If Charged With 3020-a and You Retire, Your Teaching License is Permanently Terminated

Termination is the Penalty If a Charged Employee Retires While Proceeding With 3020-a Arbitration

The point I would like to make is: if you retire after receiving 3020-a charges, you will be terminated.

See Jefferson v NYC DOE, below:
"the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a."

Supreme Court of the State of New York Appellate Division: Second Judicial Department 
D50816 N/ct AD3d Submitted - November 3, 2016 

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. 2015-11195 

DECISION & ORDER

In the Matter of Wayne Crawford Jefferson, appellant, v New York City Board of Education, respondent. (Index No. 6002/15)

Wayne Crawford Jefferson, Hazleton, PA, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the respondent to reinstate the petitioner’s New York City teaching license, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Butler J.), entered August 3, 2015, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was employed by the New York City Department of Education, sued herein as the New York City Board of Education (hereinafter the DOE), as a teacher until he retired on October 27, 2014.

At the time he retired, charges were pending against him pursuant to Education Law § 3020-a.

Pursuant to paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205, the petitioner’s New York City teaching license was permanently terminated since charges were pending against him pursuant to Education Law § 3020-a at the time he retired. The petitioner was apprised of the termination of his license by an attorney from his union. The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the DOE to reinstate his teaching license. The DOE moved to dismiss the petition.

The Supreme Court, in effect, denied the petition and dismissed the proceeding, and denied the motion as academic.

The petitioner appeals.

“A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government” (Matter of Gottlieb v City of New York, 129 AD3d 724, 725; see Matter of Hollander v Suffolk County Dept. of Social Servs., Child Support Enforcement Bur., 140 AD3d 1064, 1065).

When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (see CPLR 7803[3]; Matter of Gottlieb v City of New York, 129 AD3d at 725; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Gottlieb v City of New York, 129 AD3d at 725).

“Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations ‘necessary or convenient’ to the administration of the public school system” (Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102, 106). “The tenets of statutory construction apply equally to administrative rules and regulations” (id.). Such regulations should be construed in accordance with their plain language (see id. at 107; see also Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612; Matter of Brennan v City of New York, 123 AD3d 607).

Here, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding since the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a. The petitioner’s contention that he was unaware of this regulation, which was issued on September 5, 2000, and posted online on the DOE’s website, is unavailing, as he was “deemed to be on notice of the DOE Chancellor regulation[s]” (Matter of Benjamin v New York City Dept. of Educ., 119 AD3d 440, 441; see Salamino v Board of Educ. of the City School Dist. of the City of N.Y., 85 AD3d 617, 619).

The petitioner’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court
               January 11, 2017

129 A.D.3d 724 (2015) 10 N.Y.S.3d 542 2015 NY Slip Op 04645

In the Matter of CRAIG GOTTLIEB, Appellant,
v.
CITY OF NEW YORK, Respondents.

2014-01086

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 3, 2015.

Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

Ordered that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was "additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009," and directed the petitioner to pay the sum of $8,440. The SCU was directed to "[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount."

In March 2012, the petitioner admittedly withheld payment 725*725 and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a "Mistake of Fact" form to the SCU, claiming that his account was not in arrears and, instead, that he was "due a credit of $18.08." On November 14, 2012, the OCSE denied the petitioner's claim that the SCU "has made an error in the amount of child support debt that is owed," and determined that "there is an amount past-due and owing."

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v Bortnik, 91 AD3d 872, 873 [2012]). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739 [2014]). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, 726*726 and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the "Mistake of Fact" form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v Wambua, 117 AD3d 739, 740 [2014]; Ford v Department of Social Servs., 41 Misc 3d 1237[A], 2013 NY Slip Op 52045[U], *7-8 [Sup Ct, NY County 2013]; Ward v NYC Human Resources Admin., 2011 NY Slip Op 33162[U] [Sup Ct, NY County 2011]; Matter of Ovalles v New York City Human Resources Admin., 2008 NY Slip Op 33635[U], *2-4 [Sup Ct, NY County 2008]). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111-t; 18 NYCRR 346.11), and offset any refund of income tax by the amount of overdue support owed by him (see 42 USC § 666 [a] [3] [A]; Social Services Law § 111-b [7], [8]; 18 NYCRR 346.9). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

The Supreme Court also properly granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging violations of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction. On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

The substance of the cause of action alleging a violation of the Fair Credit Reporting Act was, in essence, a challenge to the determination by the OCSE that the petitioner's account was in arrears, which authorized the OCSE, pursuant to Social Services Law §§ 111-b, 111-c and 111-t, to take enforcement action and report his arrears to the credit reporting agencies. This cause of action essentially constituted a request for relief pursuant to CPLR article 78, regardless of the form in which it was pleaded and, thus, was properly dismissed (see Hertzel v Town of Putnam Val., 121 AD3d 641, 643-644 [2014]; Kickertz v New York Univ., 110 AD3d 268, 272 [2013]).

