On February 24, 2015, the New York City Department of Education held a mandatory meeting at TWEED at 4:00pm for all NYSUT, all DOE Attorneys, and all arbitrators working on the NYC rotating permanent panel for 3020-a hearings (both misconduct cases
I was told about this meeting by an Arbitrator several days before the February 24 date, and at my suggestion a private lawyer with whom I work on 3020-a hearings sent an email to the creator of this meeting, former General Counsel Courtenaye Jackson-Chase, asking for an invitation. Courtenaye answered with "sorry, you are not invited to this meeting, but we will be scheduling a future meeting for all private lawyers."
, and was shocked to get a reply that I would have to pay someone $29.95/hour to download emails. I posted all this on my blog, and then the NYC Records Access office relented and sent me the video, the transcript from the video, and the emails on who was present/invited, all posted below.
In this material there are statements which many readers may find surprising, if not very distressing:
1. ignoring Education Law 3020-a(2)(a) with the requirement of the determination of probable cause by a vote in an Executive Session of the school board take place before the charges are served on the charged party. In NYC this never occurs, in fact, these steps are simply overlooked. The Office of Legal Services creates the charges, serves them, assigns an Arbitrator after the charged party asks for a hearing, and goes immediately into a pre-hearing. The principal signs off on the probable cause, and then the Respondent cannot argue that this is improper. The tell-tale sign of this "speed and efficiency" garbage is the empty box on the right, above the "Please be advised that at a meeting in executive session on the above date..."
This box, the date of the Executive Session, is never filled in. NYSUT, the UFT, and the DOE don't want to take the time. Respondents should object, then use this in any Appeal. The rest of what Adam, Mike, Carmen, and Courtney are saying in the video and the transcript is also meaningless garbage. They do not mean that they want fairness, just speed. This same argument was used by
when she stopped anyone in NYC from having a three-member arbitration panel. This took too much time.
2. The arbitrators and DOE/NYSUT Attorneys are together for hearings through the school year, and make deals behind the charged party's back, as well as cut out any private attorney hired to replace the NYSUT attorney. This creates a closed club, and when a private attorney may have to adjourn dates due to other commitments, the arbitrators won't let this happen.
3. In NYC the arbitrator is assigned by the Director/Deputy Director of the Unit whose case it appears under (ATU or TPU). Outside of New York City the charged party may participate in choosing the arbitrator. Not in NYC. Speed counts.
4. Witnesses brought in by the NYC DOE are scheduled without problem, but when the charged party starts his/her case, there is a rush to finish, and all witnesses must be given "offers of proof" - i.e. the DOE and the Arbitrator don't want to "slow things down" by having witnesses for the charged party.
5. Closing arguments are done when testimony is finished, preferably the same day. The charged party does not have the transcripts because the Respondent's case always goes second. The charged party feels rushed, unable to bring in all the documents and evidence he/she believes prove the case against the DOE.
At all times, the Arbitrator, DOE, and NYSUT (if NYSUT is not replaced by a private law team, as happens frequently) work together to make sure that nothing "irrelevant" is brought in to be discussed or examined. What is "irrelevant"? Yep, that's right, whatever the DOE wants it to be.
, all believe that speed is the most important mandate for all participants in the 3020-a process (except of course the charged employee/Respondent).
I LIKE most of the NYSUT attorneys as people, I don't really know any of them "well". David Pakter took a picture with me and his NYSUT Attorney Chris Callagy in 2009:
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| Betsy and Chris Callagy, about 2009 |
[2021 UPDATE: Attorney Chris Callagy has retired and is no longer representing teachers at 3020-a hearings] I still see Chris at 100 Gold, minus the beard. He is funny, does a good job....but is still under the guidelines of NYSUT and the DOE, whereas private lawyers and non-lawyer advocates are not. He is, nonetheless, a favorite of many members who have had him assigned to their cases
In my opinion, an informed, well-experienced advisor/Representative who has won many 3020-a is the best bet for a strong defense in 3020-a, but that is my biased opinion, being in that group (We have many non-termination awards, and more than 9 full exonerations - no penalty).
