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Thursday, September 30, 2021

Eric Goldstein, Director of NYC DOE Office of School Support Services, is Arrested in School Food Corruption Scandal

Eric Goldstein

 Another NYC Department of Education VIP is Arrested.

We all remember the case of David Hay, and others.


Corruption is everywhere within the NYC Department of Education, for a long time. When does it end?

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Former NYC education bigwig arrested in school food corruption scandal 


A former Education Department bigwig used his position as food czar to line his own pockets by awarding a contract to a company he co-owned, prosecutors charged Wednesday.

Eric Goldstein is accused of illegally profiting off the contract with Somma Foods, which grabbed headlines in 2017 for serving kids chicken tenders with bone and metal inside.

Goldstein ran the city’s Office of School Support Services and was responsible for handing out millions of dollars in contracts to food vendors that serve students across the city.

Behind the scenes, his co-conspirators referred to him by his code name, “Roger Rabbit,” prosecutors said.

Prosecutors alleged Goldstein used “his official position and considerable influence” at DOE to award the contract to Somma. He also allegedly took bribes directly from the company, an FBI agent said in a criminal complaint filed in Brooklyn Federal Court.

Goldstein was arrested along with Blaine Iler, Michael Curley and Brian Twomey, who also had stakes in the foodservice company.

The three entrepreneurs “regularly reached out to Goldstein outside official NYC DOE channels,” asking him to exert his influence over the Education Department’s food program, SchoolFood, the FBI agent says.

Officials don’t name the company in court documents, but Goldstein’s alleged co-conspirators are listed as executives for Somma Foods — which became infamous for serving chicken tenders with bone and metal fragments, eventually causing someone to choke.

DOE officials terminated the contract with Somma in 2017 after public outrage — but not before Goldstein could reap profits through his ownership in the company and direct bribes from his co-conspirators, prosecutors say.

At one point, Iler allegedly transferred Goldstein $20,000 after sending an email demanding that the company’s chicken product appear on DOE food menus two times a month, the complaint says. Prosecutors said $7,000 of that money was then transferred into a bank account for Goldstein’s divorce lawyer.

Goldstein’s influence helped Somma maintain its contract even after complaints began piling up, federal officials said. The company was nearly fined in 2016 for failing to deliver enough chicken nuggets, but Goldstein stepped in and had the fine waived, according to the complaint.

See also:

Former Top NYC School Official Charged in Alleged Bribery Scheme Involving Meat Supplier

Tuesday, September 28, 2021

Appeals Court Orders The Vaccine Mandate To Move Forward, Removing The Temporary Hold.


The vaccine mandate goes forward. Teachers and NYC DOE employees who do not get at least their first vaccine shot by Friday at 5pm will go on unpaid leave for a year.

Vaccine mandate for NYC school employees can move forward, judges rule
Alex Zimmerman, Chalkbeat, Sept. 27, 2021

A federal appeals court has removed a temporary block on New York City’s vaccine mandate for education department employees, paving the way for officials to require all school staff to receive a vaccine dose or else be put on unpaid leave.

The ruling, issued by a panel of judges for the U.S. Court of Appeals for the Second Circuit, reverses the court’s decision on Friday to block the vaccine mandate while the appeal is argued.

A hearing in the case was initially scheduled for Wednesday, with the vaccine mandate on hold in the interim. But Monday’s unexpected decision appears to allow the city to enforce its vaccine mandate immediately.

The vaccine mandate was initially scheduled to go into effect at midnight on Monday, with educators who failed to provide proof of at least one vaccine dose put on unpaid leave and barred from entering their school buildings. The mandate will now go into effect starting Monday, Oct. 4, according to Danielle Filson, an education department spokesperson. Educators will have to show proof of at least one vaccine dose by the end of the day Friday.

“Vaccinations are our strongest tool in the fight against COVID-19 — this ruling is on the right side of the law and will protect our students and staff,” Filson said in a statement.

The ruling comes on the heels of a similar ruling by a state court judge that lifted a separate temporary hold on the vaccine mandate, saying that the case would likely not be successful on the merits.

Roughly 148,000 education department employees will be subject to the mandate when it goes into effect, including about 78,000 teachers and thousands of school safety agents who work in schools and are employed by the police department.

As of Monday, officials said 87% of all education department employees have had at least one dose, including 91% of teachers and 97% of principals. That leaves about 19,000 education department staff, and 7,800 teachers, who have yet to demonstrate proof of a first dose and could be barred from schools when the mandate goes into effect.

Officials have been girding for staff shortages as a result of the mandate, since a small but significant percentage of teachers, school safety agents, and other staff remain unvaccinated. Union officials have argued the city does not have adequate plans to handle thousands of vacancies, though city officials say they have substitutes at the ready.

“The city has a lot of work before it to ensure that enough vaccinated staff will be available by the new deadline,” Michael Mulgrew, president of the city’s teachers union, said in a statement. “We will be working with our members to ensure, as far as possible, that our schools can open safely as the vaccine mandate is enforced.”

De Blasio said Monday that he expects the prospect of lost paychecks to prompt an increase in vaccination rates among education department staff, which have been incrementally rising.

“They have to make a really big decision,” de Blasio said. “[Do] they really want to give up on their kids, and the school community? Do they want to give up a paycheck? I think a lot of people, when they really think about it, are going to realize that getting vaccinated is the right thing to do.”

