The NYC Department of Education and UFT Lie About "Undue Burden" and Lack of Accommodations For the Unvaccinated

From Betsy Combier:

If you are a teacher in NYC and have been fired because you never were vaccinated with the COVID vaccine, you should know how the UFT and the NYC Department of Education "DOE" have been lying to you about your being an "undue burden" for wanting to keep your job. Many lawyers are also not addressing this sufficiently, in my opinion.

Let me be less harsh on the lawyers - they just did not do their homework. Instead, they were crushed by the City Law Department's insistance that the termination of unvaccinated teachers was due to a lack of remote positions within the DOE, or an "undue burden" in keeping unvaccinated teachers on salary. No one researched that? Yet, for the past 20+ years educators accused of something are reassigned to a place fondly called the "Rubber Room," and they are still doing it today. Let me qualify what I mean by "place" - to me, the Rubber Room is a process of fraud and corruption that frames employees of the NYC Department of Education by claiming false charges in order to terminate their employment or at least extort money from them by way of a settlement.

So, why did I write "fondly"? Because since I first was let in through the backdoor at the reassignment room located at 25 Chapel Street, 10th Floor, in 2003, I have met my closest friends and learned what not to do if you want to survive in the NYC cesspool called education. As an investigative reporter and not on salary to any union (exception: three years as a UFT Special Representative 2007-2010) or the NYC DOE, I was then, and am now, able to tell you what I have found out without being told to be quiet. Except by the people I write about, of course. I also have 4 children who were all in the NYC DOE System and are now working and married (at least 2 of them), and am very fortunate to have a fear of no one. I cannot be bullied, threatened or forced to do something that I feel compromises justice, safety, health or general well-being. ...of myself or anyone else I am honored to assist. 

So when I write about the Rubber Rooms, I am writing about all of the above, but because the rooms are actual places, it is easier to use "place" for the rubber room even though I mean the whole complicated, ugly, and beautifully human process behind the front door.

Employees sit in these rooms and are given no work, but receive their full salary. I knew one teacher, the late Alan Rosenfeld, who was in such a place for more than 13 years. The medium time currently is 1-2 years. The DOE knows that they have these rooms scattered throughout NYC, all boroughs. 

By the way. The Post article on Alan was incorrect about his case and character. My information about his 3020-a arbitration case is that the DOE failed to prove anything but did not want him back in a classroom. Secondly, Alan was a character from a great movie. He was an attorney, so he sat at his table in the rubber room at 25 Chapel Street and talked to his "clients" - the teachers also placed there - about their problems with employment and real estate. Alan sure liked to talk! Every week, sometimes several times/week, when I visited this location I sat with him and listened. It was better not to talk, you were interrupting him. I was very fond of Alan and he beat the system, so kudos to him!  He finally retired in 2012 and died in 2015 of cancer.

Since the COVID Vaccine Mandate started in 2021, no lawyer argued that the terminations were disciplinary because of the Problem Code placed on every personnel file of an employee who did not get vaccinated. This was a serious error, in my opinion. I am not a lawyer.

I was asked by the lawyers in Kane-Keil to write a Declaration on the Problem Code in June 2022, but the Code was never argued in the Complaint, so there was no Appeal. That's why the Problem Code was not mentioned in the final decision of the Court at the Court of Appeals. However, Attorney John Bursch put the Problem Code into the media big time when he did oral argument at the New York State Court of Appeals in February 2023. He had my Declaration in his hands. Thank you, Mr. Bursch!

I have been, and continue to be, very upset about the lack of attention in the Federal Court cases to the lack of due process and failure to accommodate by the NYC DOE. I would have gladly detailed the information I have with anyone. Fortunately, many people are proceeding with actions on their own.

The Hidden Rubber Rooms of New York City Create a Fiscal Nightmare

Betsy Combier 

President at ADVOCATZ

August 20, 2020

The Hidden Rubber Rooms of New York City Create a Fiscal Nightmare

by Betsy Combier, Linkedin

In 2010, the eight warehouses that had the nickname "rubber rooms" were closed due to news reports of hundreds of education personnel sitting in remote places getting paid their full salary to do nothing. I had started visiting the reassignment centers ("Rubber Rooms") in 2003, starting with the invitation by teacher David Pakter, who was assigned the TRC at 25 Chapel Street, 10th Floor. 

