Agreement Signed by NYSUT and NYC DOE General Counsel On How To Proceed With 3020-a Hearings During COVID-19 Danger

                          NYC DOE General Counsel Howard Friedman         
 

I am a paralegal who has completed about 110 teacher trials (known as "3020-a arbitration"), settled about 20, got withdrawal of all charges for four educators, and won exoneration for nine educators over the past nine years. Before I started actually working on these trials/arbitrations, I spent eight years sitting in hearings as a volunteer observer in my own time, writing notes on everything that was said and done. I taught myself the ropes.

The UFT legal arm is NYSUT, or New York State United Teachers. In this group are Attorneys who represent educator members throughout New York State whenever charges are filed against an individual member. These Attorneys are free, and you get what you pay for, in my opinion. I know almost all of them, having worked for the UFT and meeting them in the hearing offices. NYSUT attorneys will not work with anyone outside of NYSUT. 

In NYC, both NYSUT Attorneys and the prosecuting Attorneys at the NYC DOE Office of Legal Affairs under the direction of General Counsel Howard Friedman want to remove outside counsel from representing charged educators, basically to maintain control of the hearings themselves and to make sure that the outcome is "agreed" to by the school board/DOE. However, any charged educator may choose anyone he/she wants, to represent him/her at 3020-a arbitration. Many - in fact, increasingly - members choose to remove NYSUT and pursue the defense with a private legal team. Thus, when the pandemic hit NYC and hearings at 100 Gold Street in Manhattan were put on hold, I was wondering what would be the game plan.

Two days ago the hearings went into full start again, but not a single private attorney with whom I work on these cases would agree to go into the building and the small hearing rooms of the Legal Unit at 100 Gold 3rd Floor. Turns out, NYSUT and the NYC DOE had made a deal (that was not sent to any private attorneys) to put all hearings on Zoom until whenever.

This should be interesting. Arbitration by zoom has its' pros and cons. I currently have five cases to put on, and you all know I will let you know what happens, after the hearings are over. 

For now, see the MOA signed by Beth Norton, General Counsel of NYSUT and Howard Friedman, General Counsel of the NYC DOE. Enjoy.

Betsy Combier

betsy.combier@gmail.com

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Memorandum of Agreement between the 

Board of Education of the City School District of the City of New York and the

United Federation of Teachers, Local 2, AFT, AFL-CIO

               1.      3020-a Hearings:

a.       Nothing in this Memorandum of Agreement (“MOA”) shall constitute a waiver or modification of any provision of any memorandum of agreement, collective bargaining agreement (and the documents incorporated therein by reference), letter or other agreement between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers, Local 2 (“UFT”), or past practice except as expressly set forth herein.

b.      This MOA is intended to address the extraordinary conditions presented by the novel coronavirus pandemic and the risk of COVID-19. This MOA will sunset on June 30, 2021, unless both parties agree to extend, in writing, this MOA no later than May 1, 2021, or upon such time as school resume full in-person instruction, whichever is earlier. Notwithstanding the foregoing, either party may terminate this MOA for cause on 10 days’ notice, provided however that, prior to provision of such notice, the party seeking to terminate must have first raised the issue in question in consultation under Section 1(d) of this MOA and have escalated the issue to the General Counsel of the DOE and the General Counsel of the UFT. If no agreement is reached, the Chancellor and the UFT President will decide. For the purposes of this MOA “cause” is defined as either (a) an order issued by the Governor of New York in which all 3020-a hearings are held in abeyance; (b) an order or directive issued by the Chancellor pursuant to which schools are closed and staff are not working remotely; or (c) the Chancellor and UFT president agree that hearings cannot proceed in a manner consistent with this MOA and Education Law Section 3020-a.

c.       The parties acknowledge that the situation regarding reopening offices is fluid and that New York City began Phase One reopening as described in Governor’s Executive Orders on June 8, 2020, and has proceeded and may proceed through reopening phases, or not, depending on a number of factors including the rate of new infections of the virus. The parties agree that as they transition back to holding hearings in person, there may be a need for one or more of the participants to appear remotely, resulting in a hybrid in person/remote hearing. To the extent possible and permitted under all existing DOE safety rules as determined by the joint DOE/UFT Central Committee, the parties will proceed with in-person hearings. However, if in-person hearings are not possible then the parties will proceed remotely for the term of this MOA, whether with a hybrid model or completely remote.

d.      The Director of the Administrative Trials Unit (“ATU”) and the Director of the Teacher Performance Unit (“TPU”) shall meet monthly with the UFT, or the UFT’s designee to consult regarding the implementation of this MOA.

