The DOE Wants Another Bite Of The Apple To Terminate Teachers.

Before 2009, the DOE had a policy that when a teacher won their 3020-a hearing but was fined for minor infractions, even a simple letter to the file, they were returned to their school and resumed their appointed position.  However, Chancellor Joel Klein and the Officer of Legal Services decided that principals did not have to take back their teachers who survived their 3020-a hearings. The result was that these teachers were dumped into the ATR pool, along with veteran teachers of closing schools (163 under Bloomberg), and excessed teachers from closing or reduced programs. The result was an explosion of ATRs that ranged from 1,300 to 1,800 educators. Once labeled, the DOE ensures that it sticks, no matter how many satisfactories or "effective ratings" the ATR receives.

Because of the ideological stand by Bloomberg and his Chancellors, the ATRs were subject to a dehumanization strategy through the media and education deformer groups, while the DOE was paying out over $150 million dollars annually at a time when school budgets were cut by 14%!  Instead of encouraging principals to hire certified veteran teachers the DOE encouraged principals to hire "newbies", by implementing the "fair student funding" policy (which is only 90% funded) that incentivizes schools to hire "the cheapest and not the best teachers" for their schools, commonly known as "education on the cheap".

Next, in 2012, another Bloomberg Chancellor, Dennis Walcott, known as the Mayor's poodle allowed a discipline flag to be placed in the file, on any educator who had a substantiated OSI or SCI investigation, even when the 3020-a charges were found not to be true by the State arbitrator. This was known as the "Scarlet Letter".  Despite promises by the UFT leadership to take this unfair labeling to PERB or to court, they failed to do so.  During the Walcott tenure the ATR pool was separated into two lists.  Those that were simply excessed due to closing schools or subjects and those that were disciplined or received an "ineffective" or "unsatisfactory" rating. Another way the DOE gets a "second bite of the apple".

Finally, the DOE's Office of Legal Services have found a novel way to get a "second bite of the apple".  Up until this previous school year the Office of Legal Services would include every trivial infraction as a specification in an educator's 3020-a charges and this was known as "throwing shit on the wall and hope enough sticks" to get the arbitrator to terminate the educator.  However, in the 2016-17 school year the Office of Legal Services came up with a better way to get a teacher terminated in the 3020-a hearings.  What the DOE does is only charge the teacher with some of the specifications and wait and see how the arbitrator rules.  In almost all cases the arbitrator will give the DOE something for their troubles like a small fine.  Now that the teacher is labeled the DOE will then hit the poor teacher with the rest of the charges and show the arbitrator that the teacher had a previous 3020-a and was fined and that shows the teacher cannot be rehabilitated.

The New York Post reported on one such case in today's paper and you can read it Here.  Moreover, NYC Educator wrote an article about the case in depth and is a must read.  Adding to the two articles is that the Principal is a Leadership Academy Principal who never had a full time teaching gig and was accused of  running an academic fraud factory.  In conclusion, ni the collective eyes of the DOE once charged you are always guilty and its their duty to find novel ways to terminate you by getting a second and even a third bite of the apple.

What You Need To Do When Served With 3020-a Charges?

Unfortunately,  I have been contacted by and hearing from other teachers that quite a few teachers are being served 3020-a charges by the DOE for incompetence and minor alleged misconduct.  Almost all of them are senior teachers with 15 years or more experience and over 50 years of age.  By contrast, few teachers are being served 3020-a charges if they are under 35 years of age and less than 10 years of experience.  While I can claim there is discrimination against senior teachers, the DOE will not release the age and experience breakdown of teachers served their 3020-a papers, despite the news media and the Solidarity caucus trying to FOIL the DOE for the information. If the UFT knows the breakdown, and they should, they are not divulging the information. Therefore, without any firm data, this is just anecdotal evidence.  However, just be aware if you are a senior teacher you have a potential target on your back.  Check my posts Here and Here.

The rest of this post will discuss what a teacher should do when he or she receives their 3020-a charges.  

