Winning Your 3020-a Arbitration: Fire Your NYSUT Attorney, Don't Settle

I think that it is time to get to the basic problem with the 3020-a process, as I, an observer for 7 years ( a member of the general public at an open and public hearing) and then a paralegal assisting UFT members and/or Attorneys with 3020-a,  see it: NYSUT lawyers and the arbitrators on the NYC panel do not protect your due process rights, and the hearings are not "fair". Due to the fact that most charges are being preferred by a principal, the arbitrator does not have the jurisdiction or authority to rule on the charges thus given to a tenured pedagogue due to Education Law 2590-j   which gives the right to remove and discipline a teacher to a community superintendent...not a principal. But there still must be a vote. 3020-a goes into how the school board must vote on specifications (see Ed. Law 3020-a(2)(a)) preferred against a teacher before the teacher is given the charges. Everyone charged with 3020-a in New York City must see that the Notice of Determination of Probable Cause has no date for the Executive Session, and is signed by the principal or Superintendent, neither of whom has any authority to sign that piece of paper.

I wrote this article originally in October 2010, I am re-posting here:

Therefore an argument can be made that the arbitrator does not have subject matter jurisdiction to determine Just Cause and the hearing must be delayed, thus effectively dismissing the charges. I have a Motion To Dismiss written by NYSUT New York Counsel Claude Hersh and Attorney Neil Dudich which says just that. Why wont NYSUT Attorneys bring this up at 3020-a hearings?

By the way, what happens to this clause when the person appointed to the title of Chancellor doesn't have a contract, as Joel Klein does not, and yet Education Law 2590-h says that he MUST? Read this:

"* § 2590-h. Powers and duties of chancellor. The office of chancellor of the city district is hereby continued. Such chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract. The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract....."

Please review my articles:
Look at Article 61 in A Personal View From Betsy Combier On NYSUT And What The Attorneys Do Wrong In The 3020-a Process;

I filed a freedom of information request for Mr. Klein's contract in 2005 and again in 2007:
The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender

 NYC Teacher Hipolito Colon Makes History and Sues the NYC BOE, The Panel For Educational Policy, and NYSUT For Violating His Rights

Mayor Michael Bloomberg as Co-Partner in Chief of the New York City Department of Education: Performance Review

Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man (7/7/2007)

Betsy Combier Speaks Out on the Constitutional Mess Created by Mayoral Control of the New York City Board of Education (7/22/2007)

Another issue that the NYSUT attorneys ignore is the right a teacher has to an open and public hearing. While this decision is a right given to the Respondent not only in 3020-a but also in the UFT contract, if the teacher going through the 3020-a does not ask for an open and public hearing at or before the pre-hearing conference, then he/she does not get it. The hearing will be closed. No NYSUT attorney discusses this unless the teacher brings it up. More often than not if a teacher brings up the issue, the NYSUT Attorney will say, "You better not have an open hearing because then the NYC DOE will bring in the press, and your story will be in the news."

Baloney. Press almost never comes to the 3020-a hearings of any teacher, unless asked by the teacher - aside from Steve Brill who was told by Joel Klein to attend the 3020-a hearing of teacher Lucienne Mohammed because she had filed a federal lawsuit against the NYC DOE and needed to be put into her place [of shame]. So, what is so scary about the press arriving at your hearing if you are innocent of all charges?? If you are innocent, and the news is that you are guilty, then you can take action and get damages. David Pakter just sued the New York Post and won release of the name of the person who told the newspaper that he was charged with "sexual misconduct". He is about to pursue an action against the person who was the source for the false claim.

Or, the NYSUT Attorney will say, "you shouldn't have an open hearing because I dont feel comfortable. (So? What are you trying to hide?) Or, "The arbitrator wont like you and will terminate you or give you a worse penalty than you would have had if you did not have an open and public hearing." (WHAT?? This is crazy).

Most people - including me - believe that an open and public hearing is the best way to honor your due process rights. If you have observers in the room with you, you have an extra set of eyes on what is going on, and this is always good. Of course, all people who attend the 3020-a should be silent at all times while the hearing is on the record, and should never make any movement that might seem in any way suggestive of comment. There is no passing of notes. But any lawyer who tries to keep a hearing closed is, we believe, saying, I want to hide something. In fact, on friday morning I was at 51 Chambers Street for a hearing and a NYC DOE attorney told me, "Betsy, are you coming to my hearing? All my hearings should be public, because I have nothing to hide." Exactly.

It is interesting to note that about two weeks ago I was asked to attend a hearing with a new arbitrator, Leona Barsky. I walked in the room with the Respondent and the private Attorney, and Ms. Barsky came up to my face and screamed, "Who are you? What is your name? Who sent you here? Who do you work for?" My replies were that I was a member of the general public, my name is Betsy Combier, and no one sent me, I am just an observer. She was not convinced. As it turned out, she immediately made the hearing a "pre-hearing" (which is closed) and I went to the hearing of another teacher who had asked for me to attend, starting at the same time. I wonder what Ms. Barsky is worried about. I'll be probably following her cases on this blog, as she seems clearly worried about the public watching her.

