In fall 2019, it rolled out new regulations expanding the definition of what constitutes sexual harassment, explaining how administrators should conduct investigations, and outlining some supports for students who come forward. The New York City Council increased funding in the Fiscal Year 2020 city budget to pay for additional Title IX liaisons tasked with overseeing investigations at the borough level. The education department also ramped up training for thousands of staff members, including school-based “Sexual Harassment Prevention Liaisons.”

The new settlement seeks to strengthen those regulations even more. They would make it easier for parents to escalate complaints. They detail the steps school staff must take to inform parents when an alleged incident occurs. They enable students to be transferred from a school because of alleged sexual harassment. And they offer more specifics on how schools should support survivors, including considering trauma when crafting a student’s Individualized Education Program (IEP).

“Every student deserves to feel safe, welcomed, and affirmed in their school and there is zero tolerance for sexual and gender-based harassment of any kind at the DOE,” education department spokesperson Katie O’Hanlon said in a statement. “We have made it easier to report harassment and provided more robust trainings for staff so that the strongest safeguards are in place for all students, especially for our students with disabilities.”

Attorneys for the plaintiffs lauded the changes.

“We believe this settlement will better equip school personnel to respond to the trauma of bullying and sexual violence, and will provide critical information to students and families about their rights under the law,” said Amy Leipziger, Senior Staff Attorney at Queens Legal Services.

“These landmark policy reforms will finally force the DOE to recognize that students who experience the disabling impacts of sexual violence, bullying, and trauma are protected under federal disability law and are entitled to receive special education supports and other interventions,” said Katrina Feldkamp, a Staff Attorney at Bronx Legal Services.

The mother of “Jane Doe” said her daughter, now 17, remains traumatized.

“She has her breakdowns,” said the mother. “She can’t focus as she did before. She lost a lot of interest in a lot of things, she’s depressed, she has nightmares.”

“Money will not bring peace to our life,” she added. “We need action.”

Friday, August 20, 2021

The New NYC Department of Education Academic Recovery Plan For 2021-2022: What a Scam

 

Meisha Porter
UPDATE August 26, 2021:

The DOE calls the air purifiers that will be in NYC classrooms “HEPA purifiers.” The Classic asked the CDC if that’s accurate. Here’s how the CDC responded

                 NEW YORK PLAYBOOK

BY ERIN DURKINANNA GRONEWOLD AND TÉA KVETENADZE

Questions have been swirling ever since Mayor Bill de Blasio announced that New York City’s schools would fully reopen — for all students, every day, with no remote option — for the new school year. Now some, though not all, of those questions have been answered as the city laid out more detailed reopening plans, with the first day of school set for Sept. 13.

De Blasio reiterated that he will not allow students and parents to opt-out of in-person classes, despite an increasing number of politicians calling for that move. “Think about a child who has not seen the inside of a classroom in a year and a half. That's not supposed to happen. We can't let that happen anymore,” the mayor said. The city announced earlier this week that all teachers and school staff will have to get vaccinated.

The city will do less rigorous coronavirus testing in schools than it did last year when schools used a hybrid of in-person and online classes. Only unvaccinated students — so all elementary school kids, and middle and high schoolers who choose not to get vaccinated — will be subject to testing, and 10 percent of them will be tested every other week.

As for quarantine policies, vaccinated students and staff won’t have to quarantine, but the unvaccinated will have to stay home for 10 days if someone in the class tests positive for the virus. Elementary schools — where whole classes can expect to be quarantined because students are too young to get the shot — will get live online instruction when sent home, but older grades will not.

The city will only shut down entire schools when public health officials find widespread Covid-19 transmission within the building — TBD exactly what qualifies as widespread — unlike much of last year when schools would close frequently if two virus cases were identified.

While there won’t be a remote option, the city is expanding an existing program that allows medically fragile students to apply for at-home instruction, with a longer list of medical conditions qualifying. Still, that’s only expected to cover up to 5,000 students out of roughly a million in the system. Other than that, it will be the first time all students are going to school full time in a year and a half.

No class size reduction.

'Developing students as digital citizens" = what does this mean?? Who wrote this?

No remote learning (see questions above)

From the Editor: 

Parents, move your children out of the NYC public school system as quickly as possible.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Muck Rack

Mayor de Blasio and Chancellor Porter Announce Academic Recovery Plan for Pivotal School Year Ahead
 Posted: Fri Jul 09, 2021 Updated: Tue Jul 13, 2021

$635M historic investment to jumpstart academic achievement for every student

NEW YORK – Mayor Bill de Blasio and Schools Chancellor Meisha Porter today announced their academic recovery vision for New York City’s public schools and students in the wake of the pandemic. The bold, rigorous framework will guide school communities and support students during the 2021-22 school year and beyond, stressing six critical areas of focus: early literacy for all, developing students as digital citizens, preparing students to be college- and career-ready, investing in special education services, building a rigorous and inclusive universal curriculum, and investing in social emotional supports for every student. In addition, each focus area includes dedicated supports for multilingual learners and immigrant students to address their unique needs and support their academic progress and language acquisition.

“Our kids deserve the best that New York City has to offer. That’s why we’re rolling out the NYC Universal Academic Recovery Plan when schools open their doors this September,” said Mayor Bill de Blasio. “It’s not enough to only get our kids back in the classroom. We have got to close the COVID achievement gap. And we will do that by reaching every child and supporting them—academically, emotionally, and socially—every step of the way.” 

“This historic, high-impact investment in the academic growth and success of New York City’s students will allow us to come back from the COVID-19 pandemic stronger than ever,” said Schools Chancellor Meisha Porter. “This fall, we will welcome our students back to schools that are prepared to support them academically and emotionally after all they have been through – that’s what the Universal Academic Recovery Plan is all about.”

Early Literacy for All – $49M in FY22

This administration will redouble its commitment to early literacy by investing in screening and intervention for students in Kindergarten through 2nd grade, with a singular goal of all students reading on grade level by the end of 2nd grade. To accomplish this, schools will use a universal literacy screener for all K-2 students. The screeners will identify risk for dyslexia, as well as other challenges and print-based disabilities, and schools will implement intervention plans based on the results.

The Department of Education (DOE) will support schools through the literacy intervention process by:

  • Targeted class size reduction achieved through hiring approximately 140 teachers in 72 higher need elementary schools.
  • Bringing the number of Universal Literacy reading coaches to approximately 500 to provide all early childhood and K-2 classrooms with a literacy coach, and training K-2 educators to provide literacy supports to students in need.
  • Training ENL, bilingual and content area teachers to track student progress and provide targeted supports for multilingual learners.
  • In addition to the $49M investment, the DOE is providing funds to all schools to use for targeted supports for students, such as tutoring, extended day, and enrichment activities.

Devices for Digital Citizens – $122M in FY22

The pandemic led to an unprecedented investment in technology, with over 800,000 devices purchased by the NYCDOE and schools. The Academic Recovery Plan leaves remote learning behind but builds on this technological advancement by guaranteeing all students have access to a digital device and ensuring all students become fully fluent digital citizens for the new economy. As part of this commitment, the DOE will:

  • Guarantee a device available for every K-12 student by delivering 175,000 more devices.
  • Expand access to the City’s rigorous Computer Science 4 All initiative to 400,000 students by 2024.
  • Train over 5,000 educators in advanced computer science.
  • Launch a technology capstone project for all 8th grade students to demonstrate digital literacy skills.

