The Unlawful Randomness of Labor Arbitration 3020-a in New York City

re-posted from Parentadvocates.org:

TheUnlawful Randomness of Labor Arbitration 3020-a in New York City 

From Editor Betsy Combier: For 14 years I have observed and worked on the labor arbitration known in New York City as 3020-a. 3020-a arbitrators, one in each case, sit in judgment of a tenured employee of the NYC DOE and can exonerate, fine, suspend from employment without pay or terminate any charged person brought before them.The United Federation of Teachers and the New York City Department of Education run these hearings in such a way as to deny the charged employee their rights under New York State law.

On this website I have reviewed countless cases of arbitrator abuse and worked as a paralegal to overturn some of the worst (see the cases of Lisa Broad, where I assisted Attorney Candace Deamer, and David Suker, where I assisted Attorney Maria Chickedantz; see here as well). These are two of the 35 Appeals I have assisted with where New York State Supreme Court Judges overturned the decision of the arbitrator based on this decision being "excessive" for the crime or misconduct sustained at the hearing.

The trouble with all of this is that the process is random.

Every hearing is unique. I know, because I have attended/worked on at least 60 if not more, and I have reviewed hundreds of decisions of arbitrators and, before 1994, the Commissioner of New York State Department of Education. I find the randomness fascinating. How did one arbitrator find that a teacher was guilty of slamming a child against a wall to remove them from a fight in the classroom and give a $7500 fine, while another gets terminated for the same act, or less?

The fines, suspensions and terminations are not uniform or set to any standard. This is unlawful, because tenure in New York State is protected, public policy. There is a high standard for termination, and the arbitrators write their decisions often to get away with doublespeak on how egregious the charges were, to try to reach a justification for termination that they were told by a DOE person before the hearing began that they had to find. The case of Peter Principe went to the Court of Appeals on the issue of bias by Arbitrator Stuart Bauchner against him, and, as Peter insisted he was innocent of the misconduct, he would not be remorseful. Peter won .

Oh yes, folks, the permanent panel in New York City lends itself to all kinds of legal abuse. In other parts of New York State outside of New York City, when an tenured school employee is charged, these charges immediately go to a vote in an Executive Session of the school board on probable cause. As tenure is a property and liberty right in New York State, the Fourth and Fourteenth Amendment covers any unlawful seizure (I am not a lawyer, this is my opinion). have you been re-assigned, and told you must leave the school building immediately, leaving all your personal possessions in your classroom or elsewhere? You must get your belongings back or this is theft, and you should file a complaint with the police, not with the principal.

"C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property."

The Fourteenth Amendment:

"Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Try your best to find out if your stuff has been moved, where its been moved, and what is there. Request a visit to gather up your stuff, and if denied, file a grievance and then go to the police with a list of your property you dont have.

Any arbitrator who agrees to take a case handed to them, randomly - not - by the NYC DOE and the UFT, knows that they must meet a Constitutional Standard in their decision for/against penalty in each case.

Many arbitrators don't care, and do what is fair. My favorite arbitrator of recent years is Eugene Ginsberg. I believe that he was the most thorough, fair arbitrator on the panel. He was fired in September 2016.

He told me that if that was because of his decisions, so be it. See his decision in the case of Ann Legra.

Where some arbitrators will terminate anyone with so-called "excessive" absences, Arbitrator Ginsberg did not.

As I wrote above, some arbitrators have a problem being fair, and go along to get along with the Department of Education in order to stay on the permanent panel. When you are in a hearing, you can spot these arbitrators a mile away. I will write about them in a later post.

