The Gotcha Squad and the New York City Rubber Rooms by Betsy Combier (2014)

Re-posted from NYC Rubber Room Reporter

The "Gotcha Squad" and the New York City Rubber Rooms

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room by Betsy Combier

The Administrative Trials Unit (ATU) has hired a team of lawyers who work in a new ATU subgroup called "Teacher Performance Unit". In the Office of Legal Services' newsletter  "On The Legal Side" from 2000 you can read about the people involved. On page 4 you will find a picture of Theresa Europe, the current Director of the ATU. Randi Weingarten, President of the United Federation of Teachers and American Federation of Teachers, calls them the "Teacher Gotcha Squad". The use of TAC (Technical Assistance Conference) memos (the Office of Labor Relations has a 2007 version of the Principal's 'How To Get Rid Of A Teacher" Manual) in the preparation of charges to prefer against allegedly incompetent teachers was published in 2004, as Labor FAQs from the Office of Labor Relations. The New York State School Boards Association has published a report with recommendations to reform this expensive process.

Listen to David Brodsky, Director of Labor Relations, Theresa Europe, Director of the Administrative Triels Unit, and Florrie Chapin, the Director of the Teacher Performance Unit, explain the "Tenured Teacher Removal with Charges" Process .

We all must defend our right to know who is saying what to whom. In New York City today, however, the NYC BOE's secret disciplinary process is unfair and this process of pursuing false claims as fact must be changed. The word "incompetency" cannot be arbitrarily given to anyone at the whim of a principal, it must be applied according to a set standard so there can be a pre-determined penalty for the level of "misconduct" now labeled as "unsatisfactory performance". Otherwise, there is mayhem, terror, and chaos.

Mecca Santana

A partner office, OEO, is also a problem. Teachers are going to the "new" Office of Equal Opportunity to resolve issues of discrimination, and other such complaints, but OEO is a wholly-owned subsidiary of the New York City Department of Education and is not neutral in it's determination of probable cause.OEO's new Director, Mecca Santana (pictured above), denies complaints without explanation, siding with the NYC DOE on every issue.
In New York City, tenured teachers are being removed from their classrooms and positions by Principals and administrators suddenly and, in many cases, without probable cause. In fact, the entire structure of the New York City Department/Board of Education is intertwined with the General Counsel and the lawyers working in the Office of Legal Services. It's hard to separate the two, and this is one of the biggest problems with Mayoral control as it now stands in New York City. The New York City Board of Education ("NYC BOE") keeps all documents and information secret under the description "Attorney Client Privilege".

The entire process is fueled, edited, created, guided, and managed, by the lawyers at the Office of General Counsel, or the group that I call "The Gotcha Squad". A peek into this highly secret world wherein a person is framed and set up to be terminated can be seen in the documents of a teacher in Staten Island, found in his chargesfile. He has given me permission to use these documents as they are so explosive, and show the fraud that is known as charging teachers in NYC. A principal, here James McKeon, supposedly finds "Just Cause" when indeed it is not his finding at all, but that of the attorneys at 51 Chambers Street, the Gotcha Squad. See on p. 4 that McKeon is NOT supposed to discuss any of the making up of the charges by Theresa Europe and her crew.
 The end result of the secret exchanges can be seen by clicking this sentence.
The reason for Joel Klein's lack of contract as Chancellor (See my article "The Who Are You Kidding?? Award Goes To Joel Klein, New York City Board of Education Pretender") is to pursue secrecy within the NYC BOE by establishing him as the for the NYC BOE, not the Chancellor. Thus he has the ability to refrain from handing over documents if he deems these papers "Attorney-Client Work Product" (see here as well). Federal laws take second place to secrecy. Also, the Corporation Counsel prevents any Plaintiffs from deposing Joel Klein if he is sued officially and individually on the grounds that he is the Attorney for the Board of Education.

It is obvious that the Mayor has total control over every part of the public school governance structure. A tenured teacher has no rights at all and can be removed as easily as a non-tenured teacher or any employee. The tenured teachers have holding pens called temporary re-assignment centers or "rubber rooms". There are currently 7 such places located throughout New York City. A teacher may end up re-assigned because a principal may decide that he/she doesn't like him/her, must remove him/her because he/she is talking about crimes being committed in the school, or must remove him/her because he/she is earning a salary that is very high due to more than 20 years in the system, etc. The real reason may be that the teacher is too old, too fat, too short, wears red, doesn't wear red, and other such nonsense.

The principal makes the decision who stays and who goes, and this decision-making is done secretly with emails to/from the principal and the TPU, and the teacher being placed on the ineligible/inquiry list. To start, read the letter sent by Florrie Chapin, Director of the Teacher Performance Unit. You can see that a Principal is a driving force behind a teacher's termination, and the documentation that the TPU gets is based upon what the Principal sends to the Unit. Ask yourself this question: if a teacher has received commendations and satisfactory ratings, what is there in the process that could stop a Principal from discarding these positive reviews, or simply not sending them to a TPU attorney? Records tampering is rampant throughout the NYC DOE.
A freedom of information request was filed to obtain the TAC memos that were emailed to/from the TPU lawyers, Elizabeth "Betsy" Arons (NOT me) and Florie Chapin, Director of the TPU, and received 79 pages of emails as well as the names of the TPU lawyers (the "Gotcha Squad") was received.  The way the process works is this: after a principal requests a TAC, the charges are prepared, and the teacher is declared "incompetent" without his/her knowing anything about it. The TAC is considered privileged information and the teacher, about whom the TAC is about, will not be able to obtain these memos.

