Some numbers on 3020-a From 2012 (Gannett Albany Bureau)

IN DEPTH: Districts Struggle To Remove Bad Teachers

4:55 PM, Apr 10, 2012 

By CARA MATTHEWS
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Gannett Albany Bureau

ALBANY -- A foreign-language teacher in Arlington, Dutchess County, was absent 127 teacher workdays during the 2008-09 school year, about 83 of which were unapproved personal and sick leave.

In the Mamaroneck, Westchester County, school district, a guidance counselor frequently berated less-senior colleagues, calling them "stupid" and "morons" from the 2005-06 school year to the 2007-08 school year.

An Albion, Orleans County, teacher mimicked a fifth-grader with a stuttering problem in May 2009 and made another child wear a box over his head as punishment in April 2009.

"He said, 'H-h-hi," when he greeted the fifth-grader one day, a student who witnessed the incident said.

Afterward, the boy "was just sad and he didn't talk for like a few days," the other student recounted during a disciplinary hearing.

The disciplinary cases, which led to the firing of the teacher and the guidance counselor, were among 40 filed against administrators and instructors outside New York City in 2010 and 2011 and obtained by Gannett's Albany Bureau through the state Education Department.

The review of records showed that in some instances, school districts moved swiftly to fire troubled teachers, while other cases lingered -- in some cases for four, five or even six years.

It took an average of 742 days -- just over two years -- for upstate districts to secure guilty decisions against teachers and administrators, according to a state Education Department report on cases resolved in 2010. It took an average of 512 days for not-guilty verdicts and 338 days for settlements.

For upstate cases decided in 2011, it took an average of 632 days for a guilty decision and 1,070 days for a not-guilty ruling. That's more than twice the length of time for non-guilty cases in 2010. It took an average of 287 days for cases that were settled.

The number of cases is minuscule compared to the number of teachers in New York. There were 146,601 teachers and 172,901 total staff in school districts outside New York City in the 2010-11 school year, compared to 69,170 teachers and 82,341 staffers in New York City.

How the cases were handled, however, has particular relevance now as the state is implementing new teacher evaluations that advocates say will more quickly identify and remove bad teachers. They will face an expedited hearing process if their performance is rated unacceptable for two consecutive years.

"We are writing into law a new national model for teacher evaluations that will put our students first and put New York state at the front of the class when it comes to school accountability," Gov. Andrew Cuomo said in announcing the agreement March 14.

Of the 40 upstate cases resolved in 2010 and 2011, 15 teachers were terminated and 24 teachers and administrators were suspended without pay, fined or penalized. In two-thirds of the 24 cases, school districts had sought to fire the staff member but were unsuccessful. One case was dismissed.

Upstate had fewer cases than New York City in 2010 and 2011. New York City had 74 cases two years ago and 88 in 2011.

Disciplinary action, school officials said, can get bogged down in the hearing process.

If a school district wants to discipline tenured teachers and administrators -- ranging from a reprimand letter to firing them - they have to hire an arbitrator for what is called a 3020-a hearing.

While the process protects school employees' due-process rights, it often can take years and cost districts hundred of thousands of dollars. The state Education Department pays millions of dollars a year for the hearings.

The Hearing Process

The new state budget, which took effect last week, seeks to curb state and local costs. The education commissioner now has the authority to set maximum daily rates for hearing officers' service, travel and other expenses. The commissioner also can limit the number of case "study" hours billed by arbitrators.

Districts and teachers will have to decide which arbitrator they want within 15 days, and no evidence can be introduced after 125 days, except in extraordinary circumstances.

Hearing officers who don't complete hearings in a timely manner can be removed from the list provided by the American Arbitration Association. Hearing officers can cost as high as $1,800 for a five-hour day, and daily rates for court reporters are about $1,000.

The costs have piled up. the state Education Department ended the fiscal year last month with a deficit of as much as $9.5 million for hearings. The payment backlog is 18 months, and some arbitrators have stopped taking cases.

Differing Results

In more severe cases, teachers and administrators are reassigned to their homes during the hearing process. In others, they are transferred to a district office or asked to work on curriculum development.

But they are all paid until their cases are determined. And the records aren't public until after the cases are decided, but even then, the public doesn't often learn all the specifics.

Of the upstate cases resolved in 2010 and 2011, many took one, two or three years to complete. There were several outliers, including one that took more than six years.