New York State Supreme Court Judge Lucy Billings has a problem with the randomness of the New York City 3020-a arbitrators in their penalties, as she wrote in the case of Moreno-Lieberman, which I use in all my closing arguments:

"IV.THE INVITATION TO ARBITRARY ASSESSMENT OF PENALTIES

In fact, the absence of any specific guidelines for the imposition of fines in teachers' disciplinary proceedings shocks the conscience and is a deficiency to be addressed by respondents or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decisionmakers must do so fairly, not arbitrarily. General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 (2004); Abraham & Strauss v. Tully, 47 NY2d 207, 213-14 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d 796, 804 (Sup. Ct. Bronx Co. 2008). Neither the Education Law, nor the Chancellor's Regulations, nor any other code fixes any "primary standard" or articulates any objective test or gauge, General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d at 254; Nicholas v. Kahn, 47 NY2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805, to guide respondents' or Hearing Officers' exercise of authority and discretion in their assessment of monetary penalties. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d 402, 407-408 (1997); Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805. See Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 405-406. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, e.g., Goodwin v. Perales, 88 NY2d 383, 392 (1996), yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty. Nicholas v. Kahn, 47 NY2d at 33-34; Levine v. Whalen, 39 NY2d 510, 518-19 (1976); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805-806.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decisionmaking. 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806. By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 408; Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806; Dawson v. Village of Spring Val., 151 Misc 2d 128, 134 (Sup. Ct. Rockland Co. 1991). See C.P.L.R. § 7803(3)."

So what is a teacher supposed to do who is charged with 3020-a? Fight. Don't  settle, resign or disappear. The charges will follow you for the rest of your career. But be wary of anyone who belittles you, your charges, or does not have experience in NYC 3020-a. NYC is a minefield with bizarre statements made on a consistent basis, which must be addressed on the spot, at the hearing. The DOE wants their witnesses to lie, if that is what it takes to terminate a charged employee. Catch the lie, and have your representative squeeze out the truth in cross examination. The record made is what you work with on appeal.

In my opinion there are NYSUT attorneys who know what to do, but don't do work on any case if at all possible; some NYSUT attorneys do a minimum amount of work but are reluctant and must be pushed, and then there are NYSUT attorneys who seem to work diligently, but nonetheless will not get all your requests (medical, witnesses, exculpatory evidence) into the record, which in my mind is absolutely required, if you are to win at the 3020-a or in appeal.

The process in NYC starts out on the wrong foot when, in the charging papers, the Notice of Determination of Probable Cause Pursuant to Education Law 3020-a, has no date for the Executive Session of the school board (in NYC the Panel For Educational Policy) required by Education Law 3020-a(2)(a). The reason is that the NYC Department of Education never allows or schedules an executive session for the NYC school board, because they don't want it.

Really,  and they get away with this in NYC because.

Just because you don't want to do something does not mean that you can allow a law to be ignored, but that is exactly what the NYC DOE does, and has done. In every case that I work on, we - the Attorney and I - submit a Motion To Dismiss the charges based on this procedural error. The arbitrator always dismisses this motion. But we use this in an appeal to the Supreme Court, and as I wrote above, we have overturned 35 decisions of arbitrators to date.

We have no secret on winning 3020-a. In every case the standard is to be respectful to the arbitrator but not to accept any Department nonsense without vigorously objecting, pointing out lies, submitting documentation about violations of law and UFT rules (there are always many in every case) and submit a dynamite closing argument that shows the arbitrator that the legal team - the Respondent, Attorney, paralegal - mean business, and will take any penalty seriously (and appeal, get media coverage of the arbitrator, etc.).

In sum, what I'm saying is that NYC 3020-a is a random and arbitrary mess, but it is entirely possible to clear the name of a charged employee , or avoid termination, by going to a decision of the arbitrator. The Respondent (charged employee)'s legal team MUST work together, sharing the transcripts as the hearing moves forward, and constantly working through the lies and violations of law and contract presented by the DOE. Then you can win.

Consultations are always free, and confidential.

Betsy Combier
betsy.combier@gmail.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

Just Cause

From INSIDE 3020-a Teachers' Trials:

Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?

If you are working in disciplinary hearings or 3020-a arbitration, or you want to appeal an arbitrator's decision, you should use JUST CAUSE in your argument.

Betsy Combier

  

                                                   

 JUST CAUSE FOR DISCIPLINE

Did You Know as a union member your employer can not discipline you or fire you without “Just Cause”?

The U.S. labor movement has secured a number of important rights for unionized workers. Among such rights, just cause provides important protections against arbitrary or unfair termination and other forms of inappropriate workplace discipline. Just cause has become a common standard in labor arbitration, and is included in labor union contracts as a form of job security. Typically, an employer must prove just cause before an arbitrator to sustain an employee's termination, suspension, or other discipline. Usually, the employer has the burden of proof in discharge cases or if the employee is in the wrong.

