Sunday, July 21, 2013

Arbitration = Alternative Dispute Resolution

Arbitration can work as an alternative to litigation in court as long as all parties have equal access and participation, and the arbitrator/Hearing Officer remains neutral. 

This is not what happened in NYC inside compulsory arbitration known as 3020-a.

Betsy Combier

Arbitration Defined

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties to a controversy with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator's award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator's decision is usually final, and courts rarely reexamine it.

Traditionally, labor and commerce were the two largest areas of arbitration. However, since the mid-1970s, the technique has seen great expansion. Some states have mandated arbitration for certain disputes such as auto insurance claims, and court decisions have broadened into areas such as Securities, antitrust, and even employment discrimination. International business issues are also frequently resolved using arbitration.

Arbitration in the United States dates to the eighteenth century. Courts frowned on it, though, until attitudes started to change in 1920 with the passage of the first state arbitration law, in New York. This statute served as a model for other state and federal laws, including, in 1925, the U.S. Arbitration Act, later known as the Federal Arbitration Act (FAA) (9 U.S.C.A. § 1 et seq.). The FAA was intended to give arbitration equal status with litigation, and, in effect, created a body of federal law. After World War II, arbitration grew increasingly important to labor-management relations. Congress helped this growth with passage of the Taft-Hartley Act (29 U.S.C.A. § 141 et seq.) in 1947, and over the next decade, the U.S. Supreme Court firmly cemented arbitration as the favored means for resolving labor issues, by limiting the judiciary's role. In the 1970s, arbitration began expanding into a wide range of issues that eventually included prisoners' rights, medical malpractice, and consumer rights. In 2003, all 50 states had modern arbitration statutes.

Arbitration can be voluntary or required. The traditional model is voluntary, and closely linked to contract law: parties often stipulate in contracts that they will arbitrate, rather than litigate, when disputes arise. For example, unions and employers almost always put an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate any future employee grievances over wages, hours, working conditions, or job security—in essence, they agree not to sue if disagreements occur. Similarly, a purchaser and a provider of services who disagree over the result of a business deal may submit the problem to an arbitrator instead of a court. Mandatory arbitration is a more recent phenomenon. States such as Minnesota, New York, and New Jersey have enacted statutes that force disputes over automobile insurance claims into this forum. In addition, courts sometimes order disputants into arbitration.

In theory, arbitration has many advantages over litigation. Efficiency is perhaps the greatest. Proponents say arbitration is easier, cheaper, and faster. Proponents also point to the greater flexibility with which parties in arbitration can fashion the terms and rules of the process. Furthermore, although arbitrators can be lawyers, they do not need to be. They are often selected for their expertise in a particular area of business, and may be drawn from private practice or from organizations such as the American Arbitration Association (AAA), a national non-profit group founded in 1926. Significantly, arbitrators are freer than judges to make decisions, because they do not have to abide by the principle of stare decisis (the policy of courts to follow principles established by legal precedent) and do not have to give reasons to support their awards (although they are expected to adhere to the Code of Ethics for Arbitrators in Commercial Disputes, established in 1977 by the AAA and the American Bar Association).

These theoretical advantages do not always hold up in practice. Even when efficiency is achieved, some critics argue, the price is a lower quality of justice, and it can be made worse by the difficulty of appealing an award. The charge is frequently made that arbitration only results in "splitting the baby"—dividing awards evenly among the parties. The AAA roundly rejects this claim. Yet even arbitrators agree that as arbitration has become increasingly formal, it sometimes resembles litigation in its complexity. This may not be an inherent problem with the process as much as a result of flawed use of it. Parties may undermine arbitration by acting as lawyers do in a lawsuit: excessively demanding discovery (evidence from the other side), calling witnesses, and filing motions.

Ultimately, the decision to use arbitration cannot be made lightly. Most arbitration is considered binding: parties who agree to arbitration are bound to that agreement and also bound to satisfy any award determined by the arbitrator. Courts in most jurisdictions enforce awards. Moreover, they allow little or no option for appeal, expecting parties who arbitrate to assume the risks of the process. In addition, arbitration is subject to the legal doctrines of Res Judicata and Collateral Estoppel, which together strictly curtail the option of bringing suits based on issues that were or could have been raised initially.

