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.
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
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.
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
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
