Monday, April 29, 2013

MORE: Teacher Discipline In NYC Spends Extraordinary Amounts of Money To Fire Tenured Personnel

Budget Analysis: The Shocking Amount of Money New York City Has Spent to Fire Our Colleagues

by morecaucusnyc
 In November of 2007, the Department of Education formed a new group, the Teacher Performance Unit (TPU); a team of five lawyers and consultants who were tasked with the job removing teachers that the department identified as 'bad'. At that time, Dan Wesier, the chief labor relations officer for the DOE was quoted as saying that the TPU would "...ensure we have the capacity to seek the removal of all ineffective tenured teachers..". He also said that the new team would "... also allow us to seek discipline where appropriate in a wider range of cases than before..".
Former UFT president Randi Weingarten responded to the formation of this group by asserting that the DOE was ".. relying on an unnecessarily punitive and counterproductive management style that is intended to create a climate of fear, rather than collaboration, in our city schools."  She lead a candlelight vigil on the 27th of that month to protest the group's forming.
Six years, and a brutal recession, have passed since this policy initiative was launched.  During this time, the ranks of lawyers who work for the TPU, and it's sister group, the Administrative Trials Unit (ATU) have swelled, while many of us who teach in New York City's classrooms have witnessed the numerous attempts to fire our colleagues, many for reasons that we can only be described as frivolous and petty .  The Movement of Rank and File Educators believes that it is time to begin examining how many teachers have lost or have been forced from their jobs by the department since this policy began.
This, to be clear, is no easy task. Anyone who knows anything about  the process of firing teachers in New York knows that much of that process is kept secret. Some of this secretiveness is by statute. The state law that governs the process, 3020-a, guarantees an accused teacher his or her confidentiality throughout the entire process (unless he or she chooses to have its proceedings made public). And some of this secrecy is because the DOE and the union have both agreed to keep the actual numbers -the specific amount of people who have been put through this process- secret. The resulting fact is that there is no data that tells people how many tenured teachers lost their job in New York City in any given year. As a consequence, no one  actually knows how many teachers the city has fired, or even how many it has tried to fire since the formation of what Weingarten termed the 'Gotcha Squad'.  There are guesses and  nuggets and tidbits of information that has surfaced from time to time. But there is no real hard number that anyone can point to. This number could be ten or it could be ten thousand and none of us would know. The first step in finding out is to examine exactly how much money was spent since these years in the pursuit of firing teachers. 
It is, of course, is impossible to track every dollar that has been spent pursuing 3020-a charges of tenured teachers.  The school district who decides to fire a teacher pays much of this expense. It is responsible for any investigation related or leading to its decision to begin a 3020-a proceeding. It must also provide a venue where the hearing can occur, a place where that teacher will report to work while he or she is suspended and don't forget  the salary of a replacement teacher during the time of the suspension. Most importantly, the district must pay the fees of the lawyer(s) who will try the case. The state teacher union (NYSUT) is, when a member so decides, responsible for the fees representing the teacher during his or her defense. It is simply not possible for us to account for all of the money has been spent.

But it is possible to track the amount of money spent on hearing officers. Those are the arbitrators who are tasked with presiding over a 3020-a case and ultimately decide whether or not a teacher should be fired. In New York State, nearly every teacher who faces 3020-a dismissal charges has a hearing officer assigned to their case and, as it so happens, every hearing officer submits their fees to the same New York Sate Education Department office;  the Tenured Teacher Hearing Unit. This unit
"... manages aspects of the statutory process, including receipt of charges, maintenance of case files and case information, and facilitation of the assignment and payment of hearing officers/arbitrators and court reporters."
Referring to this unit, New York's Deputy Commissioner of NYSED, Theresa Salvo described the state's role in the disciplinary process like this (here):
". The [Education] Department’s role in the tenured teacher disciplinary process is primarily ministerial....The Department has little or no ability to control costs associated with the Tenured Teacher Hearing (TTH) process." (emphasis added)"
This unit also manages a  fund called the Tenured Teacher Hearings Fund. This is actual account out of which hearing officers and court reporters are paid. This account has an annual budget of approximately $3 Million. Its monthly expenditures are reported on their own line in the NYSED State Education Department Monthly Fiscal Report.