Saturday, September 25, 2021

Second Circuit Court of Appeals Delays NYC Vaccine Mandate For Teachers


A federal appeals court delays New York City’s vaccine mandate for teachers.

Eliza Shapiro and 

Mayor Bill de Blasio’s administration has been temporarily blocked from enforcing a vaccine mandate for nearly all adults in New York City public school buildings, after a federal appeals court granted a temporary injunction on Friday.

The mandate, which affects well over 150,000 people working in the nation’s largest school system, was set to go into effect on Monday at midnight. Educators, parents and union officials have been bracing for the likelihood of staffing shortages and disruption in at least some schools where significant numbers of educators and staff members are not vaccinated.

A judge for the U.S. Court of Appeals for the Second Circuit granted the injunction on a temporary basis and referred the case to a panel of three judges for review. City officials said they expected the review and ruling to take place in the next few days, possibly even over the weekend, and anticipated that the mandate would be upheld. But it is not clear if the issue will be resolved before the Monday deadline.

Last week, a State Supreme Court judge ruled that the city could move forward with the mandate, after considering a separate but similar lawsuit filed by a coalition of unions that represents employees in public schools. The judge, Laurence Love, said state and federal courts have consistently upheld mandatory vaccination orders.

And on Thursday, a federal judge in Brooklyn, Brian M. Cogan, declined to grant the injunction sought by a group of teachers, calling the mandate “a rational policy decision surrounding how best to protect children during a global pandemic.” The teachers then appealed, successfully, to the Court of Appeals.

At least 90 percent of teachers and 95 percent of principals are already vaccinated. The rate is lower — about 82 percent — among staff members in school buildings.

The leaders of the unions representing the city’s teachers and principals have called on Mr. de Blasio to delay the implementation of the mandate, arguing that schools are not prepared to deal with staffing crunches.

The mandate, which was announced last month, requires all educators, along with staff like custodians, school lunch helpers and safety agents to receive at least one dose of a coronavirus vaccine by Monday night. It is the first vaccine mandate without a test-out option for any group of city workers.

“We’re confident our vaccine mandate will continue to be upheld once all the facts have been presented, because that is the level of protection our students and staff deserve,” a spokeswoman for the Department of Education, Danielle Filson, said in a statement.

See also:

Federal Appeals Court Temporarily Blocks NYC Teacher Vaccine Mandate Pending a Review By Three-Member Panel

Advocatz blog, Sept. 25, 2021

NYC grants 530 COVID vaccine exemptions to public school staffers
By MICHAEL ELSEN-ROONEY, NY Daily News, Sept. 24, 2021

Vaccine-wary NYC Education Dept. employees wrestle vaccine choice as deadline looms
by Jennifer Peltz, NBC News, Sept. 10, 2021

Arbitrator rules city must offer non-classroom work to teachers with Covid vaccination medical/religious exemptions
UFT Press Release, Sept. 10, 2021

Friday, September 24, 2021

Federal Judge Brian Cogan Refuses To Block COVID Vaccine Mandate For Teachers and Staff


Judge Brian Cogan
Another UPDATE:

With nearly 30K NYC school staffers still unvaccinated, unions push City Hall to push back Monday's get-vaxxed-or-get-out deadline

EDNY Judge Refuses to Block City's Vaccine Mandate for Teachers and Staff

Tom McParland,, September 24, 2021

A U.S. District Judge said plaintiffs' concerns about possible long-term effects from the vaccines may be valid, but noted that inoculation was one of the most "highly regarded" tools for minimizing viral spread.

A Brooklyn federal judge has rejected an attempt by New York City educators to block a city mandate requiring all Department of Education employees to be vaccinated against COVID-19.

U.S. District Judge Brian M. Cogan of the Eastern District of New York said Thursday that the city’s vaccine mandate was a “rational policy decision surrounding how best to protect children during a global pandemic.”

The ruling, which addressed constitutional claims by a group of teachers, was the second this week allowing the DOE mandate to move forward, amid push-back from some teachers and staff.

In his decision, Cogan said that plaintiffs’ concerns about possible long-term effects from the vaccines may be valid, but noted that inoculation was one of the most “highly regarded” tools for minimizing viral spread.

“Although plaintiffs argue that there are other proven means of preventing the spread of COVID-19 in schools, among them frequent testing and mask wearing, it is not shocking for the city to conclude that vaccination is the best way to do so, particularly at a time when viral transmission rates are high,” Cogan wrote in a 12-page opinion.

The decision followed a state judge’s ruling on Wednesday, which lifted a temporary restraining order in a case brought by municipal labor unions, finding that they would be “unable to establish a likelihood of ultimate success on the merits.”

A spokesman for the New York City Law Department, which represents the city in civil litigation, said in a statement that “yet again, another court has cleared the way for a vaccine mandate at the DOE which is in the best interest of children and department employees.”

“The court has again recognized the authority of the Health Department to implement a mandate that is firmly grounded in science and the expertise of public health officials from across the nation,” the spokesman, Nick Paolucci, said.

An attorney for the plaintiffs did not immediately respond Friday to a request for comment.

The federal lawsuit included claims for due-process and equal-protection violations, citing the potential for adverse reactions and claiming that the mandate interfered with their right to pursue their chosen professions.

