Betsy Combier Unravels 3020-a Arbitration in New York City

Lawline

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

For fourteen years I have been researching the 3020-a Arbitration charging process used in New York City, and in particular the omission of a vote in Executive Session by the New York City Panel For Educational Policy which is mandated by Education Law 3020-a(2)(a). I ignored the verbal attacks by attorneys who chose to threaten me with doom if I continued to ask for the vote - and I went to both NYSUT and Department of Education Attorneys working on 3020-a cases.

Betsy Combier

  I have never received a rational response to "Betsy's Motion", until Judge Green stepped into the fray. On March 29, 2018, Judge Green in Richmond County Supreme Court granted the petition of Rosalie Cardinale wherein we argued that her right to a fair 3020-a hearing was denied by an unlawful determination of probable cause. Ergo, my argument that the 3020-a process in New York City has a lawless charging procedure.

What does that mean? What you want it to.

           

Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 
Betsy Combier
ADVOCATZ
betsy.combier@gmail.com
917-596-1762

UPDATE April 7, 2018:

On April 5, 2018, a recently terminated teacher who used NYSUT for her 3020-a Arbitration, sent me the following email from /to her NYSUT Attorney:

"Date: April 5, 2018 at 12:23:45 PM EDT

"I spoke to a lawyer about the Staten Island decision and he had a warning shot for the UFT. I am not sure why i would have to hire a private lawyer to have my case revisited when the UFT has a duty to all terminated tenured teachers that can’t be brushed away in light of this decision.  The Uft opens itself up to personal liability if it fails to take action - such as intervening in the Staten Island case or bringing its own case against the DOE that is appropriate to protect the collective bargaining rights of tenured teachers who were improperly termination under the Staten Island decision. The UFT would be making a seriously unwise strategic decision if it were to do nothing simply because there are competing lower court decisions on the issue.  The UFT’s liability would be subject to appellate decision(s) that are unpredictable.  My case was never presented to the PEP and I would appreciate knowing how the Union intends to help people in my position in light of this decision.
Please advise."

The NYSUT attorney responded:

"I have now read the entire decision and the content of the Post article and any advice you are receiving which is the basis of your e-mail is misleading.

The Judge in the Staten island case did not rule that all 3020a cases have to be voted upon by the PEP in order to be validly brought. In fact, the Judge accepted the reasoning of other courts that the Chancellor (Farina) can delegate the authority to find probable cause and bring charges to Superintendents who can then delegate that authority to principals. What the Judge found was that in this case the DOE/ NYC Corporation Counsel failed to provide him with proof of such written delegations of authority.

The case you cite to is just the result of poor lawyering on the part of the DOE's counsel in the matter. The Delegation letters in question exist and my office has copies of those letters. When Chancellor Farina was installed we demanded copies of such letters from the DOE in order to ensure that the law was being respected/followed and that all cases were being properly brought. As a result, this office is satisfied that the law is being followed and that findings of probable cause underlying 3020a charges are being properly made.

I understand your frustration and anger. However, this decision is not a basis to challenge any 3020a result."

Hmmmm. First, I don't believe that Judge Green wrote that he 'accepted' that "Chancellor (Farina) can delegate the authority to find probable cause, and all the NYC DOE has to do is get the paper saying that the Chancellor delegates "...authority to [do anything]" and boom, probable cause is determined? That's just plain unfair and unjust.


I of course have the backstory on the "Delegation" statements by signed by Chancellors Klein, Black, Walcott, and Farina, submitted to countless arbitrators. They are worthless. Yep, that's what I have said, what I am saying, and what I will say, and I can prove it. In my work, I know that there is always a DOE Attorney and/or a NYSUT Attorney who will gladly say that I'm wrong, I don't know anything, I am not an Attorney, etc (I'm NOT an attorney, so that part is good), so I have spent 10 years coming up with facts and research to back up what I say and write.

How does the decision of Judge Green affect tenured teachers who have been given an unfair 3020-a decision in New York City?

We dont really know yet. What we do know is that we are ready to assist any DOE employee who has been charged with 3020-a in New York City (or New York State). We believe that every case is unique, and therefore we need to look at the circumstances in each case very carefully. Teacher trials are serious events.
As the paralegal in the Article 75 Appeal of Rosalie Cardinale, a teacher in Staten Island, we are saying that due to the Department' s desire for speed above rights, no vote in Executive Session took place at the Panel For Educational Policy, and therefore no arbitrator has subject matter jurisdiction and cannot hear evidence or decide on penalty. Our win in Staten Island for Rosalie changes the landscape of tenure rights and 3020-a, big time.