First, and foremost when the DOE decides to serve a teacher with 3020-a charges, they only want to terminate the teacher and for the most part, the only deals the DOE will make is for the teacher to irrevocably retire or resign by the end of the semester and then a scarlet letter will be attached to your file as a "do not hire" flag will be placed for any administrator to see if the teacher applies for another DOE position in the future.  Under Mayor Bloomberg and his Chancellors the DOE's 3020-a process were used by principals to have troublesome teachers removed from the school and budget on the most minor infraction or allegation of misconduct or incompetence. Since arbitrators found only 4% of the teachers completely innocent, even a simple letter-to-file-file given by an arbitrator was enough to dump the teacher into the ATR pool and out of the hair of the Principal.  However, the Office of Legal Services was overwhelmed by the almost 800 teachers in the reassignment center that they started to make deals with teachers that were willing to plead guilty to at least one of the stipulations of the 3020-a charges and ended up in the ATR pool upon their return to service.

Fast forward to the De Blasio administration with Chancellor Carmen Farina in charge and the Office of Legal Services was beefed up with more lawyers and while the number of reassigned teachers have dropped since the peak, it still is close to 400, about the average during the Bloomberg years. The only thing that changed is that the DOE does not make deals and demands termination, even for the most minor of alleged offenses.  So much for Micheal Mulgrew's statement "that there's a new tone at the DOE".

Second, when a teacher is served with his or her 3020-a charges, the teacher should immediately contact the Chapter Leader who will instruct you to go to the UFT office in your Borough tso they can write an appeal to the DOE charges and demand a hearing in front of an independent arbitrator.  Failure to do this could result in the DOE terminating you at the next PEP meeting.  The appeal must be given to the DOE within 10 days of the teacher receiving the 3020-a charges.

Third, the teacher will be assigned a NYSUT lawyer, free of charge, to represent the teacher at his or her 3020-a hearing.  If you and your NYSUT attorney don't see "eye to eye", the teacher can always hire a private lawyer to represent them.

Fourth, the hearing will usually start 3 to 6 months after receiving the 3020-a charges, it could be longer, depending on the arbitrator's caseload.  The 3020-a hearing will last no more than a month and the arbitrator will usually render a decision 30 to 60 days after the end of the hearing.  From start to finish it's usually less than 9 months between being served 3020-a charges and the arbitrator's decision.

Fifth, despite the often quoted myth that the arbitrators "split the baby", the truth is that if the arbitrator finds the teacher guilty of serious misconduct and/or real incompetence, especially under the new teacher evaluation system, the teacher will be terminated.  The "split the baby" only deals with more minor misconduct or questionable incompetence charges that don't warrant termination..

Finally, don't be afraid to go through your 3020-a hearing.  Let the DOE prove their charges since it takes 30 to 60 days for the arbitrator to send a decision, you can retire one day after the hearing and it becomes effective the next school day.  That way you don't lose the lump sum and retro payments (up to $50,000 owed to you).  However, if you wait for the decision and your terminated, you get no lump sum payments and retro adjustments to your pension.

Why Teachers Should Not Resign Under Section 3020-a If You Are Charged With Incompetence.

It's common knowledge that most NYSUT attorneys recommend that the teacher resign rather than face an almost certain "award" of termination is found to be incompetent (ineffective)  by the arbitrator.  The NYSUT attorney will tell the hapless teacher how the UFT leadership agreed to a more draconian teacher evaluation system that shifts the burden of proof onto the teacher rather than the DOE. The NYSUT attorney will tell you by resigning the teacher could get another teaching position outside the DOE.  While some charter and private schools might hire the teacher, many teachers who were terminated by the DOE have also found positions in these schools as well.

Here are some reasons not to resign and make the NYSUT attorney to fight for your job.

First, despite how the new teacher evaluation that makes it easier to terminate alleged "ineffective" teachers, if you can show evidence of discriminatory or disparate treatment relative to your colleagues.  For example dumping the majority of behaviorally challenged students in the cohort into your class and the administration's refusal to discipline them or using a different observation rubric on the teacher than used on other teachers.

Second, by resigning you will probably have a difficult time in getting NYS unemployment which is $420 per week for 26 weeks..  By contrast, if the arbitrator terminates you for incompetence you will at least, get NYS unemployment and have some money coming in for a half a year.

Third,  by resigning you are immediately taken off payroll and health benefits stop,unless the DOE is willing to make a deal to keep you on for the remaining semester.  On the other hand, by forcing the NYSUT attorney to fight for you, you can stay on payroll for another 6 to 12 months before a decision to terminate you is made.

