Wednesday, April 16, 2008
The Unholy Alliance Between The DOE & UFT Has Weakened Teacher DUE Process Rights Under The 3020-a Regulations
This is another article about the damage that the 2005 contract has on the classroom teacher and their consequences to the New York City Teaching Profession. This article deals with the unholy alliance between the DOE and UFT in weakening teacher due process rights under their agreed upon revision of the State 3020-a regulations. Under Article 21G of the contract the revised DOE/UFT 3020-a procedures are spelled out (except the hidden side agreements - an example of this is Appendix H of the "probable cause" section). The problem with this collective bargaining agreement between the DOE and UFT is it significantly weakens "due process" protections for tenured teachers. Why do I say this? Let's compare the State 3020-a law with the revised DOE/UFT 3020-a process.
First, selection of arbitrators: In the State 3020-a law a tenured teacher has the right to reject an arbitrator, if the teacher and lawyer believes the arbitrator shows a pattern of making decisions unfavorable to teachers. By comparison, the DOE/UFT 3020-a process does not allow a teacher and lawyer to reject the assigned arbitrator. In other words, the teacher is stuck even if the arbitrator has reached decisions that have been unfavorable to teachers. In addition, under the State 3020-a law for teachers accused of incompetence are allowed to select a three arbitrator panel. While the DOE/UFT 3020-a process does not. A tremendous disadvantage for the tenured teacher charged with incompetence. Furthermore, with the State 3020-a regulations an arbitrator can only hear one case every two years for any New York State school district. This was done so that the arbitrator was not pressured to compromise the decision due to financial reasons. Hearing one case every two years for any New York State school district makes the arbitrator immune to financial pressures that may affect the decision. However, in the DOE/UFT 3020-a process the arbitrators can hear more than ten cases every year. Since they get $1,800 per day and may work fifty days or more during the year they can make $90,000 if they work five days a month for ten months! Do you think these arbitrators are subject to pressure from both sides in their decision making? You bet they are! Wouldn't you? I'm not saying the arbitrators don't make the proper decisions but to keep their positions they must please both sides. Finally, under State 3020-a law there is little familiarity between the arbitrators, and lawyers. However, in the DOE/UFT 3020-a process the arbitrator is linked with a DOE and NYSUT lawyer who may work together for up to three years. This familiarity also may affect the arbitrator's decision-making. Remember if the arbitrator makes one or the other lawyers angry, their smooth working relationship is in jeopardy. Therefore, the arbitrator will tend to try to keep that relationship going at the expense of a truly fair decision.
Second, the "probable cause section". The State 3020-a law does not allow tenured teachers to be suspended without pay, unless convicted of a felony crime. However, the DOE/UFT 3020-a process does allow tenured teachers to be suspended for up to 90 days without pay and health benefits for non-criminal charges!
Third, the SCI investigation. there are no deals when a tenured teacher is subject to a Special Commissioner of Investigation ("SCI") review. If SCI substantiates even frivolous or minor alleged misconduct, then 3020-a charges are almost sure to follow. If 3020-a charges are filed the DOE & SCI have an unwritten side agreement that only the arbitrator can make the decision. No deals between the two lawyers can be negotiated. This unreasonable agreement just lengthens the 3020-a process and keeps teachers in "rubber rooms" for two years or more before their cases are finally heard. Under State 3020-a law there are no such agreements that I could find. While the UFT is not part of this agreement, they certainly have not objected to this. I wonder why?
That brings me to why I call the New York State 3020-a regulations law and the DOE/UFT regulations a process. There is some question if the DOE/UFT collective bargaining agreement on the 3020-a process violates the State constitution and federal "due process" rights. While I am not a lawyer and don't even pretend to understand why the DOE/UFT 3020-a process is possibly unconstitutional based upon either the New York State and Federal regulations, I do know that some people believe it does. Apparently in the teachers4action.com lawsuit this very issue came up and is under review. Hopefully, the State or Federal Courts eventually rules that the DOE/UFT 3020-a process is unconstitutional and that tenured teacher "due process" rights are restored.