I have been working on 3020-a hearings for more than 17 years (I have worked on about 107 cases) We believe that Ms. Cardinale's termination at 3020-a arbitration in New York City was not rational, and Arbitrator Michael Lendino lawlessly took on the case (at $1400/day) despite our submission of "Betsy's Motion" to Dismiss For Lack of Subject Matter Jurisdiction, now cited by Staten island by Judge Green.


The NY POST got the story first:
DOE took illegal steps to fire tenured teacher: judge

Selim Algar, NY POST, April 3, 2018

City teachers facing termination have been thrown a legal life preserver.

In a precedent-setting decision, a Staten Island judge ruled last week that the Department of Education took illegal shortcuts in firing a tenured teacher.

Judge Desmond Green said that a termination hearing can take place only after a vote by the Panel for Educational Policy establishes probable cause.

Green said the DOE ignored that requirement in canning Rosalie Cardinale and ordered her reinstated.

Longtime advocate Betsy Combier, who worked on Cardinale’s case, said the DOE has ignored the law for more than a decade — and thinks Green’s ruling sets a precedent to challenge other firings.

“This is huge,” she said. “This is a protection we are supposed to be giving tenured teachers. For all these years, they have not gotten it. It’s not right.”

Neglecting the probable- cause vote “violates Petitioner’s due-process rights and violates New York’s strong public policy protecting the integrity of the tenure system,” Green wrote in his decision.

Cardinale’s lawyer, Jonathan Behrins, said the DOE purposefully avoids the PEP vote because it exposes dubious terminations to more scrutiny.

A city Law Department spokesman defended Cardinale’s firing.

“We believe DOE’s determination was appropriate and lawful,” said spokesman Nick Paolucci.
**************************
For 14 years as a teacher advocate in New York, my focus has been assisting educators with problems concerning their workplace, and/or, if they were tenured, researching the backstory of 3020-a charges served on them in the rubber room or reassignment.

In New York City, I knew that the controlling Law for 3020-a arbitration is Education Law 3020-a. It says so in the charging papers. But Ed Law 3020-a (2)(a) says that there must be an Executive Session and a vote by the school board (in NYC the "PEP") on probable cause for the charges before the charges are served. In NYC, this Executive Session never takes place and there is no date in the charging papers for this meeting and vote.

For many years teachers charged with 3020-a Specifications received the 3020-a charges ("Specifications") with APPENDIX A in the packet. I asked NYSUT and the DOE why this was sent out to all tenured charged educators if there was no compliance in NYC, and the answer was always, "that's the way it is".

I used to attend PEP meetings and spoke about the "Executive Session" being held before the public meeting began, which is a violation of Open Meetings Law #105.  I collected Agendas with this violation of Open Meetings Law from 2006-2013, and continuously asked why all the PEP members since I started attending the meetings have violated Open Meetings Law...why weren't they held accountable? I also spoke about my dismay that the charging process for teacher tenure hearings was a violation of the tenure law, in my non-attorney opinion. Please make note of the fact that I know some members personally, and have NO gripe against anyone personally, only as an official member of the PEP, where all New York State Laws are to be complied with.

When speaking at PEP meetings I carefully tried my best to take less than 2 minutes, leaving 45-50 seconds for former NYC schools Chancellor Joel Klein to give me an answer. He rolled his eyes, sometimes looked at DOE General Counsel Mike Best with his "there she goes again" look and took 10 seconds to tell me " your time is up, Ms. Combier, next speaker please" and 10 seconds for me to say "...but you didnt answer my question..."

I did not attend PEP meetings since then because they are useless, except for the PEP meeting on Feb 28 2018, where the two schools I was helping, MS 53 and PS/MS 42, were allowed to continue, open and free.

I have been writing about the PEP and teacher tenure on my blogs and websites since 2007, and I have submitted these issues to the DOE Attorneys as well as the Attorneys I work with and NYSUT, for at least that long, if not longer (I started working with teachers in 2003). I now assist at 3020-a as a member of the legal team (Im not an attorney). An educator charged with 3020-a does not need an Attorney in arbitration, but if anyone goes Pro Se, I highly recommend an assistant to help with the process. I do that, but I most often work with attorneys.

In 2003 I started asking all of the Attorneys I knew why there was no compliance with this section of Ed Law 3020-a. The answer I received always was, "...because that's the way it is", or "Don't worry about it". But I did worry about it, and when I began working on 3020-a hearings as an assistant to teachers who wanted to be pro se (without an attorney) or who wanted me and a private attorney to be the legal team, we always presented a Motion To Dismiss on the issue that if there was no vote on probable cause, then the arbitrator had no authority to proceed to a decision, and any decision was invalid.