Thursday, September 23, 2021

Civil Service Employees Association (CSEA) Files Court Petition To Halt State Vaccine Mandate


A pedestrian walks past a sign next to the CSEA building on Monday, Aug. 15, 2011 in Albany,
NY. Votes for their contract with the state were being counted at an undisclosed location on Monday.
(Philip Kamrass / Times Union)

UPDATE September 24, 2021

CSEA filed petition seeking restraining order; hearing set for Oct. 1

CSEA files lawsuit to block New York vaccine mandate

Petition is one of at least three that seek to halt mandate set to take effect Monday [September 27, 2021]

, Times Union, Sept. 23, 2021

ALBANY — The state Civil Service Employees Association has filed a petition on behalf of roughly 5,600 members who work in the state's court system seeking an injunction to halt the vaccine mandate that is scheduled to go into effect on Monday.

A similar petition was also filed in state Supreme Court in Albany this week on behalf of a group of Buffalo-area physicians, nurses and a nursing home administrator. Assemblyman David DiPietro, an Erie County Republican, is also listed as a plaintiff in that case.

The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from a mandate that was announced in July by former Gov. Andrew M. Cuomo. It requires a multitude of public-facing workers, mainly in hospitals, nursing homes and other long-term care facilities, to receive at least their first vaccination by Sept. 27 — and for others a deadline of Oct. 7 — or risk being suspended or terminated from their jobs.

The mandate affects both public and private health care facilities. Thousands of nurses and other medical professionals have declined to be vaccinated; officials with hospitals and group homes that care for the disabled said a staffing crisis that existed before the coronavirus pandemic will be exacerbated if many of those workers are off the job next week.

Many hospitals are reducing or eliminating elective surgeries and some are diverting patients to other hospitals to deal with the staffing issues.

Hochul's office on Wednesday did not answer questions about whether the governor might delay the mandate or has a plan in place if large numbers of nurses and other health care professionals are suspended from their jobs beginning Monday.

At a news conference Thursday morning, the governor said she "will be announcing a whole series of initiatives to be prepared for a situation on Monday that I hope doesn't happen.

"These are obviously very caring people or they obviously would not have chosen this profession," she said. "Every single person who ends up in your care has the right to know ... that there is no chance they will be infected by the person charged with protecting them and their health. ... Those who have done the right thing don't want to be with people who are not vaccinated ... they're entitled to a safe workplace as well."

Health care industry officials, including many private hospitals, are separately making plans for a potential staffing crisis.

“The science is clear, vaccines work, and we need as many people vaccinated as soon as possible. But this could turn out to be the paradox of the mandate,” Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said in a statement issued Thursday morning. “We want to make staff and residents safer through vaccination, but if people start walking off the job and there aren’t enough workers to take care of residents, we actually put them in jeopardy.”
Balboni, who is not calling for the mandate to be rescinded or delayed, said his organization and industry administrators are calling for a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment, real-time monitoring by the state’s health department and increased testing.

Hochul's administration this week was locked in negotiations with multiple state labor unions, who have said the state's mandate should have been subject to collective bargaining and not simply imposed under a provision of state health law.

In the case filed by CSEA this week, they said the Public Employment Relations Board had determined the state Unified Court System's vaccination mandate for judges and nonjudicial employees "constitutes an improper practice" and authorized the union to file for a temporary injunction in state Supreme Court. CSEA is seeking a stay of the mandate until an administrative law judge issues a decision in their PERB case.

In the case filed on behalf of the Buffalo-area medical professionals, they assert that the U.S. Food and Drug Administration earlier this month reported a "1,000 percent increase" in adverse reactions to coronavirus vaccines at a meeting where it recommended against requiring booster shots for people under 65.

That petition also states the mandate does not provide exemptions for religious beliefs or for those "that were previously infected with COVID-19 and who have natural immunity."

Natural immunity "is at least as effective as vaccination at preventing future COVID-19 infections," the petition states, adding that a person who gets vaccinated to keep their job but suffers an adverse reaction "will be without any legal recourse for any such injuries or damages they suffer as a result of vaccination."

Late Wednesday, after the Times Union asked the governor's office for comment, it issued a statement saying that separate agreements with CSEA and the Public Employees Federation would allow nurses and other health care professionals at state-run hospitals to be eligible to work overtime at 2.5 times the normal rate of salary, up from 1.5 times. But that incentive, which would be retroactive to Sept. 16 and last through the end of the year, is not tied to the vaccine mandate.

Three people familiar with the negotiations between Hochul's administration and multiple labor unions said the incentive being offered by the administration is for affected health care employees to receive a half-day of vacation if they are vaccinated. That offer, however, is contingent on the unions agreeing that their members would not have contractual rights to use accrued time, such as sick or vacation days, to offset any lost hours while they are suspended.

None of the unions had agreed to the proposal by late Wednesday.

Even before the coronavirus pandemic, hospitals and other medical providers and long-term care facilities were facing a staffing crisis  — including group homes for disabled individuals, where some nurses are being forced to work 24-hour shifts.

The state Department of Health estimated this week that about 81 percent of hospital employees have been fully vaccinated. The mandate set to take effect on Monday requires the workers to have at least one COVID-19 vaccination shot.

Last week, a federal judge in Utica issued an order temporarily restraining employers from enforcing the state vaccine mandate on health care workers who have sought a religious exemption.