2.      Remote Hearings (Process and Protocols)

a.       The parties are committed to having these cases heard in an expeditious manner. The parties agree to conduct remote hearings according the protocols set forth in this MOA so that all issues are fully and fairly litigated.

b.      If a Respondent requests, the UFT will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If the UFT is unable to provide a Respondent with a location on a given hearing date, counsel for the Respondent will make every effort to provide the DOE with two (2) days’ notice and the DOE will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If UFT and the DOE are unable to provide location to the Respondent, the hearing will be cancelled, and the parties will split any cancellation fees. If a hearing is scheduled within 48 hours of the hearing date (e.g., as the result of a settlement of another matter), and the UFT is unable to provide Respondent with a location, the UFT will notify the DOE as soon as possible. Under these circumstances, should the DOE be unable to provide a private and secure location the parties agree to mutually reschedule the hearing date.

c.       The parties agree to make every effort to pre-mark exhibits, identify witnesses, stipulate to undisputed facts, and minimize the issues of fact to be tried remotely.

d.      Remote hearings for both ATU and TPU cases will resume and proceed in the order of their case queues/case assignments before their current hearing officers in a manner that is consistent with the Collective Bargaining Agreement. To the maximum extent possible the parties agree to ensure that the cases are managed timely.

e.       In the event a hearing is cancelled or interrupted as a result of an individual party’s technical issues, including but not limited to the party’s failure to have proper equipment, that party will bear the cost of any cancellation fees for the hearing date. 

3.      Platform:

a.       The parties agree that all remote hearings will occur on a single platform: Zoom Pro.

b.      The Hearing Officer (hereinafter “HO”) will be responsible for costs of using the Zoom Pro platform. 

4.      Procedures:

a.       Subject to paragraph 2(b), each party shall be responsible for ensuring their own equipment is properly functioning prior to the hearing date.

b.      The HO shall ensure that the court reporter can access the hearing to make the transcript of the hearing.

c.       The HO shall be the only “host” of the proceeding on the chosen platform and will ensure that each party has a confidential virtual break out room.

d.      The HO as host will ensure that the following participants will have access to virtual breakout rooms and that additional breakout rooms are made available for other participants/parties as needed, including:

o   Respondent and Counsel

o   Counsel and Witness

o   Counsel and Counsel

o   Counsel and HO

e.       A party shall be allowed to disconnect from the hearing to attend to administrative matters and the amount of time by a party spent off the record shall be in accordance with the CBA.

f.       Counsel shall make every effort to minimize any delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.

g.      The parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants with a right to such access.

h.      The SED official transcription service shall be the sole method of transcribing the proceeding. The SED official transcription company shall only access the audio recording feature of the platform and shall be prohibited from accessing the video recording feed of the platform.

i.        No party, witness, or other participant in the hearing may record via audio or video, transcribe, or photograph the proceeding.

j.        No party, witness, or other participant in the hearing shall use any chat feature of the chosen platform.

           5.      Exhibits:

a.       Proposed exhibits in the format in which the exhibit will be entered shall be emailed, using a secure platform, to opposing counsel five (5) days in advance of the entry of the exhibit.

b.      Counsel for the parties shall confer two (2) days prior to the hearing date to make best efforts to stipulate to the exhibit’s entry. If the parties agree to the entry of an exhibit, the exhibit shall be pre-marked. If the parties are unable to stipulate to the entry of the exhibit, the proposed exhibit shall also be pre-marked.

c.       Prior to the hearing, counsel responsible for entering the exhibit shall email, using a secure platform, to the HO and opposing counsel, any exhibits which have been pre-marked and/or stipulated to. The provision to the HO of a pre-marked exhibit for which the parties have not agreed to entry shall be without prejudice to arguments or objections as to admissibility, weight and/or relevance. Nothing herein prevents either party from introducing an exhibit or witness that was not pre- marked or identified.

6.      Mediation:

a.       The parties agree to mediate as many cases as possible or appropriate from ATU and TPU.

b.      The mediations shall also be remote and shall be complete by December 21, 2020. A second round of mediation will take place in 2021. Once the first round of mediation has concluded, the DOE will make every effort to identify additional cases for mediation to begin in March 2021.

c.       The arbitrators will be chosen by mutual selection of the parties.