Res judicata means that a final judgment on the merits is conclusive as to the rights of the parties and their privies, and, as to them, operates as an absolute bar to a subsequent action involving the same claim, demand, or Cause of Action.Collateral estoppel means that when an issue of ultimate fact has been determined by a valid judgment, that issue cannot be relitigated between the same parties in future litigation. Thus, often the end is truly in sight at the conclusion of an arbitration hearing and the granting of an award.

The FAA gives only four grounds on which a court may vacate, or overturn, an award: (1) where the award is the result of corruption, Fraud, or undue means; (2) where the arbitrators were evidently partial or corrupt; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing or hear pertinent evidence, or where their misbehavior prejudiced the rights of any party; and (4) where the arbitrators exceeded their powers or imperfectly executed them so that a mutual, final, and definite award was not made. In the 1953 case Wilkov. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168, the U.S. Supreme Court suggested, in passing, that an award may be set aside if it is in "mani-fest disregard of the law," and federal courts have sometimes followed this principle. Public policy can also be grounds for vacating, but this recourse is severely limited to well-defined policy based on legal precedent, a rule emphasized by the Supreme Court in the 1987 case United Paperworkers International Union v. Misco, 484U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286.

The growth of arbitration is taken as a healthy sign by many legal commentators. It eases the load on a constantly overworked judicial system, while providing disputants with a relatively informal, inexpensive means to solve their problems. One major boost to arbitration came from the U.S. Supreme Court, which held in 1991 that Age Discrimination claims in employment are arbitrable (Gilmer v. Inter-state/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26). Writing for the majority, Justice byron r. white concluded that arbitration is as effective as a trial for resolving employment disputes. Gilmer led several major employers to treat all employment claims through binding arbitration, sometimes as a condition of employment.

Arbitration clauses have become a standard feature of many employment contracts. This has led to conflicts concerning the applicability of these clauses when an employee seeks to sue an employer for a Civil Rights violation under Title VII of the Civil Rights Act of 1964, as amended by the civil rights act of 1991. A provision of this law addressed, for the first time, the arbitration of Title VII claims. Section 118 of the act states that the parties could, "where appropriate and to the extent authorized by law," choose to pursue alternative dispute resolution, including arbitration, to resolve their Title VII disputes. Since its enactment, the federal courts have been required to determine what this clause means in practice. For example, in the securities industry disputes arose over whether employers could require their employees to waive their right to bring a Title VII claim in court. The circuit courts of appeal have uniformly ruled that Congress did not mean to preclude compulsory arbitration of Title VII claims.

The Equal Employment Opportunity Commission (EEOC) has contended that employment arbitration clauses do not prohibit the EEOC from filing an action against an employer for a civil rights violation. The Supreme Court agreed in Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), holding that the EEOC could seek damages on behalf of an employee. The commission could also seek injunctive relief to change a company's discriminatory methods. In so ruling, the Court resolved an issue that had divided the circuit courts of appeal.

The employee in question was fired from his job at the Waffle House after he suffered a seizure. He filed a claim with the EEOC, arguing that his rights under Title I of the Americans with Disabilities Act (ADA) had been violated. Under this act, the EEOC has the authority to bring its own enforcement actions against employers and to seek reinstatement, backpay, and compensatory and Punitive Damages on behalf of an employee. Moreover, the ADA makes no exception for arbitration agreements, nor does it even mention arbitration. Therefore, the EEOC, which had not signed an arbitration agreement with the employer, was free to pursue its claims in court. The Court also concluded that the general policies surrounding the ADA, and the EEOC's enforcement arm, justified the pursuit by the EEOC of victim-specific relief. It stated that punitive damages "may often have a greater impact on the behavior of other employers than the threat of an injunction."

The Supreme Court also has validated the enforceability of arbitration awards relating to Collective Bargaining agreements. In Eastern Associated Coal Corporation v. United Mine Workers of American, District 17, 531 U.S. 57, 121S.Ct. 462, 148 L.Ed.2d 354 (2000), the issue involved a labor arbitrator who ordered an employer to reinstate an employee who had twice tested positive for marijuana use. The employer filed a lawsuit in federal court seeking to have the arbitrator's decision vacated, arguing that the award went against a public policy against the operation of dangerous machinery by workers who test positive for drugs.

