The Gotcha Squad and How the TPU Charges Teachers Without Any Factual Data (And NYSUT Lawyers Agree With This)

To the New York State legislature: 
please review and change the 3020-a/grievance/U-rating Appeal process! As it exists right now, this process is not fair, balanced, factual, rational or beneficial to children who need to have good teachers in their classrooms.

Thank you.

Betsy Combier

With the talk about evaluation and teacher performance coming to the deadline for getting $millions here in NYC, I am listing the documents which I have posted on my website (Parentadvocates.org) and this blog that are important to the argument that teachers have not been fairly assessed, and tenure rights have been generally ignored under the umbrella of a sham version of "due process".

The RMC Contracts and Training Manual for the PIP+, TAC memos, Performance Management document, and the Office of Labor Relations' Disciplining Teachers are all now available to anyone.

So is the package which is created to charge teachers.

These documents reveal that there is, actually, no data being used to assess teachers, and observations are simply a higher-up's opinion, or hearsay, and are not final determinations (Elentuck v Green). According to the case McPherson v NYC DOE this hearsay is not enough to prove that the process is arbitrary in a federal court, and I think that observations without data (such as test scores, student grades and IEPs, OORS and SOHO reports) are not enough to prove by any standard that a teacher is not effective.

A few guidelines: Do NOT, under any circumstances, sign up for PIP+. This program is designed to get you terminated. PIP+ is in the CBA as "approved". If you turn it down as I suggest (I am not a lawyer and cannot give legal advice) and you are brought to 3020-a, the DOE's argument will be that you turned it down because you will not recognize how bad you are as a teacher. Your argument is that the PIP+ process is designed to create the necessary documentation to terminate you, and you will not succumb to a set-up where the principal gets the observations and can change them before they are given to you. Or something along those lines. All the documents below are used by the Gotcha Squad to get rid of tenured teachers, who are already defined as "incompetent". Notice I say "defined" as opposed to "determined". The bizarre fact of the incompetency hearings are that if a principal says you are an "ineffective" teacher", this suddenly is transformed into a fact. 

Unfortunately, at 3020-a, NYSUT has not brought in any factual data that would help support another argument, and the teacher is terminated on the basis of hearsay. Ask your NYSUT attorney when you meet with him/her how many cases he/she has won. There are many reasons why NYSUT Attorneys do not win their cases (the arbitrator makes a difference as well - there are strong, fair arbitrators on the 3020-a panel, and weak unfair as well).

 When a principal finds Just Cause to terminate you, the NYC Department of Education takes this as not as hearsay/opinion, but "Fact". And here's the problem: UFT and NYSUT believe the opinion of a principal is a fact, too. 

The denial of rights started with this:
Letter to the U.S. Department of Justice from NYC Corporation Counsel Michael Cardozo

 Pages index -11
Pages 12-25
Pages 26-41
Pages 42-58
Pages 59-80

 Editorial: The New York City DOE is a Sham and Mike Bloomberg is the Flim-Flam Man

David Brodsky

David Brodsky on the Teacher Tenure Process

Letter from Florrie Chapin

79 pages of emails concerning the TPU and LSU  

"Privileged" documents (Corp. Counsel refuses to give the information to a Plaintiff)

Office of Labor Relations Frequently Asked Questions

Just Standard

  

New York State School Boards Association Quality Educators in Every School

The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender 

Education Law 2590-h (The NYC Chancellor MUST have a contract)

 Silencing Opposition: The Manual for Principals and The Monitoring Unit of the NYC DOE

  PIP+ Peer Observation and Evaluation

• RMC Contract Section 1
• RMC Contract Section 2
• RMC Contract Section 3 (incomplete)
• Training Manual Part 1 (Oct. 24, 2007)
• Training Manual Part 2 (Oct. 24, 2007)

Performance Management Part 1
Performance Management Part 2
Performance Management Part 3
Performance Management Part 4

 Disciplining Tenured Teachers

The Administrative Trials Unit (ATU) has hired a team of lawyers who work in a new ATU subgroup called "Teacher Performance Unit". Randi Weingarten, President of the United Federation of Teachers and American Federation of Teachers, calls them the "Gotcha Squad". The use of TAC (Technical Assistance Conference) memos in the preparation of charges to prefer against allegedly incompetent teachers is an outrageous process that I hope, with this exposure, will end.