9/22/20 

Beth Norton                                                       Howard Friedman
General Counsel                                                General Counsel
United Federation of Teachers, Local 2            Board of Education of the City School
AFT, AFL-CIO                                                  District of the City of New York

New York State Education Law 3020-a + Memos To The Field

The 3020-a hearing process in New York City is a bizarre mix of personalities, character assassinations, lawless opinions and actions, lies, fake news, and truth.

The way to win any hearing, in my opinion,  is to meet the challenge of being in outer space by keeping a focus of putting facts first and supporting the facts with humongously terrific arguments.

Anyway, below are the rules and laws that could be helpful to someone who wanted to know more about the 3020-a in principle.

However, a law is only as good as it's implementation.

None of the laws or rules are honored unless you want them to be. Just reading the law wont help you.

That's the problem. Have someone in your hearing who supports you and who knows the fight and can use the rules to win the argument. Remember Reese's pieces in the movie E.T.?


That 's what you need to do. Find E.T.

Betsy Combier
 betsy.combier@gmail.com
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New York State Education Law 3020-a Procedures

Memos to the Field

Occasionally, there is a need to issue memoranda to the field to clarify information pertaining to the various regulatory and administrative responsibilities of OSPRA. Copies of important memoranda may be obtained by following the relevant links below.

Date	Subject
June 2020 June 2019	Fingerprinting Fee Increase Test Security Unit (TSU)
September 2015	Education Law §3020-a Hearing Officer Rates
August 2015	Teacher Tenure Hearing Changes
July 2015	Fingerprinting Changes – Important Dates and Escrow Accounts
May 2015	Fingerprinting Rejection Report
May 2015	Fingerprinting Changes – Transition Timelines
April 2015	Fingerprinting Changes
March 2013	Teacher Tenure Hearings – New Online Tenure Case Management System
December 2012	Hearing Officer Voucher Guidelines
May 2012	Education Law Section 3020-a Hearing Officer Rates (effective April 1, 2012 through March 31, 2013)
April 2012	Education Law §3020-a Changes (Effective April 1, 2012)
September 2011	Fingerprinting Sports Officials
October 2009	Conditional Clearances

If Charged With 3020-a and You Retire, Your Teaching License is Permanently Terminated

Termination is the Penalty If a Charged Employee Retires While Proceeding With 3020-a Arbitration

The point I would like to make is: if you retire after receiving 3020-a charges, you will be terminated.

See Jefferson v NYC DOE, below:
"the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a."

Supreme Court of the State of New York Appellate Division: Second Judicial Department 
D50816 N/ct AD3d Submitted - November 3, 2016 

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. 2015-11195 

DECISION & ORDER

In the Matter of Wayne Crawford Jefferson, appellant, v New York City Board of Education, respondent. (Index No. 6002/15)

Wayne Crawford Jefferson, Hazleton, PA, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the respondent to reinstate the petitioner’s New York City teaching license, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Butler J.), entered August 3, 2015, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was employed by the New York City Department of Education, sued herein as the New York City Board of Education (hereinafter the DOE), as a teacher until he retired on October 27, 2014.

At the time he retired, charges were pending against him pursuant to Education Law § 3020-a.

Pursuant to paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205, the petitioner’s New York City teaching license was permanently terminated since charges were pending against him pursuant to Education Law § 3020-a at the time he retired. The petitioner was apprised of the termination of his license by an attorney from his union. The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the DOE to reinstate his teaching license. The DOE moved to dismiss the petition.

The Supreme Court, in effect, denied the petition and dismissed the proceeding, and denied the motion as academic.

The petitioner appeals.

“A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government” (Matter of Gottlieb v City of New York, 129 AD3d 724, 725; see Matter of Hollander v Suffolk County Dept. of Social Servs., Child Support Enforcement Bur., 140 AD3d 1064, 1065).

When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (see CPLR 7803[3]; Matter of Gottlieb v City of New York, 129 AD3d at 725; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Gottlieb v City of New York, 129 AD3d at 725).

“Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations ‘necessary or convenient’ to the administration of the public school system” (Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102, 106). “The tenets of statutory construction apply equally to administrative rules and regulations” (id.). Such regulations should be construed in accordance with their plain language (see id. at 107; see also Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612; Matter of Brennan v City of New York, 123 AD3d 607).

