Saturday, April 19, 2014

The Business Partnership of 3020-a Arbitration

Re-posted from NYC Rubber Room Reporter

How Bad Is NYSUT as Providers of Due Process at 3020-a Arbitration?

My opinion is that the NYSUT/UFT "play along to get along" with Mike Bloomberg has caused the destruction of the lives of hundreds, if not thousands of effective, professional, caring teachers and staff of the New York City Board/Department of Education ....all members of the UFT....for at least the past 10 years. Their goal was to get tenured teachers out of public schools because Mike Bloomberg hated tenure protections and the thought that someone could not be fired in a second for no reason other than that the administrator wanted this person gone. This is good business, says Mike and Jack Walsh (pictured below).

I guess everyone knows that you do not have to use NYSUT to defend at 3020-a. Right?
You can use a private Attorney and team, use a friend/advocate as your assistant, or you can do the 3020-a yourself  "Pro se

NYSUT cannot tell you this, nor does NYSUT bother to tell you any of your due process rights. Thus you should find out what you need to know by seeking information on your own. A person brought to 3020-a arbitration is given paperwork with Education Law 3020-a when they are charged. Few read it. Everyone should, but teachers seldom are lawyers too, so they rely on their NYSUT Attorney to tell them what it says.

That's a mistake.

Why is it a mistake? Because your Union, the UFT, and the NYSUT lawyers contracted to protect your due process rights at 3020-a, neglect to do that. See an email from NYSUT Attorney Paul Brown to a client who fired him when she received this:

From: Paul Brown <>
Sent: Wed, 2013
Subject: Re: - WITNESSES

I have an ethical obligation not to put on witnesses that I believe will be damaging to your case. I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....

Please call me should you have any further questions.

Paul K. Brown

New York State United Teachers

(212) 533-6300 Ext. 168"

Below is the Education Law 3020-a (1) and (2)(a):

NY CLS Educ § 3020-a (2014)

§ 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 [fig 1] [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.

New York State School Boards Association is no fan of teachers' rights, either:

See ON BOARD from 2007

However, as NYC has no school board, NYC is not technically a member of NYSSBA. Several years ago I went to the NYSSBA annual conference as Press at the NY Sheraton Hotel, and sat at the only table with any seats, the NYC table. I sat next to Courtenaye Jackson-Chase (left). At the same table were leading names from the Office of Legal Services, such as Judy Nathan. In the program, my name and the name of the former General Counsel (before Courtenaye), Michael Best, Esq. were listed as representing New York City. I sent the post below to a listserv, nyceducationnews on October 28, 2007:

"To all:

As a paralegal and a non-Attorney, I attended an all day seminar on School Law held at the Sheraton Hotel on Thursday, October 25, 2007. The seminar was part of the New York State School Boards Association conference.

The book that all participants received describes Open Meetings Law and the requirement that all Executive Sessions of a public body be voted on in a full meeting, and minutes are taken during the subsequent Executive Session where a majority votes on probable cause.

Therefore, all the votes taken and teachers terminated by a vote of the PEP members in Executive Session over the past 5 years are contrary to the law. The NYC BOE has required all persons interested in obtaining a copy of the tape of each meeting to file a Freedom of Information request, therefore the NYC BOE has substantiated the belief that the PEP is a public body. A powerless one, as Michael Best wrote to me “The PEP has no administrative or executive functions”.

Further news distressing to anyone in the New York City school district (NYC and boroughs) who would like to have any voice at all in creating policy or deciding complaints/issues: New York City has the largest school system in the nation, but was not represented at the NYSSBA conference. The only attendees listed from NYC Area 13 were me and Michael Best, a presenter of the “Contract For Excellence” session. Two other people from NYC (who kindly sat next to me at my table) were Ms. Judy Nathan and Ms. Courtenaye Jackson-Chase, both listed as “Attorney” for the NYC BOE.

We thus have a quasi-legal system set up to prevent any opposition to a resolution/vote/consent set by the Mayor/Mr. Klein.........

