Thursday, January 25, 2018

It Appears The DOE Is Trying To Push Veteran Teachers Off Payroll By Claiming They Committed Major Misconduct In A Probable Cause Hearing.




















Over the last fifteen years the DOE's Office of Legal Services has slowly expanded the "probable cause" actions of major misconduct that can take teachers off the DOE payroll. Originally, it started in the terrible 2003 contract that allowed the DOE to demand a "probable cause" hearing in front of an arbitrator for teachers accused of sexual misconduct and corporal punishment that seriously injured a child that usually led to the student going to the hospital.  As the years went by and new contracts were negotiated, the major misconduct, category was expanded to include most felonies and criminal actions. Now, it seems the DOE's Office Of Legal Services is trying to expand the major misconduct definition further to include any corporal punishment that resulted in a child being bruised, scratched, or hurt. Even if the school nurse was not contacted!

The DOE's overreach by including actions not covered under the major misconduct provisions in the contract, just to  get teachers off payroll has not been challenged by our union and this is just another example of our union leadership failing to protect their members  while allowing the DOE to target veteran teachers by any means possible.

Here are the three section of the contract dealing with the probable cause provisions,  21g-5, 21g-6, and 21g.

5. Serious Misconduct 
The parties agree that certain types of alleged misconduct are so serious that the employee should be suspended without pay pending the outcome of the disciplinary process. Serious misconduct shall be defined as actions that would constitute: • the felony sale, possession, or use of marijuana, a controlled substance, or a precursor of a controlled substance or drug paraphernalia as defined in Article 220 or 221 of the Penal Law, or • any crime involving physical abuse of a minor or student (crimes involving sexual abuse of a minor or student are addressed in paragraph 6 below.), or • any felony committed either on school property or while in the performance of teaching duties, or • any felony involving firearms as defined in Article 265 of the Penal Law. If an employee is accused of committing serious misconduct, the employee shall be removed from payroll for a term not to exceed two (2) months after a finding by the “probable cause arbitrator” that there is probable cause to believe that the actions alleged were committed by the employee and that they constitute “serious misconduct” as defined above. Probable cause exists when evidence or information which appears reliable discloses facts or circumstances making it likely that such conduct occurred and that such person committed the conduct. To establish probable cause, the investigator assigned to the matter must be present and testify under oath before the arbitrator. The Board may also be required to produce signed statements from the victim or witnesses, if any. Thereafter, the Respondent shall have an opportunity to respond orally to the offer of proof. The arbitrator may ask relevant questions or may make further inquiry at the request of Respondent. The hearing shall not require testimony of witnesses nor shall cross-examination be permitted. Said probable cause hearing usually shall not exceed one half of a hearing day

One arbitrator, agreed to by both parties, shall be assigned to hear all probable cause matters for a period of one year. If the parties cannot agree upon one arbitrator, each party shall select one arbitrator who together will select the probable cause arbitrator. Should the Board meet its burden of establishing probable cause of serious misconduct, the employee shall remain suspended without pay during the pendency of the disciplinary action, but in no event shall such period exceed two months except as set forth herein. The parties expect that these cases shall be completed within two (2) months. However, where it is not possible to complete the hearing within the two (2) month period despite the best efforts of all parties, and where the arbitrator believes that the evidence already presented tends to support the charges of serious misconduct, the arbitrator may extend the period of suspension without pay for up to thirty (30) days in order to complete the proceedings. If the Respondent requests not to have the case proceed for a period of thirty (30) days or more and that request is granted, during the period of this adjournment, the Respondent shall remain in non-paid status. As noted above, however, the parties are committed to having these cases heard in an expeditious manner. For this reason, absent extraordinary circumstances, arbitrators are not to adjourn hearing dates. While suspended without pay pending the arbitration hearing on serious misconduct charges, the Respondent may continue his or her existing health coverage, except that in no event shall the Respondent be entitled to continue his or her existing health coverage for more than six (6) months while on non-paid status except at the absolute discretion of the Chancellor. In the event that the Respondent is exonerated of all serious misconduct charges, the employee shall be restored to his or her position and be entitled to receive back pay and be made whole for the amount of time he or she remained off payroll. In the event that the arbitrator finds the employee guilty of the serious misconduct and imposes a penalty less than termination, the arbitrator shall decide whether and to what extent a reinstated employee shall be entitled to receive any back pay for the time the employee was suspended without pay. The parties agree that these types of cases shall receive the highest priority, and, upon the Board’s request, hearings may be held on such matters during any days previously committed by a rotational panel to other employees, as set forth above. In other words, hearings for serious misconduct take precedence over other disciplinary matters, and the Board may require adjourning other cases previously scheduled before the assigned arbitrator during that time frame in order for that arbitrator to hear serious misconduct cases within the two-month time frame.

6. Sexual Offenses Involving Students or Minors 
A tenured pedagogue who has been charged under the criminal law or under §3020-a of the New York State Education Law with an act or acts constituting sexual misconduct (defined below) shall be suspended without pay upon a finding by a hearing officer of probable cause that sexual misconduct was committed. A rebuttable presumption of probable cause shall exist where the Special Commissioner of Investigations (“SCI”) substantiates allegations of sexual misconduct, or a tenured pedagogue has been charged with criminal conduct based on act(s) of sexual misconduct. 117 A report from the Chancellor’s Office of Special Investigations (“OSI”) substantiating allegations of sexual misconduct is relevant evidence of probable cause but does not create a rebuttable presumption of probable cause. 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 in Appendix G.