Preparing Students to be College- and Career-Ready – $10M in FY22

As the City recovers from the pandemic, preparing students to graduate college- and career-ready is more important than ever. The Academic Recovery Plan will ensure every student, whether heading to college or a career, is best prepared for the next step in life. It makes multiple investments that benefit every high school student, including:

  • Free, afterschool, personalized college counseling for every junior and senior.
  • Universal College Financial Aid Guidance to help navigate the application process, available in multiple languages.
  • 48 new remote AP college-prep courses.
  • College Now restoration to serve 22,000 students from all high schools in dual enrollment, college-credit courses across 18 CUNY campuses.
  • Immigrant Ambassador Programs across 30 high schools that match immigrant DOE students with college students to foster mentorship and early college awareness.
  • Student Success Centers for 34 high schools to ensure post-grad plans for all students, and expanding the Postsecondary Readiness for ELLs Program (PREP), to be facilitated by a select group of school counselors and educators. 

Special Education Investments – $251M in FY22

The pandemic has had a disproportionate impact on our student with disabilities. The Academic Recovery Plan will make every resource available to better support students with Individualized Education Programs (IEPs). It extends from the DOE’s youngest learners to students preparing for graduation by:

  • Launching afterschool and Saturday programs for all students with IEPs to receive additional instruction and related services.
  • Adding 800 preschool special education seats by fall 2022.
  • Expanding Committees on Preschool Special Education to expedite evaluations and IEP meetings.
  • Providing eligible students ages 21+ with continued instruction toward receiving their diploma or other exit credential, or to receive consultation to facilitate post-secondary plans for college and career readiness.
  • Expanding family workshops and information sessions through our Beyond Access Series, which supports families of students with disabilities.

Universal Mosaic Curriculum – $202M in FY22

New York City will develop a rigorous, inclusive, and affirming curriculum by fall 2023 – the Universal Mosaic Curriculum. Currently, there is no single off-the-shelf curriculum academically rigorous and inclusive enough for New York City’s 1,600 schools and one million students. This curriculum will be built on Literacy for All, accelerate student learning, and free teachers from time-consuming curriculum development.

The DOE will create a comprehensive ELA and Math curriculum that engages all students and prepares them for success in school and life by:

  • Providing an unprecedented infusion of books into every classroom for next school year that reflect the variety of histories, languages and experiences that make up the City.
  • Providing schools with dedicated funding to purchase texts in home languages and build home language libraries to support multilingual learners.
  • Developing brand new training and support materials for the Arts, ELA, Math, Arts, and more, in partnership with New York City educators, beginning next year.
  • Launching new targeted professional development lessons for teachers.

Social Emotional Supports for Every Student (Funding Previously Announced)

Children in every community are carrying trauma caused by the COVID-19 pandemic and a successful academic recovery can only happen when the emotional and mental health needs of students are taken care of. As previously announced(Open external link), the DOE is significantly investing in every student by:

  • Hiring over 500 social workers and other mental health support staff to guarantee that every school has resources to support students who may be in crisis.
  • Adding over 130 new community schools to provide expanded social, emotional, academic, and extracurricular services to students in the highest need communities.
  • Conducting wellness checks and social-emotional learning support to identify multilingual learners and their needs, particularly in transitioning to full time in-person learning.
  • Using a social emotional screening tool to help identify students in need and quickly match them with services.

The academic recovery vision demonstrates the DOE’s commitment to lifting up New York City’s school communities beginning as early as September 2021, and ensuring they have the resources to recover stronger than ever from the impacts of the pandemic for years to come.

“New York City’s Academic Recovery Plan is a significant investment in the full set of tools children need to succeed. This program is made possible by the American Rescue Plan, an unprecedented commitment of federal funding to help schools reopen safely, meet students’ social, emotional and mental health needs, and address disparities in academic opportunities. The American Rescue Plan provided school districts with the flexibility to design and implement the programming that works best for them. With the Academic Recovery Plan, New York City will welcome students back this fall with a vision that will empower communities to help students thrive,” U.S. Secretary of Education Miguel Cardona.

“Chancellor Porter and Mayor DeBlasio are showing tremendous leadership by ensuring that federal and local dollars are working to assist the tremendous investments needed in student learning. Their surgical efforts to promote best practices to support students is a shining example of how we must continue to be urgent and tactical in doing all that we can to invest in children,” said Congressman Jamaal Bowman.

“COVID-19 has placed a tremendous strain on students and educators who have faced unfathomable challenges during this public health emergency,” said Congressman Adriano Espaillat (NY-13). “As our city reopens and prepares for the upcoming school year, it remains vital that we work to address and remove the roadblocks that students, families and teachers faced and ensure that we implement the most inclusive and accessible programs as we work to build back better and put our students on a path toward achievement and success. I commend Mayor de Blasio and Chancellor Porter on today’s historic announcement and look forward to continuing my efforts at the federal level to ensure New York City students and families have the support needed during our recovery and reopening of the school year ahead.”

“As a former educator, I know the difference that investing in our schools and students can make. I’m very proud of the funding we were able to bring home to New York City through our federal covid response legislation, including the American Rescue Plan. I look forward to continuing to work with the Mayor and Chancellor Porter on bettering education for all of New York City’s students,” said Congresswoman Carolyn Maloney.

“As a parent advocate, I welcome the city’s universal academic recovery vision with great hope. It is critical for students in communities like the district I represent, who face significant educational and economic challenges, to be fully supported in their public school classrooms. Today by providing a roadmap for this $630M investment, the city is moving in the right direction. There is much more to be done with the increased state and federal funding to meet the priorities and needs of parents, teachers, and students—especially around reducing class sizes—but this plan puts us on the path to the brighter future our children deserve,” said Senator Robert Jackson.

"The Mayor and Chancellor are advancing a bold vision for NYC K-12 students, an idea made possible by our state budget finally accounting for the Campaign for Fiscal Equity ruling", said Senator Roxanne J. Persaud. "Equitable funding across our state and fair funding across our City will ensure that school children have access to strong education programs and wrap-around services in the coming year and many years after that."  

"The pandemic has left an indelible mark on the education of our scholars. With remote and blended learning being a challenge for so many families in so many ways, we must make all strides necessary to regain ground that many of our students may have lost. The comprehensive wraparound services being planned under the universal academic recovery vision are not only laudable, but they are critical. Everything from providing digital toolkits and hardware to the investment of the social well-being and health of our students will have an impact and must be implemented in a manner that meets students and administrators where they are. I commend Mayor de Blasio and Chancellor Porter for putting forth this initiative and I look forward to working with my colleagues to ensure that every student in SD 14 can have full access to these resources,” said Senator Leroy Comrie. 

"The transition to online learning during the COVID-19 pandemic revealed systemic flaws and inequities in our education system that have been present for decades. This historic investment in our schools is crucial to create an education system that is equitable and ensures that all students are college-and-career ready, regardless of their background or location. I look forward to working with Mayor de Blasio and Chancellor Porter to ensure that all of our students are supported and have the resources to recover stronger than ever from the impacts of the pandemic and succeed,” said Senator Alessandra Biaggi.

"By funding our schools, reducing class sizes in elementary schools, adding literacy coaches, and investing in technology for K-12 students, we can ensure more equitable academic outcomes for young New Yorkers," said Assemblymember Rodneyse Bichotte Hermelyn. "I applaud the Mayor and Chancellor Porter for this bold seven point initiative as families plan for the transitional year ahead and reintegrate to fully in-person learning. By investing in our schools, we are investing in a more just and fair recovery for our city."

"The COVID-19 pandemic deeply impacted students in underserved communities, including my own in the Bronx, causing increased academic and mental health struggles. I thank Mayor de Blasio and Chancellor Porter for their commitment to ensuring that our students receive the resources necessary to get back on track and placed on a path towards academic and career success,” said Assemblymember Kenny Burgos.

