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.

Don't Hold Your Breath In Expecting SCI To Investigate Administrative Academic Fraud.

Most knowledgeable educators know that the investigative units of SCI, OSI, and OEO are not fair and impartial.  If a teacher is charged with a potentially serious accusation you can bet the three investigative agencies will pull out all the stops to substantiate the accusation and recommend the terminat6ion of the teacher.  By contrast, accusations against administrators are usually buried and no action is usually the result. Now the New York Post published some actual numbers dealing with academic fraud against school administrators and shows how little the investigative agencies care to file charges.

According to the New York Post, SCI received 704 cases since August 2015 of grade tapering or fixing,  trey investigated only 22 of the cases or 3% of all accusations, and substantiated only 3 cases or 0.04% of the total accusations.  Unbelievable, but true!  It seems that SCI does not take academic fraud seriously and maybe that's why principals are willing to commit academic fraud, knowing full well that the DOE and the investigative agencies will not investigate it and will look the other way/ A prime example is Principal Howard Kwait of John Bowne High School who has been accused multiple times of grade fixing and is still in charge.  Read the ICEUFT blog on the latest.

How many principals have actually lost their position when caught committing academic fraud?  A handful at most.  Yet, if you look at my list of bad principals and my academic fraud articles you will find numerous examples of principals acting badly and have been accused of grade fixing or tapering yet they are still in charge of their schools.  Here is the most recent case.Yet if teachers are accused, they are removed from the classroom and are assumed guilty of the accusation, even before its investigated.

If you have any question about the fairness of the investigative units that work with or are part of the DOE please read my articles on corrupt investigations.

How Vindictive Is The DOE When It Comes To Whistleblowers? This Vindictive.

Teachers who have been working in the New York City school system for decades know, either first hand, or from colleagues how the DOE's Office of Legal Services will pull out all stops to terminate teachers for the most minor of incidents when the Principal demands it.  It's not unusual for the DOE to sic their investigators on the hapless teacher and make frivolous incidents into major misconduct.  You can read my corrupt investigations articles Here.  Moreover, the DOE practices a "double standard" when it comes to disciplining administrators and staff. However, the DOE seems to have a special dislike for staff whistleblowers, be it Regents cheating, "double dipping" by administrators, like Principal Linda HIll, and administrative misconduct by abusing their authority over their staff.

One of the DOE's most egregious cases was the arrest of former Staten Island Chapter Leader and UFT Presidential candidate, Francesco Portelos by the DOE for publishing a sham piece called "How to hack the DOE payroll portal and give yourself a raise". Everybody who read the post knew it was a fantasy piece and gave many of us a good chuckle anyway.  What did the DOE do?  They called their favorite NYPD Detective, a Mr. Conner of the 84th Precinct that covers the DOE's 65 Court Street building in Brooklyn to arrest Mr. Portelos.  That's after assurances that Mr. Portelos would only get a desk appearance summons. Instead, he was arrested and kept in a holding cell for 33 hours before the District Attorney threw out the DOE's criminal complaint.

However, you feel about Mr. Portelos, what the DOE did was over the top and I hope he wins his lawsuit for abusing the justice system that had him unfairly arrested. You can read the story Here.

Beware Of The OSI And SCI Investigators. They Are Out To Terminate You.

Since Michael Bloomberg became Mayor of New York City and selected non-educator Joel Klein as Chancellor, teachers have been targeted by corrupt investigations by The Office of Special Investigations (OSI) and the Special Commissioner of Investigations (SCI).   These investigative agencies have changed little under Mayor Bill de Blasio and his Chancellor Carmen Farina.  You can read their stories Here.

The two investigative agencies are called when potentially serious allegations are brought against an educator.  If the allegations involve criminal, sexual, or financial issues then SCI are called in.  However, if the accusations are for corporal punishment or verbal abuse based upon discrimination, then OSI will investigate.

Unfortunately, both OSI and SCI are biased against school staff and by the time either investigative agency interviews the staff member, the investigators have already determined the member's guilt or innocence.  Therefore, if you already know that the Principal wants you removed from the school, because you are a senior teacher, a whistleblower, or a person that knows the contract, the investigators will always substantiate the most trivial of actions and recommend disciplinary action, up to and leading to termination, despite the fact that the investigators have not even bothered to talk to you.  Therefore, its best to keep quiet and wait for a more fair venue, like the 3020-a hearing to defend yourself.  Too many educators believe that if they just explain what really happened to the investigators they would see that the allegations are false or frivolous. What really happens is that by talking to these corrupt investigators you are giving them just enough rope to hang yourself.  This is especially true of SCI, who can arrest you on the spot if they believe that you told them enough to warrant your arrest.  Just ask the educators who find themselves in a police holding cell for up to 72 hours before being released by a judge.