The Court unanimously agreed that the employee should be reinstated. The Court made it clear that the question was not whether the employee's drug use itself violated public policy, but whether the agreement to reinstate him did so. However, the Court also pointed out that the public policy exception is a narrow one. Based on these principles, the Court ruled that the reinstatement did not violate public policy, as the award did not condone drug use or its impact on public safety. In addition, the arbitrator placed conditions on the employee's reinstatement, which included suspension of work for three months without pay, participation in a substance abuse program, and continued random drug testing. The fact that the employee was a recidivist did not tip the balance in favor of discharge.

Further readings

Crowley, Thomas. 1994. "The Art of Arbitration Advocacy." Hawaii Bar Journal (September).

Culiner, Helen. 1994. "Practical Guidelines for Lawyers Representing Clients in Arbitration Proceedings Today." Dispute Resolution Journal (September).

Deye, James, and Lesly Britton. 1994. "Arbitration by the American Arbitration Association." North Dakota Law Review (spring).

Nolan-Haley, Jacqueline M. 2001. Alternative Dispute Resolution in a Nutshell. 2d ed. St. Paul, Minn.: West Wadsworth.

Ware, Stephen J. 2001. Alternative Dispute Resolution. St. Paul, Minn.: West Wadsworth.


Alternative Dispute Resolution.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

arbitration n. a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute. To avoid clogged court calendars the parties often agree to have the matter determined by a panel such as one provided by the American Arbitration Association (which has a specific set of rules), a retired judge, some other respected lawyer, or some organization that provides these services. Usually contract-required arbitration may be converted into a legal judgment on petition to the court, unless some party has protested that there has been a gross injustice, collusion or fraud. Many states provide for mandatory arbitration of cases on a non-binding basis in the hope that these "mini-trials" by experienced attorneys will give the parties a clearer picture of the probable result and lead to acceptance of the arbitrator's decision. (See: arbitrator)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

arbitration noun adjudgment, adjustment, appraisal, arbitrage, arbitrium, assessment, decision, decree, determining of a controversy, finding, intercession, interjacence, intermediation, intervention, judgment, rapprochement, resolution,settlement
Associated concepts: advisory arbitration, arbiiration agreement, arbitration and award, arbitration award, arbitration clause, arbitration provision, arbitrators, binding arbitration, compulsory arbitration, grievance arbitration, innerest arbitration, proceeding to confirm arbitration award, voluntary arbitration

See also: adjudication, collective bargaining, intercession, mediation, negotiation, reconciliation

Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

ARBITRATION, practice. A reference and submission of a matter in dispute concerning property, or of a personal wrong, to the decision of one or more persons as arbitrators.
2. They are voluntary or compulsory. The voluntary are, 1. Those made by mutual consent, in which the parties select arbitrators, and bind themselves by bond abide by their decision; these are made without any rule of court. 3 Bl. Com. 16.

3.-2. Those which are made in a cause depending in court, by a rule of court, before trial; these are arbitrators at common law, and the award is enforced by attachment. Kyd on Awards, 21.
4.-3. Those which are made by virtue of the statute, 9 & l0 Will. III., c. 15, by which it is agreed to refer a matter in dispute not then in court, to arbitrators, and agree that the submission be made a rule of court, which is enforced as if it had been made a rule of court; Kyd on Aw. 22; there are two other voluntary arbitrations which are peculiar to Pennsylvania.

5.-4. The first of these is the arbitration under the act of June 16, 1836, which provides that the parties to, any suit may consent to a rule of court for referring all matters of fact in controversy to referees, reserving all matters of law for the decision of the court, and the report of the referees shall have the effect of a special verdict, which is to be proceeded upon by the court as a special verdict, and either party may have a writ of error to the judgment entered thereupon

6.-5. Those by virtue of the act of 1806, which authorizes "any person or persons desirous of settling any dispute or controversy, by themselves, their agents or attorneys, to enter into an agreement in writing, or refer such dispute or controversy to certain persons to be by them mutually chosen; and it shall be the duty of the referees to make out an award and deliver it to the party in whose favor it shall be made, together with the written agreement entered into by the parties; and it shall be the duty of the prothonotary, on the affidavit of a subscribing witness to the agreement, that it was duly executed by the parties, to file the same in his office; and on the agreement being so filed as aforesaid, he shall enter the award on record, which shall be as available in law as an award made under a reference issued by the court, or entered on the docket by the parties."