The Elmira school district brought charges against Theresa Usack, an assistant principal, in August 2006. The arbitrator dismissed all charges Feb. 7, 2011.

The district brought the case following a problem-filled eighth-grade class trip to Washington, D.C. Several students briefly went missing.

Hearing officer Nancy Faircloth Eischen described the charges as "frivolous" and ordered the district to pay Usack's $4,330 in legal fees and costs, as well as the state Education Department's expenses. The hearing process cost the district more than $55,000 as of last May.

However, the state has yet to send Elmira an invoice. Education Department spokesman Jonathan Burman said Wednesday it was "still being processed."

Usack, assistant principal at Broadway Middle School, said the disciplinary hearing was a waste of time and taxpayers' money. The charges were lodged while she was an assistant principal at Ernie Davis Middle School, and she was assigned to the alternative school for two years before her current assignment.

"I'm very glad that it's over, and I feel very strongly that it could have been avoided," she said. "It was an abuse of power by the school board at that time."

Usack said she's very good at what she does, works hard and treats all children as she would her own.

The school superintendent could not be reached for comment.

While the cost of 3020-a hearings is a large factor in bringing cases, there are others, said Jessica Cohen, district superintendent of the Onondaga-Cortland-Madison Board of Cooperative Educational Services. The district successfully terminated a teacher in September 2010 for incompetence.

"When a superintendent makes a recommendation to a board about bringing charges, you take into account the overall costs certainly, the impact on other staff, which is huge, the negative impact on other staff when they have to testify against their colleagues, and you also look for other ways to resolve the issues," she said.

High School foreign-language teacher Angela Cozzi was brought up on charges by the Great Neck, Nassau County, school district in June 2004, but her case wasn't decided until Aug. 19, 2010. The district accused Cozzi of incompetence. The hearing officer decided the punishment would be 45 calendar days without pay.

Impact On Career

Joyce Spiegel, a former speech pathologist for Mahopac, Putnam County, schools, received notice the district was pursuing 3020-a charges against her in September 2007. She was placed on paid leave pending the outcome. A hearing officer decided Sept. 21, 2011, that the district could fire her.

Spiegel was accused of exposing her breasts to staff members while students were present in the 2006-07 school year. The district alleged she didn't provide speech therapy the same school year to at least three students in the Mahopac Falls School Bridge Program, which serves special-needs children.

Spiegel denied she exposed her breasts. A town judge in Putnam County dropped five charges of misdemeanor child endangerment against her in a related court case.

Spiegel told Gannett's Albany Bureau that none of the allegations were true and that the four people who accused her planned out the charges and lied. A teacher and two aides in the program also were charged with child endangerment at the time. Charges were later dismissed against everyone.

"There was no basis for them, and the judge threw them out," she said.

The disciplinary hearing and the court case destroyed her successful 25-year career, said Spiegel, who was on paid leave for nearly four years.

The legal fees and other expenses for 3020-a cases add up quickly, said Thomas Manko, Mahopac schools superintendent, who received approval from the hearing officer to fire Spiegel. A related 3020-a case against a teacher who worked with Spiegel in the Bridge Program has not been resolved yet.

The cases have cost the district a few hundred thousands dollars a year, he said.

"Plus, the faculty who are being subject to the 3020-a hearing process are on paid leave. We can't suspend them without pay," he said.

Firings Avoided

Robert Kania, the Albion teacher who was accused of making fun of a student's stutter, had been warned after a previous incident that additional missteps could cost him his job. On Jan. 16, 2009, he was suspended for 10 days without pay for making inappropriate statements to a student with attention-deficit disorder and grabbing a child's sweatshirt.

The hearing officer ruled July 7, 2010 that the district had cause to fire the teacher.

Kanie, 36, told Gannett's Albany Bureau that he would never make fun of a student.

As for the box incident, he said he had a student from another class in his room to give that teacher a break. Kania claims the student put the box on his own head to be funny, and when he wanted to take it off, Kania said no.

Kania, who is pursuing a new career in human services, said he regrets the earlier case in which he grabbed a student. He apologized to the boy and his family, and the child stayed in his class that year. "I worked hard at rebuilding what I had broken with him," he said.

While the 3020-a process is designed to protect tenured school employees, it would work better if it were faster and more streamlined, he said.

The types of accusations against teachers who weren't fired were extensive. In the 40 cases, offenses ranged from pushing a student against a wall; pinning a student; using excessive force; allowing a 16-year-old girl to sit on a male teacher's lap and sleeping on school time.