So tracking how much money is spent on trying to fire teachers isn't so difficult after all: We must simply examine how much money is spent on the fees for hearing officers in any given year from the state's Tenured Teacher Hearings Fund.  If NYSED was compelled to spend more from this fund than usual, then we know that school districts in New York tried to fire more teachers than usual.
 In New York State, the fiscal year ends on March 31. So, in any given year, any money that the state has spent through this date (called "actual expenditures"), and in NYSED's case, any money that is earmarked to be spent through the rest of the school year (called "projected expenditures") is reflected in the monthly fiscal report for March of that year.
Below is the total amount of money that was spent by the Tenured Teacher Hearing Fund between the years of 2005 and 2013 as presented in the Monthly Fiscal Reports for March (the end of the fiscal cycle) of each year. (As you may find the documents a bit dense, I suggest searching for the term "Tenured Teacher Hearings" in each of them.)
Money Spent
It isn't difficult to see that, beginning FY 2008/2009, and continuing through FY '11/'12, there was a significant increase in spending from this fund on fees for 3020-a hearing officers. The only conclusion that can be drawn is that during, and just before, this period of time, hearing officers -who's only job is hear the 3020-a hearings of teachers who were in the process of being fired by their district- were presiding over a great many 3020-a cases -many more than usual. So much, in fact, that the fund ran in deficit. During these years, more money was spent on fees for hearings officers and court reporters than NYSED or the state legislature had anticipated.
You'll also note an increase in spending from this fund just two years after the formation of the 'gotcha squad' of at least $2 million each year. In 2007, with New York City's Rubber Rooms still open, it took approximately that long to bring a teacher to trial.  While some of this money is, indeed, carry over debt from previous year, an examination of the budget reports will show you that new money -at times at an alarming rate- was spent from this fund during the subsequent four years.
Just another look at the line graph depicting expenditures from this fund..
We now know that more teachers experienced the 3020-a termination process during these years than ever had before. While he hesitate to guess the amount of teachers, we anticipate that this number must be staggering. That money, however, reflects 3020-a hearings from all across the state, not only here in New York City.  In order to show that the lion's share of this money was spent firing city teachers, it's important to seperate New York City's expenditures from the Tenured Teacher Hearings Fund from the rest of the state's 694 school districts. Fortunately, there is a way to do that.
In May of 2011, NYSUT's Andrew Pallotta offered testimony to the New York State Senate about the process of disciplining teachers. During those remarks, he made it a point to draw a stark dividing line between New York City's 3020-a experiences and the rest of New York State. Time and again he reminds the committee that, when talking about 3020-a, there is a difference between New York City and the rest of the state. He starts off here
 "There are over 120,000 tenured teachers in New York State, not including those working in New York City."
And then reminds the committee here (twice)
"During the 2005-06 through 2009-10 school years, our office handled an average of 104 new cases annually outside New York City.  In other words, fewer than one 3020-a case is filed for every seven school districts per year outside New York City."
And again here
 "We have studied the results in the 351 cases handled by NYSUT attorneys brought outside of the City of New York, which began and ended in the last 5 ½ years. In about 35% of the cases, the teacher resigned soon after charges were filed."
And when he addresses New York City's 3020-a statistics, he specifically mentions that remarks pertain to (only) the city:
In New York City, despite a number of attempts to improve the disciplinary system in the last ten years, the UFT felt that this system was not working for our members or the DOE.
This difference between the city and the rest of the state when discussing the 3020-a process is no coincidence. Thanks to the 2005 UFT contract, the actual process for terminating teachers in New York City is much more different than it is in the rest of the state (see here).
Let's take another quick look Vice President Pallotta's testimony about the 3020-a statistics outside of New York City:
"During the 2005-06 through 2009-10 school years, our office handled an average of 104 new cases annually outside New York City.  In other words, fewer than one 3020-a case is filed for every seven school districts per year outside New York City."
The number he sites reflects only those teachers who were charged, who chose the free legal defense from NYSUT (a great number of teachers opt to hire their own private defense attorney) and who's charges were not settled before the hearing concluded. Anecdotaly , we know that the overwhelming majority of charges  filed end up in settlement. A settlement is an agreement entered into between the department and the teacher who has been charged whereby the teacher agrees to some type of penalty. In the past, this penalty has included a letter to file, a course (that the teacher must pay for) and in many settled cases, a monetary fine that is deducted from the teacher's pay over a series of months. The numbers Mr. Pallota cites represent the smallest fraction of teachers who have been charge: Those who were charged, were not offered (or didn't accept) a settlement and did not opt for private attorney representation, instead choosing the services that NYSUT offers. However,  using this number, which we have no reason to doubt, we are able to estimate that approximately 208 teachers outsideof New York City experienced this process through it's entirety (with NYSUT representation) between September of 2009 June of 2010.
Vice President Pallatto accounts for this same period of time, and the same percentage of teachers who experienced the full process and opted for a NYSUT attorney, when revealing how many teachers within New York City:
Over the 2009-10 and 2010-11 school years, a period which covers both the backlogged and the newly filed cases, we have completed 561 cases.
That's 561 cases (counting the backlogged cases that lead to the famous April, 2010 agreement to end the rubber rooms and speed up the process) that were handled by NYSUT attorneys within New York City. We can now see that, according to NYSUT, 353 more teachers cases were handled by NYSUT inside New York City during the same period of time.
There are 120,000 tenured teachers across the rest of New York State, where 208 cases were settled during this time. In New York City, it is generally understood that approximately half of that amount, 60,000, enjoy the same protections. Yet it seems the amount of city teachers who have faced termination charges double. In fact, using these numbers, it becomes clear that city teachers during  were at least 4.6 times more likely to face 3020-a charges than were teachers from across the rest of the state.
We can now see that between the years of 2009 and 2012 New York City spent the lion's share of $32.8 million in state funds, running the state into a $19.7 million deficit in the process, to dutifully try to fire more than four times the amount of teachers as anywhere else in the state. Only two possible conclusions can be drawn from this realization: Either an astoundingly high amount of teachers here in the city are bad, or our employer, the city's Department of Education, has zealously pursued a course to fire as many teachers as it can.
We  believe the latter: That, instead of spending badly needed money on children and on schools during the depths of the recession,  the department engaged in a zealous attempt to fire as many teachers as possible and used the state's money -more than $19 million of which it did not have- to prosecute those attempts. We also believe this policy continues to today.
Former president Weingarten's  prediction was correct; the DOE has created a climate of fear and intimidation in our schools.  This climate of fear has had an adverse effect on the working conditions of our colleagues and must end.  We must establish an open environment of collaboration if we expect our teachers to excel. In addition, the department must  direct as much money as possible to the actual classroom -to actual students-  instead of using it in an attempt to fire teachers (at a rate at almost five times as frequent as other districts throughout the state) if they expect their schools -our schools- to be successful.