Even more important to the issue examined here is my suggestion (not legal advice, because I'm not an attorney) that if you are not guilty of any of the charges preferred against you, DONT SETTLE. Go through your 3020-a. This way you preserve your right to sue the New York City Department/Board of Education for actionable misconduct relevant to your specific circumstances (you should discuss this with a private attorney). Many teachers are discussing a class action and I have began searching for a large law firm.

By not settling you are establishing your rights to complain about the process that brought you to the 3020-a hearing in the first place, because this is where the NYC DOE fails. They created a mess by ignoring laws, rules and regulations that prevent angry principals from throwing false claims at people who work in their schools and have them stick. The New York City DOE knows this. For example, a teacher who was charged started his 3020-a and then was scheduled for "mediation." Simultaneously he decided to fire his NYSUT Attorney (Mitch Rubenstein) and hire a private attorney, who was going to accompany this teacher to the "mediation". The mediation was cancelled.

Now there could be many reasons for Theresa Europe (pictured above), head of the Gotcha Squad, to cancel the mediation at the last minute, but my guess is that she did not want the private attorney in the "mediation" session. The "mediation" that she is talking about seems, from the reports of many of the people who have gone through this, to be not what the average person would think of as mediation. Basically what happens is, a teacher is given a date to come to 51 Chambers Street and he/she meets with a "mediator" - an arbitrator on the UFT/DOE NYC panel who has been designated a 'mediator' for the case, but is NOT the arbitrator appointed to hear the teacher's 3020-a - and he/she is told "you better take the deal/pay the fine in the settlement agreement/retire/resign or else you will be terminated at your 3020-a".

Too few teachers are saying "Sorry, no" and walking out.

A private attorney probably would see immediately how wrong this is. Also, if a document is signed under duress, after extreme harassment or other actions that compel, then the document can be rescinded.

If you are a teacher who is extremely afraid of your 3020-a and all the threats that you have heard start making sense to you, take a deep breath and go into your alpha level and try to get back the sensibility to go through with your hearing to the end. A settlement may be good for a short while, but it may not be. Think about this:
- Does your settlement/deal include a clause that says that you will be immediately removed from the ineligible/inquiry list? Get this into your final settlement!

- Does your settlement/deal say that all charges will be removed from your file and will never be used at another hearing in the future?

I will give you an example:

In 2002 or thereabout, teacher X taught swimming at a school. He was tenured, and taught for many years. He typically started races by shooting a starter pistol. On one particular day a student who disliked him complained that he had shot a pistol in the school. He was brought up on disciplinary charges, and his attorney told him to just pay the fine and the charges would be dropped, and only a letter would be placed in his file. He agreed. (why, I dont know). In 2010 he was accused of saying something to a girl, thrown into a rubber room, and brought to 3020-a. His charge was saying something improper to a student, which he fervently denied, but then the NYC DOE handed in the prior charge of shooting a pistol in a school in 2002, and the arbitrator terminated his employment saying that these TWO wrongs showed a history of bad character. Yet the pistol event was never adjudicated at a 3020-a, this teacher only got a letter to file, and it was to end there.

Settlement is admitting guilt. If you are not guilty, why are you paying a fine and admitting that you did something wrong? What are you paying for?

The question of where the fines go remains unanswered, at least publicly. No one is answering this question - which I, for one, ask all the time. And, please tell me, all you NYC DOE readers, what District 65 is?

I'll find out eventually. Here is a funny story: a teacher went through her 3020-a and was fined by arbitrator Howard Edelman $8500. Only, he found her not guilty of any misconduct, he only wanted to stop her from turning around quickly in the classroom ever again. She appealed, and Judge Paul Fineman overturned Edelman's decision as "shocking to the court's conscience". However, before the decision came down, the NYC DOE demanded the money. Cheryl Smith, the NYC DOE Attorney on the case, told this teacher, "You can pay us in cash or by money order, but you cannot give us a check."

What did this teacher do? Paid her fine by check, and gave me a cancelled copy so that I could see what the Bank account of the NYC BOE was. I'm still seeking information on District 65, so please email me at betsy.combier@gmail.com if you have any information. I dont need your name.

To sum up, NYSUT attorneys are now trying to rush all their clients through the system, first by "mediation" that in my opinion resembles extortion, then through unfair procedures enacted as part of an expedited 3020-a hearing.

Wikipedia defines extortion as follows:
"Extortion, outwresting, and/or exaction is a criminal offense which occurs when a person unlawfully obtains either money, property or services from a person(s), entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime groups. The actual obtainment of money or property is not required to commit the offense. Making a threat of violence which refers to a requirement of a payment of money or property to halt future violence is sufficient to commit the offense. Exaction refers not only to extortion or the unlawful demanding and obtaining of something through force, but additionally, in its formal definition, means the infliction of something such as pain and suffering or making somebody endure something unpleasant.^"

Everyone should dig his/her heels in the ground and put a stop to this rush to judgment and perfect storm of injustice by hiring an excellent private attorney who will use the law to stop the NYC DOE from taking away your career and stigmatizing your professional life. I have met and can suggest terrific people. Unfortunately, they are not 'free' (you've paid for legal representation with your mandatory dues to the UFT), but I guess I can say that the following applies here: "You get what you pay for".