My recommendation is to NEVER TALK TO SCI WITHOUT THE PRESENCE OF A LAWYER GIVEN TO YOU BY THE UFT.  Just take the SCI investigator's card and tell them that your lawyer will contact them   Talking to SCI is never a good idea and the SCI will use the information you supply against you, not for you.  As for OSI?  wait for the union to arrange a union advocate to represent you at the hearing and answer simply yes or no.  Unless the union advocate tells you to explain, don't.   Again any information you supply to OSI will be used against you in any disciplinary hearing. Best to answer simply and with as few words as possible. Remember both agencies assume the educator is guilty before ever meeting with the accused.

South Bronx Schools has a post about a former OSI investigator who advertises her services for educators who face OSI investigators and claims she can help the educator gain an advantage.  I am highly skeptical of this claim since OSI has already decided the narrative of the educator's guilt or innocence before the meeting with the educator ever takes place.  However, if you have loads of money to waste, believe in the tooth fairy, and think the OSI investigator is fair and balanced, good luck to you and by the way, I have a bridge in Brooklyn I would like to sell you.

In Defense Of A Discontinued Teacher

In yesterday's New  York Post there was a story about a teacher accused of sexually abusing students who ended up being discontinued by the DOE.  Before I go into the story let me tell you that there should be "zero tolerance" of proven sexual misconduct between a teacher and a student and they should be arrested and terminated while losing their teaching license.  However, as I have previously written, the Office of Special Investigations (OSI) and the Special Commissioner of Investigations (SCI) will almost always substantiate sexual misconduct charges if a student complains that the teacher touched him or her inappropriately.  I should know because SCI substantiated such a complaint against me only to have the 3020-a arbitrator, faced with real and relevant evidence and an ever-changing story by the student involved,  rightly ruled that no sexual misconduct happened.

Back to the story, the discontinued teacher was accused by four different students (both boys and girls) of touching them inappropriately and sexually.  If the charges were remotely true then why wasn't the teacher arrested by the NYPD sex crimes unit?  Obviously, an adult accused of sexually touching a minor gives the police "probable cause" to arrest the adult.   Especially, as one boy claimed he engaged in oral sex with the teacher.  Could the reason be that the NYPD looked into the accusations and decided the students were not credible?  I certainly think this might be the case. However, since the default by OSI and SCI is that the teacher is guilty of the allegation, they didn't need "probable cause" to substantiate the accusations, despite the questionable credibility of the students.

According to the teacher,  who was not tenured and teaching Special Education students, the four students complained after he called their homes to tell their parents about their unruly behavior.  Could the four students have conspired to make up the sexual abuse allegations as revenge?  Maybe, and I wouldn't discount that possibility.  The fact the teacher was not arrested tells me that the NYPD did not believe the student allegations makes me question the student's accusations.

The New York Post article also claimed one boy was crying when telling his story to the SCI investigators.  Was he crying because he was alone with two strange detectives and was stressed and scared of being caught in a lie?  Or was he crying due to the alleged abuse?  I don't know the answer to this but again, why didn't the NYPD arrest the teacher, even if it was to simply arraign him?  When the male teacher from Brooklyn Tech was found to have committed sexual misconduct, he went to jail.  So did the female gym teacher at Grover Cleveland.  Yet, the NYPD did not arrest this teacher?

Being a recipient of SCI's flawed and corrupt investigations, I am highly suspicious of the SCI report on the discontinued Special Education teacher since the NYPD chose not to arrest the teacher, despite the allegations lodged against him.  If he really did it, he should count his lucky stars that he is not in jail but my own experience tells me that he was simply an unfortunate example of the overzealous SCI investigative process.

When An Investigation Is Substantiated, Is The Educator Automatically Terminated?

According to the Special Commissioner of Investigations (SCI), there were 5,500 complaints made against educators in 2015 and 26% of them were substantiated or 1,430 cases.  SCI investigates complaints of sexual misconduct, criminality, test tampering, or financial mismanagement.  Some are serious, like sex with a student or stealing money, while others are not.  Regardless, all substantiated complaints by SCI and the Office of Special Investigations (OSI), who investigate issues of corporal punishment and verbal abuse, are placed on a teacher's file as a red flag for anybody considering in appointing the teacher to their school, or as I call it a "scarlet letter".

Unfortunately,  even the most minor of incidents such as making a bad joke, disciplining a misbehaving student, or a student misunderstanding a teacher's intentions can lead to a SCI or OSI investigation and if the student has a friend or two to back her up, the allegation is then substantiated. However, just because the two investigative agencies substantiates the allegation, it does not necessarily mean the allegation is true and lead to termination.  It depends on what was substantiated and is there real evidence to back it up, not simply hearsay.  Moreover, even if the DOE decides to file 3020-a termination charges against the tenured teacher, only the  independent arbitrator can decide if the teacher's conduct was egregious enough to warrant termination. For teachers who are not tenured, usually any substantiated allegation by SCI or OSI will lead to the teacher receiving a discontinuance and will make it nearly impossible ever to work for the DOE again.