Employees are expected to meet performance standards and behave appropriately in the workplace. Disciplinary or corrective action taken by the employer is supposed to be a process of communicating with the employee to improve unacceptable behavior or performance. There is a set of guidelines, called the “Seven Tests of Just Cause” that employers are expected to follow when imposing discipline; that Unions need to assure have been applied to their members; and that arbitrators use as a basis to form their decisions.

A LITTLE HISTORY:

For decades, professional arbitrators struggled to reach consistent decisions in discipline cases, because they recognized that inconsistent results produced chaos in both the arbitration process and the work place. Finally, noted arbitrator Carroll R. Daugherty decided to take the bull by the horns by combining the many concepts employed by arbitrators in discipline cases into a single theory which he called “a sort of ‘common law definition” of just cause. It set out specific guidelines to be applied to the facts of any one case which we now refer to as the seven tests of just cause.

The award by Arbitrator Daugherty which is generally recognized as the first decision to formally set out all of the seven tests of just cause was in the matter of Enterprise Wire Co. and Enterprise Independent Union and was issued March 28,1966 (46 LA 359).

You can read Daugherty’s full Arbitration Decision
 This was a discharge case involving absenteeism and unsatisfactory work. Unfortunately, in this case, Arbitrator Daugherty ruled in favor of the employer; the union lost the case and the employee was fired. This historic case set the rules for Just Cause and is still being used today by employers, labor unions, and arbitrators.

DID THE EMPLOYER HAVE JUST CAUSE?

Using the Seven Tests

Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.

Issues

* Our main contractual weapon in discipline and discharge cases is usually the requirement that the boss must have "just cause" (or "fair cause" or "proper cause") to take action against an employee. Even if these words are missing from the contract, many arbitrators use this standard, anyway.

* But, what is "just cause"? Simply put: it means the employer must have a reason (he or she must have "cause") for imposing discipline and the reason must be fair ("just").

* It is commonly accepted that there are seven tests as to whether the boss has used "just cause" in handing out discipline.

One of the main reasons workers join unions is to gain protection against unfair and unjust discipline that employers hand out. Stewards must be ready to handle all sorts of discipline cases, from warnings to suspensions to firings. Stewards must be ready to deal with situations of gross discrimination by the boss on who gets disciplined, to dealing with union members who sometimes seem to go out of their way to get themselves fired.

Our main contractual weapon is often times summed up in one short sentence, "Employees shall be disciplined or discharged only for just cause". In some contracts the words used are "proper cause" or "fair cause". The importance of a sentence like this is that it binds the employer to imposing discipline not just for any reason (cause) but the reason has to be a "just" reason. Many arbitrators have gone so far as to hold all employers to a "just cause" standard, whether the contract uses the words or not.

What is a "just cause" standard? It is commonly accepted that there are seven tests as to whether a boss has used "just cause" in handing out discipline. The Bureau of National Affairs lists them as follows:

1. NOTICE – Was the employee adequately warned of the consequences of his conduct?

Prior to imposition of discipline, employees must have notice of rules and expectations. The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing employer property, that is so serious that the employee is expected to know it will be punishable.

Example: If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that may be adequate warning. However if a boss comes up to an employee and says "I'm tired of your swearing, cut it out", and then the next day fires the employee for swearing again, that may not be adequate warning.

2. REASONABLE RULES OR ORDERS – Was the employer's rule or order reasonably related to efficient and safe operations?

Was the employer’s rule reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer should properly expect of the employee?

Example: A boss makes a rule that all employees must wear red tee shirts and they must be tucked in so they don't get caught in machinery. An employee is fired for wearing a blue tee shirt that was tucked in. Making a rule that tee shirts must be tucked in so they won't get caught in machinery may be reasonable and related to safety, but demanding the tee shirt be red isn't related to safety or efficiency.

