Sunday, October 11, 2020

Agreement Signed by NYSUT and NYC DOE General Counsel On How To Proceed With 3020-a Hearings During COVID-19 Danger

                          NYC DOE General Counsel Howard Friedman         
 

I am a paralegal who has completed about 110 teacher trials (known as "3020-a arbitration"), settled about 20, got withdrawal of all charges for four educators, and won exoneration for nine educators over the past nine years. Before I started actually working on these trials/arbitrations, I spent eight years sitting in hearings as a volunteer observer in my own time, writing notes on everything that was said and done. I taught myself the ropes.

The UFT legal arm is NYSUT, or New York State United Teachers. In this group are Attorneys who represent educator members throughout New York State whenever charges are filed against an individual member. These Attorneys are free, and you get what you pay for, in my opinion. I know almost all of them, having worked for the UFT and meeting them in the hearing offices. NYSUT attorneys will not work with anyone outside of NYSUT. 

In NYC, both NYSUT Attorneys and the prosecuting Attorneys at the NYC DOE Office of Legal Affairs under the direction of General Counsel Howard Friedman want to remove outside counsel from representing charged educators, basically to maintain control of the hearings themselves and to make sure that the outcome is "agreed" to by the school board/DOE. However, any charged educator may choose anyone he/she wants, to represent him/her at 3020-a arbitration. Many - in fact, increasingly - members choose to remove NYSUT and pursue the defense with a private legal team. Thus, when the pandemic hit NYC and hearings at 100 Gold Street in Manhattan were put on hold, I was wondering what would be the game plan.

Two days ago the hearings went into full start again, but not a single private attorney with whom I work on these cases would agree to go into the building and the small hearing rooms of the Legal Unit at 100 Gold 3rd Floor. Turns out, NYSUT and the NYC DOE had made a deal (that was not sent to any private attorneys) to put all hearings on Zoom until whenever.

This should be interesting. Arbitration by zoom has its' pros and cons. I currently have five cases to put on, and you all know I will let you know what happens, after the hearings are over. 

For now, see the MOA signed by Beth Norton, General Counsel of NYSUT and Howard Friedman, General Counsel of the NYC DOE. Enjoy.

Betsy Combier

Memorandum of Agreement between the 
Board of Education of the City School District of the City of New York and the
United Federation of Teachers, Local 2, AFT, AFL-CIO

               1.      3020-a Hearings:

a.       Nothing in this Memorandum of Agreement (“MOA”) shall constitute a waiver or modification of any provision of any memorandum of agreement, collective bargaining agreement (and the documents incorporated therein by reference), letter or other agreement between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers, Local 2 (“UFT”), or past practice except as expressly set forth herein.

b.      This MOA is intended to address the extraordinary conditions presented by the novel coronavirus pandemic and the risk of COVID-19. This MOA will sunset on June 30, 2021, unless both parties agree to extend, in writing, this MOA no later than May 1, 2021, or upon such time as school resume full in-person instruction, whichever is earlier. Notwithstanding the foregoing, either party may terminate this MOA for cause on 10 days’ notice, provided however that, prior to provision of such notice, the party seeking to terminate must have first raised the issue in question in consultation under Section 1(d) of this MOA and have escalated the issue to the General Counsel of the DOE and the General Counsel of the UFT. If no agreement is reached, the Chancellor and the UFT President will decide. For the purposes of this MOA “cause” is defined as either (a) an order issued by the Governor of New York in which all 3020-a hearings are held in abeyance; (b) an order or directive issued by the Chancellor pursuant to which schools are closed and staff are not working remotely; or (c) the Chancellor and UFT president agree that hearings cannot proceed in a manner consistent with this MOA and Education Law Section 3020-a.

c.       The parties acknowledge that the situation regarding reopening offices is fluid and that New York City began Phase One reopening as described in Governor’s Executive Orders on June 8, 2020, and has proceeded and may proceed through reopening phases, or not, depending on a number of factors including the rate of new infections of the virus. The parties agree that as they transition back to holding hearings in person, there may be a need for one or more of the participants to appear remotely, resulting in a hybrid in person/remote hearing. To the extent possible and permitted under all existing DOE safety rules as determined by the joint DOE/UFT Central Committee, the parties will proceed with in-person hearings. However, if in-person hearings are not possible then the parties will proceed remotely for the term of this MOA, whether with a hybrid model or completely remote.

d.      The Director of the Administrative Trials Unit (“ATU”) and the Director of the Teacher Performance Unit (“TPU”) shall meet monthly with the UFT, or the UFT’s designee to consult regarding the implementation of this MOA.