Tenured teachers who have been given more than one U (unsatisfactory) rating and have not "improved" according to random standards of the administration, are declared incompetent, and then they become the focus of the Teacher Performance Unit or TPU. The TPU is a group of lawyers who work in the Administrative Trials Unit (ATU) of the New York City Board of Education.

The ATU is described below on the NYC BOE website:

The Administrative Trials Unit is responsible for the prosecution of disciplinary cases.

ATU is available for training and advice on how to discipline a tenured employee or permanent civil servant and also to review documentation as it relates to the discipline process. If appropriate, ATU may draft charges under Education Law, Section 3020-a, or Section 75 of the Civil Service Law against the subject employee. This process entails a joint effort by the principal and/or supervisor along with the ATU attorney to litigate a case against the employee either for the purposes of progressive discipline or to seek the employee's termination. Should you seek charges, you must schedule a Technical Assistance Conference (TAC) with ATU for a complete review of the employee's personnel file and any related discussions.

Theresa Europe , Director
(212) 374-6749
TEurope@schools.nyc.gov


Patria Frias-Colon , Deputy Director
(212) 374-6754
pfrias@schools.nyc.gov
Patria, (pictured above) originally from the Dominican Republic, is a proud wife and mother of three children. Patria serves as the Assistant Deputy Counsel to the Chancellor at the New York City Department of Education, an organization that services 1.1 million children. She holds a Bachelors' Degree from the University of Rochester and a Law Degree from Hofstra University. In addition to working for the City government, Patria is also an adjunct professor at St. John's University School of Education where she teaches a course on the legal aspects of school administration.

want to work there? Here is the personnel ad:

Teacher Performance Unit Litigation Attorney
Tracking Code 6036
Job Description

Position Summary: Under the direction of the Office of the General Counsel, with wide latitude for independent action, the Teacher Performance Unit Litigation Attorney serves as a legal representative of the Chancellor, performing sophisticated legal work on disciplinary matters under the Children First reforms and providing training and counsel to school leaders. This team of attorneys will be assigned to handle special disciplinary proceedings as part of a teacher quality initiative and will have the opportunity to work on key policy initiatives in conjunction with the Office of Labor Policy.

Reports to: Executive Deputy Counsel

RESPONSIBILITIES

* Handles legal issues and cases including recommendations concerning determining the soundness of charges, preparing specification of charges, coordinating the gathering of evidence, and briefing witnesses.
* Manages legal cases that are complex and high-profile in nature.
* Represents the New York City Department in Education on Law 3020a proceedings and hearings pursuant to Section 75 of the Civil Service Law.
* As part of a team of attorneys, helps devise strategies for providing improved support and training to school leaders around evaluation and discipline, and for spurring the improvement or removal of poor performers.
* Provides support to school leaders, counsel and training to Superintendents, Principals, and their designees on disciplinary procedures with an emphasis on documenting incompetence and poor performance.
* Acts as liaison to executives within the Department and to members of other City agencies.

QUALIFICATIONS

Minimum Requirements

Admission to the New York State Bar AND three (3) years of progressively responsible United States legal experience subsequent to admission to any state bar.

NOTE: Selected candidates must remain members of the New York State Bar in good standing for the duration of their employment.

Preferred

* Litigation experience.
* Excellent research, analytic and communication skills.
* Ability to rapidly understand provisions of applicable law and regulations.
* Ability to write clearly and concisely.

Salary: $75,962+

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible. Applicants must submit a cover letter and resume to be considered for this position.

NOTE: The filling of all positions is subject to budget availability.

The New York City Board of Education (NYC BOE) has this description on the website:

Teacher Performance Unit

This letter and the accompanying materials are to familiarize you with the New York City Department of Education’s new Teacher Performance and Labor Support Units.

The Teacher Performance Unit(“TPU”) is a new unit comprised of experienced attorneys who will litigate incompetence cases against ineffective tenured pedagogues. This unit will provide counsel to principals and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges involving allegations of incompetence.  TPU’s goal is to help principals improve teacher quality in their schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

The Labor Support Unit (“LSU”) is comprised of education consultants who will work in partnership with TPU to provide direct support to principals who are confronted with ineffective tenured pedagogues. The goal of LSU is to work with the principal to help them design support plans for ineffective tenured pedagogues, to provide guidance and general assistance to the principal; to assist the principal in organizing the documentation; to conduct additional observations upon request of the principal, and to coordinate with the Peer Intervention-Plus (PIP+) Program and Teacher Performance Unit.