When I started working at the UFT in 2007, I simultaneously started talking and writing on this Blog about the rubber rooms in order for the plight of the enclosed tenured teachers to become visible to the paying public. This idea, that millions of public dollars were being spent to keep people out of their classrooms doing non-teaching activities, was a political nightmare for Mayor Bloomberg and the NYC Department of Education. I told Mayor Mike about it, and he was horrified.

Thus it came to be that since 2003 I have been listening to the stories and working as an advocate at the due process hearings of reassigned educators. For three of those years 2007-2010, I was a UFT Special Representative. I found everything about the NYC rubber rooms to be fascinating. Each location was unique because of the number and character of the people placed there while they waited for their hearing, a 3020-a arbitration mandated by Education Law, and their tenured status. Tenured educators cannot be fired for any reason without a due process hearing on the allegations of incompetency or misconduct. All employees in these rooms stayed at the location for the regular school day with 30-45 minutes for lunch. These times were monitored by the principal placed in each room. I know one teacher in a rubber room in the Bronx who studied for the LSAT while sitting in her reassignment, and now is a practicing attorney. To pass the time, classes in everything from cooking to the law were given every day, depending on the license or interest of the people in each location.

However, placing about 1500 education personnel in rooms away from students for 1 to 15 years simply could not be sustained. In my opinion, must not remain. Holding a public employee on a full salary in a room without justification is more than bad public policy. It's also can be demeaning and malicious. There are many who enjoy being paid their salary and not being harassed by a principal or co-worker.

An important fact is that people in the rubber rooms were organizing. Demands were made by the displaced employees, starting in 2008, to form chapters for “rubber roomers”, and to elect unofficial chapter leaders in each location. Neither the Department nor the UFT wanted to legitimize the rubber rooms in this way.

Under pressure from an angry public, the UFT and the DOE signed an agreement on April 15, 2010, to clear these now very visible examples of fiscal absurdity by speeding up the resolution of charges at hearings known as 3020-a arbitration. No one has paid any attention to either letter agreement, then or now.

NYC promised to ban teacher ‘rubber rooms’ — they went underground instead

NYC hired a roster of arbitrators to hear the cases quickly, but many of the accused fought termination rather than settle, retire or resign, and most wanted witnesses to testify on their behalf. Some hearings are lengthy -- one recent case took 32 days and nine months of hearing dates, not including the decision). The time limits are not enforced.

Then there is the shocking case of Alan Herz. he was charged with two so-called "inappropriate" comments to his students, neither of which, in my opinion, warranted anything more than maybe a slap on the wrist. However, some DOE employee somewhere wanted Alan fired, and he was served 3020-a charges, thus highlighting what I believe is the main problem with the entire disciplinary procedure: the charging, pre-3020-a hearing process. His Attorney informed the arbitrator that the school investigator did not file his report until two years after a student accused the teacher of 'insulting' her. This is a blatant violation of procedure, which requires that any report written by an investigator must be completed within six to 12 months. The arbitrator did the correct thing, as all arbitrators should, and dismissed the case at the pre-hearing, citing the procedural error. Within 10 days the NYC DOE sued the arbitrator in the NY State Supreme Court for dismissing the case so quickly. The Judge dismissed the City’s lawsuit. What this case shows is that arbitrators must do what the Department wants, and that is to prosecute the accused, even if innocent. Speed, facts, and law have no relevance.

I think you can see my point, which is that all decisions made before a 3020-a case begins are random and arbitrary. The NYC DOE honors no rules, regulations, or law when an employee does something that a 'higher up' is embarrassed by, or doesn't like for any reason. The procedures for disciplinary action against tenured employees beg for accountability and mediation of the proposed charges before an arbitrator is appointed and paid to hear the case to decide the penalty. Under these conditions, false charges are justified and unlawfully validated. All an arbitrator has to do is find the DOE witnesses 'credible' and the witnesses and charged employee, or "Respondent", 'not credible'. The penalty of termination is then the 'only' outcome. 