In New York City, tenured teachers are being removed from their classrooms and positions by Principals and administrators suddenly and, in many cases, without probable and/or just cause. In fact, the entire structure of the New York City Department/Board of Education is intertwined with the General Counsel and the lawyers working in the Office of Legal Services. It's hard to separate the two, and this is one of the biggest problems with Mayoral control as it now stands in New York City. The New York City Board of Education ("NYC BOE") keeps all documents and information secret under the description "Attorney Client Privilege".

However, the BOE gladly gives journalists all the information he or she wants, to "prove" by a preponderance of the evidence that a teacher is guilty of something. Steve Brill's article in the New Yorker magazine is a great example of this.

A teacher may be accused of "verbal abuse" or "corporal punishment" in the same way as being charged with "incompetence" - see the story of Glenn Storman, his complaint in federal court, and the decision in New York State Supreme Court where Judge Kornreich said the OSI investigation and the New York City BOE were "irrational". But this did not stop the NYC BOE, PS 212 Principal Josephine Marsella, OSI investigator Dennis Boyles, and Deputy Chancellors Andres Alonso and Marcia Lyles, both of whom have left New York City. We might ask Joel Klein if Alonso and Lyles were forced out because of this case. Read the Report and Recommendation filed by Magistrate Judge Andrew Peck and you will get a very good summary of the "Gotcha Squad" at work.

Mr. Storman has filed objections to Magistrate Peck's Recommendations.

The Gotcha Squad is empowered by the absolute immunity given to NYC BOE managers and administrators, who are defended in court by the Corporation Counsel, the Law Department of the City of New York...nice free legal help. Additionally, the arbitrators and NYC BOE Attorneys in the 3020-a proceedings ignore the "Labor FAQs" of the collective bargaining agreement policies established between the NYC BOE nd the UFT, all the time. I know, because I have attended the open and public 3020-a hearings of tenured teachers since 2003.

It is obvious that the Mayor has total control over every part of the public school governance structure. A tenured teacher has no rights at all, and can be removed as easily as a non-tenured teacher or any employee. The tenured teachers have holding pens called temporary re-assignment centers or "rubber rooms". There are currently 7 such places located throughout New York City. A teacher may end up re-assigned because a principal may decide that he/she doesnt like him/her, must remove a him/her because he/she is talking about crimes being committed in the school, or must remove a him/her because he/she is earning a salary that is very high due to more than 20 years in the system, etc. The real reason may be that the teacher is too old, too fat, too short, wears red, doesn't wear red, and other such nonsense.

Then, after the Gotcha Squad at 51 Chambers Street in Manhattan have been informed that a teacher, let's say you, are the subject of an investigation, Director Theresa Europe may place you on her "Ineligible/inquiry List". This list is keyed into the computer under your social security and file number, and will prevent any prospective employer from hiring you any time in the future. Theresa Europe gets the last word. In the case of Philomena Brennan, she wanted Ms. Theresa Europe to take her off of the "no hire" list, and had to sue to get her name removed. Ms. Europe removed her name from the Ineligible List rather than have to submit to New York State Supreme Court Judge Alice Schlesinger why and how she keeps such a list, and the method she uses to remove names, as Schlesinger ordered.. Theresa Europe wants to remain in control of this career-ending list.

We all must defend our right to know who is saying what to whom. In New York City today, however, I believe that the NYC BOE's secret disciplinary process is unfair and I have posted this story to hopefully find another, more just way to deal with alleged "incompetent" teachers, whatever that term means. (See "Strategic Management of Human Capital")

The Teacher Performance Unit (“TPU”) is a unit comprised of experienced attorneys who litigate incompetence cases against ineffective tenured pedagogues. This unit provides counsel to principals and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges involving allegations of incompetence. TPU’s goal is to help principals improve teacher quality in their schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

The Labor Support Unit (“LSU”) is comprised of education consultants who work in partnership with TPU to provide direct support to principals who are confronted with ineffective tenured pedagogues. The goal of LSU is to work with the principal to help them design support plans for ineffective tenured pedagogues, to provide guidance and general assistance to the principal; to assist the principal in organizing the documentation; to conduct additional observations upon request of the principal; and to coordinate with the Peer Intervention-Plus (PIP+) Program and Teacher Performance Unit. (See Peer Intervention Program)

Marcia Lyles

The problem is, well...one of the problems is: what does "incompetence" mean? Who defines whether or not a teacher is, really, "incompetent"? The No Child Left Behind legislation requires that every classroom have a highly qualified teacher in every classroom. The problem with this is, what does the term “highly qualified” mean? Who is a “good” teacher and who is a “bad” teacher? We have no ‘American standard’ to help us define what it means to be a “good” teacher, other than to record the scores on standardized tests of students in each class. There are thousands of reports on how this happens, but in the end, defining a “good” performance is almost always a subjective judgment.