I have seen and heard NYSUT attorneys in a shouting match with the charged person to get him/her to resign, settle, go away. This ain't right. The only chance that a Respondent has to say what happened and tell his/her side is if he/she goes through the 3020-a and testifies. Sometimes the NYSUT Attorney convinces the Respondent not to testify. This is automatic termination. Arbitrators must terminate, as there is nothing heard as far as evidence from the charged party, therefore everything that the Principal/AP/DOE witness testified to must be held as fact.
Remember I'm not an attorney. But to not testify on your own behalf is absurd. I was invited into the chambers of a NY State Supreme Court Judge on this issue, with a Respondent (and the DOE Attorney, NYC Law Department) who appealed his termination after he was fired by the Arbitrator at his 3020-a. The Judge said that this was a real problem, and that HE SHOULD HAVE TESTIFIED.
We do win cases - my point is, put everything on the table and in the record!
See the case of David Suker, I helped him with the appeal of his termination:
The New York City Rubber Room Anti-Teacher Charging Process Shows How Corrupt the Carmen Farina-Bill De Blasio Department of Education Really Is. by Betsy Combier
My point is that there are many twists and turns in the proceedings known as 3020-a, especially in New York City with the
permanent panel of arbitrators, a very bad idea. More about that in another post.
Here is the full transcript of the video above, sent to me as part of the FOIL request:
Welcome.[CARMEN FARINA]
>> You're like a cast of thousands. I didn't even know I had this Army. So this is really good.
I would say thank you for coming.
I know many of you who have traveled distances to be here today, and I appreciate your coming.
I think you're, first of all, seeing something very unique. You're seeing two of us sitting next to each other.
We're actually smiling at each other.
All because we really have one mission, and one mission is to make sure that there is the best teacher in every single classroom in every school in our city.
Many of you are parents and grandparents.
What I want to tell you is that I take very seriously about any classroom that I would not put my grandchild in, I would not put anybody else's children in.
By the same token, there are many teachers who can have an angry parent or an angry this or an angry that bring up charges that may not be correct, but we cannot have people in limbo.
We cannot have people who should be working, not working, and people who shouldn't be working, working.
And I am asking you to really rethink the whole process of the work that you do.
First of all, we want to make sure you're looking at evidence that matters.
Having been a principal who would spend 40 percent of a given year writing people up.
I understand how much time it took me.
If I forgot to cross a T, I literally hired a retired principal to just read my paperwork because it was so cumbersome, and as onerous as some of the charges were, if my T wasn't crossed and my dot, we should not be looking at our work in that kind of detail.
We should be looking at what is the problem and how serious is it and what do we do as the next steps?
Do I want to make sure that you're looking at evidence that's relevant to the case?
, that that's your focus, your lens.
When I visit a school, I know there are at least three things I want to look for in every single school, and I am focused on that.
Principals try to divert me and say look at this, look at that, I want to go back to the three things that I want to look at.
So what are the things you need to do to decide your case and focus on those.
Also, I don't know why we need five witnesses when three will do.
The reality is, if something is substantiated and one person says it, another person says it, and then a third person says it, I don't understand why we need to have a cast of thousands.
And I'm really asking you -- and I don't think it's due process.
It's just a matter of how much longer can this drag out. I'm looking at how much sooner can we get this done?
If there's a 30-day rule for most things, and I think to the degree that we can do it, I suggest we do it.
The other thing is that I think it's really important also to ensure that, if there's anything that's standing in the way, at least from my perspective as a chancellor, and you need me to fix it, I'm more than happy to fix it.
So for example, you need a witness, you need them to be there at 4:00, you need someone to come from the school, to a degree that I can say to a principal make sure this person is released when this person has to be there, I'll do that because my thing is to get this thing done as quickly as possible so that everyone's rights are protected, and most importantly, the child who sits in a classroom.
And if it means I have to send someone to convince the parent for a child to be a witness in the case, I'm happy to do that as well, but I also feel that sometimes we wait so long to hear a case, that my memory certainly isn't what it used to be, we can't expect a kid to be able to do that.
So the quicker we do things, the more concentrated we are on getting the case settled, the better we'll have a public school system.
And both Michael and I are convinced the only way to have a public school system is we hold everyone to the highest level.
I do not want to see some teachers who are getting by on slightly ineffective.
I only want highly effective teachers in every one of our schools. To that, I am committed, and I am committed, along with Michael, to make sure the 30-20 process is fair, equitable, and reasonable.