The ruling by U.S. District Judge David N. Hurd was handed down in a case filed against Hochul, health Commissioner Dr. Howard Zucker — whose resignation was announced Thursday — and state Attorney General Letitia James on behalf of 17 medical professionals. It is scheduled to be argued next week.

City and State Mandates For Employees To Get the COVID Vaccination Goes Forward

There are three branches of government in the U.S.:

  • The executive branch, which includes the president and the agencies he controls;
  • The legislative branch, consisting of the two houses of Congress, which are the House of Representatives and the Senate; and
  • The judicial branch, which includes the Supreme Court and all the nation's federal and state courts.

On August 24, 2021, the Commissioner of Health and Mental Hygiene ordered that Department of Education employees, contractors, and others get the COVID-19 vaccination.(“the Order”)

Two cases were filed against the mandatory vaccine for NYC Department of Education employees, one in State Court and the other in Federal Court. NY State Supreme Court Judge Laurence Love first granted a temporary restraining order and then rescinded the TRO in favor of the City mandate. 

Municipal Labor Committee et. al. decision

New York State Supreme Court Judge Lawrence Love said it right: "This is uncharted territory". 

Here are the papers in the Federal case filed by the FG Legal Group:

  1. DOE TRO Complaint
  2. DOE TRO Memo
  3. DOE TRO Order To Show Cause
  4. DOE TRO Gelormino Declaration
  5. DOE TRO Rachel Maniscalco's Declaration
  6. Amended Class Action Complaint
  7. Reply Memo (9.20.21)
For past email updates please click here.

On Monday, September 27, 2021, anyone who works for the City and does not have at least one shot of the COVID vaccine and does not have an approved exemption for health or religious reasons, will either have to take unpaid leave for a year or be terminated.

This will propel the Courts into, as Judge Love said, a new jurisdiction: having a say in what people must do to their bodies.

The individual right to freedom of choice in all matters formerly given only to medical doctors has been taken over by the  Third Branch of government.

The winners, in the short term, are the City and State governments. The long-term winners are yet to be determined. 

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Coronavirus Update NYC: Restraining order lifted on vaccine mandate for city teachers, staff
ABC News, Sept. 22, 2021

Vaccine Mandate for NYC Teachers, Staff Can Go Forward As Judge Lifts Restraining Order

 NBC News, September 22, 2021

The judge said he initially ordered the injunction because the city's original mandate didn't say anything about medical or religious exemptions, but said the city subsequently put out language saying nothing in the mandate would prohibit accommodations that are legally required.

A vaccine mandate for New York City's public school teachers and other staffers can go forward as planned next week, after a state judge on Wednesday lifted a temporary restraining order.

The city had announced last month that school employees would have to get at least a first dose of a coronavirus vaccine by Sept. 27, impacting about 148,000 school workers and contractors.

A coalition of city unions had filed a lawsuit against the mandate and had asked for the injunction against its implementation. State Supreme Court Justice Laurence Love put the TRO in place last week, but removed it in his ruling on Wednesday.

In a statement, the Department of Education said the ruling was “a big win for New York City children and Department of Education employees. Their health and safety is at the very core of this vaccine mandate, and we are pleased the court recognized the city’s legal authority.”

The officials with the unions said they intended to continue the legal action.

“We are deeply disappointed that the temporary injunction has been lifted," Henry Garrido, executive director of DC 37, said in a statement. “This is not the end of the road and we will continue to fight for the right of workers to make their own healthcare decisions."

The president of the Municipal Labor Committee, the group that filed the lawsuit against the mandate to begin with, said in a statement that their case "has already led to progress in protecting the rights of our members, since the city – in the wake of the court’s initial issuance of the restraining order – admitted that there can be exceptions to the vaccine mandate. The court -- while lifting the restraining order -- has not made a final decision, and we are preparing additional material to support our case."

When asked for comment, the United Federation of Teachers — the largest teachers union in the city — referred to the statement made by the Municipal Labor Committee, which they are a part of.

Love said he had initially ordered the injunction because the city's original mandate didn't say anything about medical or religious exemptions, but said the city subsequently put out language saying nothing in the mandate would prohibit accommodations that are legally required.

On Sept. 10, the city and the union representing teachers in the country's largest school district came to an agreement through an arbitrator on those teachers unwilling to get vaccinated, such as those with medical and religious exemptions. It was agreed that those educators must be offered alternative work assignments.

Non-classroom work will be offered to educators with specific medical conditions who have not been vaccinated, but also to vaccinated teachers who have suppressed immune systems, the arbitrator ruled.

Teachers who decline to vaccinate against COVID-19 and do not qualify for an exemption will be offered unpaid leave through September 2022 -- their medical insurance will still be covered. All staff who refuse unpaid leave can take a severance package instead, or face discipline, the union said at the time.

The judge said that removed the need for the injunction, and also doubted the unions' ultimately being able to succeed in their claim that their due process rights were being violated.

“The state and federal courts have consistently held that a mandatory vaccine requirement does not violate substantive due process rights and properly fall within the state’s police power," Love wrote.

Parents in the city seemed to agree with the judge's decision Wednesday night.

"I do think it's fair. It makes me feel my son's safer and we'll have more continuity in his teachers if they get sick," said parent Marcia Stern.

Even those who disagree with the finding found the logic behind the decision.

"I think it's unfair, but I also think it could protect them at the same time," said parent Randy Vazquez.

More than 80 percent of teachers have already been vaccinated, according to union estimates.