Here, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding since the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a. The petitioner’s contention that he was unaware of this regulation, which was issued on September 5, 2000, and posted online on the DOE’s website, is unavailing, as he was “deemed to be on notice of the DOE Chancellor regulation[s]” (Matter of Benjamin v New York City Dept. of Educ., 119 AD3d 440, 441; see Salamino v Board of Educ. of the City School Dist. of the City of N.Y., 85 AD3d 617, 619).

The petitioner’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court
               January 11, 2017

129 A.D.3d 724 (2015) 10 N.Y.S.3d 542 2015 NY Slip Op 04645

In the Matter of CRAIG GOTTLIEB, Appellant,
v.
CITY OF NEW YORK, Respondents.

2014-01086

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 3, 2015.

Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

Ordered that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was "additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009," and directed the petitioner to pay the sum of $8,440. The SCU was directed to "[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount."

In March 2012, the petitioner admittedly withheld payment 725*725 and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a "Mistake of Fact" form to the SCU, claiming that his account was not in arrears and, instead, that he was "due a credit of $18.08." On November 14, 2012, the OCSE denied the petitioner's claim that the SCU "has made an error in the amount of child support debt that is owed," and determined that "there is an amount past-due and owing."

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v Bortnik, 91 AD3d 872, 873 [2012]). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739 [2014]). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, 726*726 and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the "Mistake of Fact" form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v Wambua, 117 AD3d 739, 740 [2014]; Ford v Department of Social Servs., 41 Misc 3d 1237[A], 2013 NY Slip Op 52045[U], *7-8 [Sup Ct, NY County 2013]; Ward v NYC Human Resources Admin., 2011 NY Slip Op 33162[U] [Sup Ct, NY County 2011]; Matter of Ovalles v New York City Human Resources Admin., 2008 NY Slip Op 33635[U], *2-4 [Sup Ct, NY County 2008]). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111-t; 18 NYCRR 346.11), and offset any refund of income tax by the amount of overdue support owed by him (see 42 USC § 666 [a] [3] [A]; Social Services Law § 111-b [7], [8]; 18 NYCRR 346.9). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

The Supreme Court also properly granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging violations of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction. On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

The substance of the cause of action alleging a violation of the Fair Credit Reporting Act was, in essence, a challenge to the determination by the OCSE that the petitioner's account was in arrears, which authorized the OCSE, pursuant to Social Services Law §§ 111-b, 111-c and 111-t, to take enforcement action and report his arrears to the credit reporting agencies. This cause of action essentially constituted a request for relief pursuant to CPLR article 78, regardless of the form in which it was pleaded and, thus, was properly dismissed (see Hertzel v Town of Putnam Val., 121 AD3d 641, 643-644 [2014]; Kickertz v New York Univ., 110 AD3d 268, 272 [2013]).

727*727 "[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v City of New York, 240 AD2d 543, 544 [1997]; see Dillon v City of New York, 261 AD2d 34, 41 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.

Finally, the Supreme Court properly granted those branches of the respondents' motion which were to dismiss causes of action alleging gross negligence and for injunctive relief. Even if the allegations contained in the petition are assumed to be true, they do not state a cause of action to recover damages for gross negligence or supporting the issuance of a permanent injunction (see Vilella v AT&T, 35 Misc 3d 1224[A], 2012 NY Slip Op 50853[U], *10 [Sup Ct, NY County 2012]; Josey v Sallie Mae, Inc., 2009 WL 2518643, *8, 2009 US Dist LEXIS 72157, *24-25 [SD NY, Aug. 17, 2009, No. 09 Civ. 4403 (SHS) (AJP)]).

DeWitt Clinton High School Principal Charges Teachers With 3020-a If They Don't Change Students' Failing Grades

We now know that Principal Pierre Orbe demanded that 23 teachers meet with him who had, in the September 2016-January 2017 school semester, students with failing grades. He wanted to see their gradebooks. Then, they got packets with transcript update forms to change grades, along with the student name and grade to be changed. He then "suggested" that students who failed in the third marking period (January 2017) have their grades averaged so that they would pass.

When the UFT heard about this, the Chapter Leader told Orbe to immediately stop. Orbe said no.

A source told me that when former Chancellor Carmen Farina heard about these 'gradebook' meetings, she ordered Orbe to stop. Orbe said no, he was the principal. But he finally stopped after seeing 11 teachers.