In the Marion, Wayne County, school district, music teacher Troy Nolte was initially suspended without pay for three months for accessing pornography on a school computer, said superintendent Kathryn Wegman. Later, in February 2011, the district brought charges against him for inefficiency and insubordination.

He was fined $10,000 by the arbitrator. He is retiring in June and could not be reached for comment.

"I don't think this district had done a 3020-a before in history," Wegman said. "But it's the only way to discipline a tenured teacher."

The Webster, Monroe County, school district sought to fire Richard Smith, an assistant principal, because of a number of incidents.

He was charged with misconduct in February 2010 for making alleged inappropriate comments in the fall 2009, including that he had "seen more than he wanted to see when following girls who were wearing short skirts up the stairs," the records said.

He was observed sleeping numerous times on the job, although he claimed he had just been closing his eyes. He was accused of being drunk at a parent orientation and at other occasions. He said he was later diagnosed with Bells palsy, which causes facial paralysis.

The hearing officer decided last year on a four-month suspension without pay and wrote Smith's actions "represent substantial problems in judgment and behavior that need correcting."

Smith could not be reached for comment.

The Trumansburg, Tompkins County, school district charged Charles O. Dickerson High School gym teacher Julian Munoz with conduct unbecoming a teacher, immoral character and insubordination. In one incident, he was found guilty of misconduct for fraternizing with a 16-year-old girl and letting her sit on his lap. There was no sexual relationship and their families are friends.

Munoz, who could not be reached for comment, was suspended in March 2011 for four months without pay and reassigned to the elementary-school level. He had to pay a $5,000 fine.

Early Resolution

Many cases are resolved before they even get to the hearing phase with the help of a union representative, said Carl Korn, spokesman for the New York State United Teachers union. The law requires a pre-trial conference to encourage settlements, he said.

Teachers are entitled to due process, he said. A district may offer them tenure after a three-year probationary period. But during the probationary period, a teacher can be removed or dismissed for any reason without a hearing, Korn said.

The 3020-a process protects teachers against "politically motivated board members" and harassment, according to Korn.

The Four County School Boards Association -- which includes Ontario, Wayne, Seneca and Yates counties - supports having the state Education Department appoint hearing officers who would handle 3020-a hearings exclusively. That would improve the consistency and fairness of decisions, said Sharon Sweeney, the group's executive director.

The current system creates an incentive for arbitrators to make "milquetoast" decisions so they don't displease either party, she said.

The state Board of Regents wants to require everything over its annual appropriation to be divided equally between a school district and an employee's union (bargaining unit). The School Boards Association and NYSUT are against the proposal, and it was not included in the budget.

Webster, Monroe County, Superintendent Adele Bovard said she welcomes any efforts to move the process along faster. She said she couldn't comment on the Smith case because it's a personnel matter.

"The schedules are full, the arbitrators are few, and you have to coordinate everyone's schedules. You can wait for months between arbitration sessions," she said.

Jason Whong of the Gannett Albany Bureau contributed to this report.

These are the conditions under which school districts can bring 3020-a hearings against teachers:

Endangerment of student safety
Incompetence
Lack of certification
Absence from work
Insubordination
Corporal punishment and use of excessive force
Improper remarks, physical contact and relationships with students
Physical or mental disability

Source: Four County School Boards Association.

Gannett-point local cases:

Tracy Campanella, Arlington, Dutchess County, school district. The Union Vale Middle School foreign-language teacher received notice 10/15/09 that district was seeking termination. Hearing officer found for district 6/22/11.

Teacher guilty of incompetence and/or neglect of duty, and insubordination. Had been absent 127 teacher workdays during the 2008-09 school year, including 83 days of unapproved personal and sick leave. Insubordination was because she didn't submit a release the superintendent had requested and never went to medical appointments the district had directed her to. Reasons for her absences were redacted from hearing officer's decision. Campanella claimed she had the approval of the district, used teacher sick-bank time and helped with lesson plans during absence.