Middle school teacher Asa Henry said that allowing "the government to just be able to mandate anything, anytime, it sets a really bad precedent in the future," which is why he understood the reason for the unions' displeasure at it. However, he also said that keeping his daughter safe is the priority.

The ruling comes after New York City Mayor Bill de Blasio made tweaks to school COVID policy, a week after the nation's largest public school district opened its doors fully in person for the first time since the pandemic hit -- and a day after one Manhattan school announced it had to go all-remote because of an outbreak.

The two changes announced Monday involve testing and quarantine procedures and will take effect simultaneously on Sept. 27, which is also the deadline for city public school teachers and staff to have at least their first shot of the vaccine.

Starting then, schools will conduct randomized weekly testing, rather than biweekly testing, at all public elementary, middle and high schools citywide.

The mayor also said the city will shift its school quarantine approach to align with the CDC. Under that guidance, when there is a positive case in a single classroom, the unvaccinated students in that classroom will not have to quarantine if, and only if, they have been masked and keeping at least 3 feet of distance.

The Democrat said the adjustments were born from city officials' assessment of the first week of in-person classes for nearly a million students and how COVID policy could be improved going forward given the ongoing delta variant threat.

"The goal is always two crucial things -- first and foremost the health and safety of our kids and our whole school community, second maximizing the number of kids in school every day, avoiding disruption, giving our kids a chance to make that comeback that we know we're going to make this year," de Blasio said.

In an information session for UFT chapter leaders held Wednesday, union president Michael Mulgrew asked five yes or no questions regarding de Blasio's new COVID quarantine policy. The answers overwhelmingly showed frustration with the new decisions, including 98 percent of the 1,200 members present saying that the mayor has no clue what is happening inside of schools, and that neither de Blasio nor the city's Department of Education has a plan to keep the children in schools safe.

Copyright NBC New York/Associated Press

Sunday, September 19, 2021

Education Law Fraud and the Omission of Probable Cause


Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

From the desk of Betsy Combier, re-posted from

In this post, I will explain why excellent educators are charged with false allegations and then terminated for doing something that they did not do or not removed from their employment for harmful acts that they did do. The charging procedures and outcomes were very confusing when I first started examining them 18 years ago.

Education Law  §3020 states in relevant part:

No  person enjoying  the   benefits   of  tenure   shall  be  disciplined  or  removed  during  a  term  of  employment  except   for  just   cause   and   in   accordance   with   the   procedures  specified in section three thousand twenty-a  of  this article


"The tenure statutes reflect the intent and purpose of the Legislature to protect educators who have successfully completed a probationary period from being disciplined summarily without the safeguards of Education Law § 3020-a. As stated by this Court in Holt v. Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625 (1981): At one time, teachers in this state had only so much job security as could be bargained for in their contract of employment. When that contract expired, the decision as to whether or not to continue the teacher's employment was completely within the discretion of the school district. The Legislature, recognizing a need for permanence and stability in the employment relationship between teachers and the school districts which employ them, enacted a comprehensive statutory tenure system, the purpose of which was to provide some measure of security for competent teachers who had rendered adequate service for a number of years. One of the bulwarks of that tenure system is section 3020-a of the Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice. Id., 52 N.Y.2d at 632"

From In the Matter of Roseann Kilduff, Respondent,v.Rochester City School District, et al., Appellants, Court of Appeals No. APL-2013-0029:

"In Matter of Boyd v. Collins, 11 N.Y.2d 228 (1962), this Court had annulled an agreement between a board of education and a teacher under which the teacher would resign after a stated period in lieu of charges. The Court plainly stated that the "statutory tenure terms can be changed by the Legislature but never by a board of education." Id. at 233. As summarized by the Court in Mannix, supra, "[i]t was made clear in [Boyd] that no act of a board of education could effect a method of bypassing the tenure statute." Mannix, 21 N.Y.2d at 459. Although Boyd was subsequently overruled in Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450 (1979), it was overruled solely on the ground that the law does not absolutely forbid a tenured teacher from waiving the protections of the tenure statutes if the record establishes a truly knowing, open and voluntary waiver. Id. at 455."

NYSUT lists changes to tenure in Chapter 56, 2015

In NYC, there is no voluntary waiver, and the Constitutional protection of tenure has been modified to fit the whims and fancy of a principal or superintendent who says to the legal department, "get rid of that person." Yet the NYC Department of Education pursues termination at the §3020-a arbitration under color of law, without any authority or waiver of a teacher's rights. No change has been made to Education Law §3020-a(2)(a), citing a probable cause determination by a vote of the Board of Education (PEP in NYC). The PEP BYLAWS do not give the Chancellor authority to vote on any issue, rendering any delegation of the vote to a Superintendent or principal by the Chancellor meaningless paper. Most shocking of all is the fact that the New York City Department of Education ("NYC DOE") and the Unions (UFT/NYSUT, CSA) have collaborated in this scheme that deliberately violates lawful procedures, is arbitrary and capricious, an abuse of discretion, and affected by an error of law. I believe that extortion might be the right word. 

Educators are brought to §3020 hearings without being told any of this. This is the fraud that I write about here, and what we - all of us in the community of the world - have to change. False statements published in bad faith against a person destroy that person's life forever. No apology after the fact can change that.

Nonetheless, if you know who you are, you will get to where you want to be. Knowledge is power but you need to know what to do with it.