7. Other Felony Offenses 
Tenured pedagogues who have been convicted of, or who have pled guilty to, any felony not addressed in paragraph 5, above shall be suspended without pay pending the final outcome of the Education Law §3020-a disciplinary proceeding. 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 case.

Leave it to the DOE to try to terminate as many veteran teachers as possible and by any means necessary. while our disconnected union leadership does nothing about it.

22 comments:

Anonymous said...

Chaz, can you give some specific examples of "other felonies" that the DOE has used to pull teachers off payroll? Seems like the sexual and drugs thing makes sense as does a teacher who commits a felony on school grounds. Just curious as to the "other felonies" that are being pursued off school grounds. Thanks!

Anonymous said...

One of the main culprits in the on going attack on senior and all teachers for that matter is one Karen Solimando. She has been directing and interfering with almost every decision the DOE makes. The team of lawyers sitting over at 65 court street I believe are under her direct supervision. Each and every Step !! decision is ultimately decided not by the hearing officer assigned but by this team of lawyers,
Solimando gets to see every decision handed down. She assigns her key lawyers to take the juiciest cases as noted in your blog dealing with "probable Cause". I agree this is a major contractual need and should be a non negotiable item. We want the language changed to stop this on going attack by Solimando and her minions.

Anonymous said...

How about charges against Principals that double dip students in nearly the same class to expedite credit recovery....then steal the awarded NCLB cash?

It's absolutely rampant.

Chaz said...

Anon 5:17

Read my post. 21g-5 explains some of them.

Anonymous said...

Rumor has it that Karen Solimando is "thrilled" when people submit Freedom of Information Law requests to FOIL@schools.nyc.gov seeking copies of grievance and arbitration decisions.

Anonymous said...

It's scary out there. My 3 admins actually like me, but they are not afraid to 'build the paper trail' on anyone with petty things.

A kid invades your classroom? It's your fault - letter to file.
You don't turn in a unit map 'on time' - letter to file.
A kid cuts your class - letter to file.
And so on.

It's like the DOE trains admins to psychologically torment teachers.
How is that good business practice?

Anonymous said...

It's not good business practice. Any book on leadership sends the message that leadership is not about how to psychologically torment your subordinates, but how to help them grow as professionals.

Anonymous said...

ALERT ALERT This has gone unnoticed

The fake organizations are at it again paying parents to protest the mayor in the next selection of our chancellor. The fake organizations like students first and families for schools are paying parents to protest just like they always do trying to get what they want which is a chancellor who will love eva moskowitch and give her all the space in our nyc public schools. They use parents as pawns.
We are living in such fake times where just about everyone is trying to destroy our public education and will use and do anything to help their cause. Don't listen to the dopey parents they have no idea we even have a chancellor. When bloomberg was mayor he selected 3 goons to be chancellor and we never heard a peep from anyone!!!!1 Different story now with diblasio as these fake phoney organizations are afraid a new chancellor will kick them to the street where they belong.

Anonymous said...

In the words of Yakov Smirnov, "America, what a country".

Anonymous said...

Our Union is a disgrace.

Anonymous said...

Did I mention, Namita Dwarka is screwing ATR supervisor Justin Stark?

Anonymous said...

They will do anything to destroy our schools.

Anonymous said...

Many Principals and Supervisors are not being challenged by the GUT, many lot them are not acting in good faith.

Anonymous said...

Hello Janus, goodbye UFT.

Anonymous said...

Keep voting for Michael Mulgrew and nothing will change.

Anonymous said...

To Anon 5:04 P.M.:

Former ATR Field Supervisor Justin Stark is the Social Studies AP at Edison.

What happened to the former Social Studies AP at Edison?

I think it used to be Eddie Alvarez.

Anonymous said...

Only we will have more abuse.

Anonymous said...

Dwarka is getting promoted. Unreal.

Anonymous said...

The DOE will use any reason to remove Tier IV teachers while the UFT does nothing. A complete sham.

Anonymous said...

Nothing happens to Principals acting badly.

Anonymous said...

The UFT is making it very easy to target ATRs by refusing to enforce the contract. By refusing to file grievances that are legally legitimate. By creating the ATR pool. By agreeing to field supervisors that are only there to go after veteran teachers. By not allowing a chapter for ATR's. By making us third class citizens. Which per diem subs are being observed by field assassins? By eliminating seniority. By agreeing to fair student funding. By destroying thousands of teachers careers. By agreeing to rotation in a vocation that is built on relationships. By refusing to respond when we are vilified in the press. By telling us that we are lucky to have a job and benefits. By refusing representation in any situation that they should be helping. By theft and denial of services. I can also mention racketeering. They colluded with the DOE to not only create the ATR pool but to assist in the psychological warfare that they the Human Resources enforcement arm of the DOE.
The UFT had sold us out at every turn. The truth is that because of NYS civil service laws they can't have us fired . So all you can possibly say about the UFT is that they pupport to represent our interests and take our money for it. They just hurt us terribly. There is a special place in hell for these sociopathic parasites. I eagerly wait for JANUS. I'm going to keep my money. They need to be starved.

Anonymous said...

Oh, did they try to remove you for being the super creep that you are and preying on young girls? #MeToo