This frame-up is a process designed and used by the NYCDOE, UFT and CSA lawyers, intentionally. All parties violate the rights of the people they are supposed to serve. 

When I do a 3020-a arbitration, arbitrators are challenged, because I and the lawyer I work with (outside of NYC I do these hearings often without an attorney, similar to PERB litigation) are not bound by the restrictions placed on NYSUT attorneys who must comply with the sham.

[Added by Betsy 2025: I remember  an arbitrator telling me several years ago, after he exonerated the Respondent I was advocating for, that he was so fed up with the system where he was "supposed" to terminate everyone, that he decided he would exonerate everyone instead. Yep, he was removed from the arbitration panel by the DOE. In fact, several arbitrators told me off the record that they were told they had finished their service on the panel because they were too "lenient" as they did not terminate every Respondent. I never reveal my sources, so don't ask].

The political ‘solution’ was, and still is, to spread out the accused or allegedly guilty employees here and there -- in school offices, basements, storage or copy rooms -- anywhere hidden from view. The rubber rooms have gone underground. No one knows who these new rubber roomers are, because school and central budgets do not have a category for “reassigned” or “suspended” personnel.

The hiding of the reassignment rooms and process is very clear in the 3020-a hearings. Here is one example: in a 2019 case, whenever a witness or the NYSUT attorney mentioned anything about the accused teacher being "reassigned", the Department attorney Seyi Collins-Jemmott prosecuting the case told the transcriber/reporter,

"MS. JEMMOTT: [Interposing] I am--the Department is going to ask that the reference made by opposing counsel to respondent being reassigned be stricken from the record."

Ms. Collins-Jemmott interjected this whenever anyone mentioned "rubber room" or "reassignment", to hide the fact that the charged educator had spent almost a year as a reassigned teacher.

In 2009 I wrote:
The "Gotcha Squad" and the New York City Rubber Rooms

In 2010 I wrote about the scattering of rubber roomers throughout NYC:

Teachers in NYC Rubber Rooms Are Now Scattered So That The NYC Board of Education Can Hide The Harm and Retaliation

In 2014 I wrote about the new rubber rooms' and the rules:
The NYC DOE Re-Assignment Policy Issued in 2010

Then, in 2017 we heard the exact same lie about teachers in the Absent Teacher Reserve or ATR pool:

City Will Move Sidelined Teachers From Limbo to Classrooms

The Department benefits from hiding the rubber rooms by not being subjected to public outrage for the waste of public funds. The UFT benefits from hiding the rubber rooms because they are saved from public ridicule for keeping "bad" teachers on salary while they are reassigned to do nothing. Everyone wins but the general public and the parents and children in the schools.

When a teacher is reassigned, who takes his/her place? Anyone who is available - a substitute teacher, uncertified para, ATRs, no one is watching. Kids often have their entire school record jeopardized because their teacher is suddenly absent. The reassigned teacher is not permitted any contact with students, and the substitute is not knowledgeable about the subject or the kids. 

But my point is that there are ATRs still sitting in schools citywide. I spoke with one of these in-school reassigned teachers this morning, May 29, 2025. The unvaccinated employees could have been removed to a Rubber Room - which today is, often, home, while the ATRs took their place. 

See: Absent Teacher's Reserve Agreement Reached

Clearly, the NYC Department of Education has a long history of paying employees not to work for many reasons for several years. They have accepted this "undue burden" and have created an employment category just for these people.

The saying "throw the largest amount of mud at the wall hoping something will stick" is right on the mark. However, the most outrageous part of this whole public hoax is the fact that none of the charges need to be true, but the public has to pay for it. And, there is no accountability and no consequences for false charges.

The take-away is that this entire boondoggle is random, subject to whims and fancy, dislike and discrimination, rather than planning and human capital management.

The psychology of lack of ownership for wasting public funds is well-documented. Every elected official has had to deal with "If it's not coming out of my own pocket, who cares?", "Who is going to find out? I'm protected from prosecution", "it's my job to get bad teachers out of the building", etc.