To greater assist your understanding of the process I have included a brief summary of TPU’s procedures and policies:

First, if you wish to discuss the case either formally or informally with a representative of TPU, please contact the Teacher Performance Unit at the Office of the General Counsel. To schedule a Technical Assistance Conference (“TAC” or “case conference”) please submit, by fax or email a completed TAC request form. (The TAC Request Form is included in this packet of supporting documents.)

Once a TAC has been scheduled, the principal or another school official should submit to TPU a completed TPU principal checklist (also included in the packet) along with the requested supporting documentation. To expedite the process, please ensure all the documentation has been forwarded to TPU prior to the date of the case conference. The pedagogue’s entire personnel file, all rating sheets (including any document with satisfactory ratings), along with the accompanying letters to the file, and the observation reports to support the unsatisfactory rating are key pieces of evidence. In addition, all the materials demonstrating the Department’s efforts at remediation and offers of professional development should be included in the packet (a sample is included in the packet).

During the case conference, the TPU Director and staff attorneys will meet with the principal to discuss the relevant documentation, and provide advice and guidance. After the case has been carefully reviewed a determination will be made by TPU in consultation with the principal whether to commence the 3020-a process at that time. If TPU decides to accept the case a letter will be sent to the principal indicating that the tenured pedagogue will be charged. At such time, TPU will recommend that the teacher be removed from the classroom and assigned to administrative duties. If a principal requests that a pedagogue be removed for incompetence prior to a TAC with TPU, that request must be approved by the TPU Director, and such requests will be reviewed on an expedited basis.

Alternatively, if a determination is made that the case should not proceed forward, a letter will be sent to the principal indicating the reasons and advising the principal on what action should be taken next. In such instances, TPU and LSU will continue to offer high quality and responsive support to the principal, which will include providing ineffective tenured teachers with quality professional development.

On behalf of TPU, I look forward to working with each of you in the future. Should you have any questions about the materials provided in this packet, the TAC process, or if you have other questions, please feel free to contact me. Sincerely,
Florrie Chapin
Director, Teacher Performance Unit

A New Effort to Remove Bad Teachers
By ELISSA GOOTMAN, NY TIMES, Nov. 15, 2007




The Bloomberg administration is beginning a drive to remove unsatisfactory teachers, hiring new teams of lawyers and consultants who will help principals build cases against tenured teachers who they believe are not up to the job. It is also urging principals to get rid of sub-par novices before they earn tenure.

At the center of the effort is a new Teacher Performance Unit of five lawyers, headed by a former prosecutor fresh from convicting a former private school principal who had a sexual relationship with a student.

A separate team of five consultants, including former principals, will work with principals to improve struggling teachers’ performance. In cases where the teachers fail to get better, the consultants will help amass the documentation necessary to oust them.

The plans, at a cost of $1 million a year, are described in a memo and an accompanying letter to principals from Schools Chancellor Joel I. Klein. In the letter, he urged principals to help teachers improve but added, “When action must be taken, the disciplinary system for tenured teachers is so time-consuming and burdensome that what is already a stressful task becomes so onerous that relatively few principals are willing to tackle it. As a result, in a typical year only about one-hundredth of 1 percent of tenured teachers are removed for ineffective performance.

“This issue simply must be tackled,” he wrote.

In the memo, Dan Weisberg, the Education Department’s chief executive for labor policy and implementation, wrote that the Teacher Performance Unit “represents a significant infusion of resources that will ensure we have the capacity to seek the removal of all ineffective tenured teachers who, in spite of receiving the time and support sufficient to allow them to substantially improve, won’t or can’t do it.”

The unit, Mr. Weisberg wrote, “will also allow us to seek discipline where appropriate in a wider range of cases than before.” The unit is being run by Florence Chapin, a former Manhattan assistant district attorney.

Randi Weingarten, the president of the city’s teachers union, the United Federation of Teachers, called the lawyers a “teacher gotcha unit” and said she found it “disgusting” that the Education Department would issue such a memo after the release of new school report cards that bluntly grade schools A through F.

“We’ve always been concerned that the first thing that would happen after somebody put out progress reports would be principals would go after teachers,” Ms. Weingarten said. “Basically, it’s signaling to principals that rather than working to support teachers, the school system is going to give you a way to try to get rid of teachers.”

New York City has roughly 80,000 public school teachers, and once they receive tenure it is notoriously difficult to remove them, because of the union contract and state labor law, which guards the rights of tenured public employees with an elaborate process of hearings and appeals.

Only about 10 to 15 tenured teachers a year leave the system after being charged with incompetence. Other teachers are removed for outright misconduct.

More than 700 school employees, mostly teachers, are now assigned to centers known as “rubber rooms,” after having been removed from the classroom. While school officials say those employees are under investigation or at some stage in the disciplinary process, teachers’ union officials say that many have had no charges filed against them.

Mr. Klein has long spoken out against three poles of the civil service system for teachers — seniority rights, lifetime tenure and lock-step pay.