7. Compulsory arbitrations are perhaps confined to Pennsylvania. Either party in a civil suit or action,, or his attorney, may enter at the prothonotary's office a rule of reference, wherein be shall declare his determination to have arbitrators chosen, on a day certain to be mentioned therein, not exceeding thirty days, for the trial of all matters in variance in the suit between the parties. A copy of this rule is served on the opposite party. On the day. appointed they meet at the prothonotary's, and endeavor to agree upon arbitrators; if they cannot, the prothonotary makes out a list on which are inscribed the names of a number of citizens, and the parties alternately strike each one of them from the list, beginning with the plaintiff, until there are but the number agreed upon or fixed by the prothonotary left, who are to be the arbitrators; a time of meeting is then agreed upon or appointed by the prothonotary, when the parties cannot agree, at which time the arbitrators, after being sworn or affirm and equitably to try all matters in variance submitted to them, proceed to bear and decide the case; their award is filed in the office of the prothonotary, and has the effect of a judgment, subject, however, to appeal, which may be entered at any time within twenty days after the filing of such award. Act of 16th June, 1836, Pamphl. p. 715.

8. This is somewhat similar to the arbitrations of the Romans; there the praetor selected from a list Of citizens made for the purpose, one or more persons, who were authorized to decide all suits submitted to them, and which had been brought before him; the authority which the proctor gave them conferred on them a public character and their judgments were without appeal Toull. Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See generally, Kyd on Awards; Caldwel on Arbitrations; Bac. Ab. h.t.; 1 Salk. R. 69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. Pl. 96; 3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

Sunday, July 14, 2013

Appealing 3020-a decisions

I posted the article below in July 2012 after some Article 7511 appeals overturned the decisions of 3020-a Arbitrators. I am posting it also as a heads up about the story I will do very soon on the most unfair and biased Arbitrator on the UFT-DOE panel in NYC right now, in my opinion: Eleanor Elovich Glanstein. She is hired to fire.

People who receive unfair decisions in the 3020-a process should appeal these biased decisions!

Betsy Combier

The NYC Rubber Room Gotcha Squad Is Slammed By The New York State Supreme Court

Betsy Combier, Editor of and NYC Rubber Room Reporter

Arbitrator David Hyland ruled in February 2011 that a NYC Dean had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Lucy Billings says this fine is "shocking to the conscience...By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion." From Betsy Combier: Thank you, Judge Billings!!!

From Betsy Combier, Editor of and NYC Rubber Room Reporter, NYCourts-New York Court Corruption, NYC Public Voice and National Public Voice:
When I first started looking into the "NYC Rubber Rooms" and the teacher trials for tenured teachers, (3020-a) in 2003 after speaking with Polo Colon, teachers David Pakter, and Teddy Smith, I was stunned to see what was going on.
In my opinion, Mayor Bloomberg had made a business out of framing people.

Children and their parents were, and still are, bribed to lie about what a teacher has said or done, and the rewards are diverse, such as a higher score on a test, graduation from school, promotion to another grade level, etc, all done in secret with the administrators of the school and the Superintendents and even higher ups, Deputy Chancellors and the Chancellor himself - or herself, as in the case of Cathie Black. Putting all of this together is not difficult, as few people believe that a public servant is actually out to "get" him or her until it is too late. If a teacher knew that the child(ren) were lying, all they had to do was contact the parent(s) or tell a superior what was going on, and sooner than a blink of the eye, the teacher is shot down with charges either about some corporal punishment that he/she didnt do, or the ever-ready charge of "actual" tampering with an investigation, which was slipped into Chancellor's Regulations A-420 in June 2009 is charged against him/her. Anyone can interpret what the term "actual tampering" means. My point here is, once the train has left the station, there is no stopping it.  At least, that's what Mayor Bloomberg, the UFT, NYSUT and private Attorneys want teachers subjected to the rubberization process to believe. It just is not legally sound.

What is "Actual Tampering?" "Actual" tampering, according to Federal law, specifically 18  U.S.C. §1503: "unlawful to "influence, obstruct, or impede the due administration of justice" and  §1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding". Under 1503, a government agent must prove that a defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See United States v Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990).
Acting "corruptly": some courts have defined this term as acting with "evil and wicked purposes" see United States v Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v Moon, 718 F2d 1219, 1236 (2d Cir. 1983): United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v Anderson, 798 F.2d 919, 928 (7th Cir, 1986; ) United States v Rasheed, 663 F.2 843, 847 (9th Cir. 1981). Thus it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.
Section 1512 specifically applies to "witness tampering": a defendant was proven to have knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. The defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; §1512 does not apply to defendants' innocent remarks or other acts unintended to affect the proceeding. See United States v Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). 