As Lewis Carroll wrote,

"If you don’t know where you’re going, any road will get you there."

Many educators ask, "How could this happen?" "How could I be terminated/given a fine/suspended for something I did not do?"

Tenured employees of the NYC DOE at any level, unaware that their tenure rights under the  §3020-a statute have been illegally implemented or omitted, rely on the same people at their Union who have created the procedures cited here as illegitimate. Suppose an accused educator demands that their Union attorney or advocate submit a Motion To Dismiss the arbitration hearing based on this argument. In that case, the lawyer or representative will immediately quit or threaten to drop your case.

I always suggest that accused educators rely on their own beliefs and common sense. Just rely on yourself. Find out and believe in who you are and what you want, and if your intent is strong and your goals are "right" - as opposed to unlawful or harmful to another person or animal - you will reach your goals. This process must be constantly renewed, so do not rest on what you have done. Keep planting new ideas on your path. Who you are now will change tomorrow, just as you were a different person yesterday.

The Backstory of Education Law §3020-a in New York City

In the compulsory Arbitration known as Education Law Section §3020-a ("§3020-a") in New York City, there are significant and unlawful procedural and substantive deficiencies in the pre-hearing process that interfere with the public policy protections for teachers with tenure. These blatant violations of the tenure law deny a fair hearing to all individuals who are accused of an act of misconduct or incompetency and are charged with §3020-a charges (called “Specifications”).

"New York public employees enjoyed disciplinary due-process protections long before they won collective bargaining rights with the 1967 passage of the Public Employees Fair Employment Act, also known as the Taylor Law. But in requiring public employers to negotiate “terms and conditions” of employment, the state Legislature set the stage for union contracts to become obstacles to disciplining public employees."

Tenure is public policy in New York City. New York State unions are supposed to be the warriors who protect Constitutional rights to a full and fair hearing. But employers want "at-will" employment for everyone, and therein lies the problem.

Questions union members should be asking are, "Why doesn't my Union fight for my rights?" "Why do my Union Reps. seem to play along with the Department of Education?"

You can see this struggle between employer-unions here:

See Double Insulation: How New York  Law Shields Public Employees From Accountability

What happens then is that policymakers write "manuals" on what to do, devoid of circumstances, which people are supposed to use as a Guide. General statements of rules of law or Agency Agreements are only as good as their implementation.

See New York Department of Civil Service Manual For Administrative Law Judges and Hearing Officers (2002):

"Chapter 3: Due Process of Law
Both the United States and New York
Constitutions guarantee that no person shall be deprived
of "life, liberty or property, without due process of law."
The concept of due process imposes a fundamental
obligation upon all organs of government, including state
agencies. At its base, due process means that no person
can be subject to an individualized proceeding in which
they stand to lose one of the protected interests – in
the context of administrative law, either property or liberty
– without sufficient procedures to ensure that the
governmental action is fundamentally fair."

The New York City Department of Education ("NYC DOE"), with the support of the Unions, has instituted a deceitful practice of skipping over the proper determination of probable cause codified in Education Law §3020-a(2)(a). The Statute has been ignored in favor of a false and misleading process that does not give an arbitrator subject matter jurisdiction to hear and decide any case or find “just cause” for the charges.

Here is Education Law §3020-a(2)(a):

"2. Disposition of charges.  a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof.  Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section.  If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee."

Yet all NYC DOE employees receive a page with the title "Notice of Determination of Probable Cause" that does not have a date for an Executive Session in the box on the right. I started asking about this in 2004, and I remember Former NYSUT Counsel Claude Hersh telling me, "that's the way it is." I stayed with the thought that "that's the way it shouldn't be" and kept researching what happened.

In 2016 I was lucky to have received a lot of information about 3020-a procedures after filing a Freedom of Information request (FOIL) for all attendees and the content of an unpublished meeting of all the arbitrators, NYC DOE, and NYSUT Attorneys held on February 24, 2015. See documents posted on the blog NYC Rubber Room Reporter (2016) and

Hearing Request-Waiver

In the charging packet is a form with two boxes on it, one for requesting a hearing and one saying that a hearing is not requested. (See above document, with accused educator's name deleted). One box must be checked and delivered to the UFT/CSA within 10 days of receipt. If the 10 days' deadline is not met,  the accused will be terminated by members of the PEP meeting in an Executive Session. Welcome to a Catch-22:  either participate in an unlawful arbitration or lose your job without going to a hearing. I always suggest that you hire a private attorney or legal team and testify to your side of the story, then Appeal the decision if you think it is incorrect.

See Chancellor's Regulations C-205 (24):

"24. Dismissal for Cause, Resignation, or Retirement While Charges Are Pending -

This subdivision applies to persons who were dismissed pursuant to Section 3020a of the New York State Education Law or who resigned or retired while such charges were pending. All licenses and/or certificates held by such a person at the time of separation from service shall terminate permanently. No such person shall be eligible to apply for any new license or certificate, nor for reemployment by any unit of the City District or of any community school district without the recommendation of the Executive Director of the Division of Human Resources and the express written authorization of the Chancellor."

In other words, if you retire or resign after you are served with §3020-a charges, your license to teach in the NYC school district is revoked permanently.

