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".