None of this applies to most of the specifications currently charged teachers in NYC, but the DOE Gotcha Squad spends hundreds or thousands of dollars trying to prove "actual" tampering, anyway. As I mentioned above, this is a business and everyone profits (except the Respondent).

From 2003 to 2008 there was little, if any, opposition to the false claims business run by the NYC DOE and the Office of General Counsel, headed by Theresa Europe ("the Gotcha Squad"). See also my article on the misinformation of the Bloomberg/klein/education mafia, Steven Brill for more on exactly how the Gotcha Squad works at 3020-a. Many people gave up, settled out of the 3020-a, resigned or retired. The effect of getting out early, before an arbitrator determined a punishment for your supposedly horrific misconduct or incompetency at 3020-a, was to put you in a precarious position as an ATR ("Absent Teacher Reserve") without rights or without any job at all. 

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes: “Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship...We hold "just cause" is a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.”
The NYC panel of Arbitrators are told by the Gotcha Squad to disregard these well known rules. Alan Berg, an Arbitrator on the panel, exonerated a teacher brought to 3020-a before him, and told me that he was punished by Theresa Europe for making the decision that he did; following his determination, he was moved from the Administrative Trials Unit (ATU) to the dreaded Teacher Performance Unit or TPU. I have heard Gotcha Squad member Dennis Da Costa screaming at Arbitrator Anne Powers that she "better do what he says, "or else".She does as she is told by Dennis.

Additionally, the Department places everyone who has been charged on a blacklist which will hamper any employer from hiring you in the future. This blacklist is the notorious "Ineligible/Inquiry" List from which attorney Ed Wolf was able to remove Philomena Breenan. The Department's Office pf Personnel Investigations can take people off if they want. NYS Supreme Court Judge Alice Schlesinger ordered Ms. Europe to tell her how she, Europe, put people on the list and took the names off, in the case of Philomena Brennan v NYC DOE (Index no. 112977/09).

The rubberization process is arbitrary, malicious, and discretionary. 

First of all, the Rubber Room Gotcha Squad is a group comprised mostly of attorneys who are given the authority by Mayor Michael Bloomberg and his allies in NYC to remove tenured teachers - or non-tenured, depending on the circumstances - from their classroom duties because someone in the chain of command at the NYC Department of Education wants them to be out of the school. It's very simple, really.

Secondly, the initial targeting is followed by a strategy of threats, humiliation, fear and retaliation supported the Gotcha Squad as the group denies rights to anyone who opposes their false claims and conspiracy of harm. All anyone has to do to be a target is to ask, "Why?", or "Where's the money?" 

Thirdly, the agents or messengers of harm must be protected, and given special status, so that those people who are fearless and refuse to be squashed by the Gotcha Squad's lawless lies and then the retaliation, threats and verbal abuse used to punish anyone who remains standing after #1 and #2 above, can be denied a resolution to the "problem", which is basically that these fearless souls wont go away never to be heard from again. Thus the Gotcha Squad's subgroups such as the Office of Equal Opportunity (OEO), Special Commissioner of Investigation (SCI) and Office of Special Investigation (OSI) are given authority similar to the SS in World War II (but not military; mostly civilian attorneys or people willing to follow the orders of the Mayor, the Chancellor, and the New York Law Department). 

The UFT and NYSUT, the legal arm of the teacher's union, can and do act in the interest of the Unity caucus, and not in support of individual members. Very few members believe me when I tell them this before they are brought to 3020-a, but many believe this is true after the 3020-a is over, and the Hearing Officer has made a decision that often does not rest on any fact or law. NYSUT attorneys often do not do a good job defending the member at 3020-a because, I was told, everyone charged is presumed "guilty". In fact, the Unity brass told me over and over again that all people housed in the infamous "rubber rooms" - which today are smaller rooms with a few re-assigned DOE employees in each room in an office or school - are not supposed to talk to each other, cannot dispute an investigator, and are guilty of whatever he or she is accused of, so dont try too hard to find a way to save his or her career. I worked for the UFT from 2007 to 2010, and I was hired by Randi Weingarten. I did not agree that everyone was automatically guilty of the specifications they were given, and I looked into each case. 