Finally, if you resign or get terminated you automatically lose all the retroactive pay owed to you.  That could result in almost $45,000 for top salaried teachers who resign this school year. Therefore, its in the teacher's best interest to fight the DOE charges. Back in January of this year the NYS courts dismissed a class action lawsuit by four teachers who resigned and where told they could not receive their retroactive payments.   The entire case can be found on EdlLawFaqs blog and is interesting reading.  The bottom line is if you are charged with incompetence by the DOE under 3020-a then make the DOE take you all the way through the 3020-a hearing process and if your NYSUT attorney recommends otherwise and is stubborn then it might be worthwhile to look into a private attorney.  Resigning gives the teacher no benefits and  will result in the teacher not receiving unemployment and with a 0% chance of getting their retroactive raises.

Of course every teacher should look at all the different issues whether one should resign or fight the 3020-a charges of incompetence but on the face of it most teachers should try to fight the DOE charges as best they can and not make it easy for the DOE to remove you from their payroll.

Why Is There No Contract Book?

After every contract the UFT publishes a book on the new contract that members can review and cite when administrators demand that a member do something that may be forbidden in the contract.  However, its been almost a year since the UFT and the City agreed to a new contract and yet there is no contract book, why?  Is our disconnected union leadership hiding some unpleasant news that diminishes member "due process rights"?  Again, why don't we have a book that clearly spells out the new contract?

Part of the answer that there is no contract book may lie in the changes in the educator 3020-a process that are being implemented in a secret meeting on Feb 24, 2015 between the UFT and DOE that required all NYSUT attorneys, DOE lawyers, and 3020-a arbitrators to attend as reported by Betsy Combier in her blog.  What happened at that meeting?  Good question.  So far the meeting talking points are top secret and the DOE has refused to provide the information to Ms. Combier, despite her repeated FOIL requests.  What are they hiding?  Eventually, the DOE will have no choice but provide the information to Ms. Combier and we will all know what the changes in the 3020-a proceedings will be going forward.

I suspect the changes in the 3020-a process will diminish the "due process rights" of the educator and result in the burden of proof shifting from the DOE to the educator at the 3030-a hearing.  The probable result will be a rise in educator terminations and resignations and more severe "awards" to the DOE in the form of suspensions without pay and/or major fines for the fortunate few who escape termination.

For the naive who believe our union is there to protect you.  They have already agreed to make excessed teachers (ATRs) a second class citizen with "forced placements", mandatory interviews, and terminations due to a finding of "problematic behavior". Moreover, the DOE assumes that the ATR voluntarily resigned if they miss  two mandatory interview, and most of all, an expedited, one day 3020-a hearing!  All agreed to by our disconnected leadership.

I hate to be paranoid but why else is there no book on the new contract, unless the union is hiding some very disturbing facts from the members and don't want us to know the true scope of the "givebacks" the union gave the DOE. I hope I'm proven wrong but I highly doubt it.

How Educators Need To Act In Their 3020-a Hearing.

When tenured educators are charged by the DOE under State regulation 3020-a, the only outcome the DOE wants is termination.  However, in only half the cases does the DOE get the educator to leave the system and most of them decide to resign or retire rather than go through the stressful 3020-a hearing process.  It appears that between 45% and 55% are either terminated, forced to resign, or retire.  The reason that the DOE does not get its way is that the DOE must prove the charges against the educator by the preponderance of relevant evidence in front of an independent arbitrator.

There is no matrix for determining the arbitrator's award.  Except if the arbitrator finds the educator committed sexual misconduct then termination becomes the automatic award.  Different arbitrators weight the DOE specifications (charges) differently, despite the number, severity, and type of specifications against the educator. Therefore, its extremely important that the educator's appearance and demeanor will go a long way in influencing the arbitrator award. Here are the actions an educator must take in the 3020-a hearing to save their job.

First, and foremost dress and act professionally.  Treat everyone in the hearing room with respect, even the DOE lawyer!  Your attitude will be noted by the arbitrator,  Men should wear a suit and tie while women should wear business attire. Don't be argumentative, emotional, or display displeasure. These actions at the 3020-a hearing will result in the arbitrator giving a more severe award then might otherwise be warranted.

Second, be on time and never miss a hearing date.  Being late to your hearing will annoy the arbitrator and will make your lawyer's defense more difficult.

Third, thoroughly familiarize yourself with the charges against you.  Craft a point-by-point rebuttal and give it to your attorney.  The more you understand the DOE specifications, the better prepared you will be to defend yourself.  Stay attentive and take down notes when witnesses testify.. 