Out of these 11 teachers, two told Orbe that they felt that the grades given were fair, and they would not change them. Both these teachers were charged with 3020-a.

 

Ridiculous. Orbe's charging these two teachers shows how flimsy an excuse principals need to bring an employee to 3020-a.

 

This has to change.

 

Betsy Combier

betsy.combier@gmail.com

betsy@advocatz.com

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The NY POST published a story online on June 16, 2018, and in the paper on June 17, 2018, about DeWitt Clinton High School Principal Pierre Orbe and his handing out "mastery packets" to students so that students can gain passing grades in courses which they never attended, or missed tests, homework, and/or did not "master" the content.

In my opinion, there is alot more to this story, namely that Principal Pierre Orbe had meetings with teachers who he felt did not grade their students "correctly" in order to force these teachers to pass the students who had failed. And he disciplined the two teachers who said "no" to his "request", with 3020-a arbitration. Only two teachers said no to changing the students' grades and both hired me and Attorney David Barrett to represent them at their 3020-a.

Pierre Orbe All principals change grades or, try to. It is the right thing to do, if the grade is unfair to the student or needs to be changed because it is a misprint or whatever. I have completed more than 60 3020-a cases, and I do massive research into all the actions of the principal, Superintendent, teachers, para, anyone who participates in the charging process. Changing grades of students and credit recovery are standard in all schools. Principals are supposed to change grades unless there is some kind of media attention to the way they do it, which occurred in the case of the previous Principal of DeWitt Clinton, who was Santiago Taveras. He was given another job at the NYC Department of Education, with a high salary after he was "punished" for changing 900+ grades without the teacher's approval. I am the parent of four daughters, and I understand that stuff happens. But Orbe is wrong to charge teachers with 3020-a if they dont think the student merits a grade change and will not change a grade for that reason. The UFT Collective Bargaining Agreement states in Article 8J that a teacher's grades must be respected. In other words, the teacher must sign off on the grade change. But Pierre Orbe was brought in to DeWitt Clinton to make the school, a failing Renewal School, look good. He did not want to get any teacher's approval, he wanted to order teachers to do what he wanted. Pierre Orbe started as Principal at DeWitt Clinton Feb 6, 2017. He spent the month of January at the Superintendent’s office, studying what Santiago Taveras had done at DeWitt Clinton. He saw that HE, Pierre Orbe, had to collaborate with teachers in order to change failing grades to passing grades. But he was hired to make DeWitt Clinton, a Renewal School, look good, and support Carmen farina, the Chancellor, who pushed through the program. The program was failing (and Carmen was NOT happy). What is clear to me having completed one of the 3020-a hearings, is that Pierre Orbe despises teachers and their right, in the Collective Bargaining Agreement, to have autonomy in grading as they see necessary. Here is a quote from of Orbe’s testimony, on February 7, 2018: "To any lack of transparency, to 9 not sharing anything, but in a school where it's 10 75% stricken with below the poverty line, or 11 maybe the parent involvement is a little bit 12 lower, and they've gotten used to not having 13 transparency, to having what you would consider 14 a second or third rate level of treatment, this 15 is what I would expect. The impact is dramatic. 16 There is a sense of learned helplessness that 17 overcomes a community. You start to become--you 18 accept this, but you become angry. You accept 19 it, but you're really annoyed that no matter how 20 angry you get, you're still at the mercy of the 21 grade creators." So, one month after entering DWC, he set up “Gradebook meetings” for all the teachers who failed students “too much”. This is the scholarship report, or “failure report”. At the 3020-a we were handed 52 pages of students, their names, classes, teacher, and grades for the September 2016-January 2017 Fall semester. Orbe called 23 teachers to a “gradebook meeting” in March-April 2017, after Taveras left. But Orbe was able to meet with only 10 teachers before the UFT and/or the DOE stopped the meetings.These meetings were stopped because he was using his power and authority to force teachers to change grades or be disciplined. He could not do this. Each teacher left the meeting with the names and grades that were supposed to be changed upward. Each teacher was given a packet with a Transcript Update Form to fill out and sign. As you can see, the Transcript Update Form must be signed off on by the teacher and principal. The two 3020-a charged teachers filled his out, but did not agree with Orbe that these students’ grades should be changed, so never handed the Form in. The other teachers all, evidently, changed the grades as requested., and were not charged with 3020-a at that time. I am not blaming them, or anyone. Teachers must do as told and grieve later. Both teachers