The DOE and UFT, in order to stop any employee targeted for termination from getting a vacatur or dismissal of the decision of an arbitrator, changed the rules for appealing a determination made at 3020-a in 1994 and several times afterwards. The New York State Education Department Commissioner no longer was the office of jurisdiction where decisions were made to sustain or vacate the decisions made at 3020-a. After 1994 people dissatified at 3020-a had to file an Article 75 to the New York State Supreme Court instead of NYSED. To many non-Attorneys, filing anything in court is frightening. That was, I am sure, a main reason for the change.

To further hamper anyone from appealing, the statute giving a petitioner 30 days to file an Article 75 was shortened to 10 days, with another 15 to amend. NYSUT attorneys never take on a case that was lost at 3020-a, this is another problem. After a 3020-a is closed and decided, NYSUT attorneys always write the client and say, in general, sorry you did not win at 3020-a, however, we are not going to help you appeal. Goodbye.

The New York State Supreme Court is a mangled mess right now, desperately in need of a total overhaul. The judges are arrogant with their immunity from prosecution, and some judges, like Cynthia Kern now on the 6th floor at 60 Center Street, could not care less about the facts in a case. She grants dismissal of any and all petitions filed by a teacher or any other DOE employee. Her loyalty is very much in the interests of the New York Law Department and the DOE.

Sometimes good decisions do come out of the supreme court. The case of Christopher Asch is a case that won a vacatur of the decision of arbitrator David Hyland. Asch signed his petition as "pro se". NYS Supreme Court Judge Manuel Mendez overturned the 6-month suspension, gave Chris his backpay, and ordered the reimbursement of the money spent on a psychiatrist.

Recently David Hyland was again overturned, this time by NYS Supreme Court Judge Lucy Billings in the case of Nicole Moreno-Lieberman. Arbitrator Hyland ruled in February 2011 that a NYC Dean, Moreno-Lieberman, had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Luck Billings says this fine is "shocking to the conscience...By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion."

Kudos to Judge Billings, who seems to see that the 3020-a arbitrators in New York City need a reality check, and not just a check from the Gotcha Squad for throwing a case. 

COMMENT from Attorney Joy Hochstadt (I do not work with, nor do I recommend Ms. Hochstadt for any 3020-a):


"Its just the beginning, thousands of teachers are harassed and resign before they are brought up on charges. I was told that if I resigned before the charges were presented to me (four months after I was told I was under"investigation"), then I would leave with a clean record--Klaus Bornemann forgot to tell me I'd be on the I/I list forever unless I fought it in Court. I was naive, I believed the arbitrators would not debase themselves and be biased. 


Then my NYSUT Attorney told me my arbitrator fired everyone; in fact the UFT had voted her off the panel, ten years ago, but the DOE offered the UFT an extra seat on the collective bargaining committee for as long as the UFT allowed Eleanor Glanstein to remain on the 3020-a permanent arbitrator panel. And so I was fired for being assigned by my Principal self-contained special ed classes for my entire program for an entire year when I have no license or background in dealing with special ed; most of the classes had students diagnosed as Emotionally Disturbed. Then they stipulated to my exemplary subject matter skills but said I was incompetent in classroom management, the administration had seen a student walk out without a pass to get a drink at a water fountain 1 foot from the classroom door. another called out his answer in class during an observation, the "do now" was 7 minutes for a class of students who find it difficult to focus and are distractable--it should be no more than 5 minutes, etc. What a waste when I was the best prepared biology teacher that ever worked for the DOE. Therefore, the Principal would rather put me in a position where she could find B.S. fault with me than to allow the advanced and capable students benefit with what I could imbue then with. The DOE attorney at the 3020-a said the assignment to special ed classes should not be mitigating because I would have had to grieve it and win (and my chapter leader told me it was too late in the term to change every teacher's program--but I grieved it before school started--the Principal elected not to hear it for 7 weeks!) Funny part I offered to help--I wrote a comprehensive plan of incentives to get out students to strive to achieve starting with color coded IDs which would let everyone know what grade placement the student had earned sufficient credits for along outings, Broadway shows, meals in Restaurants, to students of the "month" (a short enough time that students could show improvement--and there would be two cohorts --for best grades and for most improvement. Principal was so threatened she tried to put a letter in my file for distributing my proposal without her consent --UFT chapter leaders consent was all that was necessary, by precedent. 