3. INVESTIGATION – Did management investigate before administering the discipline?

Did the employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule of management? The investigation normally should be made before the decision to discipline is made. Where immediate action is required, however, the best course is to suspend the employee pending investigation with the understanding that he will be restored to his job and paid for time lost if he is found not guilty.

Example: The boss fires a worker for stealing and then demands evidence from the union that the worker isn't guilty. At the grievance meeting the boss admits he never investigated the incident, just took another employee's word. This probably wouldn't hold up. If the union has facts to prove the employee's innocence they should be presented to the boss, even though he failed to properly investigate the case.

4. FAIR INVESTIGATION - Was the investigation fair and objective?

Example: If an incident happened does the employer interview everyone present or only management people who were present. If the employer refuses to interview nonmanagement workers then the investigation may not be fair.

5. PROOF - Did the investigation produce substantial evidence or proof of guilt?

It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.

Example: Here it is obvious that workers have fewer rights inside the workplace than they would have in civil court, but still the boss must have real evidence, not guesses. Again the boss cannot just try to make a worker prove his or her innocence, without presenting proof of guilt.

6. EQUAL TREATMENT - Were the rules, orders, and penalties applied evenhandedly and without discrimination?

If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.

Example: This is the most common form of discrimination. An employer decides to suspend Mary for taking too long at lunch, but lets the employees who eat lunch with a supervisor take extra time every day. This would not hold up. However, if the employer tells everyone that starting on Monday employees will be disciplined for taking too long at lunch and on Tuesday Mary comes back late and everyone else has been on time, she may be disciplined.

7. PENALTY - Was the penalty reasonably related to the seriousness of the offense and the past record?

Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his or her service with the employer?

If employee A's past record is significantly better than that of employee B, the employer properly may give employee A lighter punishment than employee B for the same offense. The degree of discipline, is important because arbitrators want to ensure that the "punishment fits the crime." An employer's use of progressive discipline often gives the employer an advantage in arbitration.

Example: The classic example is two employees get in an argument and shove each other. One has 25 years service with a clean record. The other has 3 years service with lots of warnings and discipline. Based upon the workers seniority and records, the employer may give the older worker less punishment than the other worker.

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Tips for Handling Discipline & Discharge Cases

Here are some basic tips for stewards handling discipline and discharge cases:

* Use the "seven tests" as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn't mean we automatically win, but proving they screwed up helps a lot.
* Make sure that an employee's Weingarten rights aren't or weren't violated during the employer's investigation.

* Try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door, now we not only have to fight about what happened but over back pay, etc.
* Ask for all the employers’ notes and records they used to make a decision. Get any notes or records a foreman or supervisor might keep, even informal records. The union has a right to them. On the other hand the employer has no right to the notes or records that the union makes when investigating a case.
* Do a thorough investigation of the case. DON'T take the employers word on anything.
* In a grievance meeting make the employer prove their case first. Make them present all the facts and don't assume anything. Don't let the boss start the meeting by saying to the union, “OK tell me why I shouldn't fire Joe". Make the boss justify firing Joe.
* There are two parts to every discipline case. Did the employee violate a known rule and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.
* If the employer refuses to back down from a written warning and the case doesn't merit arbitration make sure the employer receives from the union a written statement disputing the facts and the discipline. Have this letter also put into the employees personnel file.

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In closing, we should all be aware of the JUST CAUSE principles; and we all need to know what PROGRESSIVE DISCIPLINE looks like.

Within any workers career they will face at least one episode that could be discipline. Has your supervisor discussed a matter with you that he or she has asked you to change? It may sound like a friendly suggestion; and it might be. But it also is Step one of Progressive Discipline.

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SOURCES:
http://en.wikipedia.org/wiki/Just_cause"Categories: Employment
http://research.uiowa.edu/pimgr/?get=7steps
http://www.umass.edu/usa/justcause.htm
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)
http://das.hre.iowa.gov/html_documents/ms_manual/11-10.htm
http://clear.uhwo.hawaii.edu/EnterpriseWire.html

3020-a Arbitrator Lana Flame, the TPU, and a Conspiracy of Harm

The NYC DOE/UFT Panel of Arbitrators chosen by the Department of Education and NYSUT to hear 3020-a hearings are a motley crew.