NYC needs to refine the charging process so that public money is used effectively to root out the truly bad while supporting the wrongly charged and consequences for those who pursued false charges.

We also must end the hidden rubber rooms and make these places visible so that public money can be allocated appropriately, and publicly. Give all educators relevant work to do in accordance with their license while they sit in the "rubber room" for a short amount of time, no more than needed to get an arbitrator and hearing date. Give the public a say in where their money goes.

Our educators deserve better.

By the way, the picture used by the POST in my op-ed is a great hero of mine, for resilience and his fighting spirit. His name is David Suker. He was charged with putting a false home address for himself when he registered his daughter for a school on the Upper West Side. He did not do what he was accused of, but in addition, by the time he was charged 10 years had passed. I know that any investigation into a student's real address must be completed within 30 days, and no one can be charged 10 years later. But in the random and arbitrary procedures used in NYC to discipline and/or terminate tenured educators, the laws of NY State have no relevance.

David Suker's NYSUT Attorney Steve Friedman did not know or care to know that the residence requirement charge was bogus, and David was terminated. David called me up after receiving his penalty of termination and asked for my help in his Article 75 Appeal, which I agreed to do with Attorney Maria Chickedanz. We won $250,000.00 for him as well as his job back. Love this guy.

Betsy Combier, betsy.combier@gmail.com

Editor, ADVOCATZ.com

*********************************************************

Below, you can see how the Daily News misinforms the public with platitudes designed to cite one side of the issue, i.e. that the NYC Department of Education and the United Federation of Teachers want all accused employees fired without due process. The UFT and DOE "fixed" this in NYC by hiding the new, smaller rubber rooms, and omitting any determination of probable cause. They went straight from making a charge (true or false) against an employee, filing a Letter to File (puts the person on the Problem Code) and pursuing the charge as if it were true, with an arbitrator told to terminate. If the arbitrator doesn't, he/she is fired from the panel. That's how the DOE and UFT "fixed" the rubber rooms' fiscal nightmare.

City to close ‘rubber rooms,’ $30M detention halls for teachers accused of major violations

By Erin Einhorn, Meredith Kolodner and Rachel Monahan

UPDATED: April 8, 2018 at 1:01 AM EDT

The reporters didn't do their due diligence. First, in 2008 there were many more than 99 educators in the 8 rubber rooms. Second, the paragraph below states the reason why Mike Bloomberg "closed" the large centers and hid the reassignment centers: he wanted to pay attorneys to skip over probable cause for specious charges, and go quickly to termination:

"The agreement is not expected to save money immediately since the department will have to hire more lawyers. Education Department officials said they hoped to see some savings down the line as teachers are either returned to the classroom or fired more quickly."

Almost everyone has heard about the termination of educators from the NYC DOE if they did not get vaccinated against the COVID-19 virus. The City of New York needed to reduce the education budget, and had to omit due process so that they could fire all the unvaccinated as part of that effort. The NY DOE and the UFT "forgot" to mention the rubber rooms and the Problem Code in their speedy termination procedure. Lawyers also omitted mention of the Problem Code and rubber room reassignments because it seems that no one did their homework. 

In any case, every Federal due process class action Complaint filed since 2021 for unvaccinated educators has been dismissed by the Courts.

We all gotta do something about this. 

Give all unvaccinated terminated teachers their former positions back, AND their back pay, pension time and benefits, car days, everything. Now.

betsy@advocatz.com

Editor, ADVOCATZ.com

Editor, ADVOCATZ Blog

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

Education Law Fraud and the Omission of Probable Cause

 

Betsy Combier

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

From the desk of Betsy Combier, re-posted from ADVOCATZ.com: 

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

Education Law  §3020 states in relevant part:

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

and,

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

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

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

NYSUT lists changes to tenure in Chapter 56, 2015

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

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

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

As Lewis Carroll wrote,

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

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

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

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

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

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

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

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

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

You can see this struggle between employer-unions here:

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

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

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

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

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

Here is Education Law §3020-a(2)(a):

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

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

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

Hearing Request-Waiver

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

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

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

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

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

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

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

See:  Decision No. 15,482

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what? You say.

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

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

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

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

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

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

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

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

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

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

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

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