727*727 "[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v City of New York, 240 AD2d 543, 544 [1997]; see Dillon v City of New York, 261 AD2d 34, 41 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.

Finally, the Supreme Court properly granted those branches of the respondents' motion which were to dismiss causes of action alleging gross negligence and for injunctive relief. Even if the allegations contained in the petition are assumed to be true, they do not state a cause of action to recover damages for gross negligence or supporting the issuance of a permanent injunction (see Vilella v AT&T, 35 Misc 3d 1224[A], 2012 NY Slip Op 50853[U], *10 [Sup Ct, NY County 2012]; Josey v Sallie Mae, Inc., 2009 WL 2518643, *8, 2009 US Dist LEXIS 72157, *24-25 [SD NY, Aug. 17, 2009, No. 09 Civ. 4403 (SHS) (AJP)]).

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
LINK
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.

Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?

If you are working in disciplinary hearings or 3020-a arbitration, or you want to appeal an arbitrator's decision, you should use JUST CAUSE in your argument.

Betsy Combier

 

                                                   

 JUST CAUSE FOR DISCIPLINE

Did You Know as a union member your employer can not discipline you or fire you without “Just Cause”?

The U.S. labor movement has secured a number of important rights for unionized workers. Among such rights, just cause provides important protections against arbitrary or unfair termination and other forms of inappropriate workplace discipline. Just cause has become a common standard in labor arbitration, and is included in labor union contracts as a form of job security. Typically, an employer must prove just cause before an arbitrator to sustain an employee's termination, suspension, or other discipline. Usually, the employer has the burden of proof in discharge cases or if the employee is in the wrong.

Employees are expected to meet performance standards and behave appropriately in the workplace. Disciplinary or corrective action taken by the employer is supposed to be a process of communicating with the employee to improve unacceptable behavior or performance. There is a set of guidelines, called the “Seven Tests of Just Cause” that employers are expected to follow when imposing discipline; that Unions need to assure have been applied to their members; and that arbitrators use as a basis to form their decisions.

A LITTLE HISTORY:

For decades, professional arbitrators struggled to reach consistent decisions in discipline cases, because they recognized that inconsistent results produced chaos in both the arbitration process and the work place. Finally, noted arbitrator Carroll R. Daugherty decided to take the bull by the horns by combining the many concepts employed by arbitrators in discipline cases into a single theory which he called “a sort of ‘common law definition” of just cause. It set out to be applied to the facts of any one case which we now refer to as the seven tests of just cause.

The award by Arbitrator Daugherty which is generally recognized as the first decision to formally set out all of the seven tests of just cause was in the matter of Enterprise Wire Co. and Enterprise Independent Union and was issued March 28,1966 (46 LA 359).

You can read Daugherty’s full Arbitration Decision at  https://www.hawaii.edu/uhwo/clear/home/EnterpriseWire.html                                            

This was a discharge case involving absenteeism and unsatisfactory work. Unfortunately, in this case, Arbitrator Daugherty ruled in favor of the employer; the union lost the case and the employee was fired. This historic case set the rules for Just Cause and is still being used today by employers, and arbitrators.

DID THE EMPLOYER HAVE JUST CAUSE?

Using the Seven Tests

Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.

Issues

* Our main contractual weapon in discipline and discharge cases is usually the requirement that the boss must have "just cause" (or "fair cause" or "proper cause") to take action against an employee. Even if these words are missing from the contract, many arbitrators use this standard, anyway.

* But, what is "just cause"? Simply put: it means the employer must have a reason (he or she must have "cause") for imposing discipline and the reason must be fair ("just").

* It is commonly accepted that there are seven tests as to whether the boss has used "just cause" in handing out discipline.

One of the main reasons workers join unions is to gain protection against unfair and unjust discipline that employers hand out. Stewards must be ready to handle all sorts of discipline cases, from warnings to suspensions to firings. Stewards must be ready to deal with situations of gross discrimination by the boss on who gets disciplined, to dealing with union members who sometimes seem to go out of their way to get themselves fired.