The parents of public school children and the teachers of the public schools in NYC know that Mayor Bloomberg and NYC BOE CEO Dennis Walcott dont want anyone to have any power over educational policy decisions except them, and their people. So they designed a process which I call the "rubberization" process to remove anyone from his or her job for any reason, at any time.

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room 
by Betsy Combier
LINK 

Why Substitute Teachers?

David Hedges

 LINK
I don't want to be accused of suggesting that I don't need a job, nor that I can be worth every penny the taxpayers spend on me as a teacher, but what really happens in a classroom when a substitute teacher assigned to it is very different from what the taxpayers have the right to expect for their hard earned money.

This is not to say that qualified personnel is needed, and is even in short supply in the school system.  There is an overabundance of inexperienced administrators and teachers who are making the kinds of decisions that they should not be allow make.  The DOE knows this, which is why they have retired principals mentoring and keeping a watchful eye on the young'uns.  Even principals from schools that were closed are coaching the new principals, so extreme the shortage of experienced professionals must be!

A recent experience will help to illustrate my point:

A highly experienced teacher had to be out for a few weeks for medical reasons.  The DOE elected to place a highly experienced ATR in that spot until the regular teacher returned.  The thing is, as soon as students perceive that someone is substituting for their regular teacher, the unwritten code is that that room, or whatever room that substitute teacher is covering, becomes the "free-for-all" room.  And, to boot, every student is given a "get out of jail free" card since no matter how many fights break out between students who either should or should not be in that classroom, no matter how many students pelt the teacher with chalk, rolled paper balls, or threatening verbiage, there won't be any disciplinary consequences or legal remedies.  The students know this because they have seen it in action.  For example, on the second day I was covering this class I asked a student to stop throwing paper balls across the room.  His response: "But I did this yesterday and you didn't say anything."  Had he?  Perhaps he had and I hadn't noticed, since I may have spent those moments asking students to remove themselves from other students' laps, or moving out of the way as students played shuffleboard with chairs and tables.

For several days before the regular teacher left, I observed her class.  I quietly walked around and asked students to write their names on a seating chart and noted their work habits.  By midweek I had learned every students names and seen that they all came to class prepared, had their notebooks open, copied assignments from the board, and in short, had developed the kind of routine one expects of students under the watchful eye of an experienced teacher.  That was true of them on Monday and on Tuesday.  But on Wednesday, when the regular teacher was out and I was there, their behavior changed radically.  The laws of physics don't lie. 

I emulated the regular teacher's style, from the seating arrangement to the way the Do Now was worded on the Smartboard.  The students went bananas.  I had to call in the principal, the dean of students, and both assistant principals.  I was very concerned by the chaos I was witnessing.  Each time an administrator came in I gave him or her then name of the student(s) who were rough housing, or throwing chalk at me, or who were playing shuffleboard with the furniture.  I know you hope that the administrators would have found a disciplinary remedy for the situation, but now, that is not what happened at all.  In fact, there aren't even any "referral" slips, so the infractions aren't even documented.  You see, at the end of the year the UFT Chapter Leader sits with the principal and they tally up the referrals.  If the number of referrals that the administration has is less than the number that had been submitted, there is a problem.  One way of averting any problem is simply to do away with referral slips, or to pretend the infraction never happened, which is pretty much what was going on each time I had to call for back-up.

Students don't take long to figure these things out.  The chaos spread.  Students take it as their right to arrive late, because they wanted to go downstairs and get some water or a soda.  "But you are losing valuable class time," I might say.  Their response: "What difference does it make whether I go before class or during class?"  Perhaps he was right.  Perhaps his last class was closer to the stairwell that takes him to the cafeteria and he saved himself a few minutes by doing it all in one trip.  Smart, right?  Except the collective behavior of a school now makes that the norm.  Even if the better, more efficient decision is right, it is wrong because it causes everyone to presume that it's okay to be late, or play shuffleboard with the classroom furniture, or with the personnel for that matter.

Dummy-down and ego-up is the way school policies are driven.  Where we, in my day, were scolded for social promotion and "enabling" students, now unacceptable behavior is brushed under the carpet so the Superintendent and the Chancellor never get wind of it. 

There are ways of managing classes when a teacher is absent, but the standard approach of the substitute isn't a successful model.  It never has and it never will be. 