Fourth, The DOE will blow even the most trivial action into a major incident and take things said or did by the educator out of context.  Your job is to defend yourself with clear, concise, and understandable actions and put it into the proper context.  Try to show your intent behind the action you took and express sorrow, when appropriate, that your actions were misunderstood.  Do not be arrogant!

Fifth, Try to get witnesses for your defense.  Past and present students are important and will help your defense with the arbitrator.

Finally, Tell your attorney everything!  If you lie to the lawyer or caught in a lie at the 3020-a hearing it will probably result in termination.

How long Does It Take For A 3020-a Hearing To Result In A Decision?

I was watching the Colbert Report with the clueless Campbell Brown who told the host that it takes an average of 830 days to get rid of an incompetent teacher.  However, like usual, she got it wrong.  She was using old and outdated data from 2004-08 and these figures were not the average but the longest cases it took to get a decision   According to the State School Board Association, the average tine for a decision during this time period, from start to finish, was 520 days and excluded New York City cases.  The latest data shows a much swifter 3020-a process and that for 2013 it took only 177 days to complete the State 3020-a process, including a decision, and 190 days for the New York City cases (the union claims its 150 days for the last two years 2012-13).

It would appear that if Campbell Brown tries to use the lengthy 3020-a process as a major factor for her lawsuit, it will fail since the days when it took two or more years to reach a decision is a thing of the past and for most educators the entire 3020-a process rarely goes beyond a year.

This is yet another example of the clueless Campbell Brown using  outdated and false statistics to try to prove her case.  Interestingly, in her long ago cancelled cable show her slogan was "no bias, no bull".  However, she violates that slogan by advocating for school districts to terminate teachers for any reason and at any time without giving them their "due process rights".  What a hypocrite she is.  For her it's not children first but to destroy teachers and their tenure, plain and simple.

The Fuzzy Math The Wall Street Journal Used For Their 3020-a Statistics

The Wall Street Journal received from the NYCDOE the 3020-a statistics for the last two years April 2012 to January 2014 on educators who were charged under section 3020-a for tenured educators.  If you browsed through the chart supplied by the newspaper it would seem that only 40 out of 826 cases ended in termination or 5% and that's what the newspaper wants you to believe since it supports the attack on teacher tenure..  However, if you read the article more thoroughly, you realize that 330 of the 826 cases have not been resolved and the termination rate therefore jumps from 5% to 8%, not a large jump but its not 5%.  Wait there's more.  Of the 826 disciplinary cases, it turns out that apparently 235 educators agreed or were forced to resign or retire rather than go through the 3020-a hearing process.  Add the 235 to the 40 terminated educators and the total educators removed from the system is 275.  Since only 496 cases have been resolved (826 - 330). the total percentage of educators that left the system after being charged under the 3020-a law is 55%!  That's right 55% not the 5% the Wall Street Journal would like you to believe is the case.

While the data shows no educator acquittal rates, historically, its been consistently around 4% in the last decade. Therefore, of the 826 disciplinary cases, one could expect approximately 20 educators to be exonerated.

The Wall Street Journal article is just another example of how the media uses "fuzzy math" to distort and pervert the statistics to suit their ideological aims and to support the attack on teacher "due process rights". Michael Bloomberg may be gone but his ideology still inhabits the corridors of Tweed and the New York City media.  The ICEUFT blog also has a similar take on how the Wall Street Journal manipulated the statistics.

Update:  The UFT decided to publish their own data for only teachers and found that for the last two school years (2012-13 and 2013-14) out of 637 disciplinary cases, 216 left the system by either termination (40) , resignation, or retirement (184).  That is a rate of 34%.  However, since 153 cases have not been resolved, the actual rate for teachers removed from the system is 45%  For the DOE its not about how many terminations there are its about getting rid of teachers and whether its 55% or 45%, the fact is almost half the teachers charged under 3020-a are kicked out of the system by the DOE.  This sample did not include administrators or teachers who employed a private attorney to represent them in their 3020-a hearings.

Interestingly, in the Schoolbook article, the amount of teachers that failed to obtain tenure between 2010-13 was 1549 for the sampled period.  Hard to believe that the education reform groups have any leg to stand on in their lawsuit.