While the two investigative agencies will claim that they conduct a fair and impartial investigation, the investigations are heavily influenced by three factors and they are;

1. Does the Principal like the teacher?
2. Does the teacher have previous discipline issues?
3. Did the teacher cooperate with the investigators?

 In my experience, the Principal's input will determine the tone of the investigation and how they will approach the allegation.  Furthermore, if the teacher had previous allegations, the investigators will assume a "pattern and practice" and will almost always substantiate the allegation, no matter how frivolous.  Finally, the teacher's refusal to talk to the investigators makes it seem that they are hiding things and are guilty of the allegations.  Of course, talking to these investigators, without appropriate union or legal representation, will allow them to turn your own words against you at the 3020-a hearing.  Therefore, its best not to cooperate and talk to these investigators and wait for your 3020-a hearing where your words cannot be twisted. This is especially true when it's SCI since they can actually arrest you if by speaking to them, you give them probable cause.

      ......................."NEVER TALK TO SCI"...................

Remember, the default is that investigators assume the teacher is guilty of the allegation and anytime you are scheduled to meet with an investigator, make sure you have proper union representation if its OSI and a lawyer if SCI is the investigative agency. Hopefully, you will never be put into the position that requires taking this advice.

Can A Developing Rating Terminate A Teacher? Yes, If You Are Not Tenured!

In a previous post a commenter asked if a developing rating can resulted in 3020-a charges for incompetence.  Of course the answer is no.   However, when it comes to teachers who are not tenured the answer is very different.  Teachers who have not gained tenure are considered "at will" employees and have very limited "due process" rights.  They can be fired for any or no reason at all, including getting a "developing" rating.  While the discontinued teacher can request a hearing with the Superintendent, usually 6 months to a year after the discontinuance, very few, if any are reversed.  The Superintendent simply rubber stamps the Principal's recommendation.  No investigation of the discontinuance is required. Remember this outrageous case?  Unfortunately, a developing rating can result in a teacher who is not tenured to be discontinued from employment as a teacher in the DOE.

Theoretically, the discontinued teacher can reapply to another school district in the City schools or in another license.  However,  the teacher's file will have a flag on it (a scarlet letter) showing the discontinuance and few principals will be willing to fight through the bureaucratic red tape to hire a discontinued teacher when there are other applicants available for the position.

The end result is that once a teacher is discontinued, their career as a New York City public school teacher is effectively over.  It only takes one Principal who does not like you to ruin your career and in far too many cases potentially great teachers saw their dreams and aspirations of making a difference terminated by the whims of a Principal who has discontinued the teacher based upon personal differences, unfair observations, or prejudice.

While the attack on teacher tenure continues throughout the country the unfair and discriminatory actions against teachers who have not attain tenure in the New York City public schools, simply based upon a Principal's like or dislike of that teacher is really a moral crime.

The DOE Failure To Take Action Against Willian Cullen Bryant's Administration Smacks Of Corruption.

Here will go again.  The New York Post published a report showing how the school administration stiffed their students and failed to pay them for summer work to fix and upgrade the school's computer system after promising to pay them for their work.  When the Chancellor was contacted by two students complaining they were stiffed, the DOE's response was to send the emails back to the Principal who scheduled a discipline hearing and put the two students at risk, just incredible!  The DOE informed the Post that they are now investigating the accusation, why not when the accusations happened?.  How many DOE investigations are there on William Cullen Bryant High School and why is Principal Namita Dwarka still in charge?  The answer is simple, the DOE investigations are corrupt!

William Cullen High School has seen a mass exodus of veteran teachers leave the school through retirement, resignation, and the few lucky ones who transferred to other schools despite their salary.  The school's teaching staff mainly consist of inexperienced teachers and in some subjects like Earth Science are not certified to teach the subject.  Furthermore,due to the administrative actions students passing the Regents physical Sconces (Earth Science, Chemistry, and Physics) have dropped 20 points in the last few years. If I look at the rest of the subjects, I'm sure there are similar drops.

When it comes to Principal Namita Dwarka the list of accusations against her are mind boggling as she continues to run this once great school into the ground.  Yet the DOE has repeatedly failed to take any action against her or remove her for the sake of the students and staff alike.  This is just another case of the DOE's corrupt investigation process when it comes to disciplining favored administrators.

Investigators Bury Accusations Of Cheating. What Else Is New?