There are alternatives: for example, break the class up and reassign the students to classes where other regular teachers are giving lessons.  Even if the student is placed in a trigonometry class when she expects Spanish, the benefits on the child's behavior offset the possible loss of LOTE time.  The help with the overflow, assign the ATR to work with students individually in the library or in the administrator's office.  Temporary rescheduling of a student's program is less harmful than sending them into the "free-for-all" room.  That tradition, the way students behave when a substitute teacher is in charge of the class, is not going to change.  What can change is to recognize the need for pedagogical continuity in the child's life and regroup the students so they won't panic because their teacher is out.

If, however, flexible programming is out of the question, then why not discipline students who act out, instead of making excuses for them and covering up their infractions so the big bosses don't find out?

The Script: How To Get Rid Of An "Incompetent" Teacher

The NYC Teacher Performance Management Termination Script
Parentadvocates.org
LINK

 The How To Get Rid Of Tenured Teachers document scripts the entire process of getting rid of a teacher who is, according to somebody with power and influence, "incompetent" - whatever that means. In NYC Mayor Bloomberg leaves nothing to chance. He wants tenure to end, and I have the scripts written as "letters" where principals fill in the blanks.
The UFT is as much at fault here as the NYC Department of Education, because Mike Mulgrew, Ellie Engler, Mike Mendel, Claude Hersh and Richard Casagrande (NYSUT) allowed the PIP+ process (a violation of the Collective Bargaining Agreement evaluations clause) and the "guidelines" posted below to be used against any teacher, not defined as good or bad by any data or facts.
 
Betsy Combier

The NYC Teacher Performance Management Termination Script

As most people now know, the NYC Department of Education wants to get rid of all tenured employees of the Department. These people are, it is said, lazy, incompetent, and harmful to the health, safety, and welfare of children, and should never have been given a job for life (tenured position).

In fact, the NYC DOE wants teachers with tenure out so badly that they will gladly alter your performance record and change your U ratings to S ratings if you sign your name to a settlement agreement saying you will immediately and irrevocably resign. And you can never sue the Department for any reason.

As I have written many times before, this is a sad joke on the employee, who, thinking that the settlement is a great idea, signs it, and then cannot get a job anywhere else. Why? Because he/she did not demand a giveback - his/her removal from the "Ineligible/Inquiry List". This List is the same as the anti-communist protests of the '50's under Joseph McCarthy. There is no rational reason for the mobbing of individuals simply because they used to work for the Department of Education.

Yet, the United Federation of Teachers (UFT) may deny that it exists, so that Special Representatives may continue to earn astonishing sums of money (members' dues) while doing nothing. Yet, the United Federation of Teachers (UFT) may deny that the Ineligible/Inquiry List exists, so that Special Representatives may continue to earn astonishing sums of money (members' dues) while doing nothing. All the UNITY caucus and UFT Special Reps. say in private that every re-assigned member is "guilty" of whatever is charged against them. There is no effort to help any member win his/her U-rating appeal, grievance, or 3020-a, for that matter. And, it does not matter if this is unfair, as can be seen in the Special Complaint filed by Gail Friedman. The 2005 UFT contract took away the right to grieve "unfairness".

Anyway, the basic bottom line is, to get tenured (and expensive) teachers out of the system in order to hire two newbie teachers for the price of one. The rating and evaluation processes have nothing to do with individual performance. A person may be Teacher of The Year, but if he/she makes too much money, out he/she must go.

Of course Mayor Bloomberg is a control freak. He does not have too much faith in the capabilities of anyone to accomplish quickly and efficiently what he wants (i.e., get rid of tenure and tenured teachers). Therefore, he created the Teacher Performance Unit in 2007, and opened a new floor - the 7th - at 51 Chambers Street to accommodate the expedited hearings under the TPU, the "incompetency" 3020-a.
These are all expedited and there is no room for error.

Mike Bloomberg had his underlings create a script for all the Principals who may not be aware of how to quickly get rid of a teacher in the building. The Office of Labor Relations is at the same location as the Gotcha Squad, and drew up, in 2007, the document below. I was given this document several months ago by a principal.

I turned around the first couple of pages from the original, in order to make for easier reading:
Performance Management
Performance Management
Performance Management

2012: More Investigations, Less Information To The Public

Allegations of wrongdoing in schools pile up but stay in the dark

by Philissa Cramer, at 3:28 pmLINK

Investigators who look into the city’s schools received more allegations and opened more cases than ever last year. But they found wrongdoing less often than at any time in the last decade.