I do not understand why some cases are dragging along as far as they are.
Again, I'll be very personal.
I remember having a teacher for six months on suspension, going back to the hearing, having the teacher allowed to pick, in those days, what kind of hearing she wanted, and then coming back to the classroom and actually doing very serious to a child because of the process.
We cannot have that. You're on, Michael.
[MICHAEL MULGREW]
>> Thank you very much, Carmen, and thank you all for coming. It's lovely weather that we're having here.
I just found out that we now have the coldest February in the history of New York City.
So thank you all for coming out.
I met with some of you years ago, and I want to first thank you for the amazing service that you supply us.
These are not easy issues, and we have taken a system that used to be
-- take a lot longer, and we have really shortened it.
And what you're hearing from myself and the chancellor today is we're looking to even try to make it faster.
Fairness is the key to all of this.
The legal processes, I understand at times, can become somewhat of an impediment in terms of efficiency and speed, but what you're hearing us say here today is this is what we would like.
And if there is something going on that we should know about, if there is someone on either side, an attorney from either staff doing something that drags out a case, not doing things properly, not using the full hearing day, we need to know about that because we will be looking, because we do believe it is important that, if there is any sort of allegation, we want it to take as little time as possible because I do know from being a teacher, from a chapter leader, people that would be completely exonerated but were never correct because they were out of the classroom for so long and the astigmatism that was tied to that.
So we know it's in everyone's interest to have the most efficient, effective, speediest process as long as we can also ensure fairness, which is a difficult job that we're asking to you do.
But I know that we have shortened the timelines greatly from where we were at five and six years ago, and I can't thank you enough for that, but we're looking now to say, as Carmen said, if there's two witnesses saying the same thing, we don't want ten.
And the things that you know better than I do about what else in the process, but more importantly, if you feel there's something not going right, please let us know because we want to know if people aren't doing what we have directed them to do, which is to make it efficient, effective, fair, and speedy.
Because that is the way that we feel will better serve the students of this city.
So I can't thank you all enough for what you already have done.
I speak very proudly around this state about what we have done here in New York City, and you all know the scrutiny that it is under, and I love that I can produce actual facts to refute a lot of the rhetoric that's out there, and that has a lot to do with your work.
So I can't thank you enough for that, but at the same time, we believe that we can do it even better.
So at this point, questions?
[COURTENAYE JACKSON-CHASE, ADAM ROSS, AUDIENCE]
>> Sure.
>> I get a lot of questions when I speak to principals and teachers and whatever.
Not one question? Okay.
Yes?
>> Remember the last time we were here?
>> Why are we here?
>> Because we want to make sure that everybody understands that we want this process to be done quickly.
You are in charge of the process when it gets to your level.
And if there are people -- if there is something that could be done to make it faster, we'd like to hear it, and if there is a party on either side that you believe is wasting time, we need to know about it.
>> And I would say also very clearly that for too long, that the head of the education department and the unions were almost expected to be fighting each other and that this group would say, well, we can't do this because, and we can't do this because.
We wanted to be clear here today that we're giving the same message to everyone from both of us, and I think that's really important, and it's certainly something that people outside the organization say, well, you can't do it because of the union, or you can't do it because of the chancellor.
We're united on this one.
There is absolutely no disagreement between the two of us on only the best people need to be in these positions.
So we wanted to say it, and we wanted to say it out loud, and we'll probably be repeating it a lot.
>> And an agreement that was signed --
>> 2010.
>> That would be five, 2010.
It said that the chancellor and the union president can bring the panels in to discuss this with them, and we just wanted to make it clear exactly what our expectations are at this point.
>> How do the pro ses get in the transcripts?
>> We have an agreement, as part of the 2010 agreement, that the transcripts are not necessary before you issue a decision or before you do a closing.
So the pro ses should be getting the transcripts, but it should not be impeding the speed of the process.
>> That's not my question. How do we get them?
It's on teach.
Do the pro ses have access to Teach?
>> The pro se, I don't know the answer to that. I can find out the answer to that.
>> Come on up if you have the answer. [ No microphone ].
>> I would say for the more technical questions for the lawyers that do the work, you can feel free to stand up like Laura just did.
>> She spoke.
They have access to the Teach.