Over the past 10+ years I have observed arbitrators destroy lives, and exonerate, depending upon many different circumstances. No 3020-a case is similar to any other, and always the outcome cannot be predicted. But sometimes Arbitrators show that they are not fair or neutral, at the start and throughout the hearing.  One such person who demonstrated prejudice at a 3020-a which I attended was Lana Flame, Esq., who is, fortunately, off of the Panel at this time.

Ms. Flame started in September 2012, and the DOE Attorneys who prosecuted the cases with her were Attorneys Dilia Travieso, and then Gabriela Antioco.

Below is one of the horror stories which shows how Ms. Flame worked with the Teacher Performance Unit, Attorneys Dilia Travieso, Gabriela Antioco, and the rest of the TPU personnel (Dennis Da Costa and Naeemah Lamont) to deny due process to a teacher brought up on 3020-a charges . I have omitted this person's name to preserve her privacy.

After the closing arguments were presented by both the private attorney and Ms. Antioco on May 1, 2013, the waiting began. Suddenly, in June, the teacher received an invoice for overpayment of salary from the DOE. They said that she had been terminated and there was an error at the DOE. She was directed to pay it back.

She had not received Lana Flame's decision, and until she did receive it, she was on the payroll, she assumed. She started trying to fix this error. At the end of July, 2013, July 20, to be exact, she received the decision of Lana Flame in the mail from New York State Education Department Office of Teaching Initiatives.  She was terminated.

Meanwhile, she kept trying to fix the error of the "overpayment" of salary in June. Then she received The Letter below, by accident. The letter is dated May 28, 2013, and was sent from Dennis DaCosta, Deputy Director of the Teacher Performance Unit, to 37 people. The teacher's file # and social security number was sent to everyone. She was put on the Ineligible/Inquiry List - her name, SS # and file is now tagged with a "problem code" (that Amy Arundell at the UFT tells people who ask her, it doesn't exist.).

 

I find this letter to be shocking in its' violation of this teacher's due process. Either Flame worked with Dennis DaCosta when she was deciding the case, or, Dennis and Naeemah Lamont may have even helped her write her decision or created the entire decision themselves. This information I don't have. However, what this letter does show is, on May 28, 2013 Dennis Da Costa sent a letter to about 36 people at the DOE (he is #37) telling them that effective May 28, 2013, the teacher is terminated immediately. He directs the principal who charged her and who found probable cause for the charges (and testified in support of the charges at the 3020-a), Ms. Margaret Lacey-Berman, to remove her from the payroll.

But the process of 3020-a says that the Arbitrator makes the decision 30 days after the transcripts are received, and then sends the decision to New York State Education Department, who then send it out to the teacher. Obviously, at least in this case, the Arbitrator worked together with the TPU and made the decision of termination with the help of the TPU employees.

Who are all these people who now have the teacher's file number and social security number?

 Some are very low on the totem pole, like Harlyn Griffenberg:

She gives herself the title of paralegal, and/or DOE investigator. She writes notes, giggles, and talks about people while they testify in the 3020-a hearing room.

 

Harlan Griffenberg

Frighteningly inappropriate.

 

My two cents.

 

Betsy Combier

 



How Bad Is NYSUT as Providers of Due Process at 3020-a Arbitration?

My opinion is that the NYSUT/UFT "play along to get along" with Mike Bloomberg has caused the destruction of the lives of hundreds, if not thousands of effective, professional, caring teachers and staff of the New York City Board/Department of Education ....all members of the UFT....for at least the past 10 years. Their goal was to get tenured teachers out of public schools because Mike Bloomberg hated tenure protections and the thought that someone could not be fired in a second for no reason other than that the administrator wanted this person gone. This is good business, says Mike and Jack Welch (pictured below).

I guess everyone knows that you do not have to use NYSUT to defend at 3020-a. Right?
You can use a private Attorney and team, use a friend/advocate as your assistant, or you can do the 3020-a yourself  "Pro se"  

My email address is betsy.combier@gmail.com, you can contact me to ask questions about how 3020-a arbitration works.