Our main contractual weapon is often times summed up in one short sentence, "Employees shall be disciplined or discharged only for just cause". In some contracts the words used are "proper cause" or "fair cause". The importance of a sentence like this is that it binds the employer to imposing discipline not just for any reason (cause) but the reason has to be a "just" reason. Many arbitrators have gone so far as to hold all employers to a "just cause" standard, whether the contract uses the words or not.

What is a "just cause" standard? It is commonly accepted that there are seven tests as to whether a boss has used "just cause" in handing out discipline. The Bureau of National Affairs lists them as follows:

1. NOTICE – Was the employee adequately warned of the consequences of his conduct?

Prior to imposition of discipline, employees must have notice of rules and expectations. The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing employer property, that is so serious that the employee is expected to know it will be punishable.

Example: If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that may be adequate warning. However if a boss comes up to an employee and says "I'm tired of your swearing, cut it out", and then the next day fires the employee for swearing again, that may not be adequate warning.

2. REASONABLE RULES OR ORDERS – Was the employer's rule or order reasonably related to efficient and safe operations?

Was the employer’s rule reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer should properly expect of the employee?

Example: A boss makes a rule that all employees must wear red tee shirts and they must be tucked in so they don't get caught in machinery. An employee is fired for wearing a blue tee shirt that was tucked in. Making a rule that tee shirts must be tucked in so they won't get caught in machinery may be reasonable and related to safety, but demanding the tee shirt be red isn't related to safety or efficiency.

3. INVESTIGATION – Did management investigate before administering the discipline?

Did the employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule of management? The investigation normally should be made before the decision to discipline is made. Where immediate action is required, however, the best course is to suspend the employee pending investigation with the understanding that he will be restored to his job and paid for time lost if he is found not guilty.

Example: The boss fires a worker for stealing and then demands evidence from the union that the worker isn't guilty. At the grievance meeting the boss admits he never investigated the incident, just took another employee's word. This probably wouldn't hold up. If the union has facts to prove the employee's innocence they should be presented to the boss, even though he failed to properly investigate the case.

4. FAIR INVESTIGATION - Was the investigation fair and objective?

Example: If an incident happened does the employer interview everyone present or only management people who were present. If the employer refuses to interview nonmanagement workers then the investigation may not be fair.

5. PROOF - Did the investigation produce substantial evidence or proof of guilt?

It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.

Example: Here it is obvious that workers have fewer rights inside the workplace than they would have in civil court, but still the boss must have real evidence, not guesses. Again the boss cannot just try to make a worker prove his or her innocence, without presenting proof of guilt.

6. EQUAL TREATMENT - Were the rules, orders, and penalties applied evenhandedly and without discrimination?

If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.

Example: This is the most common form of discrimination. An employer decides to suspend Mary for taking too long at lunch, but lets the employees who eat lunch with a supervisor take extra time every day. This would not hold up. However, if the employer tells everyone that starting on Monday employees will be disciplined for taking too long at lunch and on Tuesday Mary comes back late and everyone else has been on time, she may be disciplined.

7. PENALTY - Was the penalty reasonably related to the seriousness of the offense and the past record?

Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his or her service with the employer?

If employee A's past record is significantly better than that of employee B, the employer properly may give employee A lighter punishment than employee B for the same offense. The degree of discipline, is important because arbitrators want to ensure that the "punishment fits the crime." An employer's use of progressive discipline often gives the employer an advantage in arbitration.

Example: The classic example is two employees get in an argument and shove each other. One has 25 years service with a clean record. The other has 3 years service with lots of warnings and discipline. Based upon the workers seniority and records, the employer may give the older worker less punishment than the other worker.

---

Tips for Handling Discipline & Discharge Cases

Here are some basic tips for stewards handling discipline and discharge cases:

* Use the "seven tests" as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn't mean we automatically win, but proving they screwed up helps a lot.
* Make sure that an employee's Weingarten rights aren't or weren't violated during the employer's investigation.

* Try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door, now we not only have to fight about what happened but over back pay, etc.
* Ask for all the employers’ notes and records they used to make a decision. Get any notes or records a foreman or supervisor might keep, even informal records. The union has a right to them. On the other hand the employer has no right to the notes or records that the union makes when investigating a case.
* Do a thorough investigation of the case. DON'T take the employers word on anything.
* In a grievance meeting make the employer prove their case first. Make them present all the facts and don't assume anything. Don't let the boss start the meeting by saying to the union, “OK tell me why I shouldn't fire Joe". Make the boss justify firing Joe.
* There are two parts to every discipline case. Did the employee violate a known rule and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.
* If the employer refuses to back down from a written warning and the case doesn't merit arbitration make sure the employer receives from the union a written statement disputing the facts and the discipline. Have this letter also put into the employees personnel file.