2.      Remote Hearings (Process and Protocols)

a.       The parties are committed to having these cases heard in an expeditious manner. The parties agree to conduct remote hearings according the protocols set forth in this MOA so that all issues are fully and fairly litigated.

b.      If a Respondent requests, the UFT will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If the UFT is unable to provide a Respondent with a location on a given hearing date, counsel for the Respondent will make every effort to provide the DOE with two (2) days’ notice and the DOE will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If UFT and the DOE are unable to provide location to the Respondent, the hearing will be cancelled, and the parties will split any cancellation fees. If a hearing is scheduled within 48 hours of the hearing date (e.g., as the result of a settlement of another matter), and the UFT is unable to provide Respondent with a location, the UFT will notify the DOE as soon as possible. Under these circumstances, should the DOE be unable to provide a private and secure location the parties agree to mutually reschedule the hearing date.

c.       The parties agree to make every effort to pre-mark exhibits, identify witnesses, stipulate to undisputed facts, and minimize the issues of fact to be tried remotely.

d.      Remote hearings for both ATU and TPU cases will resume and proceed in the order of their case queues/case assignments before their current hearing officers in a manner that is consistent with the Collective Bargaining Agreement. To the maximum extent possible the parties agree to ensure that the cases are managed timely.

e.       In the event a hearing is cancelled or interrupted as a result of an individual party’s technical issues, including but not limited to the party’s failure to have proper equipment, that party will bear the cost of any cancellation fees for the hearing date. 

3.      Platform:

a.       The parties agree that all remote hearings will occur on a single platform: Zoom Pro.

b.      The Hearing Officer (hereinafter “HO”) will be responsible for costs of using the Zoom Pro platform. 

4.      Procedures:

a.       Subject to paragraph 2(b), each party shall be responsible for ensuring their own equipment is properly functioning prior to the hearing date.

b.      The HO shall ensure that the court reporter can access the hearing to make the transcript of the hearing.

c.       The HO shall be the only “host” of the proceeding on the chosen platform and will ensure that each party has a confidential virtual break out room.

d.      The HO as host will ensure that the following participants will have access to virtual breakout rooms and that additional breakout rooms are made available for other participants/parties as needed, including:


o   Respondent and Counsel

o   Counsel and Witness

o   Counsel and Counsel

o   Counsel and HO

e.       A party shall be allowed to disconnect from the hearing to attend to administrative matters and the amount of time by a party spent off the record shall be in accordance with the CBA.

f.       Counsel shall make every effort to minimize any delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.

g.      The parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants with a right to such access.

h.      The SED official transcription service shall be the sole method of transcribing the proceeding. The SED official transcription company shall only access the audio recording feature of the platform and shall be prohibited from accessing the video recording feed of the platform.

i.        No party, witness, or other participant in the hearing may record via audio or video, transcribe, or photograph the proceeding.

j.        No party, witness, or other participant in the hearing shall use any chat feature of the chosen platform.

           5.      Exhibits:

a.       Proposed exhibits in the format in which the exhibit will be entered shall be emailed, using a secure platform, to opposing counsel five (5) days in advance of the entry of the exhibit.

b.      Counsel for the parties shall confer two (2) days prior to the hearing date to make best efforts to stipulate to the exhibit’s entry. If the parties agree to the entry of an exhibit, the exhibit shall be pre-marked. If the parties are unable to stipulate to the entry of the exhibit, the proposed exhibit shall also be pre-marked.

c.       Prior to the hearing, counsel responsible for entering the exhibit shall email, using a secure platform, to the HO and opposing counsel, any exhibits which have been pre-marked and/or stipulated to. The provision to the HO of a pre-marked exhibit for which the parties have not agreed to entry shall be without prejudice to arguments or objections as to admissibility, weight and/or relevance. Nothing herein prevents either party from introducing an exhibit or witness that was not pre- marked or identified.

6.      Mediation:

a.       The parties agree to mediate as many cases as possible or appropriate from ATU and TPU.

b.      The mediations shall also be remote and shall be complete by December 21, 2020. A second round of mediation will take place in 2021. Once the first round of mediation has concluded, the DOE will make every effort to identify additional cases for mediation to begin in March 2021.

c.       The arbitrators will be chosen by mutual selection of the parties.

9/22/20 

Beth Norton                                                       Howard Friedman
General Counsel                                                General Counsel
United Federation of Teachers, Local 2            Board of Education of the City School
AFT, AFL-CIO                                                  District of the City of New York

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