How To Appeal The 3020-a Decision - Part VI

Once an Arbitrator determines the "award" (penalty), both sides can appeal the "award".  In the DOE's part, the "award" was not termination and it should've been.  While for the educator the "award" was too harsh.  The Arbitrator "award" can be appealed to New York State Supreme Court under section 75-11 (CPLR 7511).

While all appeals can be filed, not all are heard.  The City's Corporation Counsel will automatically ask for dismissal and receive it. The only appeals that will not eventually be dismissed is when the plantiff can show one of the following four conditions applied to the Arbitrator "award".  They are as follows.

The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.

In  other words the Arbitrator's "award" is excessive or included actions not charged under section 3020-a.  Previously, it was rare for a court judge to rule against an Arbitrator's "award".  However, of late the NYS Supreme Court judges have been more sympathetic to educators in their appeals and some cases where termination was awarded to the DOE were reversed and in other cases the "awards" were reduced in severity.  Therefore, if you are to appeal your "award" than here is the procedure to do so.

Once the arbitrator renders his final determination ("award"), teachers that wish to contest must file a notice of claim within 10 days of the final determination in the New York State Supreme Court. The NYS Supreme Court is located at 60 Centre Street and the petition should be a lawsuit against the Department of Education and the Chancellor (currently Hon. Dennis Walcott). The petition is pursuant to Article 75 of the CPLR and should outline the reasons why the determination of the arbitrator was too severe of a penalty and “shocking to the conscience and one’s sense of fairness.”

Teachers who decide to go through with the appeal and believe  they want to pursue their case in the NYS Supreme Court should compile all available evidence and either contact an educational lawyer or seek legal advice to put together the petition. Generally NYSUT lawyers will not continue on your case if you pursue Article 75 and a private lawyer is necessary. Timing is very important in all legal cases against the DOE, as all article 78 proceedings must be filed within 4 months of the date of termination, and article 75 proceedings must be filed within 10 days of the final determination. Filings after that cut-off date will be time-barred by Corporation Counsel and the petition will generally be dismissed by the presiding justice. 

Once 3020-a decisions are made traditionally NYS Supreme Court justices have been reluctant to overrule the decision of the arbitrator, but in several recent high-profile cases judges have vacated the ruling of the arbitrator and demanded a lesser penalty. 

One case is the case of Christine Rubino. In this case, the decision to vacate her termination was upheld in the NYS Appellate Court:

http://www.nytimes.com/2013/05/09/nyregion/brooklyn-teacher-who-talked-out-of-school-can-keep-her-job.html?_r=0

Another is the case of Daniel Esteban:

http://www.nytimes.com/2013/09/20/nyregion/judge-overturns-firing-of-teacher-who-faced-drug-charge.html

In both cases, the lawyers argued effectively that the penalty (termination) imposed by the arbitrator was excessive. 

So if you are terminated by the 3020-a hearing, teachers should immediately file a petition within the NYS Supreme Court within 10 days of the receipt of the final determination or "award".

This is the final section of my six part series on the NYC version of the 3020-a process.  I hope you never have to use or experience it during your professional career as an educator.The other parts of the 3020-a process can be found below and is worth reading if you want a complete picture of the NYC 3020-a process and its aftermath..

1. Part I,    The Process
   
2. Part II,  The Arbitrator
3. Part III, The Lawyers
4. Part IV, The Educator, 
5. Part V,  The "Award"

In addition, please read my articles on the investigators who are rarely "fair and balanced" and are an important part of the 3020-a process and can be found Here.and Here.

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.

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".

The New York City 3020-a Process Part 1 - The Process Itself.

This post is part 1 of a six part series on the State tenured teacher disciplinary process as it applies to New York City.  At this point a little history of the 3020-a process itself and how it applies to New York City.

Originally, the New York City 3020-a process was the same as the State.  That is the School District filed 3020-a charges and the teacher would appeal to the State for a hearing on the charges.  The State would send a list of Arbitrators to both the teacher and the School District and have them agree to one on the list.  If the teacher rejects the Arbitrators on the list, a new and final list of Arbitrators will be given and one must be selected or the State will select the Arbitrator.  In teacher incompetence cases, a three judge panel will be selected and determine the proper "award" (penalty) for the School District.   However, in  2000 and again in 2005, the UFT and DOE decided to have their own version of the 3020-a process with a minimum of twenty Arbitrators jointly selected to hear all tenured teacher disciplinary and incompetence cases.  These Arbitrators were renewed yearly if both sides were satisfied with the Arbitrator decisions. Furthermore, only in New York City can a teacher be taken off payroll and health benefits if either OSI or SCI substantiates an accusation of non-felonious behavior such as sexual misconduct.  I have spoken about this terrible travesty of justice previously and can be found Here and Here.