We were denied on our Motion in the Supreme Court until Judge Desmond Green saw it differently:

“The DOE’s failure to make a finding of probable cause and adhere to the procedural protections guaranteed to Petitioner in Education Law § 3020-a violates Petitioner’s due process rights and violates New York’s strong public policy protecting the integrity of the tenure system.”

It appears that this decision unravels the 3020-a panels and nullifies the decisions made by any arbitrator who refused to grant the Motion To Dismiss on the basis of a lawless determination of probable cause signed by a Principal or Superintendent. There is no rule, law, or memo that specifically gives either Principals or Superintendents the authority to sign that paper, NOTICE OF DETERMINATION OF PROBABLE CAUSE.

I am writing a book about my experiences in 3020-a hearings after I brought up this issue.

The Department Attorneys have submitted responses, or Opposition to the Motion To Dismiss that range from the boring to the funny and ridiculous. One theme always appears: the Chancellor has the right to charge anyone, and can delegate this authority to anyone.

Again, I am not an attorney, but preferring, or serving, charges on tenured educators is not the same as determining "probable cause". My final answer.

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

NYSUT Changes To Tenure and the Tenured Teacher Removal Process in 3020-a....What a Scam

I remain perplexed how NYSUT defends teacher rights. They (NYSUT, New York State United Teachers) say that defending tenure is their goal, yet go along with extending the time for a teacher to get tenure, and make it harder for good teachers to be tenured if these employees are working under a principal from hell who can easily give a rating of "ineffective" based upon nothing but malice.

There are no facts or statistical data in observation reports, says the Court in Elentuck v Green. We use that in our 3020-a arguments.

But in New York City, the Department of Education and NYSUT go along with the process set up by the Department's Office of Legal Services, which we know is mandating a speedy trial, literally. You are charged quickly, then brought to a hearing quickly, told by your NYSUT attorney that one or two witnesses - and no character witnesses - is fine, or that you do not have to testify at all (which will lead to automatic termination in almost 99% of cases), and a quick finish is best. I've written about that, see the "Gotcha Squad" and the 3020-a Arbitration Newswire.

I could not disagree more. Look at the Notice of  Determination of Probable Cause on
Education Law 4020-a Charges, below. I removed the teacher's name from the document, and left the principal's name for a reason. Rushell White "found" probable cause on this teacher at her school, charged her with incompetency, but kept her in her classroom teaching throughout the 3020-a hearing, saying "I could not find anyone to replace her".

All charged employees receive this form, hot off the press in April 2012. Before that, New York State Education Department sent out the entire 3020-a Law in a document titled "APPENDIX A". This single piece of the charging packet is to an independent non-lawyer like myself the most incriminating piece of information in the 3020-a process. If you look closely, you will see in the first sentence "Please be advised that at a meeting in executive session on the above date the school district identified herein has found that there is probable cause for Education Law 3020-a charge(s) against you. But right above this paragraph, in the box where it says "Date of Executive Session", there is no date. Why? Because the Panel For Educational Policy never met, never voted, never found probable cause. Education Law 3020-a has not been followed. New York City's Department of Education does not want any outsiders telling them that they did not find probable cause, so there is no PEP member voting on probable cause. And the Bylaws say that Chancellor Carmen Farina does not have a vote on the PEP, the NYC school board. Therefore, she can NOT delegate a vote on probable cause to anyone. Yet there it is.

Here, Rushell White signed off on the Notice, so she found probable cause. Of course she did. She follows the process I call the "Portelos Way" (named after workplace bully and cybernut Francesco Portelos) where, if anyone challenges her or even says 'hello' the wrong way, zoom, you are charged with something you did not do. In order to support this bizarre violation of procedure and law in order to get a teacher charged, NYSUT and the DOE simply omit all mention in the 3020-a of the procedures mentioned here. If anyone does bring the subject up, as in a Motion To Dismiss which is always submitted in cases I work on, the DOE attorney comes up with the argument that the 3020-a in NYC was changed, so all charged employees are proceeding under Education Law 2590 instead of 3020-a.

No one is told about this, but just look at the paperwork yourself. Many charged employees never do read their charging papers and sadly rely on others, like their attorney. Mistake.