The city and Ms. Weingarten recently agreed on a plan to reward teachers for outstanding performance by allowing successful schools to compete for bonuses that would allow them to dole out extra pay to teachers.

The push to remove bad teachers represents the flip side of the equation and comes as the city is less than a year into an effort to get principals to more rigorously review probationary teachers who are up for tenure.

Mr. Weisberg said in an interview that he did not know how many tenured teachers would be removed. He said there “probably will be an increase” in incompetence charges.

“I believe very strongly that the number of these struggling tenured teachers is very small compared to the total number of teachers, but even if it is 1 percent, even if it is half of 1 percent, we have to address it,” he said.

Since the mayor earlier this year announced a more rigorous tenure review process for probationary teachers, the numbers denied tenure at the end of the three-year probationary period has increased modestly.

Since late March, when the new system started, 66 probationary teachers were denied tenure , or 1.3 percent of those eligible. In the previous school year tenure was denied to 25 teachers, or .5 percent of those eligible.

In addition, 115 teachers had their probationary period extended this year, up from 30 in the previous year.

Mr. Weisberg’s memo also described a new program, agreed to by the teachers union, under which principals can call upon teachers from outside the school system to spend three months observing tenured teachers in danger of being disciplined for incompetence.

The memo said that while the outside teachers may help floundering teachers, their written evaluations would also “likely carry a great deal of weight in disciplinary proceedings seeking the teacher’s termination.”

New Monastic Individuals

Thursday, November 15, 2007
The Teacher Performance Unit
By Roger Conway (pictured at left)

Here we go again. Yet again another game plan has been offered to cure the ills of American education, especially urban education. New York City's Bloomberg administration is implementing the the Teacher performance Unit to help principals "build cases against tenured teachers who they believe are not up to the job." This seems like old hash warmed over, but the new ingredient is that they are bringing in "teams" of lawyers and "consultants" (including former principals!) to worm their way around the state and federal work laws so they can "improve" everything. This quantitative approach will also apply to those teachers applying for tenure whose applications languish in bureaucratic limbo, because they, too, have been deemed not ("quite", I guess) "up to the job." And what is the bottom line for this panacea? $1,000,000 per year.

A definition is in order. Here it is from the mule's mouth: The Teacher Performance Unit "represents a significant infusion of resources that will ensure we have the capacity to seek the removal of all ineffective teachers who, in spite of receiving the time and support sufficient to allow them to substantially improve, won't or can't do it." I guess the composer of this statement had trouble with split infinitives and the basics of syntax in middle school English. Or a demon not-up-to-the-job teacher short-changed him or her.

Let's forget all the obvious stuff that's been harangued over forever, like using the system to settle in-house political differences, using it for personal punitive reasons, using it for blackmail, using it against burned out teachers, etc. Let's do something these government administration people have not yet thought about. Let's try to understand the elements of a school's culture that have a direct impact on teacher performance.
1. The culture of the community that the school serves. What are the behavioral norms of the community? What are the community's expectations of the schools responsibilities beyond effective learning of subject matter (such as providing meals, contraceptives, psychological counseling, warehousing of non- and reluctant learners, etc.)?
2. The culture of the school. (This is the one nobody, especially those with degrees in "educational leadership", including "former principals" want to talk about.) What is the learning milieu of the school building? (Sorry, sometimes French is all that will do.) Do the students, teachers and administrators have the same reasons for being there, namely that education is the only important thing that goes on there? Is anything less important ruled out of final decisions? Do teachers understand that each has special value and that that value can be shared uncompromisingly with their colleagues, teachers and administrators alike? Are experiments in teaching techniques encouraged? Are they facilitated financially and structurally? Is each student considered a learner or merely an integer?
3. $1 million for "the removal of ineffective teachers" speaks volumes. Please understand. As both student and teacher, I know about ineffective teachers, But I also know that learning to be effective requires both #1 and #2. I began my career in an inner city system. It offered only negative guidance; do this or else, and don't do that. The following year I went to a suburban school and worked 2 years in a specialized program, which involved me doing the verbal skills academic support of a vocational training program. My job: Get the students to articulate clearly in English. I had free rein to experiment. From there I went to a more exclusive suburb (i.e., more $$$ per family) and worked as part of a team to build a K-12 writing program (the community gave financial and structural support, and it expected competitive learning to occur at all grade levels to get its children into the highest competitive colleges…case closed, any questions?). That experience was inspiring, and the teachers, with full encouragement and support from administrators, gave their full energies to make it work.

The Teacher Performance Unit scheme also includes bonuses to reward schools and to allow them "to dole out" (what a revealing choice of word!) extra pay to teachers. That's the old toss of the bone, so typical of the quantitative approach. And I think bonuses are OK. Once you figure out how to distinguish among good, better and best teachers, you can go ahead and implement them. But first, let's take care of numbers 1, 2 and 3. Use the cool million to deal with the really tough stuff about excellence in learning.

And finally, regarding No Child Left Behind, has anyone figured out where the ones who are not left behind are going? Are they all going to college? The students I had in the vocational ed. program couldn't wait to get into the auto repair and auto body shops. If we're preparing students to be all that they can be, let's remember those students.