Betsy Combier

PS: Fidgety, a fellow blogger, posted the following:

May 17, 2010

Why I fired my DOE (oops!) NYSUT Lawyer...
LINK

At our first meeting, I clearly requested an "Open and Public" hearing so that my lawyer could give notice to the arbitrator and DOE lawyer. I followed up on this request with an email asking for confirmation.

By our fourth meeting, I noted that my lawyer had still not solidified my request with the hearing officer and asked her why.

I said, "I sense that you don't want me to have and open and public hearing." "Well, she said, "You sensed right". She then proceeded to paint an ugly picture of an out of control hearing room filled with unruly reporters and friends of the Principal. "If you have an open hearing, the Principal can bring in anyone he wants to. Anyone. That may not be in your best interest. You never know who he might bring in". And, "Do you really want the press distorting your story the way they have done with other cases?"

Armed with the confidence that somehow, "The truth will set me free", I still insisted on an open and public hearing despite the obvious dismay of my lawyer.

I could only reach my NYSUT lawyer through the NYSUT office, that is... when it was open, which meant that I had to call when the office was open, even just to leave a message. The recording said that if you know the '3 digit code' of the person you are trying to reach, please enter it now. As a client, I asked my lawyer for her 3 digit code. Her response was, "Uh, what do you need it for? Has there been a gap in our communication?" "Yes,as a matter of fact. I called you five days ago and this is the first time you have returned my call." "Well...Is there a problem with that? I am very busy."(doesn't want to be bothered)"Yes, there are times when I would like to be able to leave you a message." Her response was, "I think that we've been emailing just fine, don't you?" "No". (Obviously I wouldn't be asking for your code if I was able to reach you, idiot).

After several months of sending emails with scant response from my lawyer,I was beginning to get nervous. When she called me on a Sunday night at 10pm on the last day of spring break, I asked her again for an alternative number. Again, she refused to give me one. Her excuse was that she'd had trouble in the past with clients(teachers) calling her at all hours of the night and had reservations about ever giving out her cell phone number to a teacher again...(I wondered if that reservation included calling her clients on a Sunday night at 10pm.)

When I asked what concerns she had, she responded that she'd rather not divulge that information, and... "Is this the reason you called me?- to pick a fight?"

My paranoid NYSUT lawyer wouldn't allow anyone to sit in on my meetings with her. I found it unusual that I couldn't be accompanied by someone, anyone of my own choosing. Her reason was that she had not established 'confidentiality' with that person. (They were my support system stupid, not yours.)

Before our third meeting, I asked my lawyer why she wouldn't allow me to bring someone in with me for support. Her response was that she didn't feel 'comfortable'. I said that, "It's not about 'you' feeling comfortable. I am the client. This is my case. I am choosing to bring this person in. I trust this person". As a client, I should be able to bring in anyone that I want. (Shouldn't I?) Her response was, "Well, what do you know about lawyers? How much experience have you had with lawyers anyway?"

Does this sound professional to you?

It started to become very clear to me that my DOE-(oops!)NYSUT lawyer was not working in my best interest when she divulged private information to my Chapter Leader without my permission. It seemed that she- my lawyer, needed assurance that the events I had described to her actually occurred the way that I described them. Who was breaching client-lawyer confidentiality now?

My NYSUT lawyer was completely overwhelmed with too many cases and it was adversely affecting the preparation of my hearing. As the amount of documents that I submitted to her grew, so did her disorganization. Each time that I met with her, it was like starting from square one. As we were going through the documents I had submitted to her at previous meetings, I came across one that didn't seem familiar. As I began to read it aloud, her response was, "Oh that's not yours", grabbing it out of my hand. "I was wondering where that document was! I don't know how that paper got in there". That document, that 'confidential document', was from another teacher's case that she was working on. I began to wonder how many of my documents had been mixed up or 'fallen' somewhere that they shouldn't be... And she was the one concerned about "confidentiality?".
It was obvious that my lawyer had her own set of rules which she felt didn't apply to her. I had no confidence that she was working for me and not the DOE or some other ultimate plan. Three weeks before my hearing, I fired my DOE-oops! 'NYSUT' lawyer and hired a private one. I believe that it was the best decision that I have ever made. There was no doubt that the new lawyer had the experience and knowledge that the NYSUT lawyer was clearly lacking. He was one step ahead of the DOE and UFT's tricks which I believe included assigning me a ridiculous and severely inept NYSUT lawyer.

Extortion At 3020-a Arbitration

Extortion At 3020-a Arbitration in New York City
Parentadvocates.org
LINK

Michael Mulgrew

Black’s dictionary, 6th edition, defines “extortion” as: “The obtaining of property from another induced by wrongful use of actual or threatened force, violence or fear, or under color of official right.”

Lately it seems that every tenured employee of the NYC Board of Education brought to 3020-a arbitration is being terminated. The arbitrators currently serving on the UFT-BOE New York City panel seem to be unwilling or unable to find a lesser penalty for any level of misconduct or incompetence.