And we hear that the principal/Superintendent "determined" probable cause because they were delegated that right by the Chancellor. Yep, up pops a Delegation Letter, signed by Carmen Farina (and before her, Cathie Black, Dennis Walcott, and Joel Klein). In any random case, where the errors are brought up about the charging process, a delegation letter suddenly is brought in in a day or two signed by the principal or Superintendent. There is a stack in the back. Anything to keep the myth alive. Totally without supporting law. Or, we have heard that the principal/Superintendent has "found" probable cause for charges by having an Executive Session in his/her office, with him/herself.

I wish I could say I was kidding.

Why is the UFT and NYSUT going along with this ridiculous stuff? Your guess is as good as mine.

Here is the TENURE page on the UFT website:

Tenure

Appointment and New York City licensure

When you are permanently hired to fill a vacancy, you are “appointed” to that position. Your appointment must match your state certification by both subject and level.

As part of this appointment process, the DOE automatically generates its own teaching license. This New York City license must match your New York State certificate subject area and, in addition, the grade level of your NYC teaching assignment. The NYC license specifies the area in which you will be considered for tenure decisions and accrue seniority; the latter can be very important if there is excessing in your school. While there are no more New York City paper licenses, there are still license/appointment areas, each with a different code.

When you begin teaching, the DOE notifies you by personal email of your license/appointment area and includes the license code. Make sure you are appointed in the subject area and division level (i.e. elementary, middle or high school) that matches your state certification. You can only be appointed in an area that matches your state certificate. It can be a little confusing, however, as New York State certification often includes different grade ranges than those of a New York City license. For example, a New York State English or math or social studies certificate will state it is appropriate for grades 7-12 (middle and high schools). A New York City license, however, differentiates between high school and middle school, depending on your appointment.

Unfortunately, “out of license” teaching assignments are not unusual. Since some teaching positions are harder to fill than others, newer teachers are often assigned to teach out of their license areas, in a different level, subject area or both. While such “out of license” assignments don’t affect your salary, they could affect your ability to attain tenure and your right to keep your position if excessing occurs. Teachers who have taught “out of license” could find their probation period extended if the principal or superintendent thinks there is not enough experience in, or evidence of effectiveness in, the appointed license area.

You can be appointed under only one license at a time (even if you have multiple certifications), and your license area of appointment determines the area in which you will be granted tenure. Sometimes your certification permits you to be appointed under another license; however, if you agree to switch to a new appointment, you are on probation again, and there may be other ramifications. Contact your UFT borough office before you switch your license. In any case, your salary does not change when your license changes. Be sure to check with your payroll secretary that your appointment date is correctly entered in the computer.

If you believe your appointment, New York City license, or teaching assignment does not match your state certification, speak to your chapter leader at once. Your chapter leader can help you discuss this with your principal and get your program corrected as soon as possible. Or you can call your UFT borough office immediately and ask to speak to an educational liaison.

The probationary period

State law requires teachers and other staff appointed after July 1, 2015 to serve a four-year probationary period after being appointed to a position. During that time, supervisors are supposed to observe you several times a year and evaluate you in areas including planning and preparation, classroom environment, instruction and professional responsibilities.

At the end of four years of acceptable service and depending on your ratings, you may be entitled to the due process rights of a tenured teacher. In order to be eligible for tenure (if you were appointed after July 1, 2015), you have to receive three effective or highly effective ratings and cannot be rated ineffective in the last year.

If the DOE intends to discontinue, that is terminate, your service at any time prior to the completion of your probationary period, you must be given 30 or 60 calendar days’ notice. If you are discontinued, call your UFT borough office, which will assign an advocate to assist you in fighting the termination.

Sometimes a principal will ask you to sign a document stating that you agree to an extension of your probationary period beyond the four years. If this occurs, contact your chapter leader or your UFT borough office immediately so we can arrange, if necessary, for an attorney to review the document in order to protect your rights as a probationary educator.

There are two ways to reduce your probationary period:

·        If you worked as a regular substitute in the same license and in the same school level you may be able to reduce the normal four-year probationary period by up to two years. This is called Jarema Credit and you should apply if you think you are eligible. The application form is online at the DOE's website. Put Jarema Credit into the search bar.

·        Another way is called “traveling tenure.” If you received tenure in one license area and elect to take an appointment in a new license area or if you were tenured in another school district in New York State, you should apply to have your probationary period reduced to three years.

If you think you are eligible for either of these options, or have any questions, contact your UFT borough office.

Tenure

Under New York State law, appointed educators achieve tenure after completing a probationary period and fulfilling all requirements for the professional certificate.

In New York City, tenure is granted in your license appointment area, which is why it is of utmost importance that your license code match the subject and level in which you are teaching. Having tenure means you may not be disciplined or terminated without due process.