“I applaud Mayor de Blasio and Chancellor Porter for focusing on improving student literacy and investing in social emotional supports for students in this post-COVID era.  Reading disabilities go undiagnosed or unaddressed in most communities, but the issue is particularly profound in communities of color.  Every child should be screened for dyslexia and learning disabilities because early identification will allow us to target interventions before kids fall behind to ensure successful educational outcomes and break the school-to-prison pipeline. Literacy is a matter of social justice, and access to digital support devices is also critical to successful learning in a modern era,” said Assemblymember Jo Anne Simon, a former special education teacher who currently holds state bills on dyslexia and learning-related disabilities.

"The Academic Recovery Plan recognizes that our students’ mental health is as important as their physical health; that they need support well outside class hours; that early intervention will make a lifetime of difference; that digital devices have gone from a luxury to a necessity; and that we must provide our special needs students with special resources. I also applaud the critical support this plan gives to multilingual learners, which will help children from immigrant communities succeed in America. After our students endured more than a year of distance learning, today's plan will put them back on a track for success,” said Assemblymember Jenifer Rajkumar.

"After a difficult year-plus of remote learning, I am grateful that our young scholars will be supported with the social, emotional, and technological resources they need for a safe and productive school year in the fall. The pandemic taught us a lot of lessons, particularly as it relates to the needs of students of color. I appreciate the efforts of the Administration and the Department of Education to collaborate with the Black, Latino and Asian Caucus and educators and parents of color for the past several months to create a more diverse, responsive, and forward-thinking curriculum. These new initiatives will serve to create broader historical awareness of the contributions of people of color and provide for the culturally sensitive instruction we have advocated for over the past several years," said Council Member I. Daneek Miller, Co-Chair of the Black, Latino, and Asian Caucus.  

"New York City's students need all the help and investments they can get after the tough year they had learning from home and dealing with the effects of the pandemic," said Council Member Ben Kallos. "This academic recovery plan which focuses on early literacy and making kids college ready will hopefully be successful at helping students claw back some of the academic losses they faced over the last year. Thank you Mayor de Blasio and Chancellor Porter for this truly impressive investment and plan to help our kids get back to learning."   

"From technology access to literacy rates, the pandemic laid bare the glaring inequalities in our city’s education system. As we recover, I’ve strongly supported increased investments into our school communities and classrooms. The Academic Recovery Plan is an important step forward, and I commend the Mayor and Schools Chancellor on their work fighting for students, teachers, and families," said Council Member Keith Powers.

"If we are to build a true success path for children's future, we need to ensure that as a City we are putting in resources that reflect the diversity and needs of our communities––from tackling the digital divide to investing in mental health, and more. This academic recovery plan is a step towards educational equity so that every child, no matter their background or circumstances, has the opportunity to truly thrive," said Council Member Francisco Moya.

“I have always said that education is the most important tool we can provide for our children to succeed, and I am grateful to Mayor de Blasio and Chancellor Porter for their universal academic recovery plan. I am confident that this investment in our city’s learning infrastructure will help our young people pursue their educational and career goals while receiving the extra support they need to excel. It is important that we continue to empower our young people with essential learning resources and opportunities that provide education equity to underserved students, and I am a strong supporter of initiatives that will achieve this noble goal," said Council Member Mathieu Eugene.

“I am pleased to learn of the New York City Department of Education’s proactive Universal Academic Recovery Plan to guide our school communities in the wake of the pandemic. As a former educator, I am especially pleased that this plan strategizes and builds supports to help students both communally and individually. Today, more than ever, an investment in education is of the utmost importance,” stated Council Member Alan Maisel.

"These new financial investments and bolstered curriculum will make a huge difference for New York City students of all ages and backgrounds. I look forward to working with the Mayor's Office and DOE to ensure these programs are effectively implemented and that we continue to push for additional support in and out of the classroom for our children," said Council Member Carlina Rivera.

“Thanks to the Academic Recovery Plan, our young New Yorkers will be prepared for life beyond the classroom,” said Councilwoman Selvena Brooks-Powers. “The pandemic highlighted wide disparities in our city’s education system. By making critical investments in digital devices, literacy, health resources, and advanced programming, we can close these gaps and ensure that every child gets the education they deserve.”

"As the father of six children, I understand the need for a diversity of educational support. Our public school teachers have many skills, but advanced computer science has not been required for certification. The DOE will now certify over 5,000 educators in advanced computer science, filling a gap that the pandemic laid bare. As a longtime advocate for educational excellence, I am thrilled we are adding new college-prep courses—these should not only be available to a few schools. We have brilliant children in under-resourced neighborhoods and they deserve equal access to advanced courses. The impact of the pandemic will be felt by our students for decades to come. So it’s a proud moment that the DOE is addressing the long-term challenges of this cohort of students by hiring 500 social workers, expanding IEP support, and adding new materials to represent the diversity of ethnicities and learning styles. This recovery plan is a necessary step that our children deserve," said Council Member Robert E. Cornegy, Jr.

“We are delighted to see that the academic recovery plan will provide increased resources for multilingual learners and immigrant students, promote college and career readiness for high school students, and focus on social emotional support as students begin to recover from a public health and economic crisis. We look forward to working with the Mayor and the Department of Education to make sure that this investment supports our Asian American and immigrant students across New York City,” said Wayne Ho, President and CEO, Chinese-American Planning Council.

"Parents of CEJ have fought hard for five years to bring this to fruition but we stand on the shoulders of generations of parents, students and educators in the decades before us who have been calling for this type of curriculum. We look forward to being a part of the process with fellow parents, students, educators and community in the creation process. This unprecedented investment in Culturally Responsive and Sustaining Education (CRSE) aligned Universal Mosaic Curriculum, is particularly historic because it signifies NYC taking a stand against racism and other forms of oppression during a time when conservative, racist forces across the country are trying to write people of color out of this nation's story. NYC is leading the nation by insisting on teaching the truth," said Natasha Capers, Director of the NYC Coalition for Educational Justice.

“As a nonprofit committed to the success of New York City’s children, youth, and families, we are thrilled to see the Department of Education investing in early literacy programs, college and career preparedness, special education services, and socio-emotional supports, which will all play a crucial role in helping our communities thrive in the aftermath of the pandemic. We also applaud the Department of Education for responding to the urgent call to introduce culturally responsive curriculum to all children and youth. New York City is home to a vibrant collection of histories, languages, and experiences, and when it comes to providing students with a holistic education that prepares them for success in school and life, representation matters," said Michelle Yanche, Executive Director at Good Shepherd Services

"CACF - the Coalition for Asian American Children and Families - is committed to uplifting the needs of marginalized Asian American students in our public school system - our students with disabilities, English language learners, students living in poverty, and families who struggle with language barriers. These students and families are often rendered invisible by the model minority myth, all while the real challenges they face have overwhelmingly been exacerbated by the pandemic. We are pleased to see historic investments being made to support them and reduce longstanding inequities, including targeted funding for special education services, universal access to a digital device, culturally responsive support for multilingual learners and immigrant students, and new, inclusive curricula that reflect our students’ rich diversity and histories. We look forward to continuing to collaborate with the Mayor’s Office and Department of Education to ensure that our students are always equipped with the tools they need to learn,” said Anita Gundanna and Vanessa Leung, Co-Executive Directors of CACF.

Saturday, August 14, 2021

NYC Department of Education v 3020-a Arbitrator Doyle O'Connor in the Canick Case


Every so often, an event happens at 100 Gold Street, where 3020-a Arbitration hearings are held (and I have been the advocate/representative for Respondents/charged educators for 18 years), which I cannot forget. 

I won't forget the scene that Arbitrator Doyle O'Connor created on November 10, 2015. I was across the hall, with another arbitrator, in a  separate 3020-a case when suddenly we heard a man's voice yelling "Get out!!! Get out of this room!" The arbitrator in our case asked the transcriptionist to stop recording for a minute, and he got up and opened the door. We could see Jordana Shenkman and NYSUT Attorney Antonio Cavallaro leaving the room quickly, and the Arbitrator Doyle O'Connor yelling at them. Everyone on the 3rd floor could hear O'Connor.