No one is really listening to the facts of any case (and I don’t mean ‘hearing’ the facts, I mean listening), and, in my opinion as well as in my experience with the UFT Representatives, the UFT Reps. and NYSUT Attorneys really believe that anyone receiving charges is actually guilty of those charges. Oh, the UFT Rep. will help you file for your arbitration hearing – either 3020-a or “U”rating appeal - but then you will not hear from the rep. again, no matter what you do. They don’t want to get involved and put themselves into a chance encounter with SCI (Special Commission of Investigation) or an agent (notice I don’t call them “investigators”) from the Office of Special Investigations (OSI) or Office of Equal Opportunity (OEO). People from these sub-agencies of the NYC BOE have the right of way.

The teachers who have had the sentence “you are terminated” handed to them since January 2011 don’t understand what happened. Of all the cases told to me by the teachers themselves, and after reviewing many pages of transcripts from many different cases, my opinion is that very few of the fired teachers deserved this fate. The rest were brought up on absurd charges that should have been written into a counseling memo (if at all) or given to the employee with, at most, a couple of weeks’ suspension. All were targets of a vindictive principal and/or “legal” (the NYC Office of General Counsel) who, under orders of “legal” and Mayor Bloomberg, go for employee termination in every case. There have been many success stories, too, but I’m here to tell you about a person who could have been successful in her case if her NYSUT attorney and the arbitrator had not used extortion and harassment to get her to resign.

While observing the hearings as a volunteer journalist, I was asked by Randi Weingarten to work as staff at the United Federation of Teachers and help members, including the members in temporary reassignment centers or “rubber rooms”. When I started at the UFT in August 2007 there were seven locations where tenured (and some non-tenured) employees sat every day, from about 8:30AM to 3-3:30 PM, depending on their school hours. In the 2007-2008 school year I went to all of the TRCs, then in 2008-2009 and 2009-2010 I visited each of my locations (25 Chapel Street, 355 Park Place in Brooklyn, and 501 Courtlandt Ave, Bronx) every week and stayed all day because the people in these locations wanted to talk to me, or anybody (and I was the only person who visited every week). As I wrote above, I attended the 3020-a hearings as a volunteer until 2011, when I started working with private attorneys hired for 3020-a.

The 'NYC Rubber Rooms' refers to the eight locations open until July 1 2010 scattered throughout New York City where targeted tenured employees of the NYC public schools were told to sit until charged, often for 2 - 7 years. I also use the term to mean the process of putting people out of their jobs under false pretenses. While these people sat and awaited their “fate,” which was unknown and some were never charged at all, The Gotcha Squad created charges against them without their knowledge or consent. The United Federation of Teachers (UFT) the New York State United Teachers legal group (NYSUT) and the New York City Board of Education (NYC BOE) all conspired together to deny thousands of people their constitutional due process rights. Many did not go away willingly or quietly after receiving unfair decisions through mediation/arbitration, so the 3020-a process was and currently is used to force employees out of the system. The NYC BOE Gotcha Squad could be held accountable if the charges are proven completely false and/or the employee brought to 3020-a is exonerated, so arbitrators on the UFT/BOE must prove something in order to get the NYC BOE paid back for the time and money spent on trying to get charges to stick (doesn’t matter if the charges are true or not).

The Mayor of New York City, Michael Bloomberg, started the campaign to close the Temporary Re-Assignment Centers (“TRCs”) in 2007, after the New York City newspapers began a series of articles on the “Rubber Rooms”, popularizing the nickname as well as the fact that hundreds of teachers, school counselors and other tenured personnel were being warehoused at their full salaries while they sat for months, and years.

My sources say Bloomberg realized that the setting up of warehouses for teachers and NYC BOE personnel was one of the biggest errors of his administration. The stories ripped into the minds of New Yorkers, who pay the highest taxes in the country. There was an uproar of disgust at the stories of so many highly paid public servants who would sit around and do nothing on the public dime. Actually the truth of the matter is that no one was in charge, so no data existed about why all these employees were placed in the warehouses, and no one wanted to admit that many were placed there unfairly.

I decided in 2003 that someone ought to investigate what was going on, and it might as well be me. By the way, Mike Bloomberg’s second biggest mistake was hiring Joel Klein, whose style of verbal abuse of anyone who refused to do what he wanted was the opposite of what Bloomberg wanted.

In 2008 Bloomberg, ordered Joel Klein and the UFT to expedite all the 'teacher trials' (3020-a arbitration hearings). As this arbitration is compulsory, teachers who are charged and who request a hearing have only this venue to defend their position pursuant to Education Law 3020-a. The first agreement, in June 2008 actually was never implemented. Everyone ignored the clause in there that principals should be held accountable for making false claims against any of their employees. Also, the signing of a document giving everyone a “speedy” hearing outraged almost everyone sitting in the temporary re-assignment centers or TRCs. None of the rubber roomers accused of wrong-doing or incompetency wanted an ‘expedited’ hearing that denied him or her a full and fair hearing, but no one at the helm of the UFT or BOE was listening. I and several of the temporary re-assignment centers’ liaisons were protesting all the time on our blogs and in-person to the leaders of this fraud, to no avail.