As a tenured member you have the right to a hearing before an independent arbitrator regarding any charges brought against you. This due process right protects you from being fired for personal, arbitrary or political reasons.

As described above, the process for determining whether or not you will get tenure is rigorous, and tenure is not automatic at the end of the probationary period. You must:

·        Complete all your state certification and city licensing requirements, file an application and receive professional certification;

·        Have a record of acceptable service during your probationary period; and

·        Be recommended for tenure by your principal.

The UFT encourages members to be proactive in preparing for their tenure decision. Here are some steps you can take throughout your probationary period:

·        If your principal has not initiated a meeting about your tenure decision, ask for an appointment to find out where things stand and what is expected of you. Do this even if your tenure decision is a year or two away so you have time on your side.

·        Become familiar with The Danielson Framework for Teaching and the multiple sources of evidence for each factor that principals will use to prepare their tenure recommendations.

·        Put together a professional portfolio of your effectiveness as a teacher. Organize your portfolio with a table of contents to separate the various components. Include a cross section of your work but be selective in choosing the materials to include. Add a brief explanation or context for each piece of evidence you include and be sure to show how you differentiate to accommodate children with diverse abilities.

·        Every spring, the UFT offers workshops in the borough offices to help teachers prepare for tenure. Check the union newspaper, New York Teacher, and the UFT website for a schedule of tenure workshops.

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

Also, when a DOE employee is served charges, the first papers received have procedural errors which astonish, as they seem to be in violation of the very rules seen below, which are spelled out in tenure law Education Law 3020-a.

August 20, 2015

Fact Sheet 15-15: Changes to tenure and the tenured teacher removal process

Source: NYSUT Research and Educational Services

Download complete document (pdf)

Updates Fact Sheet No: 15-15   September 2015

Chapter 56 of the Laws of 2015 includes a number of amendments to New York State (NYS) Education Law that address teacher preparation and certification, tenure, annual professional performance reviews (APPR), testing reduction, school receivership, and teacher removal.  This NYSUT Fact Sheet will provide an overview of the specific changes affecting teacher tenure and removal.  

NYS is widely recognized for its exemplary teaching force and has earned high marks for its rigorous standards and credentialing requirements — typically ranking among the nation’s top ten^[1]. Tenure is just one of the safeguards NYS has put in place to ensure every student has an effective teacher. A teacher must earn tenure after successfully completing a probationary period of effective teaching, oversight and evaluation.  A tenured teacher then is entitled to a fair hearing before being dismissed — a basic right to due process. 

Tenure also provides teachers freedom to advocate for their students without fear of reprisal. Because tenure exists, teachers in NYS can speak out freely on issues such as over-testing; cuts in academic programs; elimination of art, music, foreign language and other programs; and inappropriate programs and services for students with disabilities.

Without tenure, working under the constant threat of arbitrary firing would have a chilling effect on a teacher’s professional judgment and create an environment that would erode, not enhance, educational quality.

This NYSUT Fact Sheet contains:

·        A summary of the recent changes to tenure;

·        Frequently asked questions and answers regarding tenure;

·        A summary of changes to the teacher removal process;

·        Frequently asked questions and answers regarding teacher removal;

·        Advice to local leaders on this topic; and

·        Additional resources

Summary of Tenure Changes

·        The new requirement begins with those teachers appointed on or after July 1, 2015.

·        The mandated changes to tenure enacted by Chapter 56 in 2015 specifically tie the granting of tenure to §3012-c and §3012-d of NYS’s Education Law regarding teacher and principal evaluation law.

·        The probationary period is extended from three to four years for untenured teachers. Boards of Education will no longer be able to specify an end date to the probationary period and teachers will be notified at their appointment that tenure will depend on their APPR ratings.

·        A teacher seeking tenure would need to attain an effective or highly effective rating for at least three of the four years. These ratings do not need to be consecutive.

·        A teacher rated ineffective in the fourth year cannot receive tenure at that time. A Board of Education can agree to extend the probationary period an additional year (thus offering a fifth probationary year).  The law does not prohibit additional years of probation.

·        A tenured teacher in a school district or BOCES who obtains employment in another district will now have a three year probationary period, provided the teacher did not receive an ineffective in their last year at the prior school.

·        School boards will be able to terminate probationary teachers without regard to their Annual Professional Performance Review (APPR) rating.

Questions & Answers Regarding Tenure

Q: What is tenure?