What happened afterward is that O'Connor dismissed all the charges against Canick. This was not at all ok with the Department of Education, so the NYC Law Department filed an Appeal, called Article 75, to overturn O'Connor's decision. Judge Carmen Victoria St. George granted the City's Petition and sent Canick back to a new 3020-a hearing with a new Arbitrator.

Canick appealed this decision to the First Department Appellate Division, but lost.

I am posting the decisions in this case because this is the only Appeal won by the City Law Department, that I know of, on arbitrator bias. Also, knowing that the charging process for educators in NYC is error-filled and in violation of State law (Cardinale), in this matter, I believe Mr. Canick, not the DOE. But, as seen below, the fury of the DOE often wins. Judge Carmen St. George is, in my opinion, the best Judge in the Courts of NY State right now. I agree that O'Connor should not have been so obviously biased against the DOE Attorney Jordana Shenkman, but I agree with his assessment of the charges, nevertheless.


My personal opinion:

Arbitrator O'Connor was right, to stop playing along to get along with the NYC Department of Education's Office of Legal Affairs (OLA) which operates the 3020-a teacher trials and the panels (ATU=misconduct; TPU=teacher performance, incompetency). 

The NYC DOE OLA is wildly non-compliant with due process for tenured educators, and all the arbitrators must succumb to unethical legal conclusions if they want to remain on the panel. Many arbitrators have told me that they were let go from their positions on the panels because they were not handing out the terminations demanded by the DOE. All hearings in NYC proceed without a proper determination of probable cause. Without probable cause you don't get a proper Just Cause.

See here:

Betsy Combier Unravels The 3020-a Arbitration Procedure in New York City

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Muck Rack

Lawyers furious arbitrator cleared ‘butt grabbing’ teacher

But not always. 

We have won 47 Article 75 Appeals and Article 78 Petitions.

Matter of Department of Educ. of the City of New York v CanickAnnotate this Case
[*1] Matter of Department of Educ. of the City of New York v Canick 2018 NY Slip Op 50613(U) Decided on April 24, 2018 Supreme Court, New York County St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 24, 2018
Supreme Court, New York County

In the Matter of the Application of The Department of Education of the City of New York ("DOE"), and Carmen Farina, as Chancellor of the DOE, Petitioners,

against

Michael Canick, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, and New York State United Teachers ("NYSUT"), Respondents.

651432/2016

For Petitioner: Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 2-316, New York, New York, 10007, by John P. Guyette, Assistant Corporation Counsel

For Respondent: Richard E. Casagrande, 52 Broadway, 9th Floor, New York, New York 10004, by Michael J. Del Piano, Of Counsel
Carmen Victoria St. George, J.

In this Article 75 proceeding, the Department of Education of the City of New York (the "DOE") petitions to vacate the March 6, 2016 arbitration award rendered by Hearing Officer Doyle O'Connor, pursuant to New York State Education Law § 3020-a. Respondent Michael Canick ("Canick") in his verified answer seeks the denial and dismissal of the Article 75 petition.[FN1]

Canick is a tenured teacher who has been employed by the DOE for over eleven years. In 2014, Canick was in the Absent Teacher Reserve with the DOE when he sought and was hired for a vacancy teaching English at Cascades High School in Manhattan. On or about April 13, 2015, the DOE preferred four disciplinary charges against Canick stemming from the 2014-2015 school year. Canick was charged with making sexually inappropriate comments to female [*2]students, engaging in misconduct, neglect of duty, and conduct unbecoming of a teacher.[FN2] As a penalty, the DOE sought termination.

In accordance with Education Law § 3020-a, Hearing Officer Doyle O'Connor ("H.O. O'Connor") was assigned as an arbitrator for Canick's disciplinary proceeding which was conducted over the course of seven days during the fall of 2015. Canick was represented by counsel throughout his § 3020-a hearing, had an opportunity to cross-examine witnesses, and testified on his own behalf. The DOE was represented by Jordana Shenkman ("DOE's counsel" or "DOE Counsel Shenkman"). The DOE presented several witnesses including: three of Canick's students (KM, AR, and AA), two of Canick's supervisors, and an investigator from the Office of the Special Commissioner of Investigation. Canick also called Student KM's mother as a witness. On November 23, 2015, the second day of evidentiary hearings, the DOE moved to recuse and disqualify H.O. O'Connor claiming he had exhibited bias in favor of Canick and inappropriate conduct during the hearing. H.O. O'Connor denied the DOE's motion. Thereafter, on March 6, 2016, having found that the DOE failed to meet its burden, H.O. O'Connor issued his Opinion and Award dismissing all charges against Canick. As a result, the DOE commenced the instant Article 75 proceeding.

Petitioners' Position

The DOE herein seeks to vacate the Hearing Officer's Opinion and Award. The DOE argues the Award was irrational on the grounds that H.O. O'Connor demonstrated bias against the DOE's case, which in the DOE's opinion, permeated the proceedings evidencing a showing of open hostility toward the DOE, its attorneys, and the DOE students who were proffered as witnesses.

Motion to Recuse H.O. O'Connor

The DOE asserts that H.O. O'Connor's bias towards the DOE began on the first day of evidentiary hearings on November 10, 2015 and continued throughout the proceeding. First, the DOE alleges that H.O. O'Connor engaged in ex parte substantive discussions with Canick's attorney on the first day of evidentiary hearings. The DOE claims that during a break, after Student KM's direct examination, DOE's counsel entered the hearing room and O'Connor told DOE's counsel off the record that Canick's attorney had a motion to make. DOE's counsel allegedly asked H.O. O'Connor what the substance of the motion was, to which he responded, "I'll let respondent's counsel tell you." This response, in the DOE's view, suggested that Canick's attorney and H.O. O'Connor had engaged in a substantive ex parte discussion about Canick's motion while DOE's counsel was not in the room. The second incident of alleged impropriety on the part of H.O. O'Connor stems from the relief sought in Canick's motion. Student KM, one of the students who made allegations against Canick, was called as the DOE's first witness. Student KM's mother accompanied her to the hearing. According to the DOE, Student KM's mother was not listed as a witness on the DOE's witness list, was not under subpoena, and there was no prior notice from Canick that KM's mother might be called as a witness to testify. KM's mother was simply present because she had brought her daughter in to provide testimony. After a break between direct examination and cross-examination of Student KM, counsel for Canick made a motion to call Student KM's mother as witness for Canick, stating he had reason to believe that the mother was still in the building, and that he wished to take her testimony out of turn and in the middle of the DOE's case-in-chief. The DOE objected on several grounds including: (1) there was no basis to believe KM's mother would be unavailable or otherwise uncooperative in coming back, pursuant to subpoena, at the proper time during respondent's case-in-chief; (2) the proper procedure to compel any witness to testify was to issue a legal subpoena and neither Canick's counsel nor the H.O. O'Connor had one; and (3) given that KM's mother was not under subpoena, H.O. O'Connor did not have a legal right to force a lay person to stay in the building against her free will to give testimony at that particular time. The DOE notes that Student AR was also present at the hearing and was scheduled to give testimony after Student KM. DOE's counsel expressed concern that delaying Student AR's testimony might dissuade her from testifying.