Anne Cunniff, Katonah-Lewisboro, school district, Westchester County. John Jay High School English teacher. The school board voted 3/18/10 to pursue charges of conduct unbecoming a teacher. Arbitrator ordered 4/18/11 that she would be on unpaid disciplinary leave for the rest of the school year and continue treatment with a psychiatrist or psychologist. Accused of making rude or inappropriate comments and gestures about and to students. There were seven charges between 11/09 and 1/10, including grabbing crotch in the presence of staff and students to demonstrate students' behavior and inviting a male senior into a room and commenting on his 'beautiful eyes' and that she was glad he was off drugs. Hearing officer found she was showing signs of "teacher burnout" from increasing workload and feeling she wasn't getting the help she needed from school.

Elizabeth Denhoff, Mamaroneck, Westchester County, school district, Hommocks Middle School guidance counselor. Terminated 3/2/10 after receiving notice of charges 12/11/07 that district wanted to fire her.

District pursued termination for belittling less-senior colleagues and their work on numerous occasions between the 2005-06 school year and the 2007-08 school year. Called them "stupid" and "morons," trapping one in an office while berating and threatening her for nearly an hour; threatening their employment status; and telling them to keep secrets from the administration. Denhoff claimed she was treated and punished differently than others for the same offense. Hearing officer said she had no remorse.

Ralf Embro, Rockland County Board of Cooperative Educational Services. BOCES River View High School homeroom and history teacher. Received notice 1/12/10 the district was pursuing termination. Hearing officer's decision came on 3/14/11.

Was found guilty of three misconduct charges, including creating an atmosphere of fear among colleagues by talking about his guns and attempting to communicate to students a message of tolerance for unlawful violence. He wore a shirt to school in the summer of 2008 that said, "What does a soldier feel when he captures the enemy? Recoil," or words to that effect. Was found guilty of insubordination by standing at military attention and refusing to speak when asked questions during an investigation into allegations he had made of irregularities in administering Regents exams.

Margaret Everett, Eden, Erie County, school district. Math teacher at Eden Elementary School. A pre-hearing conference was held 7/16/09 on district charges to end her employment. Hearing officer upheld district's move to terminate her employment 8/31/10. Was found to have violated regulations for administering a standardized test in March 2009. She didn't read all the directions beforehand and offered help to some students while they took the exam. Tests had a disproportionate number of erasures.

Margaret Germain, Onondaga-Cortland-Madison BOCES. Special-education teacher. Received notice district was pursuing termination 2/26/09. Hearing officer upheld district's case for termination 9/7/10. Charges were incompetence, inefficiency, neglect of duty and conduct unbecoming a teacher for failing to develop lesson plans for herself and substitutes; not communicating with teaching assistants; not developing individualized education plans for students; unwillingness to work with speech therapists, counselors, etc.; blaming other staff for her failures; unwillingness to accept constructive criticism. Also found guilty of conduct unbecoming a teacher for demanding to search lockers of other staffers. Incidents took place from 2006-2009.

Sal Imbimbo, Ossining, Westchester County, school district. Physical- and health-education teacher at Anne Dorner Middle School. Was charged 5/11/10 for 2/1/10 incident of pushing student against a wall and pinning with hand, yelling at him and using excessive force. District wanted to fire him. Arbitrator made decision 5/17/11. Imbimbo was suspended without pay for one month and required to have anger-management training paid for by the district. Was found to have violated the school board's, state commissioner's and Regents' rules against corporal punishment.

Robert Kania, Albion, Orleans County. Fourth-grade teacher, Albion Elementary School. Received notice of charges 6/2/09 that district wanted to fire him. Hearing officer on 6/7/10 said district had just cause to do that. Charged with misconduct for imitating a student's stutter and making another child wear a box over his head in two separate incidents in 2009. Insubordination charge was dropped. Had been suspended 10 days without pay in January 2009 for making inappropriate statements to a student with attention-deficit disorder and grabbing the student by the neck of his sweatshirt, among other actions, and was told he could be disciplined and terminated if another incident occurred.

Julian Munoz, Trumansburg, Tompkins County. Charles O. Dickerson High School gym teacher, reassigned to elementary school. Suspended without pay for four months, required to pay a $5,000 fine. District filed charges 11/4/09 seeking termination. Arbitrator made decision 3/11/11. Munoz faced nine charges based on incidents from 11/12/09 and 7/9/10, including conduct unbecoming a teacher, immoral character and insubordination. Had pattern of behavior with students that lead professionals to question behavior and recognition of appropriate boundaries. Had received warning memos. Found guilty of conduct unbecoming a teacher but not immoral character for hitting a student with a back injury with the cloth end of his lanyard, kicking him in the lower back/upper buttocks, knocking him over and exacerbating the injury. Guilty of same charge for fraternizing with a 16-year-old girl and letting her sit on his lap. There was no sexual relationship; the families are friends. Guilty of same charge for sending offensive emails on school's network. Found to have engaged in highly inappropriate and unprofessional conduct, but not insubordination, by putting belongings at an elementary school after being told not to.