The NYCDOE always go for termination when they file 3020-a charges against a tenured teacher and will remove a teacher once 3020-a papers are served, sometimes when the teacher is in the classroom teaching a class!  Of course for more serious accusations against a student, the teacher is usually removed from the school awaiting the outcome of the investigation and 3020-a hearing.  Unfortunately, some high profiled teachers and bloggers find themselves removed from their schools even if they are not a threat to the students.

Tenured teachers served with the 3020-a charges must go immediately to the union Borough office and have the Special Representative file an appeal within 10 days of receipt of the DOE charges.  Otherwise, the tenured teacher can be terminated at the next PEP meeting.  The next step can take up to six months or longer as an Arbitrator is assigned to the case.  At the same time NYSUT will assign a lawyer to represent you, free of charge.  I recommend you meet with your NYSUT lawyer and see if you connect with the lawyer.  If you decide on a private lawyer it will cost you $5,000 or more.  Within six months your 3020-a hearing will start.  The time can vary depending on the amount of Arbitrators that are on the panel (presently 19),  Usually it takes about 3 months for the Arbitrator to mail the parties the "award".

If the teacher is not terminated (61% are not), the teacher will find herself in the ATR pool, no matter what the "award" is.  It is highly unlikely that any NYC teacher is "acquitted" (4%) because of the tendency for the Arbitrators to give the DOE something for spending the time and money to try to terminate the teacher ($250,000 or more).  If there was a substaintiated OSI or SCI investigation, even when a teacher is found innocent of these charges, the teacher's file includes a bright red flag" that tells principals not to hire them.  So even when you win your 3020-a hearing the DOE makes sure you lose by claiming your guilty anyway.

Most 3020-a hearings are closed but the teacher has the right to have an open and public hearing however the NYSUT attorneys  will almost always recommend against having an open hearing.  Therefore, the final decision to have an open and public hearing is up to the teacher.  Finally, under 3020-a the DOE can only go back three years from the date of the charges.  However, it doesn't stop the DOE to bring up previous disciplinary issues even if they cannot  be used in the hearing.

Has There Been An Increase In Teacher Incompetence Charges Under Section 3020-a? I Think So.

I have been hearing reports from sources involved in the teacher 3020-a process that the DOE is going after more teachers for incompetence under State law 3020-a.  According to my sources, in the last couple of months they have seen an influx of teachers who have been charged with incompetence and are now working their way through the 3020-a process.  While there is normally an uptick in teacher incompetence cases this time of year, it appears there are many more than normal, at least according to the people involved in the 3020-a process.

Assuming the increase in 3020-a incompetence cases are true, what could be causing it?  My guess is because of the upcoming teacher evaluation system.  If a Principal fails to have the DOE charge a tenured teacher with incompetence by the end of the school year, the Principal would be unable to charge the teacher with incompetence until the end of the 2014-15 school year since the proposed teacher evaluation system requires two consecutive years of "ineffective ratings" before the DOE can fire the tenured teacher. Worse yet, the DOE and Principal must show that they provided the necessary and adequate support to improve the teacher's ability in the second year and that may be an issue going forward for the DOE since their history is to provide little or no real assistance to a teacher.  In addition, the teacher must have an independent educator (PIP+?) observe them who will provide an "expert opinion" on whether the teacher is incompetent or not and that opinion will be part of the 3020-a hearings.  Unfortunately, the teacher termination path under the proposed teacher evaluation system is a "death sentence" for the 87% of the teachers, if the independent educator finds the teacher incompetent. As for the 13% of teachers whom the union will appeal their "ineffective rating" the DOE must shoulder the "burden of proof" to the Arbitrator that the teacher is really incompetent and is not as a result of differences with the Administration. That might be a "bridge too far" for the DOE and the Principal to prove it and I suspect few of the "lucky 13%" will have their "ineffective rating" upheld and be fired since the arbitrators will have plenty of the other 87% of the teachers to terminate.