who would not change the students' grades (they felt that the students should not be given passing grades for not showing up) were given 3020-a charges and reassigned to a Bronx rubber room. What is shocking is that both teachers were charged in the same OSI investigation, and the OSI Investigator was not given the right information about grading policy (he was not told about the school approving a grade of 60 which had been in place for many years). The investigator nevertheless UNSUBSTANTIATED the charges and found both teachers not guilty of misconduct. This was not ok with Orbe. Quickly, OSI Supervisor Francine Campbell substantiated the charges against the two teachers who did not change the grades of their students. Ms. Campbell, an Attorney, did not do her own investigation, changed the "unsubstantiated" to "substantiated, then left her job at OSI. See p. 1 of the OSI report, last entry dated 7/21/17.She no longer works at OSI. We wanted Ms. Campbell to come in to tell us why she changed the conclusion but the DOE refused to bring her in or give us her address to serve the subpoena SIGNED BY the ARBITRATOR. I found her address and email from the Attorney Grievance Committee in Albany and called Joanne Vargo to confirm. Vargo told me to stop immediately from looking into her – Campbell – because she no longer worked for the DOE . She added, “her employment with us did not end well”. Francine Campbell refused to come in: From: Francine Campbell [mailto: ] Sent: Friday, April 13, 2018 1:14 PM To: David Barrett, Esq. Subject: Re: Subpoena in 3020a Hearing Mr. Barrett, I have made it abundantly clear that I do not wish to appear at this hearing, and that there are other current DOE employees who can speak to the content of the report and the investigation as a whole. My current work schedule would not permit me to appear at the hearing. Moreover, there is nothing more that I can add to the reasoning behind the decision made in the investigation that is not already in the case file or that can be explained by the Executive Director or the Deputy Director of OSI. Please do not waste your time or money serving me with a subpoena, as I know that you will not glean any more information from my testimony that you do not already know. ~~~~~~~~~~~~~~~~~~~ Francine A. Campbell, Esq. ~~~~~~~~~~~~~~~~~~~ Here is the NY POST's article published June 17, 2018: Principal lets students pass even if they never went to class by Susan Edelman and Sara Dorn, June 16, 2018 This high school is a hooky player’s dream. At DeWitt Clinton HS in the Bronx, kids who have cut class all semester can still snag a 65 passing grade — and course credit — if they complete a quickie “mastery packet.” Insisting that students can pass “regardless of absence,” Principal Pierre Orbe has ordered English, science, social studies and math teachers to give “make up” work to hundreds of kids who didn’t show up or failed the courses, whistleblowers said. “This is crazy!” a teacher told The Post. “A student can pass without going to class!” The 1,200-student Clinton HS is one of 78 struggling schools in Mayor deBlasio’s “Renewal” program. Last year, 50 percent of seniors graduated, but only 28 percent of the grads had test scores high enough to enroll at CUNY without remedial help. The DOE’s academic-policy guide says students “may not be denied credit based on lack of seat time alone.” Passing must be based “primarily on how well students master the subject matter.” Orbe has taken the policy to a absurd extreme, teachers charge. “We’re kind of being forced to pass students who don’t deserve to pass,” one said. Another said, “It’s unfair to the students who made every effort to come to class, complete assignments — and earn the credit.” In a meeting, Orbe dismissed their concerns, teachers said. They also complained he gave no written guidance on what to put in the packets, which were handed out starting June 12 — after the last day of classes. Kids have until June 26, the last day of school, to turn them in. One girl never attended a single class during the whole spring term — Jan. 30 to June 11, a teacher said. Another came one day. Both skipped homework, classroom writing tasks, group discussion, quizzes, and essay assignments or exams. Another kid showed up but failed tests and “didn’t do any assignments or participate in class.” Their packets require only completion of tests. One student who has returned the packet “did not demonstrate mastery” — and will fail, the teacher said. Since the work can be done at home, teachers said, kids can copy off the Web, or otherwise cheat. Students had mixed feelings about the packets. “I’m grateful for it,” said junior Ronny Ravelo, 17. “Let’s say you’ve been absent a lot or you don’t really understand the course. It gives you a chance to get your grade back up instead of going to summer school.” Freshman Jeremy Bautista, 14, disagreed, saying a packet did a pal no favors because he’ll likely flunk the Regents exam: “In the long run it’s going to mess him up.” CUNY education professor David Bloomfield said the DOE make-up policy leaves room for abuse. “These packets may not reflect subject mastery. If so, they’re a scam and shouldn’t be allowed.” Phil Weinberg, deputy chancellor for teaching and learning, said, “We’re reviewing this matter to see if the concern