>> Well, I would assume, since there are no questions, that everyone gets the message.
Again, I just want to be clear that, if there's anything that is actually keeping you from doing the job, all you need to do is let us know because I am determined on this issue -- many others, but this one in particular -- that we will get to June with as many cases closed as possible so principals can be assured that teachers they do not want back in the building, or teachers that can be cleared so they can be back in the building, we can be on their rosters at the end of June.
>> So there's no need to have transcripts before a closing argument, is that correct?
That the arbitrators should all know that.
>> Yes, that's correct.
>> Okay.
Well, thank you.
>> Thank you for coming.
>> We can go through a couple of more technical things.
So what I was going to just say is that to Michael and Carmen's point about making the process be as efficient as possible and still fair, there are a group of things that the DOE and NYSUT and Courtney and I have agreed to over the years to help make the process run as efficiently as possible without compromising the hearing.
One of them relates to the holding of pre-hearing conferences, which should not be done on hearing days.
We should be using hearing days for hearings.
We shouldn't be using them for settlement discussions either. Parties are free to discuss settlement whenever they want.
Courtney and I actively encourage people to settle, but hearing days should be used for hearings.
The pre-hearing conferences should be used to the maximum extent possible to pre-mark exhibits, stipulate the facts, stipulate to admissibility of documents, where those things are not in dispute. And discovery should be provided prior to the pre-hearing conference to the extent that that's required by our agreements.
We have agreements about what things are supposed to be provided on what timeline, and we have asked that the -- all of the attorneys abide by those provisions.
>> I think the other thing that we want to talk about, I know that there are more cases that are handled by private counsel, and we're
going to be doing another orientation.
But I know that it's hard when you have lawyers who may not be used to kind of the groove of things, and they're balancing cases in courtrooms and also trying to manage within this system.
Please let us know how we can be helpful to help better integrate them into the system so they get caught up to speed because I know at times it can be a nightmare for everyone to juggle the scheduling that has to happen, and we want to help get you to the place where the rules for timelines can apply to everybody.
So we do know.
We are aware that that's been a problem.
We're working on it on our end, but I welcome -- even though that can be seen as a more technical issue, you obviously talked to the managers that you usually interface with and the lawyers, but you can also reach out to us so that we can help manage them a lot.
>> Absolutely.
But what I would say is, regardless of who the attorney is, whether it's pro se, whether it's an NYCIT attorney representing the respondent, another attorney representing the respondent -- all of the cases should be held to the same timelines, the same 60 days for doing the hearing, the same efficiency requirements, the same everything else.
To that end, one of the other things we have agreed is to the use of full hearing days to the maximum extent possible.
That may require either or both parties to have multiple witnesses ready to go in the day, and that is something that we expect both sides of the case to be ready to do.
That's something that's written in our agreement and that we believe is an important part of making sure that the full hearing day is used.
>> I will add, particularly for the DOE, since we have the burden and we also have the school-based witnesses, as Carmen said, we are committed to making sure that we can work to make things easier to get the witnesses here.
Again, everyone here knows that it's a hard juggle to manage what we do down here and what goes on in schools, but I welcome your feedback on that point, and we're committed to making that even more seamless. I know we've made some improvements over the last few years, but we're going to keep working on it.
>> One of the things that we hear a lot about, Courtney and I do, is about the length of particular testimony and who is allowed to testify to what.
My way of summing this up has been that grandma is not a relevant witness.
We are asking the hearing officers to actively control the hearings, to make firm -- rather than -- we know there's a tradition in labor arbitration to sort of take everything for whatever it's worth and sort it out later.
That is not what I think is the best way to be doing business.
We think the hearing officer should be ruling on relevancy, ruling on redundancy, ruling on cumulative, ruling on whatever it is, hearsay, whatever it is, to make sure that we're not spending an inordinate amount of time on the testimony of witnesses who don't have anything relevant to testify to or anything additionally relevant to testify to.
One of the other things we've looked at in terms of the process is the use of rebuttal witnesses.
We have pretty clearly written out that rebuttal is supposed to be used only for purposes of refuting a fact that an opposing party attempted to establish on its case and not just for further bolstering the case that one side or the other put on on its direct case, and we would ask all of you to please think about whether or not, in the cases that come up for you, whether or not rebuttal is being used for what is truly a rebuttal purpose and not simply to bolster the direct case.