The entire ATU/TPU/TAC process infuriated the UFT leadership. The UFT voted to condemn the TPU.



The problem is, well...one of the problems is: what does "incompetence" mean? Who defines whether or not a teacher is, really, "incompetent"? The No Child Left Behind legislation requires that every classroom have a highly qualified teacher in every classroom. The problem with this is, what does the term “highly qualified” mean? A person with one or more advanced degrees? What about if this teacher is certified to teach french, but the Principal places him/her in a biology class?

Who is a “good” teacher and who is a “bad” teacher? Anyone with children knows a good teacher from a bad teacher. I have four children and to me, a "good" teacher is a person who makes the curriculum interesting, understandable, and encourages my daughters to seek information about the subject as well as to work hard and do their personal best. 'Good teaching' is always a subjective opinion which can only be judged by someone who sits inside the classroom, and incompetence cannot be proven by one person at an administrative trial nor can it be determined by one person - a principal or AP - in one visit or with an agenda (i.e. to get rid of the teacher).

We have no ‘American standard’ to help us define what it means to be a “good” teacher, other than to record the scores on standardized tests of students in each class. There are thousands of reports on how this happens, but in the end, defining a “good” performance is always a subjective judgment.

The parents of public school children and the teachers of the public schools in NYC know that Mayor Bloomberg and NYC BOE CEO Joel Klein dont want anyone to have any power over educational policy decisions except them, and their people. Read my article "Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man" So they designed a process which I call the "rubberization" process to remove anyone from his or her job for any reason, at any time. Mr. Klein, not an educator, was brought in to be CEO (he is not chancellor because he has no contract) in order to be the Attorney for the NYC Department of Education and squash any and all efforts to make the DOE transparent or accountable to the public. Teachers who sue Mr. Klein individually and officially never get to depose him because the NY State Supreme Court says that he is the Attorney for the DOE/BOE ( the name New York City Board of Education was never changed legally) and therefore information must be kept confidential between Principals, administrators, and the Corporation Counsel, Office of Legal Services, as well as the ATU.

Thus, the reason for the Technical Assistance Conference or TAC, in which the employee is not involved.

UFT
Know your rights
Disciplinary action and false accusations
LINK
Feb 19, 2009 10:17 AM

Despite many attempts to undercut it, section 3020-a of the State Education Law provides for due process before a tenured pedagogue can be disciplined, including termination for charges such as incompetence, insubordination, corporal punishment or sexual misconduct.

If the New York City Department of Education serves you with disciplinary charges pursuant to Education Law Section 3020-a, you should immediately contact your UFT borough office. The UFT will assist you in filing the necessary forms and arrange, if you choose, for you to be assigned legal counsel from the New York State United Teachers. A Hearing Officer jointly agreed upon by the UFT and DOE will conduct a hearing. If the hearing officer finds you guilty of any of the charges, discipline can be imposed. The discipline may range from a written reprimand, monetary fine or suspension without pay to the loss of your job. If you are terminated, you will also lose your New York City teaching license(s). However, your permanent state certifications cannot be revoked without another hearing.



In some cases, teachers awaiting charges are removed from their schools and assigned to Temporary Reassignment Centers until the investigations are complete or their cases are adjudicated in a 3020-a proceeding. A recent agreement between the UFT and DOE states that, absent unusual circumstances, allegations being investigated by principals will not result in an employee being removed from his or her school. The agreement also requires that an employee be notified of the grounds for his or her reassignment or that an employee is being investigated by the special commissioner of investigation (SCI). In the agreement, the DOE states that it will diligently attempt to complete all investigations by the chancellor’s Office of Special Investigations within 90 days. Further, you must be formally charged within six months from being reassigned or returned to your school unless you are being investigated by the SCI or your case involves criminal charges. If you are returned to your school after six months, the DOE may still bring disciplinary charges against you.

You are paid while you are reassigned except if you were found guilty or pled guilt to any felony. Also, the DOE can request a special hearing to determine whether there is sufficient evidence that you engaged in serious misconduct such as any actions that would constitute: 1. a felony involving a controlled substance; 2. a crime involving physical abuse of a student or minor; 3. a felony committed on school property or while performing duties; 4. a felony involving a firearm; or 5. serious sexual misconduct with a student or a minor such as sexual touching, verbal abuse of a sexual nature, solicitation of a relationship and possession of child pornography. If a specially appointed arbitrator determines there is sufficient evidence that you engaged in such conduct, you can be suspended without pay for up to two or three months.

Bring a union representative to any interrogation

If you are summoned for an interview by your principal or another DOE employee that may lead to disciplinary action, you are entitled to be accompanied by a union representative (or a representative employed by the school system). These are called “Weingarten Rights” (no relation to the UFT president). An interview that is not held in accordance with these procedures cannot be made part of your DOE personnel or school file, and any statements you make at such an interview cannot be used against you in any DOE proceeding.

