Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning charges brought against him by the Board of Education of the City School District of the City of New York.

Decision No. 13,021

(October 15, 1993)

Neal Howard Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.

On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).

On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.

On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.

A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.

This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.

There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.

Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.

Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.

Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.

With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).

With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.

With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.

Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.

With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.

Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambach, supra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.

In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.

I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.

Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.

In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.

END OF FILE

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.

Cross-references

Alternative Dispute Resolution.

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

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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.

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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

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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.

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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.

Betsy Combier on Teacher Due Process Rights Given By the Bloomberg Administration (none)

Michael Bloomberg and Michael Cardozo

 From Betsy Combier:

First, I am not an attorney, just a writer/journalist. I, like most people, have opinions. Below are a few of them.

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. 

Both NYSUT and the DOE Attorneys are contracted to "prosecute" teachers under the presumption that all individuals brought to 3020-a are guilty of the charges. Other presumptions that effect all cases are: the case must look at ONLY the specifications, and nothing else (i.e., the principal is breaking the law with special needs children, stole money, has skeletons in his/her closet, the person making the charge is not in the school, didnt see what happened, wasnt there...). Obviously, anyone who says that ALL facts must be brought in to the hearing to give motive and prove innocence is someone who must be tarred and feathered. That's me and the lawyers I work with, but  we do not care about this fluff and stuff, and all of that leads to a stronger case in court for any kind of appeal against the arbitrator.

For instance, on April 19, 2013, I walked by a hearing room with the door open, at 49-51 Chambers Street, and I heard NYSUT Attorney Maria Elena Gonzalez Lichten telling Arbitrator Stephen O'Beirne how "she" put my email on her blog, and...". You dont think that the Attorneys speak to arbitrators only about the cases they are doing before them, do you? Anyway, I am posting the stuff I have already placed on this blog about Maria Elena Gonzolez Lichten, wife of Stuart Lichten, to update Mr. O'Beirne on what I have written, see here, here, and here. Mr. O'Beirne is an excellent Arbitrator, in my opinion, and can see through this infantile approach to squashing opposition to the Plan ("terminate any DOE employee who has tenure and is brought to 3020-a") . By the way, Mrs. Lichten, when you said in your email that I lied, I am still waiting to hear about what, so that I may address whatever it is that I lied about? My email address is betsy.combier@gmail.com, as you know.

Now to the charging process and determination of probable cause. 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. (New York State Education Law 3020-a(2)(a)). New York City is part of New York State, and as far as I know, no agreement which conflicts with the law is valid.

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

I am not a lawyer, but I believe that as Mr. Walcott did not sign this document, there is no term of office, 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. NYSUT Attorney Shawn T. Kelly, for example, 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.

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 §3020-A MANDATES A VOTE ON SPECIFICITY BY A SCHOOL BOARD

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.

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.

NY Appellate Bench Rips Cardozo in Law Journal Letter

LINK
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. 

Teacher Tenure Hearings = Part 82 of the Commissioner's Regulations

Law and Regulations

• Part 82 of the Commissioner's Regulations

Education Law §3020-a. Disciplinary procedures and penalties.

1. Filing of charges.

All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-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 to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

2. Disposition of charges.

a. 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 (i) the charges in detail, (ii) 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 (iii) 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.

b. The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical abuse of a minor or student. The employee shall be terminated without a hearing, as provided for in this  section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter.

c. Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel, provided that a three member panel shall not be available where the charges concern pedagogical incompetence based solely upon a teacher's or principal's pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article. All other charges shall be heard by a single hearing officer.

d. The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.

3. Hearings.

a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner shall forthwith send a copy of both simultaneously to the employing board and the employee. The commissioner shall also simultaneously notify both the employing board and the employee of each potential hearing officer's record in the last five cases of commencing and completing hearings within the time periods prescribed in this section.

b. (i) Hearing officers. All hearings pursuant to this section shall be conducted before and by a single hearing officer selected as provided for in this section. A hearing officer shall not be eligible to serve in such position if he or she is a resident of the school district, other than the city of New York, under the jurisdiction of the employing board, an employee, agent or representative of the employing board or of any labor organization representing employees of such employing board, has served as such agent or representative within two years of the date of the scheduled hearing, or if he or she is then serving as a mediator or fact finder in the same school district.