It is not surprising that allegations of academic fraud has risen substantially over the years as schools were under pressure to increase their graduation rate and credit accumulation.  However, in far too many cases both were increased by cheating, be it grade changing, bogus credit recovery schemes, or simply giving out free credits. The first time this became a media issue when it was reported by the New York Times back in 2011.  However, this problem has been around for almost a decade and I reported as far back as 2008 that the DOE's "credit recovery" program was simply a bogus credit accumulation scheme to artificially boost the graduation rate.  What's more disturbing according to Chalkbeat, is that despite the rise in accusations of cheating reported to the Special Commissioner of Investigations (SCI), the agency only bothered to look at 3 of the 300 academic fraud charges in 2014 and didn't substantiate any of the three!  That's correct, SCI didn't find any cheating worthy of filing charges, unbelievable but true.  No wonder, whistleblowers who report cheating to SCI believe that its a waste of time.  The facts unfortunately bare that out.  Some cases were refereed to the DOE's Office of Special Investigations (OSI) and disappeared as favored principals were protected by Tweed and their cases seemed to drag on until the spotlight on their misconduct moved to other issues and the OSI investigation was closed or buried in the depths of Tweed. Already this year, 300 cases of academic fraud were refereed to SCI and they have only decided to look at only 10 of these cases.  Any bet they find all 10 unsubstantiated?  However, if this was about a teacher you can bet the outcome would be very different.

It certainly appears that the SCI and OSI investigative units aid and abet the academic fraud that has been a problem since the Bloomberg years and continues with Mayor Bill de Blasio.  SCI's failure to take whistleblower complaints about cheating seriously and OSI's questionable investigations that are subject to pressure from Tweed, make any investigation suspect.  To me, both investigative organizations are corrupt and do not take allegations of academic fraud seriously.  Is it any wonder that principals have little fear of getting caught since there appears that the DOE rarely takes any action against them, except when the media presses the issue like at John Dewey High School.

The bottom line is that despite the change in administrations, its still business as usual at the DOE with politically motivated investigations and academic fraud still part of the landscape at the New York city public school system.

The Corrupt Investigations Continue.

Throughout the New York City high schools the pressure by school administrators to increase the graduation rate has resulted in academic fraud by graduating academically unprepared students by any means possible.  This is not an isolated problem identified in John Dewey and Flushing high schools but is widespread throughout the New York City school system.  Despite the more stringent "credit recovery" rules that the State requires and the DOE promised to implement, the DOE looked the other way as these abuses continued.

Even when, under media scrutiny,  the DOE will drag their feat in investigating "credit recovery" fraud.  Worse, is what's happening at Richmond Hill High School.  After the DOE was caught in a blatant lie that no teacher of the school was allowed to re-grade the Regents, it turns out that the school administration hand-picked some teachers to re-grade the Regents with predictable results.  What did the DOE do?  They sent SCI investigators into the school on the pretense to gather evidence to the potential cheating scandal but quickly morphed into a "witch hunt" to identify the whistle blower(s) who dared embarrass the DOE and even sent them to their homes!

Unfortunately, this is not an isolated case, both OSI and SCI are really not interested in investigating administrative misconduct and many of their investigations seem to morph into identifying whistle-blowers with evidence obtained against the teacher used for disciplinary action.  To see how the two agencies work look at my corrupt investigations posts.

I do not or cannot trust these investigations and neither should you. You should never willingly talk to these people without a lawyer if its SCI and a union advocate if its OSI because whatever you say will be used against you since its not about the truth.

In The DOE Its Still Cronyism Over Competence.

Mayor Bill de Blaio announced earlier in the week the appointment of Aimee Horowitz as the new Executive Superintendent of the School Renewal Program.  While the Mayor and other politicians gave Ms. Horowitz glowing acclaim, there is another, darker side to Aimee Horowitz.

Back in 2013, Aimee Horowitz was Superintendent of District 20 and participated in the discontinuance of a untenured teacher who had tried to inform the Superintendent of Regents cheating at her Brooklyn High School.   While a Superintendent's job is to discontinue teachers without tenure that don't measure up, this one was different.   This teacher was a whistle blower and was being retaliated against. The teacher had cc'd the Superintendent on the letters she wrote to the Principal detailing the Regents cheating she observed and reported to the Assistant Principal.  Yet, the teacher was never contacted by Aimee Horowitz, despite the seriousness of the accusations.  You can read the teacher's story Here.

To make matters worse, the untenured teacher was told by the Principal that the Superintendent was not only going to discontinue the teacher but would recommend to the State to go after her license for "professional misconduct".  I guess for being a whistle blower.   In fact, in the discontinuance letter signed by Aimee Horowitz to the teacher, the Superintendent wrote that she will recommend a C-31 which is a license revocation action which was apparently dropped right before the Office of Appeals and Review hearing when the DOE knew they could not prove there was any teacher misconduct.  Interestingly, SCI become involved after the NY Post published an article on the case and did do an investigation which substantiated that Regents cheating did occur.  However, the report has not been issued or even completed and nobody knows who was found to have participated in the Regents cheating scandal.  However, the administrators are still in their positions at the high school.  By the way, SCI failed to interview the untenured teacher which is quite puzzling since she was the one who blew the whistle on the Regents cheating in the first place.