Aside from the principal, the chancellor’s Office of Special Investigations and the special commissioner of investigation regularly seek to interview educators. The allegations investigated by the SCI usually involve potential criminal activity, financial fraud and other serious matters. Sometimes, the chancellor’s Office of Personnel Investigations (OPI) or Office of Equal Opportunity (OEO) will ask a member for a statement and, occasionally, even the police will go to a school. Regardless of who has summoned you to appear, the UFT generally recommends that you not answer any questions that could lead to disciplinary or legal action being taken without proper representation. If you are summoned to an investigatory interview, you should immediately ask your chapter leader and UFT district representative for assistance. If you are summoned to OSI, OPI or OEO, your UFT district representative or borough office will provide a representative to attend the interview with you. If you are summoned by SCI, your UFT district representative or borough office will arrange for a criminal attorney to attend the interview with you. If OPI asks for a written statement, your UFT district representative or borough office will arrange for an attorney to assist you in writing it.

Corporal punishment

State Education Department regulations and Chancellor’s Regulation A-420 prohibit the use of physical force against students. Some staffers have been charged with that offense for having physical contact with a student, such as when breaking up a fight. In general, you should attempt to defuse a student altercation by using verbal, rather than physical, means. However, you may use physical force in self-defense or to protect a person or school property. If you are accused of corporal punishment, speak with your chapter leader or district representative immediately and ask for union help.

Many of the allegations of corporal punishment are investigated by the employee’s supervisor. We strongly recommend that you do not speak to the principal and/or any investigator without a union representative present, even if the allegation is false.

False accusations

If you are accused of sexual misconduct or physical abuse involving students and it is determined that the allegations were knowingly false when they were made, the DOE must remove all references to the allegations from your DOE personnel file, restore any lost pay with interest, and permanently reassign the student from your class absent compelling and extraordinary circumstances. The agreement makes clear that the disciplinary process should never be used to retaliate against whistle-blowers or for any other illegal reason. It goes on to state that all employees who make a knowingly false allegation shall be subject to discipline.

Verbal abuse

Chancellor’s regulations prohibit verbal abuse of students, which includes using language that causes fear or physical or mental distress; using language that denotes race, ethnicity, religion, gender, disability or sexual orientation which tends to cause fear or mental distress; threatening physical harm; or belittling or ridiculing students.

If you are accused of verbal abuse, you should immediately notify your chapter leader or district representative. Consult Chancellor’s Regulation A-421 for additional information. Among other things, the regulation requires your principal to inform the staff about what constitutes verbal abuse. If accusations of verbal abuse are found to be unsubstantiated, all references to the accusations must be removed from your DOE file.

Aeri Pang, Judge Cynthia Kern, The Gotcha Squad and Article 7511

Re-posted from NYC Rubber Room Reporter

SATURDAY, FEBRUARY 26, 2011

New York State Senator John Flanagan's Bill, and "Gotcha Squad" Attorney Aeri Pang

The not surprising news to participants in the New York City public school system - employees/administrators/f status personnel/custodians/vendors/consultants/Tweedies/ (that is, all who have not had their heads in the sand for the past 5 years) - seniority rights ended many years ago.

In 1994 appeals of 3020-a arbitration decisions were legislated out of the office of the Commissioner of Education to the State Courts in the form of anArticle 7511. This was a huge move in terms of denial of due process rights to those tenured teachers who were victimized by the arbitration and charging process. If you read decisions of the Commissioner (see NYSED decisions - type "3020-a" into  the search box, pick a year) you will be able to read analyses of why a principal cannot simply point at an employee and get him or her terminated, etc. Some decisions are very detailed about the absence (or not) of due process rights in the charging and Just Cause area, which is currently the problem in New York City. Read my book (I haven't sat in on open and public 3020-a hearings for 8 years for nuthin'). Another helpful link may be this one, Article 61 of Education Law, and in particular Section 3012.

Since 1994 the only remedy for a shockingly arbitrary or capricious decision handed down after 3020-a is to file an Article 7511 in New York State Supreme Court, within 10 days of receiving the decision of the arbitrator, or "award" (I dont like the way this term is used, as if termination is an award). Actually you get 25 days: 10 days to file an appeal notice and buy the Index number, then 15 days to file a Verified Petition and serve the Corporation Counsel the Notice and Petition, then file. The Corporation Counsel is located at 100 Church Street, and the service window is on the 4th floor. DO NOT simply drop off your notice and Petition at Tweed.

OMG, just how is a teacher supposed to do that, considering that in 99% of all cases where NYSUT was the counsel on the case, the attorney drops the client the minute the hearing decision is received? If you find an attorney or someone to write the Notice and Verified Petition, or you do it yourself Pro Se, which you can do, then you, as the Petitioner, must pay the $210.00filing fee in the court, and the $95.00 for the Request For Judicial Intervention (RJI). Petitioners do not pay the $45.00 fee for motions.