Thus you should find out what you need to know by seeking information on your own. A person brought to 3020-a arbitration is given paperwork with Education Law 3020-a when they are charged. Few read it. Everyone should, but teachers seldom are lawyers too, so they rely on their NYSUT Attorney to tell them what it says.

That's a mistake.

Why is it a mistake? Because your Union, the UFT, and the NYSUT lawyers contracted to protect your due process rights at 3020-a, neglect to do that. For example, if you are charged with misconduct, you may get an email from Virginia Lopreto, a criminal attorney who works on contract to NYSUT. If you actually get to speak with Ms. Lopreto you are lucky. She will tell OSI, SCI, OEO that you refuse to speak with any of them, and then you will never hear from her. Here is a letter written by a member who had that experience (I have removed the name of the member, because victim's names are not important):

"Dear Ms. LoPreto:

My name is                   (                    to you because you never got my name right). My case was assigned to you because I am a UFT member who has been a victim of a false accusation. I received an email sent by your secretary, which was a copy of the email you sent to Ron Vance, from the SCI.  The second and last email that you sent to me was a copy of an email you sent to Mr. Vance, stating that I have the right not to answer his questions. After that, I called your office several times with questions that were never answered. In fact, I could never get in touch with you either by phone or in person. You didn't offer me any support, knowing that I didn’t even have knowledge of the accusations leveled against me. I felt very uncomfortable when told by Mr. Vance, at the time that he had been trying to get my declaration over the phone without legal representation or witness,  that if the UFT lawyer will tell me not to provide information to him, that he would end up closing my case. I wanted to share that with you and I needed some of my questions answered, but it never happen. On May 14, I received the report of the investigation and a letter from the superintendent on May 23rd. I faxed both those documents to you. I called your office seeking advice on what to do next and you never even returned my calls. I kept calling until a substitute to your secretary called me back and said that you were not going to continue with my case and that if I wanted to proceed I just needed to go back to the UFT, something you did not even have the decency to tell me directly. I asked him if he could send an email stating your decision and he replied that you were not going to send me anything.

In sum, I really didn't appreciate your treatment. It is not you not proceeding with the case that is particularly troublesome, but you not even bothering to show due respect and consideration to people without whom you wouldn’t even be here. You work for the union because we make it possible for you to get a salary, and there is just no room or excuse for your lack of courtesy to people you have moral, professional, and ethical obligation to defend.

I cannot even say it was a pleasure meeting you because you did not even make that possible."

See an email from NYSUT Attorney Paul Brown, to a client who fired him when she received this:

"From: Paul Brown <pbrown@nysutmail.org>
To:
Sent: Wed,  2013
Subject: Re: - WITNESSES

I have an ethical obligation not to put on witnesses that I believe will be damaging to your case.  I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....

Please call me should you have any further questions.

Paul K. Brown

New York State United Teachers

(212) 533-6300 Ext. 168"

NO WITNESSES????? That will get you fired and forever guilty of the charges filed against you. 

Below is the Education Law 3020-a (1) and (2)(a):

NY CLS Educ § 3020-a  (2014)

§ 3020-a.  Disciplinary procedures and penalties

   1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section [fig 1] eleven hundred two, and sections [fig 2] twenty-five hundred nine, [fig 3] twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section [fig 4] twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.
 
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 [fig 1] [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.

However, as NYC has no school board, NYC is not technically a member of NYSSBA. Several years ago I went to the NYSSBA annual conference as Press at the NY Sheraton Hotel, and sat at the only table with any seats, the NYC table. I sat next to Courtenaye Jackson-Chase. At the same table were leading names from the Office of Legal Services, such as Judy Nathan. In the program, my name and the name of the former General Counsel (before Courtenaye), Michael Best, Esq. were listed as representing New York City. I sent the post below to a listserv, nyceducationnews on October 28, 2007:

"To all:

As a paralegal and a non-Attorney, I attended an all-day seminar on School Law held at the Sheraton Hotel on Thursday, October 25, 2007. The seminar was part of the New York State School Boards Association conference.

The book that all participants received describes Open Meetings Law and the requirement that all Executive Sessions of a public body be voted on in a full meeting, and minutes are taken during the subsequent Executive Session where a majority votes on probable cause.