The untenured teacher filed an Article 78 and had a process server give a subpena to Superintendent Aimee Horowitz.  Instead of being a professional and accept the subpena, she had a "hissy fit" and refused to accept the subpena from the server and had to be restrained by her assistant.  The subpena had to be mailed to her.

You would think as a Superintendent, when a Regents cheating complaint was mailed to your office, you would have at least interviewed the teacher to determine the seriousness of the allegation and see what action needs to be taken.  Instead Superintendent Horowitz chose to let the Principal handle it.  Yes, the very same Principal that might have been complicit in the Regents cheating scandal.  When a high UFT official spoke to the Superintendent about the teacher and the charges , Aimee Horowitz allegedly told the UFT official that its her job to support her principals and their decisions.  Obviously, the truth is not as important to Aimee Horowitz then closing ranks to protect her principals at the expense of the students and staff at the schools she supervised.

To me, a true professional would investigate the accusations, fairly evaluate complaints and take action when deemed necessary.  Unfortunately, Aimee Horowitz appears lacking in that expertize. However, it didn't stop her from being promoted.  Now that she is in charge of the NYC Renewal schools, I feel sorry for the staff, especially the teachers.  It appears that cronyism still rules at the DOE at the expense of competence and the losers are the NYC schools.

Why Has The UFT Leadership Failed To Take The DOE To PERB On The Problem Code Issue?

Back in 2012, the DOE decided that any teacher who was subject to a DOE investigation (SCI, OSI, OEO) and found to be substantiated will have a "problem code" attached to their file.  It mattered little that if the teacher decided to go through with their 3020-a hearing and the independent arbitrator found that the DOE investigation was flawed and found no serious misconduct, the DOE still kept the "problem code" on the teacher's file.  At the time the UFT leadership objected and claimed they will take it to PERB.  However, the UFT leadership failed to pursue the PERB complaint.  The question is why did they quietly drop their promise to file a PERB complaint, or did they ever really intend to fire one in the first place?

The union's failure to protect their members shows up yet again, be it the second class status of the ATRs, reassigned teachers put on ice in a different borough, or the labeling of the unfair "problem codes".  Our union's failure to remove the "Scarlet Letter" from their member files is a disgrace and must be corrected.

As a member with one of those "problem codes" on my file.  I will be more than happy to be the test case, if the union leadership wants to challenge the unfair DOE designation that has damaged many member chances from obtaining a position.  However, I doubt that the disconnected leadership will do the right thing and file their long promised PERB complaint.

There is no direct way to know if you have a problem code on your file, unless the Principal or payroll Secretary is kind enough to show it to you on their computer screen.  However, you can go to the DOE's payroll portal that a member can access.   Go to Salary History and you will see just below your 2013-14 rating the word "problem".  If that appears on your Salary History and something is listed next to it, you probably have been "problem coded" on your file. Remember, this goes back to at least 2002 so an incident that happened more than a decade ago is deemed as current under the DOE.

Will Tweed Be Held Accountable For Their Failure To Properly Investigate The People They Hire? Don't Count On It.

One of the most important responsibility that the DOE has is to ensure that the people they hire to work with children can be trusted in their care.  However, time and again, the DOE has failed in their responsibility to properly investigate potential new hires, often with devastating results. Moreover, the existing investigation process has proven to be inept and worse maybe corrupt in nature.

Its not just the case of Brooklyn Tech High School teacher Sean Shaynak, who has been arrested for criminal sexual assault charges.   What's troubling was that Mr. Shaynak had a restraining order against him in Maryland for assaulting an 11 year old boy and the DOE knowing this, still allowed his hiring.  Unbelievable!  Then there is the case of James Brown, who the DOE hired to become Principal of the troubled Flushing High School.  Mr. Brown was hired by the DOE who failed to look into the resignation of Mr. Brown from the Baldwin NY schools district.  If they just simply Googled his name, they would have found that he was found guilty of harassment, including sexual harassment, and retaliation against a female subordinate in a jury trial and was forced to resign.  Who can forget the poor role models these two "Leadership Academy" principals demonstrated in making obscene and sexually violent videos.  First, it was Anissa Chalmers who starred in a role called "Gang Girl" which featured her shooting, killing, and raping her enemies. Nice role model for her students growing up in gang infested South Bronx.  Yet the DOE has allowed her to continue to be Principal.  Then there's Principal Emmanuel Polanco, who starred in a sexually explicit rap video that glorified himself as a sex machine and demonized women.  Yet the DOE has allowed him to remain on the job. Finally, there's the case of CEO John Shea, who has been accused of sexual harassment by two different women, leading to two federal lawsuits.  Yet, the DOE did nothing about it. I would be remiss if we didn't bring up the case of Assistant Principal Michael Herlihy, an ex-priest who was defrocked because of his alleged sexual misconduct with two male students, yet the DOE didn't bother to investigate why he was defrocked as a priest and fired from Cardinal Hayes High School.