In conclusion, if my sources are correct, then there should be a significant increase in 3020-a charges for incompetence as we approach the end of the school year as principals see their last change to rid themselves of teachers they don't want or like for the next two years and they are taking the opportunity to get rid of them using the present 3020-a process.

Note:"  I might not have gotten it exactly right but that is because our union lacks transparency and does not inform its members how the new teacher evaluation will actually work.  Furthermore, they have kept secret the "nuts n bolts" of the process. 

According To The Chancellor The Truth Is What He Claims It Is, Not What The Evidence Shows As He Fails To Understand What Sexual Misconduct Is.

Over the last few days young female teachers have been accused of engaging in sexual misconduct with their male students.  Based upon the selected information presented so far it does certainly look like they committed sexual misconduct  Of course only time and evidence will tell if they really did. However, the Chancellor, when discussing alleged teacher sexual misconduct,  went further, and brought up the cases of the sixteen other teachers (all but one older and male) that he claimed had found to have committed sexual misconduct and should have been terminated.  According to the New York Daily News, he sent the UFT President Michael Mulgrew the following letter.

“From time to time . we hear reports of teachers who engage in inappropriate, and sometimes sexual, misconduct with students,” Walcott wrote in a letter to United Federation of Teachers President Michael Mulgrew.   "Unfortunately under current law, when these reports are true, it is left to an arbitrator to decide on the punishment.”.

Notice how the Chancellor assumed that the charges against the sixteen teachers where found to be true?  While I cannot talk about the other cases, I will talk about my own on what is true and why the Chancellor is not capable of understanding the truth.

• Truth, the most senior and respected Arbitrator on the panel threw out a phony letter to the file back in 2004 as "unfair and inaccurate". Yet the Chancellor did not bother to include it to the media. when he tried to vilify me.

• Truth, A second Arbitrator found no "probable cause" that I committed sexual misconduct in 2008.Yet the DOE wasted over $500,000  in pursuing charges they knew were frivolous and also failed to include that information to the media..

• Truth, the 3020-a Arbitrator found no "sexual misconduct" after weighing all the "preponderance of evidence" in 2011.

• Truth, my Arbitrator told everybody that she was leaving the panel after my case.  Therefore, she did not need to "split the baby" as the Chancellor and Mayor falsely claim

• Truth, the DOE failed to appeal when the Arbitrator's decision was rendered. If they were so sure that I committed sexual misconduct, why would you not appeal?

Here are some other truths that the Chancellor fails to, or is unable to understand.

• Truth, that any  teacher that commits sexual misconduct is automatically terminated by the Arbitrator based upon the UFT-DOE contract Article 21G-6 pg 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 have pleaded guilty to or been found guilty of criminal charges for such conduct.

• Truth, the Chancellor claims that any SCI or OSI investigation that substantiates the charges, no matter how frivolous, is "proven". 

• Truth, according to the Chancellor a fair and impartial hearing where evidence is necessary is not as important as a biased or politically motivated investigation and the bogus charges that result from them.

• Truth, the independent Arbitrators are jointly appointed to one year terms by the DOE and UFT and can only be reappointed yearly when both sides agree that they are doing a good job.  Therefore, the Bloomberg/Walcott claim that the Arbitrators are influenced by the UFT in determining the penalty is a lie.

• Truth, the Chancellor practices a "double standard" when it comes to Administrators and teachers, see here and here.

• Truth, the Chancellor has blindly followed the Mayor's policy without question.

I must conclude that the Chancellor's idea of truth is vastly different than the common person.  In the Chancellor's world the truth is what he and the Mayor claims it is not what is real.

   

The DOE Attaches A Discipline Flag On Files Of Teachers Accused Of Misconduct. However, It's Not Based Upon The Evidence Found In The 3020-a Discipline Process.

The DOE has informed principals that any teacher who applies for a position in their school will have attached a disciplinary flag if they were accused of misconduct.  However, it also appears that the disciplinary flag will not be based upon the actual results of the disciplinary hearing but simply on the substantiated accusation as determined by the DOE.  That means, if a teacher is charged with "corporal punishment" but after a 3020-a hearing the Arbitrator found that no "corporal punishment" occurred, the DOE will still leave the disciplinary flag on the teacher's file.  For the DOE it is not about whether the teacher is innocent or guilty, it is simply about in the bizarro world of Tweed that any teacher accused of misconduct, must be guilty, no matter what the evidence shows.

