Tuesday, March 02, 2010

The Difference Between The "Just Cause " Standard And The "Arbitrary & Capricious" Method The DOE Wants To Use In The Teacher Disciplinary Process

The DOE leaked their September 10th, 2009 contract demands to the News Media and while the DOE's demands are outrageous and disrespectful to the teaching profession. One of the more ominous demands is to replace the "just cause" standard to "arbitrary & capricious" as the rule in Arbitrator decision making. Why would the DOE want to replace the "just cause" standard with the "arbitrary & capricious" term is very simple. The use of the "arbitrary & capricious" term allows the Arbitrator to find the teacher guilty of the accusations without sufficient evidence to show the charges against the teacher is true. Let's look at the difference between the "just cause" standard and "arbitrary & capricious" term to determine teacher discipline.

Thanks to South Bronx School, he included a condensed version of the seven tests that the Arbitrator must find to be true to terminate a teacher.

"Just Cause" generally means; "the arbitrator first asks whether the employee's wrongdoing has been proven by the employer, and then asks whether the method of discipline should be upheld or modified." However in 1966, arbitrator, Professor Carroll Daugherty expanded this into seven tests that are frequently used by arbitrators. They are:
  • Was the employee forewarned of the consequences of his or her actions?
  • Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee?
  • Was an effort made before discharge to determine whether the employee was guilty as charged?
  • Was the investigation conducted fairly and objectively?
  • Did the employer obtain substantial evidence of the employee's guilt?
  • Were the rules applied fairly and without discrimination?
  • Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record?
Therefore, the burden of proof is on the DOE to prove that the charges must meet all seven tests and that termination cannot be a discipline if all seven tests are not met. This makes it difficult for the DOE to achieve their ultimate goal in firing the teacher. Especially, if the teacher can show that the investigation was unfair and biased. I wrote about the corrupt investigations that go a long way in getting the teacher reassigned but also harms the DOE's case for termination against the teacher. On the other hand if the DOE gets their wish and only needs the "arbitrary & capricious " requirement, the burden of proof shifts from the DOE to the teacher since it is not based on actual evidence but on how the Arbitrator feels about the teacher. Arthur Goldstein wrote a piece on the DOE's contract demands which includes his take of the DOE's "arbitrary & capricious" demand and is a must read. South Bronx School also included the definitions of "arbitrary & capricious" and left in the hands of one person (Arbitrator) is quite scary.

Arbitrary is defined as;
  • depending on individual discretion (as of a judge) and not fixed by law
  • marked by or resulting from the unrestrained and often tyrannical exercise of power
Capricious is defined thusly;
  • sudden, impulsive, and seemingly unmotivated notion or action
  • a sudden usually unpredictable condition, change, or series of changes

In other words, the DOE can simply claim the misconduct happened and use hearsay evidence to meet the greatly diminished standard of "arbitrary & capricious" as the basis for terminating the teacher. This would greatly increase the termination rate and lead to even more teacher reassignment and 3020-a charrges.


Fidgety said...

The DOE has some scary ideas about discipline. Are Daugherty's tests still used in the 3020a process?

A Teacher In The Bronx said...

I am surprised that summary executions of teachers isn't being demanded, oops, I meant to say requested.

Anonymous said...

There are no real standards being employed in 3020a hearings.

Although the number of terminations is higher than is stated by the press, the shakedown in the form of tens of thousands in fines continues. A senior teacher who has been found "incompetent" or to have used "abusive language" are habitually fined. This is supposed to make someone "competent" or to have paid for using an expression that may have made a child "feel uncomfortable".

Pay the indulgence and cross me palms with silver.

The nature of the entire process is arbitrary and capricious.

They may say that the standard is just cause. That is a load of nonsense.

We are seeing a pogrom of senior teachers by the system.

The union actively participates and is far worse than the employer. The main reason is that they harvest the dues, and aid and enable this crime of discriminatory and disparate treatment continue.

The union and the DoE have turned the situation into a hostile work environment.

The positive thing to remember about the French Reign of Terror, is that those who engaged in evil, fell victim to their own tactics.

The entire system is corrupt and run by sadistic treacherous cretins.

It is time for the shit to roll uphill where it belongs.

I'm looking forward to the scandals that will be unearthed in the last term of the little dictator.

Angry Nog

Chaz said...

I think that every teacher going through the 3020-a process should make sure the Arbitrator follows the "just cause" standard and it is a reasonable request that the Arbitrator should answer.

Remember when the DOE files 3020-a charges they claim "just cause" as the basis of the charges. Therefore, "just cause" is the standard that the Arbitrator needs to apply.

Anonymous said...

Chaz: The Daugherty Rules are frequently cited by union advocates, however, they are not rules, simply a standard set by an arbitrator in a non UFT case decades ago. Current paraprofessional terminations come under the contract, the burden of proof, by preponderance of evidence rests on the Department. We have decades of precedential cases. "DAC," discriminatory, arbitrary or capricious is our contract standard for interest arbitrations, not appropriate for dismissal cases, nor to my knowledge is it used anywhere for that purpose.

The teacher cases, Sec 3020 of the State Ed law, uses a just cause standard, higher than preponderance of evidence, and, again, with decades of case law.

Chaz said...


It is my understanding that the "just cause" standard is for determining if termination is an option and the preponderance of evidence is to determine the discipline imposed.

If this is not true. Please enlighten me.

proofoflife said...

chaz can you please email me at terry-mass@hotmail.com. I wonder if you could help me with a question I have about a grievance. Thanks.

Susan said...

I worked at a school district out west, and I can say arbitration is such a complete waste of time. The hearing officer upheld a complete and total wrongful dismissal of me when the principal violated FEDERAL law--FMLA--which was slamdunk in my favor. Didn't matter to the arbitrator since if he had reinstated me he wouldn't be invited back for more work.

Now I am on the verge of taking the school district to federal court, which is what I should have done in the first place rather than waste eight months of my life on a kangaroo process.