A: Tenure is simply a statutory right to due process that was first enacted for New York City teachers in 1897 and expanded to cover Union Free School districts in 1937. Teachers were uniquely vulnerable in a public school setting. There were few, if any policies in place to protect teachers from being fired. Without job protection, teachers could be fired for literally any reason. Race, faith, gender and favoritism were some of the most common reasons for firing teachers before 1885, as was their political affiliation. Women could even be fired for becoming pregnant. Teacher unions in NYS did not negotiate the tenure laws. Tenure law was established in State Education Law decades before teachers’ unions were recognized in NYS.

      In 1945, tenure law was amended to extend basic due process rights to all public school teachers. The tenure law has been amended several times in the last 40 years.

Q:  Who is covered by the new tenure law and when does it begin?

A: The four-year probation in Chapter 56 applies to all classroom teachers, building principals, all other members of the teaching and supervisory staff, teaching assistants, and pupil personnel services providers appointed by a Board of Education on or after July 1, 2015. The linkage between the APPR and granting or denying tenure only applies to classroom teachers and building principals.  Section 30.-1.3 of the Regulations define classroom teacher as a teacher in the classroom teaching service as defined in §80-1.1 of the Regulations: Classroom teaching service means teaching service in the public schools of New York State, which requires certification pursuant to this Part (80), excluding pupil personnel service or administrative and supervisory service.

·        Teacher aides are not covered under the new tenure law.

·        Pupil personnel service providers are not included in the definition of the classroom teaching service.  Section 80-1.1(b)(30) of the Regulations defines pupil personnel services providers to mean school psychologists, school counselors and school social workers.

For Example:

1.     If you were appointed by a board of education on or before June 30, 2015 with a September 1, 2015 start date, you would have a three year probationary period.

2.     If you were appointed by a board of education on or after July1, 2015 with a September 1, 2015 start date, you would have a four year probationary period.

Q:  What happens if a tenured teacher is appointed to a new tenure area in the same school district?

A: The probationary period is now three years instead of two.

Q: What happens if a teacher has tenure in one district and obtains employment in another district in NYS?

A:  The probationary period in the new district is now three years instead of two.

Q: What if a teacher has served in a district for at least two years as a regular substitute classroom teacher?

A:  The new law says that the probationary period would be two years if the teacher received an APPR rating in each of the two years of substitute service.

Q.  Could boards of education grant tenure after three years (rather than four years) and three effective or highly effective APPR ratings?

A:  It is not clear. According to Chapter 56, tenure determinations are dependent upon receiving an APPR rating of effective or highly effective in the fourth and final year of probation.  However, it could be argued that a school board could grant tenure prior to the fourth year, based on other language in the statutes that was not amended.

Q: What happens if a teacher receives an ineffective APPR rating in the fourth and final year of probation?

A:  The board of education may extend the probationary period for another (fifth) year. If the teacher successfully appeals the ineffective rating, the teacher would be immediately eligible for tenure.  The law does not prohibit additional years of probation beyond five.

Q: What is 3020-a and how does it relate to Due Process?

A: Education Law § 3020-a governs the disciplinary procedures of tenured teachers and administrators (except superintendents) and provides due process. Due process consists of the minimum procedural requirements that each public school district must satisfy when dismissing a teacher who has attained tenure. Due process is one of the core foundations of our judicial system. Similar safeguards are in place to ensure police officers, firefighters and other public servants at the state and local levels cannot be arbitrarily dismissed based on allegations alone, or for politically motivated reasons. Due process and tenure are NOT a job protection for life.

Q. What are the due process requirements concerning charges of incompetence or misconduct under § 3020-a?

·        Charges in writing filed with the school district during the school year.

·        Within five days of receipt of charges, the Board of Education determines if there is probable cause to bring disciplinary proceedings.

·        If yes, a written notice sent to the employee detailing charges, the penalty imposed if employee waives hearing, and the employee’s rights, sent by certified or registered mail.

·        The employee may be suspended with pay (there are exceptions, see below).

·        Within 10 days of receipt of charges, the employee will notify the district in writing if they request a hearing.

·        The district will notify the Commissioner within 3 (working) days of the need for a hearing.

·        If the employee waives the hearing, the employing board determines the outcome in 15 days.

·        If the employee demands a hearing, such hearing is held before an impartial hearing officer.  Different rules apply to the hearing itself depending upon the nature of the charges.

Summary of Changes in the Tenured Teacher Removal Process

Hearings to discipline or remove tenured teachers in NYS for alleged incompetency or misconduct are commonly referred to as the 3020-a process, referring to Section 3020-a of Education Law which establishes rights to due process for teachers who have obtained tenure.  Chapter 56 of the Laws of 2015 amended Section 3020 and 3020-a and adds a new Section 3020-b.  The following changes are effective with regard to charges brought on or after July 1, 2015.