We have no right to get an independent decision on any complaints we may have, as everyone making decisions on grievances/special education hearings belong to Joel and Mike

Gosh, how could we get in this position?"

David Bloomfield answered with Open Meetings Law, Sections 105 and 106
As we all now know, NYC does not have a school board/employing board and no longer has Executive Sessions at the PEP meetings. When the PEP did hold Executive Sessions, the group violated Open Meetings Law Section 105 by having the Session before the public meeting began. I used to speak at the public meeting part of the monthly PEP meeting, and ask for the reason for that, as well as a tally of each member's vote. Joel Klein would not nicely tell me to sit down, shut up and my time was up. I would say that my time was not up, but he would not give me an answer. Still don't have one.

In fact, if you look at the Notice of Determination of Probable Cause (paperwork sent to all teachers/employees charged with 3020-a), the date of the Executive Session at which probable cause was voted on, is blank. There is no date for the Executive Session listed. Superintendent Erminio Claudia
Ermina Claudia 

testified at a teacher's 3020-a that there WAS an "Executive Session", namely when she met with "legal" on the case and they "found" probable cause for the charges. I would suggest that this meeting is not what is cited in the law, Open Meetings Law, or 3020-a(2)(a). Where did she get this version?

So in all cases brought to 3020-a arbitration, probable cause is determined improperly. Without the proper determination of probable cause according to Education Law 3020-a (1) and (2)(a), arbitrators appointed to hear 3020-a cases have no subject matter jurisdiction to decide on whether there is Just Cause for any penalty.

This is what NYSUT doesn't want you to know. In fact, your NYSUT attorney may rush you into a pre-hearing and then a full hearing/resignation/retirement/fine and settlement without any time to discuss the charges against you. NYSUT states in letters to those who opt to hire a private attorney or advocate, or do the 3020-a themselves:

"...changes to the Education Law negotiated by the UFT and the Board supercede the statutory provisions. Even though you are not utilizing NYSUT legal counsel, your case must be processed pursuant to the disciplinary procedures negotiated by the UFT and the Board. You do not have the right for your case to go forward pursuant to the Educational Law as it exists without the negotiated changes contained in Article 21 (G).(scroll to p. 113)."

No mention of probable cause found as required by Education Law 3020-a. But NYSUT isn't saying that the Law isn't there, just that you cannot use it for your case.


This is, in my thinking, the biggest error of NYSUT representation. Because without a probable cause determination in an Executive Session of the employing board, and a vote by a majority of members, you are left with anyone "finding" probable cause, and charging you with something that may or may not be true. The arbitrator hears only what the NYC DOE wants him/her to hear.

But arbitrators on the NYC permanent panel are paid $1400/day, and if they agree that probable cause has not been properly determined they wont get paid. So the arbitrators deny the dismissal of the case on any grounds, or there will be no payment coming their way.

Teacher discipline and termination are what the Department of Education calls "their business". It's not a business, it's a partnership. With NYSUT and the UFT.

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New York State School Boards Association Issues a Reform Brief on 3020-a

3020-a Teacher Discipline Reform

Under current law a “3020-a” teacher disciplinary proceeding takes an average of 520 days from the date charges are brought to the date of a final decision; at an average cost of $128,000.00. Proceedings addressing pedagogical incompetence take an average of 830 days at an average cost of $313,000.00. The recent addition of an “expedited” process for those who receive two consecutive subpar evaluations is not nearly sufficient to address this issue. Real reform of the teacher discipline process is needed. Independent contractor arbitrators in disciplinary cases must be replaced by NYSED administrative law judges. Cases would be decided more quickly, enabling districts to return the teacher to the classroom or hire a permanent replacement. In either event, taxpayers would be relieved of paying for costly and needless delays. Many of the needed reforms just makes sense: For instance, teachers convicted of child abuse, those who have had their license to teach revoked and those who do not obtain permanent certification in the time required by law should be removed without onerous procedural requirements. Simply put, our state can no longer afford a process that is both ineffective and time consuming.

ACCOUNTABILITY FOR ALL: 5 Ways To Reform The Teacher Discipline Process