Therefore, all the votes taken and teachers terminated by a vote of the PEP members in Executive Session over the past 5 years are contrary to the law. The NYC BOE has required all persons interested in obtaining a copy of the tape of each meeting to file a Freedom of Information request, therefore the NYC BOE has substantiated the belief that the PEP is a public body. A powerless one, as Michael Best wrote to me “The PEP has no administrative or executive functions”.

Further news distressing to anyone in the New York City school district (NYC and boroughs) who would like to have any voice at all in creating policy or deciding complaints/issues: New York City has the largest school system in the nation, but was not represented at the NYSSBA conference. The only attendees listed from NYC Area 13 were me and Michael Best, a presenter of the “Contract For Excellence” session. Two other people from NYC (who kindly sat next to me at my table) were Ms. Judy Nathan and Ms. Courtenaye Jackson-Chase, both listed as “Attorney” for the NYC BOE.

We thus have a quasi-legal system set up to prevent any opposition to a resolution/vote/consent set by the Mayor/Mr. Klein.........

We have no right to get an independent decision on any complaints we may have, as everyone making decisions on grievances/special education hearings belong to Joel and Mike.

Gosh, how could we get in this position?"

David Bloomfield answered with Open Meetings Law, Sections 105 and 106

As we all now know, NYC does not have a school board/employing board and no longer has Executive Sessions at the PEP meetings. When the PEP did hold Executive Sessions, the group violated Open Meetings Law Section 105 by having the Session before the public meeting began. I used to speak at the public meeting part of the monthly PEP meeting, and ask for the reason for that, as well as a tally of each member's vote. Joel Klein would not nicely tell me to sit down, shut up and my time was up. I would say that my time was not up, but he would not give me an answer. Still don't have one.

In fact, if you look at the Notice of Determination of Probable Cause (paperwork sent to all teachers/employees charged with 3020-a), the date of the Executive Session at which probable cause was voted on, is blank. I posted the probable cause notice received by Francesco Portelos with his permission. There is no date for the Executive Session listed. Superintendent Erminio Claudia

Superintendent Cludia

testified at Francesco's 3020-a that there WAS an "Executive Session", namely when she met with "legal" on Francesco's case and they "found" probable cause for his charges. I would suggest that this meeting is not what is cited in the law, Open Meetings Law, or 3020-a(2)(a). Where did she get this version?

So in all cases brought to 3020-a arbitration, probable cause is determined improperly. Without the proper determination of probable cause according to Education Law 3020-a (1) and (2)(a), arbitrators appointed to hear 3020-a cases have no subject matter jurisdiction to decide on whether there is Just Cause for any penalty.

This is what NYSUT doesn't want you to know. In fact, your NYSUT attorney may rush you into a pre-hearing and then a full hearing/resignation/retirement/fine and settlement without any time to discuss the charges against you. NYSUT states in letters to those who opt to hire a private attorney or advocate, or do the 3020-a themselves:

"...changes to the Education Law negotiated by the UFT and the Board supercede the statutory provisions. Even though you are not utilizing NYSUT legal counsel, your case must be processed pursuant to the disciplinary procedures negotiated by the UFT and the Board. You do not have the right for your case to go forward pursuant to the Educational Law as it exists without the negotiated changes contained in Article 21 (G).(scroll to p. 113)."

No mention of probable cause found as required by Education Law 3020-a. But NYSUT isn't saying that the Law isn't there, just that you cannot use it for your case.

Bulloney.

This is, in my thinking, the biggest error of NYSUT representation. Because without a probable cause determination in an Executive Session of the employing board, and a vote by a majority of members, you are left with anyone "finding" probable cause, and charging you with something that may or may not be true. The arbitrator hears only what the NYC DOE wants him/her to hear.

But arbitrators on the NYC permanent panel are paid $1400/day, and if they agree that probable cause has not been properly determined they wont get paid. So the arbitrators deny the dismissal of the case on any grounds, or there will be no payment coming their way.

Teacher discipline and termination are what the Department of Education calls "their business". It's not only a business, it's a partnership. With NYSUT and the UFT.