The City Part of the New York State Supreme Court is notorious for loathing Pro Se litigants. And, the Corporation Counsel has the very same people working in the Court that worked for the Gotcha Squad. For example, look at Judge Cynthia Kern, City Part, 80 Centre Street. She is very pretty, blond, and a former law clerk in the Matrimonial Part with Judge Lobis. Kern knows very little about education law and about the denial of due process inside the 3020-a in New York City, and she has in her chambers the former NYCDOE Gotcha Squad Attorney Aeri ("Eddi")  Pang writing her decisions for her. Ms. Pang was transferred from the Gotcha Squad 3020-a hearings of arbitrator Joshua Javits to the Supreme Court in the spring of 2010. I have the honor of being an observer of a 3020-a with Javits and Pang, and in my opinion you wont find a more verbally abusive attorney than Pang, unless it's my old friend Dennis Da Costa. Mr. Da Costa still holds the Most Insulting And Loudest Screamer Award. Pang is in second place. Pang needs someone to read rules of Ethics, or the CPLR.

Here is Judge Kern's listing on the Court Judicial Directory:
HON. CYNTHIA KERN

Chambers: 80 Centre Street, Room 326
New York, New York 10013
Phone: (646) 386-3729
Principal Court Attorneys: Rachel J. Fremmer, Esq. and Aeri Pang, Esq.
Junior Court Attorney: Yael Wilkofsky, Esq.

The current law clerk in Judge Kern's courtroom is James Adamo, who, in another matter, decided to call me at home and on my cell to give me false information. I have preserved all of his messages and conversations, which may make sense to someone who supervises the law clerks at the court.

Here is the list of Attorneys who work at the NYC DOE Administrative Trials Unit (ATU=Gotcha Squad):
The Teacher Performance Unit (“TPU”) is a new unit comprised of experienced attorneys who will litigate incompetence cases against ineffective tenured pedagogues. TPU’s goal is to help improve teacher quality in schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

In partnership with the consultants of the Labor Support Unit (“LSU”), TPU will offer high quality and responsive support to principals, and other school officials in connection with cases involving previously identified tenured teachers in need of support and remediation. This support will include, among other things, providing these ineffective tenured teachers with quality professional development.

Additionally, TPU in consultation with the principal will make a determination, on a case by case basis whether to commence the 3020-a process. Thereafter, TPU and LSU will continue to provide counsel to the principal and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges.

• Contacts
• Florrie Chapin, Director
(212) 374-7930
FChapin@schools.nyc.gov

• Naeemah Lamont, Deputy Director
(212) 374-6034
NLamont@schools.nyc.gov

• Dennis DaCosta, Attorney
(212) 374-6035
DDaCosta2@schools.nyc.gov

• Elizabeth Cheung-Gaffney, Attorney
(212) 374-6026
mailto:%20ECheung-Gaffney@schools.nyc.gov

Judge Kern and Gotcha Squad Attorney Aeri Pang (second from left)

• Aeri Pang, Attorney (pictured in red dress at right)
(212) 374-6036
Apang@schools.nyc.gov

• Frances Hopson, Attorney
(212) 374-7839
FHopson2@schools.nyc.gov

• Shareema Gadson-Shaw, Attorney
(212) 374-7830
SGadsonShaw@schools.nyc.gov

• Alex Johnson, Attorney
(212) 374-7973
AJohnson34@schools.nyc.gov

So, now that teachers appealing 3020-a decisions cannot appeal to the Commissioner, they must go to Court, and pay to be dismissed.

The State legislature is at fault here. Let me end with my mantra for "fixing" what's wrong with public education in NYC today: we must get rid of the Panel For Educational Policy, and get all members to resign, run away, and get them all tarred and feathered (just kidding about the tarred and feathered part); we must get an elected school board that can, if necessary, say "no" and "absolutely not" to the mayor and anyone else who tramples rights; we must take 3020-a appeals out of the Courts and give them back to the Commissioner of Education's legal team; we must give equal rights to all New York State residents, and preserve and honor these rights by giving oversight and management to a new organization whose sole purpose is to root out miscreants wherever they may be. We must terminate everyone at Tweed, give a few new people management positions and small offices without flags (Burt Sacks - where did you put that huge American flag that was outside of your office at 110 Livingston street?) and put people to work at what they say they do best: put children first. We really dont need to listen to Noguera, Ravitch, Meier, and anyone else. We need transparent strategies that rely on public opinion to remain in force and we need people who put their feet where their mouth is.

The UFT? They haven't been actively involved in preserving tenure and teacher rights for years. Tenure is over.

Betsy Combier

Maze of rules in bill to end seniority layoffs starts with U-rated

by Anna Phillips, Gotham Schools, February 24, 2011
LINK

Mayor Bloomberg’s fight against “last-in, first-out” layoff rules— the policy of laying off teachers by reverse seniority — has made its way to Albany.

Last night, State Senator John Flanagan introduced a bill that would end the practice and the same bill will be introduced in the Assembly by New York City Assemblyman Jonathan Bing.

The bill rules out seniority as the sole factor in determining who gets laid off. To replace the current seniority system, the bill offers eight pages of an extraordinarily complicated, prioritized list of which teachers and school supervisors would be first in line to be laid off.

