The Independent Arbitrator And The 3020-a Process.

Mayor Bloomberg has blasted the independent Arbitrators who hear educator 3020-a cases as being too sympathetic to teachers. He even ranted about them in his radio show and made the following idiotic statement: "The Arbitrators would give serial ax murders a slap on the wrist". The Daily News took up the Bloomberg Administration's and DOE's anti-arbitrator rant and interviewed Arbitrator Paul Zonderman who handled himself very professionally. The question is who are these independent Arbitrators and how do they end up on the 3020-a panel?

The panel is made up of between 23 to 39 Arbitrators who are registered with the American Arbitration Association, that are jointly selected by the DOE and UFT/NYSUT to hear the New York City 3020-a cases. These Arbitrators are given renewable one year contracts and can only stay on the panel if both the DOE and the UFT are satisfied with their decisions. The State of New York pays the daily fees of the Arbitrator that can cost as much as $1,800 a day. Over the years the DOE has been much more aggressive in not renewing Arbitrator contracts than the UFT when the agency believed the Arbitrator's decisions were too sympathetic to the educator. I had previously reviewed the role of the independent Arbitrator Here. More information about Arbitrators can be found on Betsy Combier's rubber room reporter blog. The differences between the NYC 3020-a and the State 3020-a process which is not in our favor can be found here.

There is no matrix on what an independent Arbitrator will decide on the penalty to give to the teacher. In the 3020-a process this is called an "award". The award can range from termination to a disciplinary letter in the teacher's file. Since the independent Arbitrators are jointly selected in NYC, there is a common feeling that many of the Arbitrator awards "split the baby" by giving both sides something. To the UFT/NYSUT the teacher is not terminated and to the DOE a significant "award". However, in my almost five years of talking to people about their cases, it is much more complicated than that. The Arbitrator's "award" is based on many factors and some of them subjective in nature. Listed below are just some of the many things that an Arbitrator must evaluate before making an "award".

• Did the DOE meet the "just cause" standards?
• Were the witnesses credible?
• Did the evidence correlate with the charges?
• Did the defendant appear credible?
• Did the defendant show remorse and sorrow about the action?
• Were there extenuating circumstances?
• What was the defendant's disciplinary and educational record prior to the charges?
• Did the DOE meet the "preponderance of evidence" standard?
• What was the quality of legal representation (both sides)?

Furthermore. some of the Arbitrators tend to be either DOE or UFT friendly and that also goes into the decision. In other words as one long-term observer of the 3020-a process once said to me "that every 3020-a case is different" and that is true. Which brings me to the alleged "sexual misconduct" charges against an educator.
When it comes to "sexual misconduct" by an educator the 3020-a process is very clear. The Arbitrator must terminate the educator, no exceptions. In fact in the latest teacher contract (Article 21G-6 page 120) it states the following:

In §3020-a proceedings, a mandatory penalty of discharge shall apply to any tenured pedagogue a) found by a hearing officer to have engaged in sexual misconduct, or b) who has pleaded guilty to or been found guilty of criminal charges for such conduct.

The §3020-a hearing should be completed within two months, but the suspension
without pay shall be extended one additional month if the hearing has not been
completed, unless the Board has received an adjournment or otherwise delayed the
proceeding. The suspension without pay shall also be extended until a criminal action is
resolved and any §3020-a proceeding is also completed.
If the §3020-a hearing results in a dismissal of the charges or if the criminal
proceeding ends in an acquittal or dismissal (and the Board has decided not to prefer
charges), the pedagogue shall be entitled to back pay with interest for the entire period of
the suspension without pay.

For purposes of this section, sexual misconduct shall include the following conduct
involving a student or a minor who is not a student: sexual touching, serious or repeated
verbal abuse (as defined in Chancellor’s Regulations) of a sexual nature, action that could
reasonably be interpreted as soliciting a sexual relationship, possession or use of illegal
child pornography, and/or actions that would constitute criminal conduct under Article
130 of the Penal Law against a student or minor who is not a student.
A letter of agreement dated October 2, 2005 regarding sexual misconduct is attached
as Appendix G.

That brings me to the Daily News article on the sixteen "pervy teachers" who Chancellor Dennis Walcott demanded he would fire for "sexual misconduct". The problem here is that for all sixteen teachers, the impartial Arbitrators did not find sexual misconduct! Therefore, the Arbitrator "awards" were based upon the totality of evidence which eliminated any "sexual misconduct" accusations and deemed to fall below the level of termination. Maybe the Daily News should question the impartiality of the Chancellor in why he would claim these teachers were guilty of "sexual misconduct" when the evidence showed otherwise? What is evident is that the Chancellor's education on teacher discipline issues are lacking. Maybe he needs to take a "credit recovery course" on what "sexual misconduct" is since he doesn't seem to know or care that accusing somebody of "sexual misconduct" is not the same as actually committing sexual misconduct. This is the United States of America where "due process" is a fundamental right and not the Stalinist Soviet Union. Right Chancellor?