(A) Notwithstanding any other provision of law, for hearings commenced by the filing of charges prior to April first, two thousand twelve, the hearing officer shall be compensated by the department with the customary fee paid for service as an arbitrator under the auspices of the association for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties. All other expenses of the disciplinary proceedings commenced by the filing of charges prior to April first, two thousand twelve shall be paid in accordance with rules promulgated by the commissioner. Claims for such compensation for days of actual service and reimbursement for necessary travel and other expenses for hearings commenced by the filing of charges prior to April first, two thousand twelve shall be paid from an appropriation for such purpose in the order in which they have been approved by the commissioner for payment, provided payment shall first be made for any other hearing costs payable by the commissioner, including the costs of transcribing the record, and provided further that no such claim shall be set aside for insufficiency of funds to make a complete payment, but shall be eligible for a partial payment in one year and shall retain its priority date status for appropriations designated for such purpose in future years.

(B) Notwithstanding any other provision of law, rule or regulation to the contrary, for hearings commenced by the filing of charges on or after April first, two thousand twelve, the hearing officer shall be compensated by the department for each day of actual service plus necessary  travel  and other reasonable expenses incurred in the performance of his or her duties, provided that the commissioner shall establish a schedule for maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed.

(ii) The commissioner shall mail to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.

(iii) Within fifteen days after receiving the list of potential hearing officers as described in subparagraph (ii) of this paragraph, the employing board and the employee shall each notify the commissioner of their agreed upon hearing officer selection. If the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list. The provisions of this subparagraph shall not apply in cities with a population of one million or more with alternative procedures specified in section three thousand twenty of this article.

(iv) In those cases in which the employee elects to have the charges heard by a hearing panel, the hearing panel shall consist of the hearing officer, selected in accordance with this subdivision,  and  two additional persons, one selected by the employee and one selected by the employing board, from a list maintained for such purpose by the commissioner. The list shall be composed of professional personnel with administrative or supervisory responsibility, professional personnel without administrative or supervisory responsibility, chief school administrators, members of employing boards and others selected from lists of nominees submitted to  the  commissioner  by  statewide organizations  representing  teachers,  school  administrators  and supervisors and the employing boards. Hearing panel members other than the hearing officer shall be compensated by the department at the rate of one hundred dollars for each day of actual service plus necessary travel  and  subsistence  expenses. The hearing officer shall be compensated as set forth in this subdivision. The hearing officer shall be the chairperson of the hearing panel.

c. Hearing procedures. (i) (A) The commissioner shall have the power to establish necessary rules and procedures for the conduct of hearings under this section.

(B) The department shall be authorized to monitor and investigate a hearing officer's compliance with statutory timelines pursuant to this section. The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this section for conducting such hearings are to be strictly followed. A record of continued failure to commence and complete hearings within the time periods prescribed in this section shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such hearings.

(C) Such rules shall not require compliance with technical rules of evidence. Hearings shall be conducted by the hearing officer selected pursuant to paragraph b of this subdivision with full and fair disclosure of the nature of the case and evidence against the employee by the employing board and shall be public or private at the discretion of the employee. The employee shall have a reasonable opportunity to defend himself or herself and an opportunity to testify in his or her own behalf. The employee shall not be required to testify. Each party shall have the right to be represented by counsel, to subpoena witnesses, and to cross-examine witnesses. All testimony taken shall be under oath which the hearing officer is hereby authorized to administer.

(D) An accurate record of the proceedings shall be kept at the expense of the department at each such hearing in accordance with the regulations of the commissioner. A copy of the record of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved. The department shall be authorized to utilize any new technology or such other appropriate means to transcribe or record such hearings in an accurate, reliable, efficient and cost-effective manner without any charge to the employee or board of education involved.

