Tuesday, June 18, 2013

NYSUT Attorney Claude Hersh: "Trust Us"

NYC Rubber Room Reporter


Last week, NYSUT Associate Director Claude Hersh is still at it, telling people that whoever opposes the determination of probable cause by a Superintendent or principal  "doesn't know what he/she is doing...Trust us[NYSUT]". Thanks so much, Claude, for continuing to validate what NYSUT, not me, is doing wrong. And, you have never answered my question: what am I doing that I dont know what I am doing?"

Many UFT members who are going or have gone to 3020-a arbitration know that I sat in hearings as a member of the public (when the Respondents asked me to be there, and had an open and public hearing) from about 2004-2011. I took notes on everything said, and educated myself on what the Attorneys did, as well as who the arbitrators were, both as people and as "judges" in this random process. Now I am a paralegal at 3020-a and, with the Attorney also hired, am part of the legal team and thus intricately involved in all aspects of the process.If an innocent person is being charged with anything that is false, this legal team will "play hardball" in a professional, nice, warm and fuzzy way.

Leroy Barr, Judy Gerowitz, Bill Di Blasio
People who now contact me to work on their cases as a paralegal know that one of the biggest issues which the current NYSUT/DOE partnership tries to ignore is the improper determination of probable cause by a Superintendent and/or principal. Everyone who receives charges gets a packet of documents which have been created either by an Attorney at the ATU Gotcha Squad or the TPU Gotcha Squad. The first, ATU, does the frame up for the DOE to find a person who is charged with misconduct of some kind, and the second Gotcha Squad, TPU,  frames people according to the lie that he or she is incompetent. The ATU Gotcha Squad is under the direction of Laura Brantley, and the TPU Gotcha Squad's Director is Naeemah Lamont and her sidekick Dennis Da Costa.

The papers in the charging packet are built upon the TAC memos which are created by these teams to produce "proof" of guilt on the part of the future 3020-s Respondent. Papers are removed and/or stuck inside the personnel file to create what the Gotcha Squad attorneys hope will be a foregone conclusion, that the Respondent is terminated, removed, gone from payroll or, even better, paying a "fine" for something the member didnt do.

Back to NYSUT. Claude and his allies at the 3020-a never bring up the conflict between Education Law Section 3020-a(2)(a), which states that probable cause must be determined by a vote of the school board in Executive Session, and Ed Law Section 2590-j(7) which says that a Superintendent and/or a principal can pass the determination of probable cause around like a football. I dont think so.
Im willing to be shut up, just prove to me, Claude, that 2590-j trumps 3020-a and there is no conflict, (and I'll still insist that the 3020-a process in NYC is a mess, and NYSUT does not help members by not addressing this issue).


3020-a arbitration (Taylor Law) is compulsory and guarantees that tenured teachers may not be disciplined without a hearing unless Respondent intentionally waives his/her rights to such a hearing.
The requirement to arbitrate arises through a statutory mandate, thus the arbitrator's actions are subject to judicial scrutiny under CPLR §7511. Without a proper determination of probable cause the Arbitrator does not have subject matter jurisdiction and cannot rule on the charges nor proceed.

New York City tenured personnel are not carved out of the protections given under §3030-a, although this is a common argument of the Department, who often cites Section 2590-h(19) and (38) as controlling law on the issue of a vote on probable cause as well as on the delegation of the powers of the employing board ("chancellor"). These clauses give powers to Community Education Councils but not a vote on probable cause, for 3020-a hearings, according to their duties and responsibilities on their website:

http://www.learndoe.org/face/files/2012/10/CCEC-ROLES-AND-RESPONSIBILITIES-webinar.pdf

In fact, CECs have "no administrative or executive function". While there is a reference to 3020-a, there in fact is no specific role or responsibility which the CECs have to charge, find, or impact the charges filed under 3020-a after a vote in Executive Session.

Either the state legislature neglected to make certain that the vote on probable cause by a school board was included in the CEC Roles and Responsibilities, or the omission of the board's responsibility under 3020-a(2)(a) was deliberate, and the state legislature did not intend for the CEC members to vote on probable cause in an Executive Session on 3020-a charges. Even if the neglect/omission can be excused, which I argue it cannot be, then there must be proper Notice of the public meeting at which the Executive Session took place, along with questions such as who voted, when, with what information, etc.


In N.Y. CVS. LAW § 200 : NY Code - Section 200: Statement of policy:

"The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government."

Public policy is not, therefore, intended to violate existing laws and confound Plaintiff, Defendants, and policymakers with inconsistencies and denial of protections especially those given by the Taylor Law pursuant to Section 3020-a(1) and (2)(a).  

In fact, in 2008 I was asking these same questions, so Ellie Engler, Leroy Barr, Gary Sprung called me into a meeting at which they told me that attending 3020-a was a "liability"for them and I had to stop. They also told me to take down my blog, even though Randi Weingarten had told me to continue doing my outside advocacy. Randi won. Thanks Randi!!

UFT Co-staff Director Leroy Barr

Below is Ellie Engler's apology (spelling and grammatical errors are hers):



From: Ellie Engler
Sent: Tuesday, October 14, 2008 4:45 PM
To: Betsy Combier
Cc: Randi Weingarten
Subject: RE: schedule Oct.6-10

Dear Betsy,

Please allow me to apologize to you.  I am knew to all of this...I spoke
with Randi at great length and she assured me that you could go to the
hearings if the members requested and that the members were more than
pleased with your advocacy.

I wrote the email to you prematurely and without investigating the issue
fully.  Therefore, I would be happy to meet with you again, but carry on
as they say and thank you for all of your good work.