Sunday, April 14, 2013

Babies At The Bar Part 1: Violations of Law By NYSUT and The DOE

Babies At The Bar

Michael Bloomberg and Michael Cardozo

 From Betsy Combier:

First, I am not an attorney, just a writer/journalist. 

The New York City Department of Education as set up by Mayor Michael Bloomberg and his sidekick New York City Law Department Corporation Counsel Michael Cardozo, (see below for a 2009 rebuke from the NY Appellate Court Judges) are breaking the law. Specifically, New York State Education Law Section 3020-a. Lawyers who work for The Gotcha Squad and prosecute tenured teachers brought up on bogus charges of misconduct and/or incompetency know this, so do NYSUT Attorneys, and attack anyone who notices their lawless procedures in bringing "Just Cause for Termination" to all cases of 3020-a arbitration. 

If you are handed your specifications with a cover letter that says "...Principal __________ has found probable cause on the charges preferred against you" tell your attorney to ask, on the record and to the arbitrator, how the principal can find probable cause against you, considering the fact that Education Law 3020-a states that the school board must go into Executive Session and vote on whether there is probable cause? Bring in Appendix A, usually served with the specifications - if you dont get this document, print out Education Law 3020-a and bring in those pages. 

Also, the April 15, 2010 so-called 'agreement' signed by Joel Klein and Mike Mulgrew cannot be legally binding because Joel Klein signed the 'agreement' as chancellor, and he was never legally chancellor because he never had a contract, required by Education Law Section 2590-h. I wrote the "Who Are You Kidding Award Goes To Joel Klein" in 2007, but Mike Bloomberg never gave out any contracts to Klein, Black or Walcott. On January 7, 2013, Arbitrator Roy Watanabe asked DOE Attorney Lisa McFadden if Walcott had a contract. She said yes, and brought into the 3020-a hearing the waiver given to Walcott by New York State Commissioner David Steiner, giving Walcott permission to be chancellor:

Waiver from Steiner To Dennis Walcott

This is Dennis Walcott's "contract" so that he can be "chancellor" pursuant to New York State Education Law 2590-h? I am not a lawyer, but I believe that as Mr. Walcott did not sign this document, there is no term of officer, and for many other reasons, this is not a contract, howevermuch the Gotcha Squad says it is. Compare with the contracts of Harold Levy and Rudy Crew in my 2007 article "The Who Are You Kidding Award Goes To Joel Klein"

I noticed what they were doing eight years ago. For 5 years I remained a silent observer, writing notes on everyone from a corner by the wall as a member of the public. Then someone at the DOE made up that I taped during a hearing, and this was completely false, but I became the omen of doom when the Attorneys realized that I knew what the fraud was. An example: NYSUT Attorney Shawn T. Kelly, now a NYS Civil Court Judge, on May 25 2011 while everyone at 49-51 Chambers Street was on the sidewalk due to a firedrill, screamed "Dont talk with Betsy Combier, you will be terminated..." and other nonsense. I have NYSUT Attorney Maria Elena Gonzales Lichten telling a client (not Eric Fuller) that I am not to be believed, he should never talk with me, and he should immediately resign his position.  

Then there are the screamers and naysayers from the DOE, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan, all Department Attorneys who would rather scream  at me and try to get me run over by a bus than address the fact that they are harming innocent people without just or probable cause.

Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a, Article 61) This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one.

NYS Education Law §2590-g does not address the issue of review and scrutiny of whether there is probable cause to proceed with the prosecution of disciplinary charges against tenured educational personnel. The requirements of NYS Education Law §3020-a and §3020-a (2)(a) , under which tenured personnel may be disciplined for “Just Cause”, are absolute and require that before charges can be brought against a tenured educator, the School Board must:

a. Determine that there is “probable cause” for the proceeding with charges by a majority vote by the Board.
b. Make this determination within 5 days of the charges being filed with the Board.
c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.

Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.

The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law, as all arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a.

The relevant parts are as follows:
“Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required.”

Section 3020a(2)(a) of The NY Education Law states:

“Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee’s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.”

Furthermore, Section 2590(j)(7)(b) of The NY Education Law specifically states:

“Charges may be initiated by the community superintendent against any such employee.” There is no mention of a principal finding probable cause. Certainly it is unreasonable to believe that due process exists when a principal charges a teacher without any accountability to anyone for that decision, and then finds probable cause for charging the teacher. Therefore the Just Cause Standard is not reached, and no hearing can proceed.

Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a)).

Compliance with this provision is a jurisdictional condition precedent to a §3020-a disciplinary hearing. Without it, the hearing cannot go forward. Prohibition is the appropriate procedural remedy for the assertion of a claim where prohibition is available “to prevent a body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction.” See: Matter of Schumer v Holtzman, 60 N.Y. 2d 46, 51; Garzilli v Mills, 250 A.D.2d 131 (3d Dep’t 1998); Community School Board No. 29, SED No. 3562 (Howard Edelman, a member of the UFT-DOE arbitration panel in New York City -Dec. 14, 1998).

In New York City, §3020-a teacher disciplinary proceedings have become penal in nature and not arbitral in the same manner labor grievances are resolved. Matter of Clayton v Bd. of Educ., 49 A.D.2d 343 (3rd Dept 1975). Submission to these disciplinary hearings are compulsory and the jurisdiction of the hearing officer is derived from statute. Teachers are charged, similar to an indictment in the criminal world, upon determination of probable cause.

When I started examining the procedures used by the newly instituted Department of Education, I saw that my knowledge of education law and arbitration, which I got by reading my own books (I am not an attorney) did not give me any clue as to the random and arbitrary nature of the 3020-a hearings I was asked to attend in NYC. So, I studied the lawyers and the arbitrators to try to find out how the law could be ignored. Then the Gotcha Squad realized that I was on to something, and took it upon themselves to attack me.

Luckily, I didn't fall apart or walk away.

So now I can write about the lawyers who decided to attack, and will provide my website with the names of the Attorneys who threw aside the lives, careers, health benefits and tenured positions of teachers in order to make a profit.

This article and the several which follow are for you, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan.

NY Appellate Bench Rips Cardozo in Law Journal Letter

In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.
The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).
But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:

“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”
The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).
You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:

In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.
The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:

The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.
After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority. A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).
What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.
And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:

[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.
Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.
It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”
The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.