Thomas Nichols, Brighton, Monroe County, school district. French Road Elementary School music teacher. Received notice from district 11/8/05 that he was charged with conduct unbecoming a teacher, neglect of duty, physical and/or mental disability and insubordination. Hearing officer made decision 1/10/11, suspending him during the course of remedial actions, including counseling and random drug testing, with the goal of returning to work 9/1/11. Guilty of conduct unbecoming a teacher for not being forthright with school doctors; not returning several items of school property; missing department meetings; brushing his teeth, shaving and combing hair in front of students; inappropriate confrontational behavior with colleague; and other charges. Also guilty of neglect of duty for many of same charges. Had been diagnosed with depression and attention deficit hyperactivity disorder.
Troy Nolte, Marion, Wayne County, school district. Music teacher, originally for high school, reassigned to elementary school. District brought charges 2/7/11 for inefficiency and insubordination, seeking $25,000 fine. Arbitrator's decision was 12/14/11. Fined $10,000. Suspended in March 2009 pending outcome of previous charges against him. Was found guilty and was suspended without pay 9/7/10 to 12/7/10. Returned from leave 5/10/10, told to use rest of school year to plan curriculum. Was found guilty of inefficiency for not writing lesson plans; guilty of insubordination for not following expectations in 6/21/10 annual evaluation and not submitting lesson plans. Was found to have engaged in deceit, delay and evasion on the principal's request for lesson plans.

Richard Smith, Webster, Monroe County, school district. Assistant principal. Was given notice of charges 2/12/10 on multiple charges of conduct unbecoming an assistant principal, decision was 6/22/11. Suspended without pay for four months. District had wanted to fire him. Smith was found guilty of most charges, such as inappropriate comments - some of a sexual nature - in reference to students. Examples include saying he saw more than he wanted when following girls wearing short skirts up stairs and telling a student that no boy should have the word "limp" in his name. Also neglected duties in planning a Washington trip, used profanities in front of staff members, rubbed a female teacher's back, didn't administer assessment test properly, and fell asleep in his office multiple times. Incidents occurred in 2008-09 and 2009-10 school years.

Had been on medical leave from 8/08-1/15/09 for depression. Suspended 11/09 and directed to have another psychiatric exam.

Joyce Spiegel, speech pathologist, elementary schools in Mahopac, Putnam County. District brought charges 9/27/07. Judge agreed on 9/21/11 with district's move to terminate her.

Was charged for lifting shirt and exposing breasts to another staffer in presence of students in the 2006-07 school year; and for failing to provide speech therapy to at least three students. Worked in program for severely handicapped students. Teacher denied breast incident, but it was corroborated by several other staffers. Several misdemeanor child-endangerment charges were dropped by a town judge in Putnam County.

Theresa Usack Armstrong, Elmira schools, assistant principal. District brought charges 8/16/06. Hearing officer dismissed all charges 2/17/11. No details provided -- dismissed charges are redacted from record before it is released to the public. Charges were brought after a class trip to Washington, D.C. that was fraught with problems. Hearing officer ordered district to pay $4,330 in legal fees and costs Usack incurred.

Valerie Yarn, Rochester schools, was physical-education teacher at high school, middle school and Wilson Foundation. District brought charges 2/23/09 seeking to fire her and amended charges 5/19/09. Arbitrator made decision 4/28/11. Placed on medical leave with health insurance through 6/29/12. Told to elect psychologist or psychiatrist and notify district by 9/15/11 for a period ending on or before 4/2/12. School district filed complaint in state Supreme Court. Judge vacated ruling and called for a new review of case by different hearing officer. Yarn's attorney had appealed the decision.

Yarn was charged with harassing co-worker, violating an order of protection (pleaded guilty to 2nd-degree criminal contempt in 2006) Charged with sending inappropriate messages to assistant principal for operations at Wilson Foundation and subjecting her to unwanted physical contact. Also, had girls remove bras for scoliosis exam, left students alone multiple times, late and absent multiple times and started to unbutton a student's blazer and continued to do so after the student asked her to stop.