The lawyers who are assigned to handle the 3020-a arbitration seem to be unwilling or unable to be bothered to spend large amounts of time on any single case. Speed to termination or penalty was the goal, not a serious review of all the facts. Many members complained to me and anyone else who would listen about how they, after sitting in a rubber room for two-7 (or more) years, were given 1 hour to talk about the case when their NYSUT lawyer finally met with them. 

From 2007 to 2010 there were simply too many UFT members charged with incompetency and/or misconduct to spend any amount speaking to and/or defending any one client. Some NYSUT attorneys made this very clear to their client, especially if the person spoke slowly, didn’t have all the papers necessary, whose language was not English, or who simply didn’t get The Plan, which was to quickly run through the evidence and get you fined, resigned, or terminated, by force if nothing else worked. I often asked the lawyers – as did their clients – to subpoena witnesses, so that the proper testimony could be recorded, but NYSUT will not subpoena witnesses. This is a lethal error, in my opinion.

For some reason, the NYSUT Attorneys think that their clients come to the offices at 52 Broadway without a small digital tape recorder in their pockets. The lack of understanding about the 21st Century technology is astonishing, particularly when many clients have taped the investigators, the principals, assistant principals, and all other personnel for years at their respective schools. Why the NYSUT attorneys wouldn’t think that their clients are taping them as well is beyond me. Anyway, in New York State the law protects anyone taping anybody else with whom he/she is in a conversation without telling the other person. NYSUT attorneys, and you know who you are, remember that whatever insults and comments you say will be repeated, and may haunt you in the future.

Back to a short recent update on the Rubber Rooms. On April 15, 2010 the UFT President Michael Mulgrew, NYC BOE CEO Joel Klein, and Mayor Mike Bloomberg announced that there was a new agreement to end the rubber rooms forever. This agreement was negotiated, signed, sealed, and delivered in total secrecy. Not I nor anyone else knew about it outside of a select few at the UFT headquarters and district offices. On the 15th I received a call at home from Luis Crespo, the Brooklyn TRC ‘Principal’ at 25 Chapel Street and he told me to get over there ASAP, as there was a major announcement in a few hours. It was 8AM.

The April 15, 2010 agreement mandated the closure of the eight locations that, altogether, held approximately 500 people awaiting their "trial", freedom and exoneration, or termination. The rubber room process – false charges substantiated at 3020-a followed by excessive penalties - didn't end, only the large warehouses specifically designated as "re-assignment locations".  

Teachers continue today to be thrown out of their classrooms often for little or no reason and without evidence of the allegations, but now, after April 15, 2010, the effort to get the people removed and tainted by charges has taken on a new urgency, fueled by Mike Bloomberg who dictates the rules. Most of the agreement dictated new rules for 3020-a that took away the few rights tenured members had. In my opinion, this agreement was a disaster in terms of honoring procedural and substantive due process rights for any person subjected to charges pursuant to 3020-a. The UFT has continued the "hands-off" strategy, and rules in the UFT contract are being ignored without any accountability. Employees charged with anything are removed from their classrooms and told to sit in the office of the school, the suspension room, at 65 Court Street, or 131 Livingston, both in Brooklyn, and Long Island City, just to name a few locations.

By 2010 the order from Mike Mulgrew, Klein and Bloomberg was to get all 'rubber roomers' off the arbitration calendar and, hopefully off of the NYC BOE payroll. To show how this played out, I will now tell the story of "Jane" - not her real name. I have redacted all mention of her real name in the papers that she gave me that details what happened to her at the hands of NYSUT attorney Keith Gross and Arbitrator Bonnie Siber Weinstock on May 13, 2010 to show how teachers are made into victims in this New York City arbitration known as 3020-a. Something must be done to stop what happened to Jane and countless others.

Jane was in the oldest rubber room, located at 25 Chapel Street in Brooklyn, NY, not far from the Brooklyn Bridge. She took a seat at the far end of the long room where she made beautiful and colorful small paper planes. I still have mine. She was very very upset at the charges as she loved 'her' children and her job, and would never do anything that represented harm to a child. She believed that the NYC BOE targeted her wrongly and framed her with false charges. After reading her charges and listening carefully to her story, my opinion was that she should never have been removed from her classroom. She was one of the “innocent” members of the rubber room. (My assessment/opinion).

On May 13, 2010 I happened to be in the room when a little before 12 noon Jane received a call from her NYSUT lawyer whose name is Keith Gross. He had an urgent message, that Jane must come to the administrative trial office immediately, at 51 Chambers Street, because her arbitrator, Bonnie Siber Weinstock, was waiting. Jane had been up most of the night before, and she was very tired we all heard her say, and couldn't she come on monday instead? Mr. Gross told her absolutely not.

As Jane told us later, she had no money that day for the subway to Chambers Street, so she ran across the Brooklyn Bridge to get to 51 Chambers Street ASAP, as Gross had ordered her to do. Jane went immediately into her hearing room with Gross, and Bonnie Siber Weinstock sat at the head of the table. The NYC BOE Attorney, Chrystal Barrows was there, Mr. Gross was there, and a transcriptionist from Ubiqus, the company hired by the NYC BOE to transcribe the record.