H.O. O'Connor granted the motion and ruled that Canick would be permitted to call Student KM's mother out of turn on the first day of hearings before KM finished testifying. Additionally, H.O. O'Connor requested that DOE's counsel direct KM's mother to stay in the building. According to the petition, DOE's counsel did not agree to H.O. O'Connor's request as she claimed she had no authority to do so. Instead, DOE's counsel asked for a break to speak with her supervisor about the issue. After further deliberations, the parties agreed to continue with the cross-examination of Student KM. The DOE stresses that despite not agreeing to H.O. O'Connor's directives regarding KM's mother, DOE's counsel intended to ask KM's mother to remain on the premises until she had an opportunity to confer with her supervisors regarding the issue. However, after the completion of Student KM's testimony, KM informed DOE's counsel that her mother had already left the building earlier that afternoon to go to a doctor's appointment. The DOE maintains that at no time prior to that did KM or anyone else inform DOE's counsel that the mother would be leaving before the completion of her daughter's testimony.

The petition states that DOE's counsel informed H.O. O'Connor as soon as she was made aware of the mother's departure. Counsel for the DOE explained to H.O. O'Connor that KM's [*3]mother had left, unbeknownst to her, and before she had a chance to speak with the mother about being called as a witness. H.O. O'Connor's reaction to the news is what allegedly prompted DOE counsel's motion to recuse. The DOE describes H.O. O'Connor making "baseless assertions suggesting DOE counsel had either known of the mother's departure and hid that from [H.O.] O'Connor, or had conspired with or otherwise encouraged KM's mother to leave the building in order to evade giving testimony" (petitioner's brief at 8). The DOE alleges that H.O. O'Connor and Canick's counsel cooperated with each other to subject DOE counsel to a cross-examination concerning KM's mother, thereby casting doubts on DOE counsel's representations to O'Connor regarding the mother's departure. According to the petition, H.O. O'Connor was not satisfied with DOE counsel's answers and suggested that Canick's counsel re-call Student KM in order to attempt to impeach DOE counsel's representation concerning the actions and whereabouts of KM's mother. The DOE argues that H.O. O'Connor conducted Canick's case for him in an effort to discover some evidence to contradict DOE's counsel. The DOE further alleges that H.O. O'Connor threatened to go get Student KM himself when DOE's counsel objected to re-calling her for a second cross-examination. The DOE claims that H.O. O'Connor and Canick's counsel conducted a "joint cross-examination" of Student KM. Notably, when Student KM testified she corroborated DOE counsel's representations concerning her mother in that she testified that her mother left to go a doctor's appointment and neither KM nor her mother mentioned to anyone that she had to leave early. Additionally, Student KM testified that there were no discussions between DOE's counsel and her mother about being called as a potential witness.

The DOE contends that at this point in the hearing H.O. O'Connor allowed (over DOE counsel's objection) further questioning of Student AR, regarding her understanding of KM's mother's whereabouts and her knowledge of any conversation that occurred between DOE's counsel and the witnesses regarding this matter. Student AR corroborated DOE counsel's representations in that Student AR testified that as far she knew, KM's mother had simply left to go to a doctor's appointment and never spoke to DOE's counsel about her departure.

Additionally, the DOE notes that Canick's original motion to call KM's mother as his witness out of turn should have been rendered moot because she was no longer present in the building. However, the DOE states that H.O. O'Connor improperly ruled that Canick was still entitled to call KM's mother out of turn on a future date and the DOE was prohibited from speaking to KM or her mother in the interim. H.O. O'Connor further ruled that Canick's counsel would be allowed to question KM's mother first and that the DOE was prohibited from calling KM's mother as a witness in the DOE's case.

On November 23, 2015, the second day of evidentiary hearings, DOE's counsel moved to recuse and disqualify H.O. O'Connor claiming he had exhibited bias and inappropriate conduct on the first day of hearings. DOE's counsel laid out several grounds in support of their belief that H.O. O'Connor's biased conduct would improperly color the rest of the proceedings and as such warranted recusal. DOE's counsel argued that "H.O. O'Connor allowed the record to be tainted by consistent and repeated accusations of misconduct against DOE's counsel as well as assertions that the DOE witnesses were incredible and not to be trusted, all within the first day of hearing on a case" (tr at 216). However, O'Connor refused to recuse himself.

Hostility Against DOE's Counsel

The DOE maintains that H.O. O'Connor continued to demonstrate his bias and hostility against the DOE and DOE's counsel throughout subsequent points in the hearings. Of note, the DOE alleges that H.O. O'Connor cursed at DOE's counsel on the third day of evidentiary [*4]hearings. The alleged exchange between H.O. O'Connor and DOE's counsel occurred off the record. According to the petition, H.O. O'Connor asked DOE's counsel if she had called Canick's witness Dr. Garcia, to "compel" him to appear on behalf of Canick.[FN3] The DOE alleges that H.O. O'Connor then proceeded to reprimand DOE's counsel for failing to secure Dr. Garcia's compliance with the subpoena. The petition states that DOE's counsel explained to H.O. O'Connor that she never agreed to call Dr. Garcia for the reasons she articulated on the last hearing date. This allegedly provoked H.O. O'Connor to raise his voice at DOE's counsel during which he stated words to the effect of "[d]o whatever the fuck you want to do!" (affirmation of Jordana Shenkman at 17). The DOE claims that H.O. O'Connor then threatened to give the DOE an adverse inference if Dr. Garcia didn't show up. Upon DOE counsel's objection, they allege that H.O. O'Connor raised his voice again and stated, "I don't give a shit what you're saying defense counsel should do, I'm telling you to do it!" (affirmation of Jordana Shenkman at 18). Subsequently, the DOE alleges, that H.O. O'Connor yelled at DOE's counsel to "get out of the room!" (affirmation of Jordan Shenkman at 18). DOE's counsel allegedly left the room and informed her supervisors regarding what had just transpired in the hearing room. According to the petition, DOE's counsel did not return to the room because of H.O. O'Connor's order and because his hostility made it impossible to continue working.

Thereafter, DOE counsel's supervisor Laura Brantley appeared at the hearing. The DOE maintains that H.O. O'Connor admitted to Ms. Brantley on the record that he did in fact order DOE's Counsel Shenkman to leave the room. The DOE asserts that H.O. O'Connor repeatedly refused to answer Ms. Brantley's question about whether he had cursed at DOE's counsel. Additionally, the DOE notes that H.O. O'Connor later apologized for his "inappropriate" and "intemperate" behavior toward Ms. Brantley. H.O. O'Connor expressed regret for "repeatedly interrupting her," being "entirely louder than he should have been," and for showing a "lack of professional demeanor." Notably, however, H.O. O'Connor did not apologize to DOE's Counsel Shenkman for cursing at her and later in his Award accused her of fabricating the fact that he cursed at her.

Biased Rulings and Instructions

In addition to allegedly cursing at DOE's counsel, the DOE maintains that H.O. O'Connor's partiality manifested itself in other ways throughout the proceeding. The DOE claims that H.O. O'Connor exhibited bias by giving improper instructions to witnesses that were one-sided and prejudicial. For example, H.O. O'Connor repeatedly emphasized that Canick's job was at stake (i.e., "The career of a teacher is at stake so it's a very important matter. It's important that you tell the truth").

Further, the DOE asserts that H.O. O'Connor's ruling was often infused with hostility toward DOE's counsel. For example, the DOE points to O'Connor's ruling on December 15, 2015, when he ruled that DOE's counsel had failed to timely introduce the decision from Canick's prior disciplinary case. The DOE maintains that DOE's counsel had attempted to do so on two prior hearing dates, including the first day of evidentiary hearings. The DOE asserts that H.O. O'Connor deferred his ruling on admissibility of the §3020-a decision until such time as the DOE intended to use it and cites to record in support thereof (tr at 18, 31-33). The DOE claims that it properly renewed the application before Canick's direct testimony based on H.O. O'Connor's previous instructions (tr at 18, 31-33, 569-586). The DOE notes that the Award inaccurately stated, "I have very limited information on the prior claim, in substantial part as the Employer had the Opinion and Award marked as an exhibit prior to trial but then inexplicably failed to timely move its admission during its case in chief" (Award at 22, fn 13).