Obviously, accountability is only for the school staff but not for DOE administrators or managers as the blame lies with the disappointing Chancellor who has failed to "clean house" at Tweed and has shown a lack of focus in running the New York City school system.  Maybe she needs to start from scratch and replace the flawed and corrupt investigation process since the present system is badly run and unfair.

Why Teacher Due Process Rights Are Important.

 
There's little question that there has been a coordinated attack on teacher "due process rights"  State after State and school districts throughout the nation have various proposals and sometimes new laws that either diminish or eliminate teacher tenure and their "due process rights.

The latest is the State of Kansas which has eliminated teacher tenure and is awaiting the Republican Governor's signature to become law in the next school year.  This follows a deterioration of teacher "due process rights" in many places throughout the nation.  This attack on teacher tenure follows similar laws passed in North Carolina, Arizona, Virgina, and Connecticut. These changes follows the State's adoption to the "Race to the top" federal funding that requires that a teacher's evaluation be attached to high stakes testing using the "Common Core" standards.

In every State in the nation corporate education reformers have attacked teacher "due process rights" for example a major plank in StudentsFirst is the elimination of teacher tenure.  While the corporate reform mole, Educators 4 Excellence, published a white paper asking that layoffs be based upon evaluations and the enemy of all teachers Democrats for Education Reform wants to eliminate teacher "due process rights" entirely. Other corporate reform funded groups have proposals that eliminate teacher tenure, scale back  "due process rights" and include merit pay proposals.  Even in labor friendly New York State, the corporate education reformers and their media allies continue to attack teacher tenure and "due process rights".  Lately in demanding a time limit for ATRs  and making the teacher evaluation system a termination program.  For the former, ATR NYC has an article dealing with how the nation handles excessed teachers. In the latter case the hypocrite Governor insists that the badly flawed high stakes testing be up to 40% of a teacher's evaluation despite his acknowledgment that the tests should not be used as student scores. Finally the clueless Campbell Brown wants the Chancellor to terminate any teacher accused of sexual misconduct regardless if it's true or not.

The reality is that teachers need tenure protection and "due process rights".  Teachers interact with between 32 and 150 students on a daily basis.  These children have incomplete personalities and are very implosive and take offense to the most innocent action.   A student can have a bad day and take offense what a teacher says or does and if the administrator doesn't like the teacher, charges of incompetence or misconduct will be the result.  Without teacher "due process rights" any accusation would result in the teacher's termination.  With teacher "due process rights" the school district needs to prove the accusations were true and that means gathering real and relevant evidence, not relying on gossip, hearsay, or innuendo as is the case when OSI and SCI commence their investigations and "substantiates the charges based upon talking to the Principal who wants to teacher gone from his school, evidence or not.

If it wasn't for our "due process rights", I could most certainly would have been terminated in 2007 when SCI "substantiated" the hearsay, gossip, and innuendo that is common in high schools.  It made little difference that there was no real or relevant evidence of the charges since the Principal wanted me gone from the school and SCI  obliged him.  Would the Chancellor give me a fair hearing?  Just look at the UFT's record on "U" rating appeals (0.2% was successful) to know my fate.  Instead because of my "due process rights" I had a hearing in front of an State arbitrator who ruled in my favor and gave me a "slap on the wrist".  That's why teacher "due process rights" are important.  It can and will mean your job if we don't have it.

Are The SCI Investigators Really Interested In Finding Out The Truth? Not If You Ask Me.

In the last five years I have written many posts that questioned the fairness and objectivity of the DOE investigative departments.  The Special Commissioner of Investigations (SCI), The Office of Special Investigations (OSI), and The Office of Equal Opportunity (OEO).  Nothing recently has changed my opinion of these investigative agencies and as far as I am concerned they are simply tools of the DOE to get teachers terminated when accused of the most frivolous of actions while protecting the alleged vindictiveness and misconduct of administrators  You can find my previous posts on the DOE investigative process at corrupt investigations.