Jane told us Arbitrator Weinstock told her to sit down, and constantly mispronounced Jane’s last name. Jane has a simple last name and thought that the mis-pronounciation by Weinstock was to upset her from the very start of the meeting. It did. She was. Weinstock mentioned that if Jane went to a full hearing she could be terminated, and she told Jane that this is what would probably happen if she did not agree to sign the settlement agreement that was on the table. Jane really did not want to resign. She wanted to make some sort of agreement, but she didn’t want to be terminated, and she felt harassed by Weinstock. Nonetheless, Jane was not ready to sign her resignation, so Keith Gross said to her, let me take you outside for a moment.

When Gross got outside, Jane said, he and she went into another room, where Gross said something to the effect of “What do you think this is, a circus? You better resign, or you will be terminated”.

Jane was very scared at this point, so she said ok, but felt that this wasn’t ok at all. Gross and Jane went back into the arbitration room, and Weinstock put on the record that Jane had agreed to the terms of the settlement, and the hearing was over. In Exhibit "A" you will read the name 'Martin Weinstein'. He was the former Superintendent and coincidentally I happen to know Marty. I called him up and asked him if he ever saw or heard of the specifications and/or settlement of "Jane" - I of course gave Jane's real name - and Marty told me that he had never seen or heard that name, and never saw or read any paper with Jane's real name on it.

Jane did not return that day to Chapel Street, so a few days later I returned to Chapel Street and heard that she was still extremely upset, crying on and off. I sat down with her and she told me about what happened. I suggested that she call Mr. Gross up, which she did, and ask him to send her a copy of the transcript, which she received a few days later and gave to me.

I also asked her if she would write down her feelings of that day, which she did, and here is her statement:

"On May 13, 2010, my NYSUT Attorney, Keith Gross told me that I needed to immediately report to Chambers Street or the “deal” would be taken off the table – the deal – I could remain in the TRC until June 28 and not be sent to the ATR the minute I resigned – because there would be no need to be in the TRC once there was a “deal”.

Also, I’d get to receive my summer paychecks and receive my benefits through August – Benefits Id already earned. My Attorney said this was the best he could do for me and that if I didn’t take the deal that day it would be off the table and there would be a hearing beginning the following week . If I lost the case I would lose my pay from May through June.

We both felt there was no point in going through the hearing since I had other plans and new prospects for September.

I requested that I be allowed to meet with him to go over the paperwork on the following Monday – the 17th – because I was struggling to stay awake because I already started my course (?) transition and I was working nights and surviving on an average of 2 hours or less of sleep per night during the week.

I was told to stop making excuses, that even after I still wanted out that I did not have subway fare – no never until payday. I was told that I’d have to come up with the money if I was going to attend hearings because I literally had less than 20 dollars in my checking account that day.

I received a text message from Keith Gross to report to Chambers Street ASAP. I texted him the details of my situation and that if I felt better by the PM I’d walk over the bridge to get there.

I did do this. My Attorney went over the paperwork with me and the stipulations of the “deal”. I was assured I would never have a problem getting a teaching job outside of the city because the only information sent out would be the recommendation letter included in this packet.

When the arbitrator asked me if I had been coerced into making the agreement, I tried to explain that this really was coercion since there were few choices available to me and none that were very appealing.

She snapped at me and said that if I felt I was being coerced she would listen to the evidence at a three-day hearing and render her decision in three days. That’s what I heard. What is written in the transcript is quite different.

My Attorney made me go to the room next door and told me “This isn’t a game. And you said that you were ready to sign and you agree with the terms.”

I knew then that the UFT and DOE and NYSUT lawyers really are mostly all the same.

I was crying when I signed the paperwork. The arbitrator had the nerve to congratulate me and wish me luck. She never even asked how I pronounced my name – it was like she was deliberately pronouncing it incorrectly. If half my dues go to her for pay I want my half back.

I felt like all anyone cared about that day was how many people they could get off the payroll.

I did not “take a deal”. I quit because I don’t need or want anything from the DOE. But honestly, I want the DOE erased completely from my work record."

Jane now works at cleaning doctor's offices at night. She says that she is happy because she is out of the Department of Education.

Betsy Combier

betsy.combier@gmail.com

Editor, Advocatz.com
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, NYCourts - New York Court Corruption
Editor, NYC Public Voice

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.

NYC Councilman Richard Holden Exposes Corruption and Fraud at the NYC Department of Education

New York City Councilman Robert Holden (pictured above) is exposing the massive grading fraud in New York City's public schools. The NY POST reported on Jan. 26, 2020 that Holden believes there is “an apparent pattern of conspiracy to cover up grade-fixing, cheating and other wrongdoing [which might] warrant an investigation under the Racketeer Influenced and Corrupt Organizations Act (RICO), which covers criminal enterprises."

We the general public certainly know from reading many websites, blogs and newspapers for at least the past decade that our public school kids in NYC are being robbed of a free and appropriate education. It's about time that our political leaders not only took notice of this fraud, but did something about it.