Principal lost her school, DOE settled my lawsuit in my favor, and now all the other similarly situated teachers ask for my help --- but it takes the rare judge not to go along with the "program." What observers fail to understand is the scale at which this is being done. I try as best as I can to get the number of teachers given "U" ratings over the last 15 years, the number removed from regular assigments, the number unlawfully brought up on charges by their Principals who are afraid of losing their own jobs--the great old Principal with grandfathered tenure --do not do this --their schools are happy places to works at and have been for decades--it says more about the Principals than the teachers when one Principal sends 9 teachers to the rubber room in 2005-2006 and is voted Principal of the Year for 2006-2007--the Bloomberg Administration is rewarding the Principals for ousting tenured, high paid, and long-service teachers to save billions of $$$$$ by replacing them with cheap inexperienced, teachers who will never earn tenure, will never get vested in a pension plan that the city does not want to honor. Tier I teachers, almost a relic of the past if they worked from 22-62 retired a 100% final years salary plus no FICA, no Medicare tax, no state or city income tax ergo a pension payout equivalent to 125% prior take home. Tier I who worked from 22-42 and then did something else, as long as they had their QPP in Variable A, 13 years later at age 55 would retire at greater than 100% of what their final years pay was when they left--and only now is the life expectancy for teachers (no hard labor, nor dangerous assignments and adequate medical care covered by the employer) 30-40 years after they begin to get the payout. Its to avoid that cost that there is an overwhelming pressure to lock in the pensions where they are rather than accrue an additional liability of ~$80,000.00 in lifetime payout for each year the teacher continues to teach beyond this year for teachers with 20 or more years in the system and $72,000.00/year for each year the teacher teaches until 20 years of service. So economics demand they get out all tier1-2 immediately if not before, that they get out tier 3-4 teachers ASAP and that only tier V teachers where the teacher pays most to the accummulation remain so the city does not go bankrupt. More important so that Bloomberg and his other billionaired friends do not foot the bill. 


When confronted with these facts. they answer that they are improving the schools as well--but they are not--its Rumplestiltskin without the elf! The "bottom line" Principals do not know how to achieve higher test scores, so they blame the teachers who know that they can't do it, keep the submissive new and cheap teachers so at least they get kudos for savings. They scrub the scores and get big bonuses for student achievement, (they even embezzle to milk the system as their days are always numbered). And Bloomberg in behalf of himself and his friends have ended tenure, drastically reduced future pension obligations, lowered average salaries--and enriched the union because if there are 70,000 teachers earning S50,000.00 per year instead of 50,000 teachers earning $70,000/year then the UFT earns an additional $22,000,000.00 in union dues so it goes along. 


Betsy and I should write a book "Why the DOE does not care that Tyrone does not want to learn to read" --Mayoral control of the schools for reform was for the purpose of saving massive amounts of money. whether or not the students benefited, or even whether the students got less--Because just as the teachers assumed to be guilty or incompetent before the fact--it is worse that the students going to the public schools of NYC are presumed to not be amenable to getting an education, in any event--so at least we should save the money--and not all go bust in the process. 


It is a social Darwinism approach that the best teachers and the best students will outmaneuver the system and benefit from it. They'll even give me as an example, that I came to Randi's and her counsel's attention as someone wrongly removed and UFT hired NYSUT attorneys to prosecute a case in my behalf which the NYC Law Department settled almost immediately. They told me there was at least one case that did as well if not better. Demonstrable provable sexual harassment by a superior administrator against a DOE subordinate employee, usually can do well. But wrongful 3020-a charges do not--I was very lucky. A group of us need to go to the legislature and get hearings, because the problems that are seeking a solution need the legislature to intervene. The false accusations, defamation, loss of profession, mental anguish, blackballing I/I list--is simply criminal and intentionally so. Every prosecutor in the ATU and TPU must understand that they all are committing prosecutorial misconduct. It is as bad as prosecutors sending defendants they know to to be innocent to life sentences just so they can add to their conviction rate! Please contact me to volunteer to work on a legislative initiative both to clue in the legislature as to what is going on, and to write and lobby new legislation for NYC that will restore integrity to a corrupt and misused disciplinary process."

Joy Hochstadt, Ph.D., J.D.