We talked about the private counsel cases.
The only other thing I would add about that is that even when attorneys change in the middle of a hearing, we totally understand that hearing officers, and obviously the UFT and the DOE, all want to make sure that everyone has their constitutional due process and right to counsel and all of the other stuff.
But it also is not true that those changes in counsel should do anything more than the most minimal derailing of the speed of the case.
The only other thing that I have on my list of things that I wanted to highlight for everyone was decisions and that we've asked the hearing officers to -- not only have we asked, but it's in the law that the decisions be issued within 30 days.
That means, look, I have read a lot of 3020 decisions, and many of them are comprehensive, and I know how much hard work and deliberation goes into all of those decisions, and certainly we want decisions that's are thoughtful and review all of the evidence and stand up to review on appeal.
But we also need that to be balanced with the notion that we need the decisions to be issued as timely as possible because we want the people who should be back at work to be back at work, and we want the people who should be disciplined or terminated to be disciplined or terminated.
And it's to no one's benefit for someone to be waiting, reassigned, doing administrative work for a period of time while we wait for a decision.
Some of that is necessary. I totally understand that.
But we'd like to minimize that as much as possible. Anything I left out on our list?
Is.
>> No.
Yes, sir?
>> If you don't want us to have a pre-hearing conference on a hearing day, what do you suggest we do with the rest of the day?
>> I think the pre-hearing conferences should not be held on hearing days.
They could be held either on other days of the month. They could be held before a regular hearing starts.
They could be held after a regular hearing starts. After it concludes.
They can be held on a lunch break.
They can be held on another day, like I said.
But they shouldn't be held in lieu of using a hearing day for a hearing.
>> In lieu of is your problem?
>> Yes. Okay.
>> There a hand in the back?
>> Yes.
I heard earlier about the position before they close.
What is your position about a pro se or a private counsel insisting I need to look at the transcript before I close or I need to look at the transcript before seeing a referee?
I guess the question is twofold.
Do I need the transcript before closing?
And what is your position on reading briefs?
>> We trust you to use your discretion. I'm sorry, I can't see you now.
We trust you to use your discretion to manage the process. I was a prosecutor for many years.
We would have trials where someone's liberty was actually at risk. We were never permitted to actually get transcripts.
For those of you who are trial lawyers on the criminal side, you know what I'm talking about.
The judge would just say, you were just here. You heard all the evidence.
Let's go.
I understand that these hearings don't happen on consecutive dates, but they do happen closely enough in time where we're saying if you really -- some cases might be complex.
We understand that.
But for ones that are not, you can hold firm.
You'll have us to support you to say, I don't believe that that's necessary or warranted here in this case and your request is denied.
>> Right, exactly.
In a lot of these cases, you'll have -- I forgot what -- I'm blanking on the word.
You won't have final transcripts, but you'll have the -- what's the word I'm looking for?
Is the tentative transcripts.
>> What's a tentative transcript?
>> There are -- well, I will talk to -- Courtney and I can talk to the transcription services about whether or not there's a way to get the transcripts to you even if they're not certified and final, as fast as possible.
Let's put it that way.
>> What about briefs?
Do you have a position on reading briefs? Do you allow it?
Do you not?
>> Again, I would never think -- I would never want to manage the process.
That's why we have you.
I respect your discretion on what you think is necessary in order to have a full and fair hearing on a case.
>> Absolutely.
I think, if you were to say, given the case, no, I as a hearing officer don't need a brief, that that is not something that inherently either one of us think there's a problem with.
There may be occasions where you think it's appropriate to have a brief, but if you don't think it's appropriate to have written briefing, there's nothing that we would say says to you you have to.
>> We'll support you on that. [ No microphone ].
>> But the point is you want these cases to hold up in court, and you have lawyers insisting, again, a pro se, saying I want to file a brief.
>> Then you can say no.
>> You're telling me to just say no.
>> I understand, but you know on appeal, as long as the facts are there, it's clear that a person acting pro se really did follow and really did understand.
I'm not saying, if I were in your shoes, I wouldn't have some
trepidation too.
The first few cases where you say no, yeah, you're going to wait and see if they take an appeal and what happens.
But we're saying do what's right and what's best and what's prudent for each case.