---

In closing, we should all be aware of the JUST CAUSE principles; and we all need to know what PROGRESSIVE DISCIPLINE looks like.

Within any workers career they will face at least one episode that could be discipline. Has your supervisor discussed a matter with you that he or she has asked you to change? It may sound like a friendly suggestion; and it might be. But it also is Step one of Progressive Discipline.

---

---

SOURCES:
http://en.wikipedia.org/wiki/Just_cause"Categories: Employment
http://research.uiowa.edu/pimgr/?get=7steps
http://www.umass.edu/usa/justcause.htm
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)
http://das.hre.iowa.gov/html_documents/ms_manual/11-10.htm
http://clear.uhwo.hawaii.edu/EnterpriseWire.html

Betsy Combier on Teacher Due Process Rights Given By the Bloomberg Administration (none)

Michael Bloomberg and Michael Cardozo

 From Betsy Combier:

First, I am not an attorney, just a writer/journalist. I, like most people, have opinions. Below are a few of them.

The New York City Department of Education as set up by Mayor Michael Bloomberg and his sidekick New York City Law Department Corporation Counsel Michael Cardozo, (see below for a 2009 rebuke from the NY Appellate Court Judges) are breaking the law. Specifically, New York State Education Law Section 3020-a. Lawyers who work for The Gotcha Squad and prosecute tenured teachers brought up on bogus charges of misconduct and/or incompetency know this, so do NYSUT Attorneys, and attack anyone who notices their lawless procedures in bringing "Just Cause for Termination" to all cases of 3020-a arbitration. 

Both NYSUT and the DOE Attorneys are contracted to "prosecute" teachers under the presumption that all individuals brought to 3020-a are guilty of the charges. Other presumptions that effect all cases are: the case must look at ONLY the specifications, and nothing else (i.e., the principal is breaking the law with special needs children, stole money, has skeletons in his/her closet, the person making the charge is not in the school, didnt see what happened, wasnt there...). Obviously, anyone who says that ALL facts must be brought in to the hearing to give motive and prove innocence is someone who must be tarred and feathered. That's me and the lawyers I work with, but  we do not care about this fluff and stuff, and all of that leads to a stronger case in court for any kind of appeal against the arbitrator.

For instance, on April 19, 2013, I walked by a hearing room with the door open, at 49-51 Chambers Street, and I heard NYSUT Attorney Maria Elena Gonzalez Lichten telling Arbitrator Stephen O'Beirne how "she" put my email on her blog, and...". You dont think that the Attorneys speak to arbitrators only about the cases they are doing before them, do you? Anyway, I am posting the stuff I have already placed on this blog about Maria Elena Gonzolez Lichten, wife of Stuart Lichten, to update Mr. O'Beirne on what I have written, see here, here, and here. Mr. O'Beirne is an excellent Arbitrator, in my opinion, and can see through this infantile approach to squashing opposition to the Plan ("terminate any DOE employee who has tenure and is brought to 3020-a") . By the way, Mrs. Lichten, when you said in your email that I lied, I am still waiting to hear about what, so that I may address whatever it is that I lied about? My email address is betsy.combier@gmail.com, as you know.

Now to the charging process and determination of probable cause. If you are handed your specifications with a cover letter that says "...Principal __________ has found probable cause on the charges preferred against you" tell your attorney to ask, on the record and to the arbitrator, how the principal can find probable cause against you, considering the fact that Education Law 3020-a states that the school board must go into Executive Session and vote on whether there is probable cause, bring in Appendix A, usually served with the specifications - if you dont get this document, print out Education Law 3020-a and bring in those pages. (New York State Education Law 3020-a(2)(a)). New York City is part of New York State, and as far as I know, no agreement which conflicts with the law is valid.