See my post on my website Parentadvocates.org published in 2004:
Silencing Opposition: Education Policy Implementation Becomes a Matter of National Security
Teachers who speak up are fired at 3020-a, discontinued from probationary service, and/or taunted and harmed in many other ways, all because the NYC Department of Education believes in retaliation, mobbing, extortion, and bullying. It's all about the VIPs of the Department, in all agencies - Schools' District Superintendents, Office of Special Investigations, (OSI) Office of Equal Opportunity (OEO), Office of Personnel Investigations (OPI), Administrative Trials Unit (ATU) and Teacher Performance Unit (TPU) - see here as well - 3020-a panels' Directors, General Counsel to the Chancellor, Office of Parent Engagement, and all the sub-agencies on the NYC DOE payroll - who must agree with the following secret policies:


1. If the school wrong-doing is jeopardized by anyone who may blow the whistle, charge the whistleblower with anything you want and you will be backed up with "proof", provided by staff at the Office of Legal Affairs;

2. Never admit that the Department did anything wrong;

3. Pin any scandal on your school's weakest link - i.e. a staff member who does not speak English well or at all, a  staff member or educator who has done something in his/her past which could look bad for him/her if exposed, a staff member or educator who has a medical condition or sick spouse/relative who must take time off, etc.;

4. Make up what you need if you have no facts, then arrange with administrators how you will be given immunization, witnesses to support your lies, documents which need to be back-dated.

I know the facts behind the list above because I have worked on cases which are based upon one or all of the above. My suggestion is that you NEVER go to any of the agencies or personnel cited above, except OPI which is the "problem Code" office. See this post:

The New York City Department of Education's "Problem Code" is an Unlawful Flag on an Employee's Fingerprints

If you file a complaint with OEO, OSI or SCI, you will be the one they investigate.

For instance,

David Suker is a fearless and outspoken teacher who was charged with 3020-a for allegedly lying about his home address in order to get his daughter into a school on Manhattan's Upper West Side. He was terminated at his 3020-a, which I did not work on (he had a NYSUT Attorney), but he asked me to help him with an Appeal, and I did. I knew that the Department had only 30 days to investigate his address - which, by the way, was not a lie) but they waited 10 years to charge him with a "crime" (see numbers 1 and 4 on the list above).. After winning the Appeal the City filed an Appeal with the First Department, and David ultimately won a settlement of $250,000. The Department's lack of proof lost the day for them, but boy, did they try.

Here is another couple of cases of retaliation:

At the 3020-a hearing offices, Arbitrator Philip Maier was appointed to hear the case of Alan Herz wherein Alan was charged with misconduct. Mr. Maier is an exceptional arbitrator, but the investigators did not submit a report substantiating the charges within the required time, and therefore could not use any of the report to support the charge. Mr. Maier dismissed the 3020-a charges at the pre-hearing. Then, all hell broke loose. The NYC Department of Education, represented by taxpayer funded the Corporation Counsel, sued both Philip Maier and Alan Herz for dismissing the charges. Both Mr. Maier and Mr. Herz discussed with me their disgust for the Department's absurd retaliation. The NYC DOE lost their case. Mr. Maier was fired from the 3020-a panels in New York City.

A  Guidance Counselor was charged with 3020-a for changing grades of graduating seniors at DeWitt Clinton High School, following a meeting with Principal Santiago Taveras who told her to look at a student's grades and "fix them", but she refused.  I assisted the GC at her 3020-a, and we won the case. Mr. Taveras was moved to a new position at the NYC DOE, higher up in the ladder of importance than he was previously:

Santiago ("Santi") Taveras is Demoted/Removed as Principal at DeWitt Clinton High School For Misconduct, But Gets a Higher Salary. Payoff?

Another example is the many people who have cited the NYC DOE for retaliation at PERB, won the case, and then receive a Notice which the DOE is supposed to post in his or her school and all other schools for 30 days. The DOE hides these Notices so that no one sees them. See Maguerite Bagarozzi's Notice here (received after she had a 3020-a, and paid a fine of $2000.00):

And then we also have the massive grading fraud in Maspeth High School:


Maspeth High School dean who allegedly helped kids cheat is removed
By Susan Edelman, NY POST, January 25, 2020

Danny Sepulveda

A Maspeth High School math teacher and dean who students say gave them answers on Regents exams and texted with them has been removed, The Post has learned.

Danny Sepulveda was escorted out of the Queens school in late December “due to an ongoing investigation,” the city Department of Education confirmed.

DOE officials said the investigation was “unrelated to academic fraud.”

But Sepulveda, 30, is one of several teachers who gave kids answers during Regents exams, according to statements given to investigators.

One student wrote last year that Sepulveda re-read the questions at the end of the exam: “But while he was reading it he was only saying the right answer choice, and this made me uncomfortable because it showed he didn’t believe in me to pass the exam.”

Another student wrote that during a math Regents exam in June 2018, Sepulveda and math teacher Chris Grunert “helped me and other kids in my room with answers.”

Grunert and others accused of academic misconduct have not been removed from the school.

In texts to a fellow teacher, Sepulveda defended the practice of giving kids answers, arguing it protects their futures.

“Having someone fail and not graduate HS because of a state exam that colleges never look at is more of a failure than anything else. I look at state tests as the anti-christ,” Sepulveda wrote.