 Now a teacher told me a story that confirms to me that these investigative departments, paid for by the DOE, are still more interested in getting teachers terminated than finding out the truth. This story, as told to me, is about an untenured teacher who was getting satisfactory observations by the AP of her high school until she witnessed another teacher coming out of a room with a student and with his Regents paper in hand which was in violation of New York State testing procedures.  She quickly realized that the teacher was alone with the student and that her experience with the student told her he had no chance of passing the Regents without cheating.  She knew the school was anxious to graduate the student out of the school however, she decided it was her duty to report the alleged cheating to the Assistant Principal who was in the hallway that January day in 2013.  The Assistant Principal assured the untenured teacher that he will handle the problem.  Of course a couple of days later she found out that the student miraculously passed the Regents and graduated from the school.  She asked the Assistant Principal what he did about the cheating allegation and he told her that it was handled and don't bring it up anymore.

During the next semester the untenured teacher found herself being subject to numerous observations from the Assistant Principal and her "Satisfactory" observations in the first semester became "Unsatisfactory"  observations after reporting the alleged cheating.   The untenured teacher felt harassed and took her complaint to the Principal early in the Spring only to be told that the student in question graduated and follow the instructions given to her by the Assistant Principal about her classroom management skills  The Administrative retaliation continued throughout the second semester and the untenured teacher was discontinued. End of story?  Not quite.

During the summer the news media got wind of the story and wrote an article about an untenured teacher being terminated because of her claims of whistle blowing.   It seems that after the article was published, SCI took the case on to determine if there was cheating going on at the high school.  In January of this year  SCI substantiated the alleged cheating and the school apparently removed the teacher involved.  Sounds like SCI did their job right.  Wrong!  SCI never bothered to interview the discontinued teacher who made the original complaint about the alleged cheating.

The question is why didn't SCI interview the main witness to the alleged cheating?  While I cannot say why SCI didn't interview the discontinued teacher, I must suspect that they were afraid that her testimony would have implicated both the Assistant Principal and the Principal in covering up the alleged cheating and maybe the Superintendent as well.  It will be interesting to see how this entire process plays out and if these administrators are cleared or found to have participated in the alleged cheating  since SCI is claiming that the investigation is ongoing.  Stay tuned as I suspect this will not be the end of the story.

The DOE's Corrupt Investigative Process.

What does Mayor Bloomberg his poodle, the clueless Chancellor Dennis Walcott, and the failed journalist, Campbell Brown have in common?  They all believe that real evidence of teacher misconduct is unnecessary as long as the DOE investigators substantiate the accusation,  no matter how weak the case is. That's right, if the DOE investigators can substantiate even the smallest incident and the Principal wants that teacher out of the school, look for 3020-a charges to follow.

Time and again in my blog I have identified how the various DOE investigative units, Special Commissioner of Investigations (SCI), Office of Special Investigations (OSI), and Office of Equal Opportunity (OEO), will twist, pervert, and embellish the most innocent of actions as misconduct. Rather than rehash the points you can read these posts here, here, and here.  They will tell you how the flawed and biased DOE investigative process works.

There are two constants for all DOE investigations that lead to 3020-a charges.  The first is having a Principal target you.  In almost all cases that lead to 3020-a charges it starts with the Principal.  These principals will make"mountains out of  molehills", or even when there are no hills to get the teacher subject to an OSI or SCI investigation.  These principals understand that the DOE investigators  do their best to substantiate the most trivial of actions to rid the Principal of the teacher they don't like or want and even lie just to get the teachers removed.  Yes, investigators are caught in lies. However, it's of little consequence since their job is to show guilt and not the truth.
  The second, is the investigator's presumption that the teacher is guilty of something and it's their job to find that guilt even if it means substantiating the unsubstaintiated hearsay or gossip associated with the accusation.  Real evidence is unnecessary and is only a problem at the 3020-a hearing, not for removing the teacher from the school and the investigators know that.

Sure, some teachers commit real misconduct and should be terminated.  However, its important that teacher "due process rights" allow for a fair and independent hearing on the 3020-a charges and that should include the DOE investigative process which presently, is a "stacked deck" against teachers and is used by pusedo-reformers who want to destroy the teaching profession.

Finally, never, never, never speak to these investigators.  Let your lawyer or union advocate speak with them.  They will take your most innocent statement and change it to make you look guilty of the allegations. 

The DOE's Scarlet Letter

Only in the bizzaro world of the New York City Department Of Education (DOE) does a teacher who was found innocent of charges still is guilty of those charges.  Yes, it's true!  The DOE has flagged all teachers who were charged under 3020-a even when those charges were found to be untrue!  In other words, the DOE will put a discipline flag on a teachers file if the accusation results in 3020-a charges regardless if the accusations were proven to be true or not.

If you're a reader of my blog, you know that I have written extensively about the City's 3020-a process and how biased and flawed it is.  However, what is little known is the discipline flag that the DOE places on a teacher's personnel file making it virtually impossible for those teachers to get an interview for vacancies.  In other words the DOE has placed a "Scarlet Letter" on their files when principals and only principals can see when they access the teacher's file.