Instead of complying with the Education Law §3020-a(2)(a), the NYC DOE, CSA (Union for administrators, principals), and NYSUT (gives free representation to UFT Members for §3020-a hearings, lawsuits) have collaboratively relied on so-called "Delegation Memos" (I have collected them, see my collection: Delegation Memos 2011-2018) which  DOE attorneys INSIST (I put this in caps because the perseverance to these memos is so fierce) removes the vote of the Panel For Educational Policy (PEP) in an Executive Session from the charging procedure in Education Law §3020-a(2)(a) in NYC. Oh, really? The truth is that nowhere in the memos is "probable cause" mentioned because the Chancellor cannot delegate a vote on probable cause to anyone. Also, there is no law, rule, or regulation that permits the NYC DOE to deny a Constitutional right, as the vote in Executive Session is, without the signed waiver of the person who is being denied that right. No educator brought up on charges has ever signed such a waiver, as far as I know.

Also, the insistence by the unions and NYC DOE that the Executive Session and vote on probable cause are unnecessary and that they were given the right to change the procedures for charging tenured teachers in NYC by the State legislature is a false statement. In the Commissioner's decision #15,482 (Appeal of the New York City Department of Education, on behalf of Community School District 13, concerning a disciplinary proceeding brought against Alfonzo Forrest, a/k/a Alphonzo Forrest, Principal of P.S. 256, under Education Law §3020(3), October 1, 2006), the Commissioner was very clear that Education Law Section  §3020-a could be modified or replaced by agreements negotiated between the city school district and the CSA after December 1, 1999, except the provisions of subdivisions one and two shall not apply to any agreements negotiated pursuant to this subdivision" (emphasis added - Ed.). 

See:  Decision No. 15,482

Yet NYC DOE, CSA, and NYSUT attorneys go along with the premise that the so-called "Delegation" memos have replaced the Executive Session with a constructive, but silent, waiver, to give the power and authority to find probable cause for the charges to the exact same person who created these charges in the first place, namely the Principal (or, in some cases, the Superintendent). 

It is patently absurd to think that the Legislature intended for the Chancellor, a singular individual, to have the authority to "find" probable cause, create the charges, and testify to the veracity of these exact charges. There is nothing ambiguous in the statutory text of Education Law §3020a or Education Law §2590h. The statutes say: (1) there must be a determination of probable cause by a vote in an executive session; and (2) the Chancellor, a nonvoting member of the PEP, cannot delegate a vote to anyone at any time. (PEP BYLAWS, Article 3.2). 

In the first paragraph of §2590-h, you can read the following:

"He or she shall exercise all his or her powers and duties in a manner not inconsistent with the city-wide educational policies of the city board."

There you are. End of the subject, proof that only the process described in detail in Education Law §3020-a(2)(a) to comply with the State-mandated due process for educators in NY State and City.

Even if the law said that a vote on probable cause is not needed (the law never suggests this, but the NYC DOE makes this one of their main arguments supporting the fraudulent charging papers), an Executive Session must be held. A determination of probable cause must be made by two or more people, never a single person.

When an arbitrator makes a decision in a case, they act outside of any lawful authority and choose to put the $1400/day salary above the facts or law of the case they are about to hear. Instead, the arbitrator should withdraw all charges, recuse themselves from the matter, or adjourn the case until a proper determination of probable cause is made by the PEP vote in an Executive Session. 

But this is never done. All arbitrators agree with their employer, the NYC DOE, and deny the Motion To Dismiss For Lack of Subject Matter Jurisdiction to keep their position on the hearing panel. They also agree that the finding of probable cause can be delegated to a single person as per Education Law §2590-h(19),(38). Sorry, but no.

Sadly, no arbitrator will jeopardize their $1400/day hearing cases brought to them by the NYC DOE at least 5 days/month, making their decisions appealable.

It gets worse. To speed up the removal of teachers from the rubber rooms during the early period of Mayor Michael Bloomberg's reign as chief of the Department under Mayoral control, the UFT took away the right of any tenured, accused teacher to choose the arbitrator for their §3020-a hearing. (NYCRR, Title 8, Section 82-3.5). See (h): "The provisions of this subdivision shall not apply in city school districts in cities with a population of one million or more with alternative procedures adopted pursuant to section 3020 of the Education Law."

This is true only for UFT members. CSA members in NYC (Assistant Principals and Principals) charged under §3020-a pick their arbitrator for their §3020-a hearing. How did this law become so narrowly defined, and why are teachers treated differently from administrators? No one complains, or the accused are not told they have this right.

The NYC DOE, CSA, and UFT/NYSUT adherence to this fraud is shocking.

See the decision by Judge Desmond Green in the case of Rosalie Cardinale (Article 75, Index number 85165/2017), who vacated the termination given to Ms. Cardinale by her §3020-a Arbitrator, Michael Lendino. I wrote the Petition papers for the Attorney.

No one at any agency or Union will represent anyone who makes the arguments I have made here. See my post on the "Gotcha Squad": the TPU (Teacher Performance Unit) or ATU (Administrative Trials Unit)

But the denial of the Motion can be used to show bias by the arbitrator in an Appeal. See "Appealing 3020-a Decisions."

So what? You say.

The reasons why the points made above are essential for purposes of understanding the denial of rights at a §3020-a: first, the person accused is automatically assigned a problem code with a permanent flag on their fingerprints; second, the arbitrator can give any penalty they want to provide, despite the facts and circumstances, which becomes a permanent part of the accused person's personnel file. 