In sum, the DOE maintains the Award must be vacated as the DOE's rights were prejudiced throughout the proceeding by H.O. O'Connor's bias.

Respondent's Position

Canick opposes the motion, arguing that petitioners failed to establish a basis for vacating the Award. Canick maintains that the Award was based on H.O. O'Connor's thorough review of the record, with determinations for each specification regarding the sufficiency and weight of evidence. Canick argues that the DOE's assertions have no bearing on the findings and determinations contained in the Award. In addition, Canick emphasizes the highly deferential standard of review applicable in Article 75 proceedings.

Canick argues that petitioners have failed to meet their heavy burden to establish by clear and convincing evidence that H.O. O'Connor was biased. Instead, Canick states that the allegations of bias set forth by the DOE are merely the subjective opinions of DOE's Counsel Shenkman regarding matters that are either not subject to judicial review, incapable of being proven, or contradicted by the record. For example, Canick asserts the DOE's allegations constitute nothing more than disagreement by the losing party with the arbitrator's credibility determinations. Canick stresses that an arbitrator's credibility determinations cannot support a claim of bias and are immune from judicial review. He contends that H.O. O'Connor properly exercised judgment as to the credibility of the witness testimony. Canick adds that H.O. O'Connor had the benefit of seeing live testimony and observing witnesses' tones and mannerisms contemporaneously to the testimony.

Canick dismisses the DOE's allegations of hostility and inappropriate conduct exhibited by H.O. O'Connor. Canick claims that DOE's Counsel Shenkman purposefully neglected H.O. O'Connor's orders and conducted herself in an unprofessional manner. Canick maintains that even if H.O. O'Connor became upset with DOE counsel's conduct, it was with good reason. Canick argues that DOE counsel's actions and H.O. O'Connor's purported reactions, were immaterial to the Award. Canick emphasizes that H.O. O'Connor's Award was based solely upon the DOE's failure to meet their burden of proof in the underlying proceeding.

Further, Canick asserts that petitioners waived their right to seek to vacate the Award on the ground that H.O. O'Connor was biased. While Canick acknowledges that DOE's counsel made a motion to disqualify H.O. O'Connor for alleged bias, he states that the DOE never sought judicial intervention to remove H.O. O'Connor during the pendency of the proceeding. Notably, he adds that before the issuance of the Award, the DOE assigned new Education Law § 3020-a matters to H.O. O'Connor without objection to his appointment in those matters on the basis that [*5]H.O. O'Connor was biased.[FN4] In sum, Canick maintains that the DOE has not met its burden in establishing by clear and convincing proof that H.O. O'Connor was biased and he is entitled to confirmation of the Award pursuant to CPLR § 7511(3)(e).

Discussion

Education Law § 3020-a sets forth the procedures and penalties for disciplinary actions against tenured teachers. Subsection five of that statute authorizes judicial review of a hearing officer's decision. That review is limited to grounds set forth in Section 7511 (b) of the Civil Practice Law and Rules. CPLR § 7511(b) limits the grounds for vacating an award to misconduct, bias, excess of power or procedural defects (CPLR § 7511 [b][1][i]-[iv]). However, where, as here, the parties have submitted to compulsory arbitration, this Court applies a stricter standard of review than it does in voluntary arbitrations. (see Lackow v Dept. of Educ. City of NY, 51 AD3d 563, 567 [1st Dept 2008]). The arbitration award must be "in accord[ance] with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" (Id.).

As a general matter, "a party seeking to set aside an arbitration award for alleged bias of an arbitrator must establish its claim by 'clear and convincing proof'" (Matter of Infosafe Sys. v Int'l. Dev. Partner, 228 AD2d 272, 272-273 [1st Dept 1996]). In doing so the petitioner must be aware that merely pointing to an adverse ruling does not support a claim of bias because that is nothing more than an example of the hearing officer doing exactly what he is supposed to do in rendering a decision (Matter of Moro v Mills, 70 AD3d 1269 [3d Dept 2010]). Indeed, mere allegations of bias absent specific references is not sufficient to vacate an administrative determination (Id. at 1270). With regard to fact and credibility findings, courts cannot substitute their judgment for that of a hearing officer who had the opportunity to hear and see witnesses (see City School Dist. of the City of NY v McGraham, 75 AD3d 445, 450 [1st Dept 2010]). Thus, the credibility determinations of a hearing officer are entitled to deference, even where a party seeking to vacate a § 3020-a decision claims that there is evidence which conflicts with the hearing officer's determination (see Cipollaro v N.Y.C. Dept. of Educ., 83 AD3d 543, 544 [1st Dept 2011]).

Here, the Court finds that there is clear and convincing evidence of bias and misconduct on the part of H.O. O'Connor to warrant vacatur of this Award. The Court comes to this conclusion after a thorough review of the 3020-a hearing transcript, the Award, and the parties' papers. Indeed, this Court notes the primary focus of the 965-page transcript was not about Canick, but rather the questionable conduct of H.O. O'Connor. Moreover, this is not an unsupported allegation of arbitrator bias with unspecified examples. To the contrary, this record is plagued with examples of bias. This is precisely why, when the parties appeared for oral argument, this Court strongly encouraged remanding this matter to a new arbitrator for reconsideration. However, the parties declined to agree to stipulate to a remand.

As stated above, a hearing officer's credibility determinations are largely unreviewable. However, Canick's contention, that most of the DOE's allegations against H.O. O'Connor stem from his credibility determinations, is unpersuasive. Even if this Court examined and accepted H.O. O'Connor's credibility determinations, the record is infused with other forms of bias against [*6]the DOE and DOE's counsel. In particular, H.O. O'Connor was openly verbally unprofessional and discourteous towards DOE's counsel throughout various portions of the proceedings. It is clear to this Court that H.O. O'Connor exhibited hostility against DOE's counsel by raising his voice, interrupting counsel, and refusing to allow counsel to make a record. The Court notes the following exchanges as examples:

The Hearing Officer: I've already advised Counsel that I can't stay as late as we need to.
Ms. Shenkman: Here's the other thing I also have—
The Hearing Officer: (Interposing) Sssshhh.

(tr at 75-76). The Hearing Officer: (Interposing) Now address—I've interrupted you three times, Counsel, that means I intend to interrupt you.

(tr at 177). The Hearing Officer: Don't talk over me. You knew that you hadn't carried out the task that I asked you to carry out, which was to tell the witness, tell the mother to stay. You didn't do it. Fine, she was gone. You couldn't have. But you didn't tell me that. He goes through questioning the student not realizing that the mother hadn't been told. So my question to you is very specifically what do you propose we do with this witness.
Ms. Shenkman: First of all, I'd like to defend myself—
The Hearing Officer: (Interposing) Don't, please.

(tr at 184). The Hearing Officer: (Interposing) I'm going to interrupt you, Ms. Brantley. That is false. Ms. Brantley don't interrupt me.
Ms. Brantley: I'm not interrupting you—
The Hearing Officer: (Interposing) Ms. Brantley—
Ms. Brantley: — you interrupted me.
The Hearing Officer: Ms. Brantley—that's right. I am.

(tr at 480). Ms. Brantley: Why are you raising your voice? I am sitting talking to you calmly. Why are you raising your voice?
The Hearing Officer: Because you have repeatedly interrupted me which you know prevents the making of an accurate record of what's being said. It's unprofessional of you, it's improper of you and your attorney's conduct was improper this morning. It was improper last week. I instructed her to call a witness to facilitate his being here today.

(tr at 482-483).