Bing’s Chief of Staff Jake Dilemani said the bill was written with input from the mayor’s office, along with groups like Educators 4 Excellence — an organization of teachers who, with funding from the Gates Foundation, has put forward its own proposal to change teacher layoffs.

In a statement sent to reporters, United Federation of Teachers President Michael Mulgrew said that the bill would “send us back to the days before civil service protections, when people could be fired for being the wrong race or gender, too young or too old.”

Last year, when Bloomberg was threatening to lay off roughly the same number of teachers, Bing proposed a bill that would end seniority-based layoffs. At the time, opposition to the bill was so fierce that the bill was never voted on. But this year, anti-last in first out sentiments have reached a fever pitch, with the city’s four editorial boards lined up in favor of changes.

This year’s bill is substantially more detailed than the one Bing proposed last year.

If the bill is passed into law, there will be nine categories of school employees who will be laid off before their peers. Employees who fall into all of these categories would lose their jobs first, followed by those who fall into eight of the categories, and so on down the scale to employees who fall into two categories. If the city finds that it still needs the lay off people after that, the next rung of layoffs will hit teachers and supervisors who are in the first category — those with unsatisfactory ratings.

The categories, in order of layoff priority, are:

1. Teachers and supervisors who have received an unsatisfactory rating in the last five years. If the new teacher evaluation system is put in place before layoffs are carried out, then teachers labeled “ineffective” would be the first to go.

2. Teachers and supervisors who have been fined or suspended without pay in the last five years. This means that teachers who’ve been charged with misconduct or incompetence and have either pled guilty or been found guilty in the last five years would be laid off. For example, the Bronx principal who was found guilty of arbitrarily giving her teachers unsatisfactory ratings and was fined $7,500 would be laid off before another principal. Under the current system, a principal with less seniority would be laid off before her.

3. Teachers and supervisors who have been in the Absent Teacher Reserve pool for more than six months. These are school employees who were forced out of their jobs when their schools could no longer afford them and have not yet been hired by another school. They remain on the city’s payroll while some work in administration and others work as substitute or full-time teachers. Given that it’s rare for schools to excess staff in the middle of the year, the six-month deadline in the law would include most of the teachers in the ATR pool at the present time.

4. Any teacher or supervisor convicted of a crime in the last five years.

5. Teachers and supervisors who have been fined for being chronically absent or late in the last five years. Also includes employees who have been fined for “improper use or recording of leave time.” The terms “chronically absent” and “chronically late” are not defined in the teachers union contract as a set number of days, according to a spokesman for the UFT.

6. Teachers and supervisors who have been the subject of an investigation in the last five years that ended with the charges being substantiated. This covers school employees who have been investigated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity. Having charges substantiated translates to an indictment, but it does not mean that these people have been found guilty.

7. Teachers and supervisors who, by the August 31 of the year in which layoffs take place, have not completed their certification.

8. Teachers who, for two years or more, have been ranked in the bottom 30 percent of teachers based on their students’ test scores. These rankings, which measure students’ progress against a model that predicts what their test scores should have been, cover a small percentage of teachers. Only teachers who teach math and English in grades 4-8 receive teacher data reports.

9. Teachers and supervisors who were not granted tenure after three years, but were put on probation for the year preceding layoffs. Recently, the Department of Education has begun encouraging principals to extend teachers’ probation rather than offer them tenure if they believe the teacher shows promise, but is not yet ready for a lifetime commitment from the city. Anecdotally, I’ve heard from teachers who’ve had their probationary periods extended by one or two years when their schools had a series of new principals, each of whom requested an additional year to get to know her staff.

And we’re not done yet.

If the city lays off all of the teachers who fall into multiple categories, then proceeds to the first category — those with unsatisfactory ratings — but discovers that it only needs to lay off a fraction of these people, then new measures come into play. Employees with the most unsatisfactory ratings in the last five years will be laid off first, followed by those who have been given U-ratings, as they’re commonly known, most recently.

Employees in the Absent Teacher Reserve will be laid off based on how long they’ve been in the pool. And teachers and supervisors who have been convicted of a crime in the last five years will be laid off based on how recent the conviction was. Among those who fall in the low value-added score category, teachers with the lowest scores will be laid off first, unless they teach children with disabilities or who require special education services.

If the city makes its way through this labyrinthine process and still needs to lay off more teachers, the ball rolls into the court of the Board of Regents, who will get to decide what types of teachers are laid of next. The bill contains a measure meant to protect high needs schools — defined as those where 90 percent of students get free or reduced lunch — against being overly burdened by layoffs. It states:

Any such regulations must ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide.

If the Board of Regents does not come up with a layoff plan within 75 days, individual school principals will get to decide who to let go, using guidance from the city’s school chancellor. A committee of parents, teachers, and administrators is supposed to advise the principal in making this decision. However, if the city decides that it wants to eliminate all the positions within a certain license area (e.g. gym or art), it can overrule the Board of Regents and principals’ decisions.

and then read How Teaching Experience Makes A Difference