Saturday, November 09, 2013

The New York City 3020-a Process Part III - The Lawyers

Another major actor in the 3020-a hearing process are the legal teams for the DOE and the educator. For simplicity I will call the DOE legal representatives as the "lawyers".  While the NYSUT legal representatives as "attorneys".  During the Bloomberg Administration, the DOE has hired more lawyers than any other employees in their Central Bureaucracy.  Most of these lawyers work for the Office of Legal Services and are directly or indirectly associated with educator discipline issues.  The Office of Legal Services represent the DOE in the 3020-a hearings and their mission is to ask and receive termination.  No other "award" is acceptable.  On the other hand, the educator is represented by NYSUT who provides an attorney "free of charge".  The NYSUT  attorney's mission is to save the educator's job not to acquit the educator.  Remember in the New York City version of the 3020-a process only 4% are actually acquitted.

The DOE Lawyer:  In the 3020-a hearings the DOE lawyer can come from either one of two units under the Office of Legal Services.  The Administrative Trials Unit (ATU) for educator misconduct cases an the Teacher Performance Unit (TPU), otherwise known as the "gotcha squad" for teacher incompetence cases. Regardless, both units have one mission and one mission only and that is to seek and receive termination by whatever means possible.

To achieve their goal of termination, the DOE lawyer will overwhelm the educator with numerous dubious charges (specifications).  These charges will include presenting unsupported hearsay as fact, embellishing everyday interactions as serious infractions, and twisting and perverting simple actions as major misconduct.  Their specialty is to take incidents out of context and will claim that the educator has a "pattern and practice" to advance their goal for termination otherwise known as "throwing shit on the wall and see what sticks".

The NYSUT Attorney:  When a tenured educator is charged under section 3020-a, the UFT will contact NYSUT and arrange to have an attorney assigned to the educator "free of charge".  These NYSUT attorneys are, for the most part, very experienced and will do their best to represent the educator,  However, when the educator and the attorney don't see "eye to eye", the educator can fire the NYSUT attorney and have a "private lawyer" to represent them. For the most part, the NYSUT attorney is very competent and do the best job they can and are usually more poised and polished than their DOE counterparts.

The Private Lawyer:  Some educators decide to use a private lawyer for different reasons.  There is a perception that the private lawyer will work harder for the educator since they are being paid.  However, in my opinion, the results have been mixed at best.  The major reason is that the New York City version of the 3020-a process is a team process. The Arbitrator. The DOE lawyer, and the NYSUT attorney are the team.  They are linked together for a year or more and a certain "comfort zone" is established between the three. When a private lawyer replaces the NYSUT attorney this may unconsciously affect the Arbitrator's "award".  I prefer to believe that no Arbitrator knowingly does that but it can't be ruled out.  Therefore, an educator should think long and hard before replacing the NYSUT attorney.

Open and Public Hearing:  None of the actors want an open and public hearing but the educator has a right to one and while the NYSUT attorney will strongly recommend that its not in the educator's best interests to have one, the decision is the educator's.  I believe an open and public hearing allows other eyes to observe the process and can assist the educator in his or her defense and I did have one. Again the final decision is the educator's.

Parts I and II of the 3020-a process can be found Here and Here.

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