I am so sorry for the mistake.

ellie

-----Original Message-----
From: Betsy Combier
Sent: Tuesday, October 14, 2008 4:32 PM
To: Ellie Engler; Garry Sprung; LeRoy Barr
Cc: Randi Weingarten; Betsy Combier
Subject: RE: schedule Oct.6-10

Dear Ellie,

I am quite confused. At the meeting to which I was called with you, Gary
and Leroy, the subject of my attendance at hearings was brought up by me
as part of what I thought was my very successful work helping members
who have been re-assigned. I have no recollection at all of any
agreement about anything to do with my going or not to the 3020-a
hearings at 51 Chambers Street. Gary said that he thought it might incur
some kind of liability, but Adam said that he did not think that it did.
I agree that everything must and should be discussed so that we are all
on the same path towards helping every member as much as possible,
however as I know of no agreement, I am somewhat saddened by what seems
to be a confrontation coming, something that I do not feel is warranted,
given that I try at all times to accommodate your requests. I have not
in the past, nor do I intend to in the future, violate "agreements", and
I offer that I am not aware of one - or any mention of one - at this
time.

I just called Angela to set up an appointment to meet once again.

Betsy

-----Original Message-----
From: Ellie Engler
Sent: Friday, October 10, 2008 7:29 PM
To: Betsy Combier; Garry Sprung; LeRoy Barr
Cc: Randi Weingarten
Subject: RE: schedule Oct.6-10

Thank you for the email. I understand all the points you raise in your
email however it contradicts the agreement we reached at our last
meeting. Agreements That you participated in. We have concernS about
your representatioN at the hearings and after our meeting last week I
thought we were all on the same page.

However this email makes it clear that your role at the trc is not one
we all agree upon. Betsy we are all on the same page about advocacy for
our members. The problem is that the roles we each play are not clearly
defined.

I would appreciate it if you could call angela berry to set up another
appointment for us to meet. Have a great weekend. Ellie

Sent from my GoodLink synchronized handheld (www.good.com)

 -----Original Message-----
From:   Betsy Combier
Sent:   Friday, October 10, 2008 05:39 PM Eastern Standard Time
To:     Garry Sprung; Ellie Engler; LeRoy Barr
Cc:     Betsy Combier
Subject:        RE: schedule Oct.6-10

Dear Gary, Ellie, and Leroy,

Several weeks ago I was asked by a member at the 333 7th
Avenue TRC, to attend her 3020a hearing on October 6, 2008, as an
observer. She had requested an open and public hearing prior to asking
me if I could attend. Members in the TRCs know that I provide this
advocacy work to people in need here in New York City, and have attended
open and public 3020a hearings for teachers for many years as an
observer. I attended all the hearings of a teacher in 2005 by the name
of David Pakter, at his request. I was fascinated by the process.

Randi asked me to provide advocacy at the UFT in August, 2007. I was
asked to help members, and have, I believe, done so by listening to all
members and putting members in touch with the borough offices and other
UFT staff who can file a grievance, correct a certificate, or do
whatever is necessary to resolve a problem. All last year I brought to
Leroy's attention pending issues that needed immediate attention for TRC
members. I am not an attorney and do not give legal advice.

I have been asked by members to attend open and public 3020a hearings
(after he/she decides, on his/her own volition, to have observers at the
hearing) and this attendance is very important to the members for
psychological support. I knew, from already attending hearings and
speaking with teachers in the New York City public school system before
August 2007, (three of my four daughters were attending NYC public
schools and one still is in the system in NYC) what many of the concerns
were. A major issue with newly re-assigned teachers is, as you well
know, the emotional trauma that seems to overpower members when removed
from their school, suddenly. I help the member who is feeling despair by
listening to all their concerns, and helping them understand what the
process is, in a very general way. I have, over the past year, gained
the trust of many of the members at all of the TRCs.

The 3020a hearing is frightening to all members, even those who have
been through the experience before. The member who wants an open and
public hearing wants someone there to just be "there" for him/her. I
never speak, never contribute "evidence", never testify, and never add
my opinion or give a judgment about a case. Members ask me to be at
their hearings because they are scared, and gradually realize that
indeed the UFT is "there" for them, throughout the process. There are
many members out there who say that the only way to win a hearing is to
have an open hearing. I do not ever say that. There are never any
guarantees of anything. If asked to attend a hearing, I do because it is
important to the member. There is no liability as I never contribute any
information that could be harmful or disrupt the process in any way.

By the way, perhaps I should add a little bit of my background in this
area. For thirty-three years I have been a TV News producer, reporter,
and journalist; for thirty years I have been an advocate. In 1978 I went
to Egypt to help villagers "talk" with the government and get the
appropriate goods and services needed to not only survive, but create
businesses, obtain an education, and realize their dreams, by setting up
solar-powered video and letting the villagers "speak" through this
media.

I worked on this project while producing news for ABC - TV, NBC, and
CBS, in Egypt, Israel and Jordan. I obtained a grant in 1983 for $84,000
and left Egypt after setting up the solar-powered video as a tool in
assisting the villagers. I wrote my Masters thesis on this topic for New
York University's Interactive Telecommunications Masters Program. This
form of advocacy work combines information forensics, reporting and
assistance in reaching a resolution to a problem for a person in need.

I hope that this addresses your question.

Betsy

-----Original Message-----
From: Garry Sprung
Sent: Saturday, October 04, 2008 3:27 AM
To: Betsy Combier; Ellie Engler; LeRoy Barr
Cc: Adam Ross
Subject: RE: schedule Oct.6-10

Can you explain to us what hearing you are attending and under whose
authorization on Monday at Chambers Street
Thank you
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