The Department supports arbitrators who terminate for minor acts of no consequence. The Department also supports the arbitrators if they ignore the evidence and terminate the accused because the educator was "not credible."  Rules of law for evidence and witness tampering are not considered. The Department has the right of way, and most arbitrators abide by the terms of the agreement with New York State and New York City to serve on the panels in NYC if, and only if, they give termination as the choice of penalty. Any arbitrator who gives decisions that are "too lenient" is taken off the panels and misses out on the $1400/day salary.  Thus, I believe a bias is embedded in the hearing officer before, during, and after the arbitration concludes.

Thus the omission of probable cause in the charging procedures for §3020-a arbitration in New York City allows the Department to bring charges against a tenured educator that are serious and valid, or silly, untrue, the product of retaliation, discrimination,  or just plain hate because no comprehensive, factual investigations are done to validate any charges before the hearing begins. There are no investigators who look into most of the charges at any of the "investigating" agencies: the Office of Special Investigations (OSI), the Office of Equal Opportunity (OEO), and the Special Commissioner of Investigation (SCI). Please note the OSI official name on all Investigative Reports: "Chancellor's Office of Special Investigations" at the bottom of every page.

OSI, SCI, and OEO  "investigators" are anything but that. See some of the cases I have written about on this website and my blog NYC Rubber Room Reporter: Glen StormanDavid Suker; David Pakter (pictured below waiting to go into his 3020-a hearing at 51-49 Chambers Street with Arbitrator Martin Scheinman)Teddy Smith; Eileen Ghastin. I have worked on more than 120 cases and have won decisions that saved the tenured employment or exonerated most of the accused.

In all misconduct cases where there is an "Investigative Report" submitted into the record, an in-depth review always shows some error of the investigator or false statements and documents used to support the conclusion. Why? Because the NYC DOE can and do present whatever they find/create to terminate the accused, which is the goal 100% of the time. Arbitrators have asked me why the NYC DOE always goes for termination, even for the most ridiculous charge. I tell them that it seems to be a situation where the top of the ladder needs to stand on a firm ground no matter how weak it is because they are already on the roof and/or if the charging party throws enough mud at the wall, something may stick.

 Most of the so-called "investigators" at OSI, SCI, and OEO are retired detectives getting their second pension by setting up employees at a school whom someone has complained about and the principal wants to get rid of. There is a set procedure where a parent, child, staff member, AP, or principal can make up that they saw someone do something to somebody, then (1) the principal must report it (no students are reported to OSI); (2) OSI sends someone to the school to find out from the principal what they want to prove; (3) the principal gives permission for students to leave class who will agree to write statements making the targeted person guilty; (4) the principal writes a disciplinary letter which is handed to the accused at a meeting with a representative from the accused person's Union - or not, this is up to the accused to decide; and (5) the technical assistance conference (TAC) memos are created which end up as §3020-a charges.

The title "investigator" does not define what the hired guns at OSI, SCI, and OEO do. I have many stories of unfair, incomplete, and corrupt investigations. See the Wei Liu case. I also wrote about what happened to Glenn Storman after Investigator Dennis Boyles got involved. Here is a big problem. Without a complete and accurate investigation, an arbitrator must decide on the truth of the charges and the credibility of the testifying witnesses. I have found that this does not work, particularly if the Respondent does not speak English very well. The arbitrator has an implicit bias against the Respondent, the accused educator because the Department has put a lot of money and time into creating a case that superficially makes sense. (Thanks to R.W. for giving me the information on this crucial issue). Truth and facts are not relevant to an arbitrator whose goal is to seem fair while doing what the NYC DOE wants.

Most importantly, accused educators must do their own investigation or have their legal team do it and then present the report at the hearing. Bottom line, anyone charged with anything MUST write a rebuttal if there are false statements made against him/her. If the UFT representative or administrator suggests that an accused should not write a rebuttal, ignore this advice.

Additionally, §3020-a  is codified in Education Law Article 61, whereas §2590 is placed in Article 52(a). This placement dichotomy is not a trivial distinction but instead reflects a legislative determination (and intent) to separate the powers of the Chancellor from the statutory due process template applicable to the termination of tenured teachers. (Attorney Roger Adler's Statement). The New York State Legislature never intended on giving any arbitrator the right to ignore the omission of a proper finding of probable cause to pursue a penalty for an educator. Yet, the Department, CSA, and NYSUT lawyer representatives always ignore this defect in the charging procedure, to the detriment of the accused employee.

Having been involved in these hearings for 18 years, I have seen everything from false statements, lies under oath to actual harm. In the cases where the accused has committed some allegedly "abusive" act, I will help them fight for a just and fair penalty, considering all circumstances. If the accused has done something extremely harmful without any justification, I choose to decline to take the case at all. These people should leave the profession of education with the NYC DOE.

The §3020-a arbitration described above has a foundation in fraud. An accused educator is found guilty before entering the door or starting the first Zoom meeting. From that point on, the educator must convince the arbitrator of their innocence. Huh? This is backward. The accused educator is supposed to be innocent until proven guilty.

In sum, do not let the NYC DOE step on your parade. Despite all the shoddy acts cited in this post, the solution is not to resign, retire, not tell your side of the story, or not show up at the hearing. All employees accused of whatever bad acts someone charged them with should stay focused on winning the §3020-a arbitration, clearing their name in the record, and going forward with their life and career as they, no one else, planned.