And once again, only a tiny fraction of the investigations were made public.

The Office of the Special Commissioner of Investigation received 4,173 complaints in 2012, 20 percent more than in the previous year, according to the annual report it released today. The complaints prompted 795 investigations.

SCI looks into alleged violations of law and department regulations, from accusations of sexual misconduct to concerns about fraud and embezzlement, to allegations of cheating on tests. (The Department of Education also has an internal investigative unit, the Office of Special Investigations.)

In 2012, SCI also closed 752 cases, many opened in previous years because SCI investigations frequently move slowly. Of them, investigators found wrongdoing in 247 cases for a substantiation rate of 32.8 percent, the lowest in a decade. Condon recommended that 83 education department employees be fired as a result — 20 percent fewer than in 2011.

Condon’s office released just 16 investigation reports, meaning that 94 percent of times when investigators found wrongdoing, their findings stayed under wraps.

The release rate was in line with past years, when SCI has published reports about substantiated allegations between 5 and 10 percent of the time.

Last year’s SCI releases included reports about nepotism, corruption, and sex abuse. It did not include any reports about cheating or academic improprieties.

In a year with a spate of high-profile sexual abuse allegations in schools, the unit received 679 allegations of sexual misconduct, or 16 percent of the total number of allegations. That proportion was in line with recent years.

SCI reports that are not published are sent to Schools Chancellor Dennis Walcott, who has the power to act on Condon’s recommendations or take other steps to address wrongdoing. At that point, the only way for a report to become publicly available is via a Freedom of Information Law request. That means that an enterprising reporter, advocate, or elected official would have to know first that an investigation happened, and then would have to file a legal request for permission to look at the report on it.

The 'U'-Rated Teacher "Plague"

As we all know, "U" and "S" are opinions, have no facts or data, are meaningless, and are changed by the NYC DOE if the teacher agrees to resign. We, the public, actually have no idea who is in the classroom with our children.

See the misleading report below.

Betsy Combier

Bad apples: New report shows dozens of city schools are plagued with 'unsatisfactory' teachers

A scathing new report from the education reform group StudentsFirstNY shows that kids in poorer neighborhoods who need more help in school are more likely to end up with the underperforming teachers.

 NYDAILY NEWS 

Jan 10, 2013 

LINK

Dozens of city schools are crammed full of bad teachers, with some kids seeing incompetent hacks in as many as a third of their classrooms.

A scathing new report from the education reform group StudentsFirstNY shows that kids in poor neighborhoods who need the most help in school are far more likely to end up with the learning lemons.

“It’s a double hit,” said Micah Lasher, StudentsFirstNY’s director. “These kids start out with challenges, and then we give them a sub-par education. We’re making the challenges worse.

”

READ THE FULL REPORT HERE

The report looked at the number of teachers in each of the city’s 1,509 general education schools who received “unsatisfactory” ratings from their principals.

The so-called “U-ratings,” which are based on formal classroom observations and used in tenure decisions, are very rare, with only 3% of the city’s 65,000 general education teachers receiving failing grades last year.

Nearly half of the city’s schools had no U-rated teachers at all.

Yet U-rated teachers were concentrated in certain schools, particularly in struggling neighborhoods of central Brooklyn, the South Bronx, southern Queens and lower Manhattan.

At a stunning 30 schools, 20% of teachers had unsatisfactory ratings.

Two schools had lemons in at least a third of their classrooms.

But teachers and parents say U-ratings aren’t just about teacher quality. They’re also a reflection on how aggressive principals are in pushing out teachers they don’t like.

Parents at Public School 4 in the Bronx suspected tough management led to 34% of instructors getting U-ratings last year.

“If the principal is rating the teachers, who’s rating him?” asked Anthony Patterson, 52, whose daughter, Tajanae, is a sixth-grader at the A-rated school. “I’ve never had an issue with the teachers.

”

The report on teacher quality advises the city to adopt a new teacher evaluation system and find new ways to attract high-quality instructors.

It comes a day after Gov. Cuomo used his State of the State speech in Albany to call for bar exam-style tests to keep bad teachers out of public schools as the city battles the teachers union over new teacher evaluations.

If the union and the city fail to reach an agreement on a new teacher rating system by Jan. 17, the state will withhold $250 million in funding.

Education Department officials said they are already working to implement the recommendations of the report.

“Having a great teacher is critical to our students’ success, which is why we have pursued many of these recommendations,” said agency spokeswoman Connie Pankratz.

bchapman@nydailynews.com

Richard Santer Wins His Free Speech Issue In The Appeals Court

Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist.