(i-a)(A) Where charges of incompetence are brought based solely upon a pattern of ineffective teaching or performance of a classroom teacher or principal, as defined in section three thousand twelve-c of this article, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in this subparagraph. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

(B) Such charges shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance with subdivision four of section three thousand twelve-c of this article for the employee following the first evaluation in which the employee was rated ineffective, and the immediately preceding evaluation if the employee was rated developing. Notwithstanding any other provision of law to the contrary, a pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article shall constitute very significant evidence of incompetence for purposes of this section. Nothing in this subparagraph shall be construed to limit the defenses which the employee may place before the hearing officer in challenging the allegation of a  pattern  of ineffective teaching or performance.

(C) The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this subparagraph for  conducting expedited hearings are to be strictly followed. A record of continued failure to commence and complete expedited hearings within the time periods prescribed in this subparagraph shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such expedited hearings.

(ii) The hearing officer selected to conduct a hearing under this section shall, within ten to fifteen days of agreeing to serve in such position, hold a pre-hearing conference which shall be held in the school district or county seat of the county, or any county, wherein the employing school board is located. The pre-hearing conference shall be limited in length to one day except that the hearing officer, in his or her discretion, may allow one additional day for good cause shown.

(iii) At the pre-hearing conference the hearing officer shall have the power to:

(A) issue subpoenas;

(B) hear and decide all motions, including but not limited to motions to dismiss the charges;

(C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements),  investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.

(iv) Any pre-hearing motion or application relative to the sufficiency of the charges, application or amendment thereof, or any preliminary matters shall be made upon written notice to the hearing officer and the adverse party no less than five days prior to the date of the pre-hearing conference. Any pre-hearing motions or applications not made as provided for herein shall be deemed waived except for good cause as determined by the hearing officer.

(v) In the event that at the pre-hearing conference the employing board presents evidence that the professional license of the employee has been revoked and all judicial and administrative remedies have been exhausted or foreclosed, the hearing officer shall schedule the date, time and place for an expedited hearing, which hearing shall commence not more than seven days after the pre-hearing conference and which shall be limited to one day. The expedited hearing shall be held in the local school district or county seat of the county or any county, wherein the said employing board is located. The expedited hearing shall not be postponed except upon the request of a party and then only for good cause as determined by the hearing officer. At such hearing, each party shall have equal time in which to present its case.

(vi) During the pre-hearing conference, the hearing officer shall determine the reasonable amount of time necessary for a final hearing on the charge or charges and shall schedule the location, time(s) and date(s) for the final hearing. The final hearing shall be held in the local school district or county seat of the county, or any county, wherein the said employing school board is located. In the event that the hearing officer determines that the nature of the case requires the final hearing to last more than one day, the days that are scheduled for the final hearing shall be consecutive. The day or days scheduled for the final hearing shall not be postponed except upon the request of a party and then only for good cause shown as determined by the hearing officer. In all cases, the final hearing shall be completed no later than sixty days after the pre-hearing conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension.

(vii) All evidence shall be submitted by all parties within one hundred twenty-five days of the filing of charges and no additional evidence shall be accepted after such time, absent extraordinary circumstances beyond the control of the parties.

d. Limitation on claims. Notwithstanding any other provision of law, rule or regulation to the contrary, no payments shall be made by the department pursuant to this subdivision on or after April first, two thousand twelve for:

(i) compensation of a hearing officer or hearing panel member, (ii) reimbursement of such hearing officers or panel members for necessary travel or other expenses incurred by them, or (iii) for other hearing expenses on a claim submitted later than one year after the final disposition of the hearing by any means, including settlement, or within ninety days after the effective date of this paragraph, whichever is later; provided that no payment shall be barred or reduced where such payment is required as a result of a court order or judgment or a final audit.

4. Post hearing procedures.

a. The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

b. Within fifteen days of receipt of the hearing officer's decision the employing board shall implement the decision. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph b of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his or her pay and other emoluments restored, for the period from the date of his or her suspension to the date of the decision.

c. The hearing officer shall indicate in the decision whether any of the charges brought by the employing board were frivolous as defined in section eighty-three hundred three-a of the civil practice law and rules. If the hearing officer finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges.

5. Appeal.

a. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.

b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Last Updated: June 19, 2012