If you do not need all the extra, do not do it. If it's not appropriate, don't do it.
Again, you'll have our support.
>> Nina, did you have a question?
>> No.
Just with the transcript, I just wanted to clear that up.
As far as the practice, it's determined case by case if it's relevant. If you have a minor witness or a minor witness who doesn't have important testimony, the parties could agree that the transcript is not necessary, it's limited testimony.
However, if there are some days of hearing where you'll have a transcript, I think certainly the need for a transcript, they should have that and should not waste time to wait for the hearings to move forward by not having a transcript for all of our cases.
I think it works out just that way.
>> Yes, sir?
[ No microphone ].
>> It is essentially unfair that the transcripts from the DOE are open, but the testimony of our witnesses aren't available by transcript.
Is there a way to make sure that maybe that's a fair process?
>> What you're saying is they're being prepared chronologically. So because the DOE goes first, that comes first.
Sure, we'll certainly look into that.
>> Yeah, I think that's right, Chris.
I mean, I'm just -- I just think what Lena said is a fairly good point.
No one size fits all solution in any of these cases.
But the hearing officers and the attorneys together should be making good-faith judgments about what is necessary to do to get the case done efficiently and fairly and what is not necessary to get the cases done efficiently and fairly and what is just extra, I guess, is the best way of putting it.
The fact that it's a pro se counselor, pro se respondent, or a nonNYCIT council, doesn't necessarily in my mind alter the analysis so much as what is the nature of the case and what is the nature of the arguments that are being made?
>> There's a question that came in via -- over here.
>> We won't forget you.
>> There's a question that came in from someone who's doing the live streaming, an arbitrator asked the question, when private counsel's involvement in a case leads to scheduling difficulties, it would sometimes be helpful to be able to take the next case out of order. We have been told that that is not permitted.
Can there be some flexibility here?
>> We'll look into that.
>> Yeah, but I would also say that, in general, our agreements are pretty specific that the scheduling of the attorneys is not ordinarily a reason, whether it be a private counsel case or otherwise, for a case not to proceed on the scheduled day.
[ No microphone ].
>> I'm looking for the language of the agreement on what we have.
The actual language of the agreement on transcripts from 2010 is "a party to the hearing or a hearing officer may request an unedited copy of the relevant transcript.
If a certified transcript is not available when needed.
The unavailability of a certified transcript shall not excuse adherence to the timelines for completion of a hearing and issuance of a decision.
That's the language of what we've agreed to.
>> If I ask for it, do I pay for it?
>> I don't know the answer to that.
>> Do you guys know?
>> What's the new agreement that you just signed? Is there any change?
>> I don't think we have signed a new agreement.
>> Does anybody know? Hold your point.
Does anybody know if there's a cost associated with what we're calling a tentative transcript?
>> There's a cost for it.
>> Yes, that's okay.
>> Unedited was the word I was looking for.
>> There's a cost for expedited transcripts.
I'm not really clear if what Adam just referred to would qualify as an expedited.
And there is a new agreement that's in the process of being signed with the new transcription service, but we'll get some clarity on that and let all the arbitrators know if there will be a cost involved with getting the tentative, unedited transcript.
>> Thank you.
>> My understanding is we do not, under the new agreement, get copies of transcripts.
Okay rat?
>> I don't know, but lots of people who I trust are nodding their heads in the audience.
So I'll say yes.
>> I believe that the transcripts are going to be uploaded to Teach.
>> Yes, that's what I said.
>> Yes, where you can get them.
>> Yeah, I know. Thank you.
>> Anybody else?
Well, now I guess you get to eat.
>> Now you can really eat.
>> And I think we lose the room at 5:00.
So you have about 15 minutes to mingle and take your time.
>> Can I just say one other thing, Courtney?
On behalf of the UFT, NYSUT, the DOE, we're all very appreciative of attorneys on both sides and hearing officers.
As practitioners, we want to say it too. We know that you all have not an easy job.
The attorneys have the job of being zealous advocates, the hearing officers have the job of being neutral referees.
It is not easy, but you can all -- you all do on a daily basis a vital service and can really deserve a lot of appreciation for the work you do.
>> Thank you very much."
Here are the attendees:
Betsy Combier
betsy.combier@gmail.com