Further, the record reveals that H.O. O'Connor exceeded his role as a neutral arbitrator on several occasions by assisting Canick in his defense. For example, H.O. O'Connor improperly alerted Canick's counsel to an area of cross-examination that he could use in his potential cross of a future witness when he stated, "there was significant divergence as to the testimony of the [two] students as to the mother's departure, and that is fodder for cross-examination" (tr at 192). Even if there was a variation in testimony, H.O. O'Connor overstepped his bounds as an impartial arbitrator by drawing Canick's attention to it. Equally inappropriate was the seemingly [*7]collaborative efforts of H.O. O'Connor and Canick's counsel in their cross-examination of DOE's counsel regarding KM's mother's whereabouts. The Court points to the following exchange wherein in H.O. O'Connor and counsel for Canick asked DOE's counsel the same questions repeatedly and in different ways (emphasis added):

The Hearing Officer: But you also represented before you walked out of the room that you were prepared to put the mother on the stand, indicated she was willing to return and would return—
Ms. Shenkman: [Interposing] Yes, which I gladly would have done. I had no idea —
The Hearing Officer: [Interposing] Had you discussed that with the mother before you made that representation, or are you just pulling that out of the air, Counsel?
Ms. Shenkman: Wait, had I discussed what?
The Hearing Officer: Had you discussed with the mother the representation you made that she was prepared to return if necessary?
Ms. Shenkman: No, no, no, what I told you during our discussion is that if you wanted to call the mother into the room and talk to her, as I think you've done with other witnesses in other cases and say we need to continue this on another day. We want to make sure that you return on such and such date that I would be happy to do that, but that hadn't been done. The Hearing Officer: Okay.
Ms. Shenkman: At this point, I did not know that she was going to leave at all, but at this point I understand that defense Counsel wants to call her. I thought it was going to happen today, but at this point, I would be happy to get in touch with the mother. I believe I had her cellphone number and secure her appearance for testimony.
Mr. Cavallaro: Again, had she been told that there was a possibility she would be testifying?
Ms. Shenkman: No.
Mr. Cavallaro: You hadn't even broached the topic with her.
Ms. Shenkman: I didn't say anything to her about this at all. I was in here making all these representations on the record. I was anxious about finishing the student's testimony first, and assuming that - - I thought her mother was staying here until she was done to take her home. When I went back to the other room to get the student her mother in the room. I don't know if she was in the bathroom at that point or if she had already left for a doctor's appointment, but I didn't ask. I assumed she was in the bathroom. We would finish with the cross-examination, and then when the student was done I would talk to the mother about you have to stay for the testimony, and I was going to break to talk to my Counsel and my boss. So I didn't do anything, of course, intentionally, and I had no idea that she even had a doctor's appointment. Her daughter just told me - -I was like why did your mom leave without saying anything. She just told me that her mom was actually looking for me to try to tell me while we were in here with the door closed that she had to go. I guess she didn't knock or open the door.
Mr. Cavallaro: How would Student A [FN5]know that if she was in here with the door closed?
 Ms. Shenkman: What do you mean? Well, at some point - -The Hearing Officer: [Interposing] That's a curious story. What you're indicating is that Student A just in the hallway right now told you that her mother left to go to the doctor's appointment, and before her mother left her mother was looking for you. How would Student A know what since Student A was in here with us? 
Ms. Shenkman: What must have happened, I suppose, is that her mom was looking for me when we were in here arguing about this issue. When I came out to Student A - - but couldn't find me so just left. When I went out to get Student A back in the room nobody told me, nobody said anything that her mom had left to go to a doctor's appointment. I didn't see her mom in the room and just assumed that she was in the bathroom so that I could talk to her when we were done. 
Mr. Cavallaro: My apologies, but there's a lot of gyrations going on right now about what did and didn't happen and why didn't Student A tell you when you went out to get her that this occurred? Why are we just hearing about this now? I mean I am beyond furious at this point in time, and I'm not — I don't want to case aspirations on Counsel for the Department, but I am beyond furious because there is a reason why I made a somewhat unusual request to the Hearing Officer, and I explained why that reason was. To at this point run into this issue under the circumstances as being explained is strange credulity. Let me put it that way. Ms. Shenkman: Well, I, um - -,
The Hearing Officer: I granted a motion to take a witness out of order, and I instructed you to tell that witness to remain here, and when you came back in you did not tell me you couldn't find her. That concerns me deeply. I would have anticipated if you couldn't find her that you would come and tell me I don't know where she is because everyone in the room would have turned to Student A and said where is your mom.

(tr at 112-122).

The Court notes that H.O. O'Connor further exceeded his role as arbitrator when he suggested that Canick recall Student KM for a second cross-examination regarding her mother's apparent suspicious disappearance (tr at 118). This Court is unwilling to speculate as to whether this was done for the purposes of impeaching DOE counsel's representations regarding the mother's departure. Regardless of his motives, H.O. O'Connor's suggestion was highly improper because he was essentially conducting Canick's case for him.

Additionally, H.O. O'Connor and Canick's counsel continued their concerted efforts in conducting a "joint cross-examination" of Student KM. First, Canick asked Student KM a series of questions including: "when did you find out your mom left?" "[d]id you know that we were going to ask her to testify here today?" "[s]o nobody tried to tell her before she left that she was going to be testifying?" "[d]id your mom know about the doctor's appointment beforehand?" "[d]id Ms. Shenkman ask you where your mother was when she came to get you?" '[s]o you didn't tell Ms. Shenkman when she came to get you before continued questioning that your mom had left, and you're saying that [she] didn't ask you where your mom was when she walked into get you?" "[s]he didn't say that she had to talk to your mom about anything?" (tr at 122-125). 

H.O. O'Connor followed up with questions of his own:

The Hearing Officer: Do you know who the doctor is?
Student KM: What?
The Hearing Officer: The doctor. Your mom went to see a doctor.
Student KM: No, I don't know her doctor.
The Hearing Officer: What kind of doctor?
Student KM: I don't know what kind of doctor.
The Hearing Officer: Do you know where the doctor—
Student KM: [Interposing] On 32rd Street and Madison.
The Hearing Officer: So that's how we try to figure things out sometimes, ask a different question. So the doctor is on 32rd and Madison. Alright. Nothing further for me. Counsel? 
Ms. Shenkman: Nothing.

(tr at 125-126).

In sum, H.O. O'Connor acted as co-counsel to Canick when he should have been acting as a fair and neutral hearing officer.

The DOE's contention that H.O. O'Connor inappropriately questioned the professional integrity of DOE counsel is also supported by the record. For example, H.O. O'Connor asked DOE's counsel, "[h]ad you discussed that with the mother before you made that representation, or are you just pulling that out of the air, Counsel?" (tr at 112-113). Likewise, in response to an assertion made by DOE's counsel, H.O. O'Connor stated "[t]hat's a curious story" (tr at 115). H.O. O'Connor also stated "[y]ou just made all of that up, Counsel, to be very blunt" (tr at 174). These statements coupled with O'Connor's rulings and conduct surrounding KM's mother as discussed above, are improper and at the very least represent an appearance of bias. Indeed, this Court is amazed how much time H.O. O'Connor spent questioning the credibility of DOE's counsel when his role as arbitrator was to assess the credibility of the witnesses.

Additionally, of import, are the inconsistencies and misrepresentations of testimony between the Award and the hearing transcript. The Court points to the Award and specifically the fact section wherein H.O. O'Connor states that the DOE's witness Principal Rotundo had "volunteered in his direct testimony a comment evidencing seemingly considerable doubt about KM's allegations" (Award at 12). However, the transcript reads as follows:

Ms. Shenkman: Did you have any reason to disbelieve what Student [KM] was telling you?