is valid and are prepared to take follow-up action if necessary.” Orbe did not return a message seeking comment. ********************************* "Mastery packets", credit recovery, social promotion, or whatever you call allowing students to pass by doing alternative work to the required test or homework, is nothing new, as we all know. Parents like it, because their little angels can graduate with their friends. Principals and Superintendents want it, because the more kids that graduate the better. Teachers who know that kids are not learning and not making an effort usually try to work with these kids, and give them second and third chances to make up what has been left undone. But simply changing a grade from F to P(failure to pass) without earning the change and missing all the classes, does not help the student at all. Mayor Bloomberg fought social promotion. But kids are promoted to the higher grade or graduated throughout NYC today, because this makes Mayor Bill DeBlasio and now Chancellor Richard Carranza look good. See this article published in 2008: Lacking Credits, Some Students Learn a Shortcut By ELISSA GOOTMAN and SHARONA COUTTSAPRIL 11, 2008 Dennis Bunyan showed up for his first-semester senior English class at Wadleigh Secondary School in Harlem so rarely that, as he put it, “I basically didn’t attend.” But despite his sustained absence, Mr. Bunyan got the credit he needed to graduate last June by completing just three essay assignments, which he said took about 10 hours. “I’m grateful for it, but it also just seems kind of, you know, outrageous,” Mr. Bunyan said. “There’s no way three essays can possibly cover a semester of work.” Mr. Bunyan was able to graduate through what is known as credit recovery — letting those who lack credits make them up by means other than retaking a class or attending traditional summer school. Although his principal said the makeup assignments were as rigorous as regular course work, Mr. Bunyan’s English teacher, Charan Morris, was so troubled that she boycotted the graduation ceremony, writing in an e-mail message to students that she believed some were “being pushed through the system regardless of whether they have done the work to earn their diploma.” Throughout the city, an ad hoc system of helping students like Mr. Bunyan over the hump is taking root in public high schools, sometimes over the protests of teachers, who call credit recovery programs a poor substitute for classroom learning and say they ultimately devalue the diploma. In interviews, teachers or principals at more than a dozen schools said the programs ranged from five-day crunch sessions over school breaks, to interactive computer programs culminating in an online test, to independent study packets — and varied in quality. Top officials with the city’s Education Department say good principals have always found creative ways to help struggling students make up missed work, describing such efforts as a lifeline for students who might otherwise never earn their diplomas. And across the country, school systems confronting abysmal graduation rates are turning to online credit recovery courses, which roughly a third of states have either developed or endorsed in recent years, according to the National Dropout Prevention Center at Clemson University. Schools Chancellor Joel I. Klein, in a statement, called credit recovery “a legitimate and important strategy for working with high school students.” He said there was “no indication” that the practice “has been abused more in recent years.” “If credit recovery is not conducted properly, just as with any other required course, we will take appropriate action,” he added. “We do students no favors by giving them credit they haven’t earned.” But city officials acknowledged that credit recovery programs are neither centrally monitored nor tracked. The State Education Department, after seeing a copy of “independent study” guidelines in use at Wadleigh and a number of other schools, said it was examining whether the practice met its standards. State law requires students to earn credits by completing set hours of “seat time” — essentially, showing up for class — and demonstrating subject mastery. To graduate, they must also pass Regents exams. “We are looking into this situation very carefully,” said Johanna Duncan-Poitier, the senior deputy state education commissioner. “We want to make sure that the student is getting what they deserve.” Critics say the practice is poised to become more prevalent as principals enjoy greater freedom from supervision at the same time as they are held more accountable for student performance, two hallmarks of Mayor Michael R. Bloomberg’s plan to overhaul city schools. Last fall, schools received letter grades based on student performance, with principals at D or F schools in danger of losing their jobs. Diane Ravitch, a historian of the city’s public schools who has been a frequent critic of the mayor’s efforts, says the practice of credit recovery could raise questions about the validity of gains in the city’s graduation rate. According to the state, the city had a 50 percent four-year graduation rate in 2006, the most recent year for which data was available, up from 44 percent in 2004. “I think when it’s used correctly, it might be a good thing,” Ms. Ravitch said of