Revocation of Teaching Certification

Chapter 56 amended Section 305 of Education Law to extend the duty of the Commissioner of Education to revoke the certification of a teacher upon certain criminal convictions.  In addition to such automatic license revocation for sex offense convictions, the Commissioner must now also revoke certification of any teacher convicted of a violent felony committed against a child when the child was the intended victim.

Disciplinary Procedure Changes

·        Hearings on all charges brought on or after July 1, 2015 will be heard by single hearing officers.

·        At the pre-hearing conference the hearing officer will set a schedule and manner for “full and fair disclosure” of the witnesses and evidence to be offered by the employee as part of the defense (in addition to discovery to be disclosed by the employer as required by current law).

·        A child witness under the age of fourteen may be permitted to testify through the use of live two-way closed circuit television if the hearing officer determines that the witness would suffer serious mental or emotional harm if required to testify in person.

·        Hearing officers must give serious consideration to the penalty recommended by the employing Board.  If the penalty is rejected by the hearing officer, the rejection must reflect reasons based upon the record as expressed in a written determination.

·        For charges of physical or sexual abuse of a student:

·        A teacher charged with physical or sexual abuse of a student will have an expedited hearing by a single hearing officer commenced within seven days after the pre-hearing conference and completed within 60 days after the pre-hearing conference.

·        A teacher may be suspended without pay when charged with physical or sexual abuse of a student pending an expedited hearing. (This provision does not apply to New York City which has different rules governing suspension without pay in the NYCDOE/UFT contract.)

·        When a Board of Education decides to suspend a teacher without pay, a probable cause hearing before an impartial hearing officer must be held within ten days to determine whether the decision to suspend without pay should be continued or reversed.  Upon a finding that probable cause does not support the charges or suspension without pay is grossly disproportionate in light of all surrounding circumstances, the employee would receive reimbursement of withheld pay with any applicable interest.

·        Suspension without pay can last no longer than 120 days from the decision of the Board of Education to suspend without pay.

·        If the hearing officer finds in the employee’s favor as a final determination at the conclusion of the expedited hearing, the employee would receive reimbursement of withheld pay with any applicable interest.

Streamlined Procedures for Removing Teachers Rated “Ineffective”

·        Chapter 56 repealed the previously-established expedited hearing process for two consecutive ineffective ratings, and added a new Education Law §3020-b which establishes procedures for expedited hearings for teachers or building principals charged with incompetence after receiving either two or three consecutive ineffective overall APPR ratings under Education Law §3012-c and/or 3012-d.

·        All charges brought on or after July 1, 2015 will be heard by a single hearing officer.

·        Two consecutive ineffective APPR ratings constitute “prima facie” (Latin for "at first sight”) evidence of incompetence which establishes just cause for removal.  In such a case, a district may choose to file a charge of incompetence.  Such evidence can only be overcome by clear and convincing evidence that the employee is not incompetent in light of all surrounding circumstances.

·        Three consecutive ineffective APPR ratings constitute “prima facie” evidence of incompetence which establishes just cause for removal.  In such a case, a district must file a charge of incompetence.  The evidence of three consecutive ineffective ratings can only be overcome by clear and convincing evidence that the calculation of one or more of the teacher’s underlying components of the APPRs was fraudulent.  Fraud in this instance shall include mistaken identity. 

Questions & Answers Regarding Teacher Removal

Q:  What is the timeline for a 3020-a disciplinary hearing?

A:  Generally, the process is as follows:

Q: What are the circumstances that can result in an expedited hearing?

A:  There are four categories of expedited hearings:

·        Expedited hearings upon revocation of a teaching certificate;

·        Expedited hearings on charges of misconduct constituting the physical or sexual abuse of students;

·        Expedited 3020-b hearings based on two consecutive ineffective APPR ratings; and

·        Expedited 3020-b hearings based on three consecutive ineffective APPR ratings.

Q:  What is the expedited 3020-a timeline for charges arising from the revocation of a teaching certificate?

A:  The process is as follows with specific expedited timelines highlighted in bold:

See the 3020-a Hearing process in a nutshell - but this is not followed in New York City. In NYC, speed is of essence, so rights of teachers are trampled.  

Q:  What is the “streamlined” timeline for teachers receiving two consecutive ineffective ratings in the new 3020-b process?