He also wrote, “You don’t get it, man … It’s different here. It’s different because I’m not going to not even give these kids a shot at the real world because they didn’t pass HS. That’s ridiculous.”

During last week’s Regents exams, the DOE let Principal Khurshid Abdul-Mutakabbir and two assistant principals — all under investigation — administer and proctor the tests.

The DOE said it sent “test monitors” to Maspeth as a precaution. “There were no reports of cheating,” a spokeswoman said.

In a letter to Councilman Robert Holden, who also raised concerns about the Regents exams, the DOE said it has “trained” Maspeth personnel. Among instructions, employees were told not to “give students any clues or answers.”

Sepulveda also texted frequently with students during the school day, insiders said.

Among multiple text exchanges turned over to investigators, a student repeatedly asks Sepulveda if he can come to his office.

“I won’t do anything stupid anymore, from here on out. Your’e always good to me and I don’t wanna make you look bad. I’m sorry,” the student says.

Sepulveda replies, “You know your’e my guy. Just let me be able to hype you up again.”

Academic fraud at Maspeth High School is one of the complaints that led to the feds now looking into allegations of systemic cheating at city schools.

From Betsy:
I suggest a good read for anyone interested in the corruption of the Department, formerly the Board of Education: the groundbreaking study of the NYC Board of Education by James Gill, titled "The Gill Commission Report" and his subsequent document "Investigating the Investigators"., both published in 1990. In 2009 I could not find them anywhere online, so I went to the Municipal Library at 31 Chambers Street, where the librarian, Paul, agreed to copy both reports for me for free on his private Xerox machine. Thanks to him, these reports are available on my website Parentadvocates.org and blogs.

The NYC Department of Education is a cesspool of people out for revenge. Be vigilant.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
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

FBI probes allegations of ‘deep-rooted’academic fraud in NYC schools

By Susan Edelman, NY POST, January 25, 2020 

The feds have started looking into allegations of widespread academic fraud in New York City schools, a Queens lawmaker says.

City Councilman Robert Holden met this month with officials in the US Attorney’s Office for the Eastern District of New York after his call for a federal probe of “deep-rooted fraud” in the city Department of Education.

“I’m encouraged by my meeting with the US Attorney. His team is taking this seriously,” Holden told The Post.

FBI agents have already contacted several whistle-blowing teachers whose names he provided, Holden added.

A spokesman for US Attorney Richard Donoghue declined comment.

Holden sent a letter in November to Donoghue in Brooklyn and US Attorney Geoffrey Berman in Manhattan, saying “an apparent pattern of conspiracy to cover up” grade-fixing, cheating and other wrongdoing might warrant an investigation under the Racketeer Influenced and Corrupt Organizations Act (RICO), which covers criminal enterprises.

In Atlanta, eight educators were convicted under a RICO statute of manipulating student test scores and sentenced to prison in 2015.

Holden turned over records compiled by former and current faculty members at Maspeth High School in Queens, where teachers say administrators encouraged cheating on exams, enforced a “no-fail policy,” and retaliated against staffers who didn’t play ball.

Meanwhile, Holden and The Post received additional whistle blower-letters from anonymous “investigative staff” with the Special Commissioner of Investigation for city schools.

A similar letter sent last summer said SCI was sitting on cases alleging waste or misconduct by Mayor Bill de Blasio, First Lady Chirlane McCray, Chancellor Richard Carranza and other “high-level executives,” to protect them. Special Commissioner Anastasia Coleman denied the accusation.

The new letter blasts Coleman for a “numbers game” — boosting stats with minor cases rather than focusing on more serious misconduct and systemic corruption, in an effort to make herself look good.

For instance, the letter says, SCI in 2019 launched a probe of a DOE employee “seen urinating in public a few blocks from a school.”

The case was assigned to “Team 1,” an elite unit that is supposed to probe sexual contact between staff and students.

The team was also burdened with cases in which administrators “merely forgot to check a box” in submitting a complaint.

“While SCI is doing more work, the quality of the cases being pursued is zero-to-none, and cases that are systematic in nature or that do show major fraud can’t be worked on because of a lack of resources or time,” the letter says.

It also complains that SCI lawyers “have taken up to 300 days or more” to review and close cases — leaving DOE employees in limbo even if accusations are unsubstantiated.

What’s more, SCI has started closing cases “in-house” rather than sending reports to the DOE, the Conflicts of Interest Board or other agencies, to cover up the delays — and avoid making them subject to public disclosure under the Freedom of Information Law.

Councilmen Mark Treyger, education committee chairman, and Ritchie Torres, investigations and oversight chairman, have said they plan to hold a hearing on SCI’s performance and effectiveness next month.

“It’s increasingly apparent that we need an investigation to investigate the investigators,” Holden said.

Coleman did not respond to the allegations. “SCI will not comment on pending matters or internal deliberations and office management,” the agency said in a statement.

De Blasio spokeswoman Jane Meyer said the city has not received notice of a federal investigation.

“We take allegations of cheating very seriously, and immediately after these allegations were brought to our attention this summer, we reported them to SCI,” Meyer said in a statement Sunday. “The DOE has not received notice of any federal investigation, but will cooperate fully with any investigation they undertake.”