credit recovery, “but when used incorrectly it’s a way of gaming the system.” But Mr. Klein said there was “no basis to suggest that improper credit recovery has affected graduation rates.” Saying that 39,000 students received Regents or local diplomas last year, 8,000 more than in 2002, when the mayor took control of the schools, he added, “A few anecdotes don’t materially affect this rise.” Randi Weingarten, president of the United Federation of Teachers, said that the union had received “enough complaints about it that we are really concerned,” but that without hard numbers on the prevalence of credit recovery, she could not say whether the graduation rate was suspect. “It clearly raises questions about the graduation statistics, but I can’t tell you right now as I sit here how widespread it is,” she said. “I don’t know if it raises questions about a statistically significant number of kids.” Elizabeth Dougherty, a social studies teacher and teachers’ union chapter chairwoman at the Pelham Preparatory Academy, a small public school in the Bronx, said her school offered several credit recovery programs. “The pressure is so overwhelming now for graduation rates,” she said. “The principals are getting pressure, and the pressure gets put on the teachers.” One Manhattan principal who has worked in the school system for more than a decade and, like many educators, requested anonymity for fear of retribution by the department, said: “I think that credit recovery and the related topic independent study is in lots of ways the dirty little secret of high schools. There’s very little oversight and there are very few standards.” Mónica Ortiz-Ureña, the principal of Evander Childs High School in the Bronx, a large school scheduled to close in June after years of poor performance, said its credit recovery programs were developed after the city cut its centrally run summer and evening schools. She said many teachers did not like the practice, which at her school includes online programs in which students complete some work at home and some at school, because “they feel that you’re taking away their jobs.” “I think credit recovery, as long as it’s done properly and is done according to state law, I think it’s a wonderful opportunity for students who have experienced failure before to experience success,” she said. At Franklin K. Lane, a large high school in Brooklyn, an advertisement for credit recovery programs offered last year urged students: “If you failed a class, don’t despair ... turnaround your 55 into a 65 in 6 weeks!!! Ask your teacher for details!!!” Adam Bergstein, a teacher who is head of the school’s union chapter, said the six-week program, which consisted of six classes, had troubled teachers. “A 55 could be indicative of anything from a 1 to literally a 55 average,” he said. “It’s not a mere nudge ahead; it could be an astronomical leap.” “It undermines the whole concept of teaching and grading,” Mr. Bergstein continued. At Lafayette High School in Brooklyn, a February memorandum from two assistant principals described “our first five-day Intensive Program for Credit Recovery” for English classes, consisting of “two days of full instruction from 9-2 p.m. and three days of classroom instruction and field trip experiences.” Credit recovery programs generally take place on school grounds; teachers who lead them can receive overtime pay. At Wings Academy in the Bronx, several teachers, all of whom requested anonymity, said credit recovery programs shortchanged students because they may never acquire the discipline and work habits to succeed beyond high school. The programs include crunch sessions after classes end for the semester and independent study packets. At the Felisa Rincón de Gautier Institute for Law and Public Policy, also in the Bronx, Natasha Ramos, a top student, said she was dismayed by a new “term extension program,” in which seniors could make up missing credits during the week when classes stop for Regents exams. “I didn’t think that that was fair to the kids who had to go to class during the whole semester,” she said. “It takes away from an actual learning environment.” A teacher at another Bronx school, who did not want the name of his school published for fear of retribution, said a program there let students earn a year’s worth of science credits by responding to 19 questions on 5 topics. “Research and list all the global environmental issues that science focuses on,” read one, under the “environmental studies” category. “What are some ways that you, as an individual, can help?” read another. Ms. Morris, the teacher who boycotted the Wadleigh graduation, declined to comment; her e-mail message was provided by a recipient. Wadleigh’s former principal, Karen Watts, was rewarded in January for the school’s performance by being named the city’s first “executive principal.” She was reassigned to a troubled school, in exchange for a $25,000 yearly bonus. In an interview, Ms. Watts said she believed that no more than five of the more than 100 graduates last June had benefited from the credit-recovery work packets, which were meant to take 54 hours and were “just as rigorous as courses they would have taken sitting in the classroom every day with a teacher, or even more rigorous.” She said she believed she had been following “standard practice.”