Tuesday, November 05, 2013

The New York City 3020-a Process Part II - The Independent Arbitrator

The New York State tenured educator disciplinary process, known as the 3020-a process has three major actors.  The School District (DOE), the educator, and the Arbitrator. I previously wrote about the 3020-a process and can find it here.  This post is about the independent Arbitrator and what goes into the Arbitrator's "award".

In the New York City version of the 3020-a process the Arbitrator is selected from a rotating panel of between 23 and 39 arbitrators that are jointly selected by the DOE and UFT.  These arbitrators serve one year terms and are only renewed if both the DOE and UFT are satisfied with their decisions.  Otherwise, the arbitrators are removed from the panel.  While the DOE is much more aggressive than the UFT in removing arbitrators, the fact is that most arbitrators leave the panel out of frustration with New York State's failure to pay them for their work.

Arbitrators get $1,400 dollars per hearing date.  While it may seem like a good chunk of money,  the truth is that New York State never allocates enough funds for 3020-a cases and many arbitrators quit the panel due to a lack of timely payments.  One senior arbitrator quit the panel after not being paid for three years and owed an astonishing $200,000!  Presently,, the NYC arbitration panel is down to 18 arbitrators and the blame squarely lies with New York State.

Arbitrators have a wide latitude in determining the "award" (penalty) for the School District and against the educator.  The "award" ranges from a mere "letter to the file" to termination.  While the NYCDOE always asks for termination, the job of the Arbitrator is to find the proper corrective actions that will rehabilitate the educator and have the educator return to service.  If there are no corrective measures available to rehabilitate the educator, the Arbitrator will terminate the educator.

There is a myth that arbitrators will "split the baby" since both the DOE and UFT must be satisfied with their decisions.  Arbitrators do not "split the baby" when it comes to the "award".  The Arbitrators take many factors into account including the "preponderance of relevant evidence".  You can see the list in my post here.  The "splitting of the baby" is a myth that Mayor Bloomberg and Chancellor Dennis Walcott claims when educators survive the 3020-a process with the jobs, if not their reputations, intact.  I guess to those two the 38% termination rate over the last two years is not good enough, it should be 100%!

While arbitrators are not immune from political considerations or pressure from one side or the other, they are usually fair and reasoned, for the most part, in their "awards"  Very few Arbitrator decisions are reversed on appeal, less than 10% from anecdotal evidence.  However, of late some justices have either modified the arbitrators decisions or sent it back for a re-review when the justice believes the "award" may have been based upon charges not included in the specifications submitted to the Arbitrator.

Finally, there is no "rubric" for the Arbitrator's award since the "award" depends on many factors including the personalities involved in the 3020-a hearing. One of the more upsetting aspects of the 3020-a process is the Arbitrator's assumption that the Principal is always credible.  Even when the Principal is caught lying or exaggerating, the Arbitrator will still find credibility with the Principal's statements. By contrast if the educator is caught lying the Arbitrator will find the educator not credible and usually terminate the educator.  Unfair or not, that's how it goes.

While Arbitrator decisions are usually fair and well-reasoned, many factors go into the "award" and as one of my now terminated colleague once said to me "every case is different" and so are the "awards".


Anonymous said...

Good article. However, what good can any arbitrator do for teachers who receive 2 ineffective ratings and will automatically be brought up on incompotence charges? Many teachers may get positive ratings from their principals but two years of poor test scores, (even if the teacher is in a non-tested subject area) will result in a 3020 hearing. I am correct in this statement?

Chaz said...

I agree. Under the new TES its curtains for the teacher. However, the alleged misconduct is still the same as before and the DOE must prove their case.

Anonymous said...

I think that from now on, principals with a vendetta against a teacher will no longer go for 3020. I think they will use Danielson like a microscopic scalpel and just nitpick/ attack a teacher from a thousand angles. Danielson can and will be used as a weapon.

Anonymous said...

As a advid reader and contributor to your site, I would like to see you do an article on diblasio selecting our next chancellor. I have heard rumors about Shael suransky being considered for the job and that would be a huge mistake. I do not think we want ANYONE from the mikey blloomshit staff at doe to have anything to do with our schools any longer. So, I would love to see you do an article on potential chancellors bacause this is as important as our new mayor. Lets get the word out that suransky will be a mole in diblasios organization.

Chaz said...

anon 1:57

I don't believe that any DOE people are being considered, certainly not the Deputy Chancellor.

Anonymous said...

Chaz, the Education Law §3020-a arbitrators are always attorneys and, as such, are required to implement the New York State Unified Court System’s Rules of Professional Conduct.

Teachers who are undergoing §3020-a hearings should read the following two publications, be aware of what conduct is expected of an attorney, and be familiar with the procedures for filing complaints against attorneys.



Anonymous said...

Is it true that when bloomshit took office in 2001 the doe had 12 lawyers on staff. Today, it has been reported that mikey bloomshit (dont let the door hit you on the way out shorty) has over 300 lawyers on staff. Can anyone verify if this is true or not. Personally, I know that mikey has more than 12 thats for sure.

Anonymous said...

Thank you for everything. Without your blog who would tell us what's going on with the ATRs.

Francesco Portelos said...

I am in my hearing now with 8 days down and countless to go. I heard about this "split the baby" method or "I owe you one". I don't like the sound of that. Give me fair and unbiased with no political pressure.

Yyesenia Lopez said...

Trying to find out...if there are any written Arbitration decisions regarding definition of Orientation to the job of Teacher.

What is the definition of Orientation to the job of Teacher?
Charles Flisser, UFT has stated that this matter has gone to Arbitration...that there are arbitration decisions...BUT....he did not produce these when requested to do so!!!

Can anyone shed light on this?