Previously, I wrote an article about the discipline flag the DOE was going to do but I didn't realize that they actually went ahead and did it anyway.  How could the DOE impose a discipline flag on a teacher's file if it's found that the teacher did not commit the misconduct that the DOE accused the teacher of doing?  The reason is that they don't care what the evidence shows, as long as the DOE investigators substantiate the accusation.  That brings me to the DOE investigative process. If you believe that the DOE investigators conduct a fair investigation then please read my posts on corrupt investigations or the Fairy tale. For anybody subject to these DOE investigations they all know its all about how the Principal feels about the teacher that dictates the tone of the investigation.  If the Principal does not like the teacher it is almost guaranteed that the investigators will substantiate the accusation no matter how flimsy the evidence is.

The UFT has filed a PERB complaint about the unfairness of attaching a discipline flag on teacher files when an independent Arbitrator found that the DOE charges for the stated misconduct was not upheld.  However, it appears the union is not pushing their complaint with any urgency while in the meantime all those teachers who were found innocent of the DOE charges of serious misconduct have the dismissed charges on their teacher file as if the charges were found to be true.  In other words, in the bizzaro world of the DOE, once charged you are automatically guilty no matter what the evidence shows at a 3020-a hearing.  Now that is real serious misconduct.

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 "Fairy Tale" - The DOE Investigative Process.

We all know that "fairy tales" are simple stories that are not based upon fact but on myths and legends. For example "Jack and the beanstalk" or "little red riding hood". It is not just parents and teachers reading "fairy tales" to the pre-schoolers or kindergartners, the DOE has their own offices that writes "fairy tales" as well.

In the DOE there are three investigative units that investigate educator misconduct. They are the Office of Equal Opportunity (OEO) who investigate discrimination issues, the Office of Special Investigations (OSI) who investigate corporal punishment and verbal abuse accusations, and the Special Commissioner of Investigations (SCI) who investigate criminal, sexual, and financial allegations of wrongdoing.

OEO & OSI are completely controlled by the DOE while SCI are semi-independent of the agency (the SCI salaries are paid out of DOE funds). While educator wrongdoing should be investigated, the investigation process should be fair and neutral. Too often the investigators of these three offices assume a presumption of guilt by the teacher (not administrators in the ever continuing double standard) as they start their investigation. This means that before the investigator even starts to interview witnesses the investigator already has a potential script and it is up to the witnesses to fill in the details and if it turns out that the square peg does not fit into the round hole, they will simply make the peg round.

The Principal is a very important part of the DOE investigation process since the investigators look to the Principal for guidance on how to handle the investigation of the teacher. If the Principal likes the teacher and wants to keep the teacher you can bet that the investigation, if substantiated, will not result in any 3020-a recommendations for termination. On the other hand, if the Principal does not like the teacher, the opposite is true and a 3020-a results. In a truly fair and unbiased investigation the attitude of the Principal should matter little but in reality it matters a great deal in how the investigative process reaches its conclusion.

In many cases the investigator will use third or fourth person hearsay to help substantiate the accusation and to "pile on" charges against the teacher. Many of them are eventually dismissed by the 3020-a Arbitrator due to lack of evidence. These "add on" charges that the investigator has helped make the DOE's case for termination are simply "fairy tales" , in other words they have no factual basis and weaken the case against the teacher. If I was an Arbitrator and I found many of the charges lack credibility, I would be very suspicious of the severity of the charges that had some evidence associated with it.

Why the news media would believe that the investigator's report is always truthful and has no agenda associated with it while ignoring the actual evidence found by an impartial Arbitrator is simply wrong and smacks of bad journalism. Then again juicy stories sell newspapers the truth doesn't.

Welcome To The Bizarro World Of The DOE Michael Goodwin

New York Post columnist, Michael Goodwin has seen first-hand how the bizarro world of the DOE works when investigating wrongdoings by administrators. In today's column Michael Goodwin wrote about his frustration when he tried to follow up on allegations of cheating by school administrators with the Special Commissioner of Investigations head Richard Condon. To his shock and surprise, SCI refused to take any, not one, of the 25 accusations of cheating at the schools. I could have told him that under Richard Condon, SCI only looks at sexual (no matter how trivial or phony the accusation is) or criminal matters and dumps the rest to the Office of Special Investigations (OSI) which is subordinate to Tweed. Guess where these allegations of cheating went to? You guessed it, OSI! No credit recovery needed for you. This is the same inept OSI that has an ongoing two-year investigation of the Principal at Lehman High School for cheating (changing grades) and she is still there as Principal!

Maybe now that Chancellor Dennis Walcott is sufficiently embarrassed by DOE's failure to take prompt and real action against cheating administrators things will change. Yeah right, and if you believe that it will, I have a bridge to sell you. I hate to say this but I told you so. In my opinion nothing will change when it comes to investigating school administrators.