(objection omitted) Principal Rotundo: No, no reason to disbelieve her.
Ms. Shenkman: Let's start with Student [KM]. Did she have any disciplinary incidents in your school?
Principal Rotundo: In the school, no. Student KM can be a bit emotional. I've had to speak with her on two separate occasions about anxiety and dealing with stress better than she does, but we haven't had a discipline issue in my school.

(tr at 268-269).

For one thing, H.O. O'Connor's description of Principal Rotundo's testimony is unsupported by the record. Even more troublesome is the considerable weight that H.O. O'Connor allegedly attributed to his unsubstantiated conclusion that Principal Rotundo harbored misgivings about KM's allegations. For example, the Award states: "[m]oreover my view of KM was strongly influenced by the Principal's wariness in taking her at her word and his description of her inappropriate anxiety responses. Rotundo seemingly made a point of expressly noting that he was obliged to act on the accusations in face of [Canick's] failure to deny (occasioned by the UFT representative's advice not to comment). I was left with the firm sense that the Principal was very leery of [*8]KM's veracity, or perhaps more precisely, of her ability to accurately perceive and report events" (Award at 13)."The observation by Principal Rotundo that KM poorly handled anxiety and stress was well-taken. The events that occurred were objectively innocuous. It was KM's reaction, not Canick's conduct, which was inappropriate. Her embellishments on the original charges were of the sort not surprising for an especially anxious and seemingly more troubled than average teenager amongst a peer group of teenagers with troubled backgrounds seeking to re-establish themselves as successful high school students" (Award at 17).

In essence, H.O. O'Connor came to the irrational conclusion that it was more plausible that Student KM exaggerated and overreacted to Canick's actions because she suffers from anxiety. Ironically, H.O. O'Connor's sweeping and uninformed assumption is based on his own misrepresentation of Principal Rotundo's testimony.

Another notable misrepresentation involves the events surrounding the mother's departure. Despite spending an inordinate amount of time on who knew what regarding the mother's whereabouts, H.O. O'Connor eventually ruled that he believed the mother's departure was inadvertent (tr at 200). In the Award, however, H.O. O'Connor states that "a calculated effort was made to interfere with or deter the presentation of [the mother's] testimony to the tribunal" referring to DOE's counsel (Award at 21, fn 11). Not only is this statement wholly unsupported by the record, but it also amounts to accusing DOE's counsel of suborning perjury. Further, H.O. O'Connor's baseless descriptions of the student witnesses in the Award are indicative of his partiality against the DOE and its students. For example, H.O. O'Connor described the DOE student witnesses as "fairly hardened former flunk-out urban high school girls who are trying to appear tough, and are worried about flunking out of their 'last chance high school'" (Award at 12). This description is also unsupported by the record.

With regard to the allegation that H.O. O'Connor yelled profanities at DOE's counsel, this Court acknowledges that this alleged exchange is not supported by the record. However, this taken in conjunction with everything else that is on the record including: H.O. O'Connor's prejudicial witness instructions, overt acts of hostility towards DOE's counsel, misrepresentations of witness testimony, and inappropriately questioning the professional integrity of DOE's counsel, is not the type of behavior that this Court can turn a blind eye to. Moreover, there is significant evidence in the record that shows H.O. O'Connor acting not as a neutral arbitrator but, rather, as a second advocate for Canick. Given the circumstances here, the Court finds that based on the totality of the allegations made against H.O. O'Connor by the DOE, it cannot be said that this Award was not motivated by H.O. O'Connor's bias against the DOE and DOE's counsel.

Based on the foregoing, this Court concludes that there is clear and convincing evidence of bias on the part of H.O. O'Connor against the DOE necessitating the vacatur of the Award.

Accordingly, it is

ORDERED that the petition is granted, the Award is vacated, and the matter is remanded to a new arbitrator for a new hearing.

This constitutes the Decision and Order of the Court.

Dated: April 24, 2018

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:By stipulation dated December 7, 2017, the petitioners agreed to dismiss and discontinue this proceeding as against respondents United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, and New York State United Teachers ("NYSUT").

Footnote 2:The specifications were as follows: Specification 1: On or about and between September 1, 2014 and November 21, 2014, respondent, in sum and substance: 1. Told Student KM that she was cute while looking at KM's identification card and/or her image on a computer screen after her identification card had been swiped. 2. Whispered to Student KM that "she had a good mother," causing her to feel uncomfortable. 3. Told Student KM, words to the effect of, "you can't run away from me it's ok," causing said student to feel uncomfortable; Specification 2: On or about and between September 1, 2014, and November 21, 2014, respondent, in the presence of at least one other student, on more than one occasion, stared at Student KM's buttocks/backside/behind when said student walked away from respondent; Specification 3: On or about and between September 1, 2014, and December 8, 2014, respondent, on one or more occasions, touched and or/slapped and/or groped and/or made physical contact with Student AA's buttocks/backside/behind; and Specification 4: On or about and between September 1, 2014 and December 8, 2014, respondent, in sum and substance: 1. Told Student C that she was beautiful on one or more occasions 2. Told Student C words to the effect of, you're beautiful, with a lot of potential and your looks will help you get a good job.

Footnote 3:Dr. Garcia is the Assistant Principal of Cascades High School and was proffered as a witness for the DOE. According to the petition, Dr. Garcia was examined by both sides on November 23, 2015. On November 25, 2015, Canick's counsel indicated his intention to re-call Dr. Garcia as a witness for respondent in order to question him about an alleged inconsistency between Dr. Garcia's testimony and the testimony of Student AA. The alleged inconsistency had to do with whether Dr. Garcia asked Student AA what happened first, or whether Student AA told him what happened without asking. Canick's counsel indicated that they had sent a subpoena to Dr. Garcia for him to appear on December 1, 2015. H.O. O'Connor, asked that DOE's counsel to call Dr. Garcia to follow up on the subpoena respondent had sent and to secure Dr. Garcia's appearance on behalf of respondent on December 1, 2015.

Footnote 4:H.O. O'Connor was no longer serving on the permanent panel of arbitrators when the parties appeared before this Court for oral argument on December 7, 2017 (tr of oral argument at 4, lines 14-17; at 7, lines 16-26).

Footnote 5:In the transcript Student KM is referred to as Student A.
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Appeal of Judge St. George's decision:
Matter of Department of Educ. of the City of N.Y. v Canick
Matter of Department of Educ. of the City of N.Y. v Canick 2020 NY Slip Op 06959 Decided on November 24, 2020 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 and Entered: November 24, 2020
Before: Friedman, J.P., Manzanet-Daniels, Oing, Kennedy, JJ.
Index No. 651432/16 Appeal No. 12472N Case No. 2018-5173

[*1]In the Matter of The Department of Education of the City of New York ("DOE") et al., Petitioners-Respondents,

v

Michael Canick, Respondent-Appellant, United Federation of Teachers et al., Respondents.

Robert T. Reilly, New York (Michael J. Del Piano of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York (Jonathan Popolow of counsel), for respondents.

Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered April 25, 2018, which vacated an arbitration award rendered in respondent Michael Canick's favor, unanimously affirmed, without costs.

Clear and convincing evidence supports the court's finding of bias on the part of the hearing officer against petitioner warranting vacatur of the award rendered in respondent Canick's favor (see CPLR 7511[b][1][ii]; see Matter of Piller v Eisner, 173 AD3d 1035, 1036-[*2]1037 [2d Dept 2019]). Among other things, the hearing officer made findings against petitioner that were either entirely unsupported or directly refuted by the record, repeatedly interrupted petitioner's examination of witnesses, repeatedly reminded witnesses that respondent's job was at stake, assisted respondent's counsel in cross-examining witnesses, and refused to permit petitioner's counsel to make a record.

We have considered respondent's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 24, 2020