A: A school district or employing board may bring charges of incompetence against any classroom teacher or building principal who receives two consecutive ineffective APPR ratings.

·        All such charges brought against a tenured teacher must be in writing specifying:

·        the charges in detail;

·        the penalty imposed by the board will be dismissal if the employee does not request a hearing; and

·        the employee’s rights under 3020-b, forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery; and filed with the clerk or secretary of the school district or employing board.

·        The school must have developed and substantially implemented a Teacher Improvement Plan (TIP) following the first evaluation in which the educator was rated ineffective and the immediately preceding evaluation if the rating was developing under Education Law §3012-c and/or 3012-d.

·        The parties jointly select the hearing officer within seven days after receiving a list of potential hearing officers from the Commissioner. (The Commissioner must appoint the hearing officer if the two parties are unable to agree.)

·        The pre-hearing conference must be held within seven days after the appointment of the hearing officer.

·        The hearing must begin within seven days of the pre-hearing conference.

·        The final hearing date must be within 90 days of the employee’s request for a hearing.  Adjournments beyond the 90 day period may be granted if the hearing officer determines that the delay is due to circumstances beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

·        The hearing officer must render a decision within 10 days of the last day of the hearing.

·        Within 15 days of receipt of decision, the school board must implement the decision.

·        Not later than ten days after receipt of the decision, an appeal may be made to the State Supreme Court to vacate or modify the decision.

Q: What is the “streamlined” timeline for teachers receiving three consecutive ineffective ratings in the new 3020-b process?

A: A school district or employing board must bring charges of incompetence against any classroom teacher or building principal who receives three consecutive ineffective APPR ratings.

·        All charges brought against a tenured teacher must be in writing specifying:

·        the charges in detail;

·        the penalty imposed by the board will be dismissal if the employee does not request a hearing; and

·        the employee’s rights under 3020-b, forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery; and filed with the clerk or secretary of the school district or employing board.

·        The Commissioner of Education selects the hearing officer, not the parties.

·        The final hearing date must be within 30 days after the date of the employee’s request for a hearing. Adjournments beyond the 30 day period may be granted if the hearing officer determines that the delay is due to circumstances beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

·        The hearing officer must render a decision within 10 days of the last day of the hearing.

·        Within 15 days of receipt of decision, the school board must implement the decision.

·        Not later than ten days after receipt of the decision, an appeal may be made to the State Supreme Court to vacate or modify the decision.

Q: How are “days” defined?

A: Days are calendar days unless specified otherwise.

Q: How is “teacher” defined?

A:  For disciplinary purposes, a teacher is any professional educator holding a teaching certificate including but not limited to a classroom teacher, teaching assistant, pupil personnel services professional, school administrator or supervisor or superintendent of schools.

      For incompetence procedures based upon the APPR process, it would only include classroom teachers subject to the APPR process under Section 3012-c or 3012-d of the Education Law.

Q: What are “Cadet Rights”?

A:  The 3020-a hearing process is the sole method by which tenured teachers can be disciplined in NYS, and the statute provides that no teacher can be compelled to testify at the hearing.  Consequently, it has been established that a teacher can refuse to answer questions, without being found insubordinate, during an investigation that the teacher believes could lead to such disciplinary action.  Known as Cadet Rights, this principle was established through a disciplinary case involving a tenured teacher who was found guilty of misconduct through a 3020-a hearing.  However, the decision of the hearing officer to dismiss a charge of insubordination was appealed by the school district.  The insubordination charge was related to the teacher’s refusal to answer questions during an investigation prior to the hearing  In the appeal decision, the Commissioner of Education agreed  that a teacher need not answer questions in any pre-hearing investigation which precedes a 3020-a hearing.   The decision was in turn affirmed by the courts.

Advice to Local Leaders

·        Continue to look for additional analysis and information through NYSUT’s Leader and Member Briefings and presentations at regional conferences.

·        Specific questions about tenure and teacher removal as a result of disciplinary issues or the APPR process should be referred to your NYSUT Labor Relations Specialist (LRS).

Resources

·        Chapter 56 of the Laws of 2015 can be found at:

http://open.nysenate.gov/legislation/bill/S2006B-2015

See Part EE for the Education Transformation Act of 2015.  Within Part EE, Subpart D details the teacher tenure provisions and Subpart G details the teacher removal provisions.

·        Emergency regulations implementing these new statutory changes were adopted by the Board of Regents.  An overview of the changes and the amended regulations can be found at: http://www.regents.nysed.gov/common/regents/files/meetings/Sep%202015/915hea2.pdf

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[1] Education Week, Quality Counts 2012.