Just imagine, a well-liked teacher tries to restrain a violent student who is a threat to himself and others.  However, the Principal, who does not like the teacher, falsely accuses the teacher of using excessive force on the child and calls the Office Of Special Investigations (OSI) to start the "witch hunt".  Once OSI is briefed by the Principal on his desire to get rid of the teacher, the investigation does the Gestapo proud as the investigator will substantiate that  the teacher used "excessive force" and hence committed "corporal punishment" and recommended that the teacher be terminated through the 3020-a process.

At the 3020-a hearing the Arbitrator hears evidence that the child has a history of violet outbursts, was a threat to other children at school by throwing books and pushing other children down stairs.  The Arbitrator also heard evidence that the teacher called for help from the Administration who failed to respond to the situation.  Finally, the teacher brought in the school nurse that said that the child had no bruises or other marks that were suspicious. 

The Arbitrator found that the teacher did not commit "corporal punishment" but still fined the teacher $1,000 for failing to use a more appropriate method to handle the student. We all know Arbitrators must give the DOE something in these hearings, just so they can stay on the panel at year's end.

The winner is the vindictive Principal who not only was able to remove the teacher from the school but dumped the teacher in the ATR pool and sharply reduces his chances of getting another classroom position
 now that the teacher will have a discipline flag on his file for "corporal punishment" even when no "corporal punishment" was found. What will the union do about this abuse?

The Bloomberg/Walcott Agenda Is To Destroy Tenured Teacher Due Process Rights.

Lost in the furor of Chancellor Dennis Walcott's release to the newspapers of sixteen teachers that he believed should have been fired for sexual misconduct but weren't (the reason was that there was no sexual misconduct but that seems to have escaped Dennis Walcott and the news media's attention). However, their real agenda is the elimination of tenured teacher "due process rights".

It is no secret that the Bloomberg Administration wants to replace the 3020-a system where independent Arbitrators weigh the evidence and come up with fair and reasoned decisions (in most cases). To this end, the Bloomberg Administration campaigned for an end to "LIFO" (last in, first out). However, they failed to get it past the State Assembly in 2011. Next Bloomberg and Walcott tried to eliminate the 3020-a requirements in the proposed teacher evaluation system for teachers rated "ineffective" two straight years. In this, they were mostly successful as they managed to doom 87% of the teachers to an Arbitration process that puts the burden of proof on the teacher to prove that they are not "ineffective". An almost impossible hurdle for the teacher to meet. However, this left the issue of teacher misconduct for the Bloomberg/Walcott Administration to tackle.

Back in the bad old Joel Klein days (not that it is any better now) he proposed an elimination of the 3020-a process and install an "arbitrary & capricious" standard, with the hearing officer being a city employee very much like the "U" rating process is now. We all know how the "U' rating appeal has turned out for the teachers. The DOE proposal has changed little, except that the City agreed to let the city-appointed OATH judges decide the fate of the teachers. Furthermore, the final decision on the teacher's fate would still be left in the hands of the Chancellor even in the rare instances the OATH judges ruled in the teacher's favor. You can guess how that ends, that's right with the teacher terminated!

Since the teacher evaluation system will not address the teacher misconduct issue or change the 3020-a procedures for teacher discipline, the Bloomberg Administration and the DOE decided to start an offensive against the independent Arbitrators that hear educator 3020-a misconduct cases. This included opening up closed cases of over a decade ago and falsely accusing teachers of sexual misconduct where no sexual misconduct was found, questioning Arbitrator decisions without fully understanding the facts of the case, and worst of all, using faulty & biased investigative reports as if the accusations in them are proven fact rather than what many end up to be, unfounded, or not credible.

Let's not lose sight of what the Bloomberg/Walcott Administration wants to do. They want to see tenured teacher "due process rights" eliminated and "hire & fire" at will. They apparently won that right for the unfortunate 87% of the teachers rated "ineffective" two consecutive years. With that win in their pocket, they have set their sights on the teacher misconduct issue. Thankfully the union has stayed strong on the use of independent Arbitrators and any changes must be approved by the State Legislature. Therefore, as much as Bloomberg and Walcott wants to change the process, it is not happening, unless the union does the unthinkable and actually is willing to eliminate tenured teacher "due process rights". I may be naive but I can't see that happening.

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?