The April 15, 2010 so-called 'agreement' signed by Joel Klein and Mike Mulgrew cannot be legally binding because Joel Klein signed the 'agreement' as chancellor, and he was never legally chancellor because he never had a contract, required by Education Law Section 2590-h. I wrote the "Who Are You Kidding Award Goes To Joel Klein" in 2007, but Mike Bloomberg never gave out any contracts to Klein, Black or Walcott. On January 7, 2013, Arbitrator Roy Watanabe asked DOE Attorney Lisa McFadden if Walcott had a contract. She said yes, and brought into the 3020-a hearing the waiver given to Walcott by New York State Commissioner David Steiner, giving Walcott permission to be chancellor:

Waiver from Steiner To Dennis Walcott

I am not a lawyer, but I believe that as Mr. Walcott did not sign this document, there is no term of office, and for many other reasons, this is not a contract, howevermuch the Gotcha Squad says it is. Compare with the contracts of Harold Levy and Rudy Crew in my 2007 article "The Who Are You Kidding Award Goes To Joel Klein"

I noticed what they were doing eight years ago. For 5 years I remained a silent observer, writing notes on everyone from a corner by the wall as a member of the public. Then someone at the DOE made up that I taped during a hearing, and this was completely false, but I became the omen of doom when the Attorneys realized that I knew what the fraud was. NYSUT Attorney Shawn T. Kelly, for example, on May 25, 2011 while everyone at 49-51 Chambers Street was on the sidewalk due to a firedrill, screamed "Dont talk with Betsy Combier, you will be terminated..." and other nonsense.

Then there are the screamers and naysayers from the DOE, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan, all Department Attorneys who would rather scream  at me and try to get me run over by a bus than address the fact that they are harming innocent people without just or probable cause.

EDUCATION LAW §3020-A MANDATES A VOTE ON SPECIFICITY BY A SCHOOL BOARD

Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a, Article 61) This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one.

NYS Education Law §2590-g does not address the issue of review and scrutiny of whether there is probable cause to proceed with the prosecution of disciplinary charges against tenured educational personnel. The requirements of NYS Education Law §3020-a and §3020-a (2)(a) , under which tenured personnel may be disciplined for “Just Cause”, are absolute and require that before charges can be brought against a tenured educator, the School Board must:

a. Determine that there is “probable cause” for the proceeding with charges by a majority vote by the Board.
b. Make this determination within 5 days of the charges being filed with the Board.
c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.

Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.

The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law, as all arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a.

The relevant parts are as follows:
“Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required.”

Section 3020a(2)(a) of The NY Education Law states:

“Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee’s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.”

Furthermore, Section 2590(j)(7)(b) of The NY Education Law specifically states:

“Charges may be initiated by the community superintendent against any such employee.” There is no mention of a principal finding probable cause. Certainly it is unreasonable to believe that due process exists when a principal charges a teacher without any accountability to anyone for that decision, and then finds probable cause for charging the teacher. Therefore the Just Cause Standard is not reached, and no hearing can proceed.

Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a)).

Compliance with this provision is a jurisdictional condition precedent to a §3020-a disciplinary hearing. Without it, the hearing cannot go forward. Prohibition is the appropriate procedural remedy for the assertion of a claim where prohibition is available “to prevent a body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction.” See: Matter of Schumer v Holtzman, 60 N.Y. 2d 46, 51; Garzilli v Mills, 250 A.D.2d 131 (3d Dep’t 1998); Community School Board No. 29, SED No. 3562 (Howard Edelman, a member of the UFT-DOE arbitration panel in New York City -Dec. 14, 1998).

In New York City, §3020-a teacher disciplinary proceedings have become penal in nature and not arbitral in the same manner labor grievances are resolved. Matter of Clayton v Bd. of Educ., 49 A.D.2d 343 (3rd Dept 1975). Submission to these disciplinary hearings are compulsory and the jurisdiction of the hearing officer is derived from statute. Teachers are charged, similar to an indictment in the criminal world, upon determination of probable cause.

When I started examining the procedures used by the newly instituted Department of Education, I saw that my knowledge of education law and arbitration, which I got by reading my own books (I am not an attorney) did not give me any clue as to the random and arbitrary nature of the 3020-a hearings I was asked to attend in NYC. So, I studied the lawyers and the arbitrators to try to find out how the law could be ignored. Then the Gotcha Squad realized that I was on to something, and took it upon themselves to attack me.

So now I can write about the lawyers who decided to attack, and will provide my website with the names of the Attorneys who threw aside the lives, careers, health benefits and tenured positions of teachers in order to make a profit.

NY Appellate Bench Rips Cardozo in Law Journal Letter

LINK
In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.
The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).
But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:

“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”

The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).
You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:

In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.

The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:

The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.

After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority. A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.
And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:

[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.

Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.
It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”
The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.