2012 NY Slip Op 08750

Decided on December 19, 2012

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2012 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT 
RUTH C. BALKIN, J.P. 
CHERYL E. CHAMBERS 
L. PRISCILLA HALL 
SANDRA L. SGROI, JJ.
2010-11006
(Index No. 1997/10) 

[*1]In the Matter of Richard Santer, appellant, 

v

Board of Education of East Meadow Union Free School District, respondent.

Richard E. Casagrande, New York, N.Y. (Melinda G. Gordon of 
counsel), for appellant. 
Littler Mendelson, P.C., New York, N.Y. (Craig R. Benson, 
George B. Pauta, and Ethan D. Balsam 
of counsel), for respondent. 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated January 8, 2010, made in connection with a compulsory arbitration pursuant to Education Law § 3020-a, which, after a hearing, sustained a charge of misconduct against the petitioner and imposed a fine against the petitioner in the sum of $500, the petitioner appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 7, 2010, which denied the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the award is vacated.

During the 2006-2007 school year, the Board of Education of the East Meadow Union Free School District (hereinafter the District) and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of the Woodland Middle School (hereinafter Woodland) when students were being dropped off. Woodland encompasses the sixth through eighth grades, and its students generally are between 11 and 14 years old. On March 2, 2007, it was raining, so some of the teachers decided that, rather than stand outside of the building to picket, they would park their cars along nearby Wenwood Drive and display their signs in their car windows. Wenwood Drive, a two-way street, was one of several locations where parents would drop off their children. The petitioner, Richard Santer, the union's building president at Woodland, participated in this protest. Beginning at 7:25 A.M., approximately 8 teachers parked their cars, in legal parking spaces, along either side of Wenwood Drive, with 15 to 16 teachers participating in total. None of the teachers' cars blocked either of two curb cuts in front of the school. According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

The District preferred a disciplinary charge pursuant to Education Law § 3020-a against Santer, a tenured teacher, alleging that he [*2]

"intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard."

At the ensuing arbitration hearing, the petitioner argued, inter alia, that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the petitioner to be culpable of the charge of creating a health and safety hazard, and directed that he pay a fine in the sum of $500. The petitioner commenced this proceeding challenging the arbitration award. The Supreme Court confirmed the finding of misconduct, and denied the petition. The petitioner appeals.

Where, as here, arbitration is statutorily required, "judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record" (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186). "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his [or her] good faith, but in law and the record before him [or her]" (Mount St. Mary's Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 507). The award must be rational and not arbitrary and capricious (id.; see Matter of City of Buffalo v Rinaldo, 41 NY2d 764, 765-767). Here, evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that Santer contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious, as we held in another matter concerning the same protest (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030).

The petitioner here, however, raises an argument that the petitioner in Trupiano did not raise in our Court, specifically, that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution. Like other public employees, teachers "do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment" (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 US 1183). In determining whether a disciplinary measure taken against a public employee violates the employee's First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 US 563; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 US 378, 384-388). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 US 454, 466; Rankin v McPherson, 483 US at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).

Santer's "speech" regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030), we find that the District failed to meet its burden of demonstrating that Santer's exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656). Significantly, Santer did not violate any law or school policy. In parking his car on Wenwood Drive and moving it prior to 8:00 A.M., Santer fully complied with the applicable parking regulation. Had other members of the public parked their cars along Wenwood Drive in this manner, the District would have had no recourse, because such parking was entirely legal. If the municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the time when parents dropped off their children at the school, it could have prohibited parking during the relevant time periods, but it did not do so.[*3]Moreover, no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest. Consequently, the record establishes that the danger presented by the legally parking teachers could not have been substantial. Under these circumstances, we conclude that the District failed to demonstrate that Santer's legal speech so threatened the effective operation of the school that discipline of him was justified (cf. Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 198). 
The Supreme Court of the United States has stated that "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v Tucker, 364 US 479, 487). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement. 
BALKIN, J.P., CHAMBERS, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Teacher's Contract Protest Protected by 1st Amendment Free Speech

 East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day.  On other days the teachers protesting for a better contract walked on the sidewalk in front of the school.  East Meadow School District filed charges pursuant to Education Law Section 3020a.

The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator's determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.

The arbitrator found that Santer "intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside.  The arbitrator sided with the school district and found Santer culpable.  The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.

The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a "matter of public concern."