Teacher Tenure Hearings = Part 82 of the Commissioner's Regulations

Law and Regulations

• Part 82 of the Commissioner's Regulations

Education Law §3020-a. Disciplinary procedures and penalties.

1. Filing of charges.

All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-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 to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

2. Disposition of charges.

a. 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 (i) the charges in detail, (ii) 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 (iii) 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.

b. The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical abuse of a minor or student. The employee shall be terminated without a hearing, as provided for in this  section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter.

c. Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel, provided that a three member panel shall not be available where the charges concern pedagogical incompetence based solely upon a teacher's or principal's pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article. All other charges shall be heard by a single hearing officer.

d. The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.

3. Hearings.

a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner shall forthwith send a copy of both simultaneously to the employing board and the employee. The commissioner shall also simultaneously notify both the employing board and the employee of each potential hearing officer's record in the last five cases of commencing and completing hearings within the time periods prescribed in this section.

b. (i) Hearing officers. All hearings pursuant to this section shall be conducted before and by a single hearing officer selected as provided for in this section. A hearing officer shall not be eligible to serve in such position if he or she is a resident of the school district, other than the city of New York, under the jurisdiction of the employing board, an employee, agent or representative of the employing board or of any labor organization representing employees of such employing board, has served as such agent or representative within two years of the date of the scheduled hearing, or if he or she is then serving as a mediator or fact finder in the same school district.

(A) Notwithstanding any other provision of law, for hearings commenced by the filing of charges prior to April first, two thousand twelve, the hearing officer shall be compensated by the department with the customary fee paid for service as an arbitrator under the auspices of the association for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties. All other expenses of the disciplinary proceedings commenced by the filing of charges prior to April first, two thousand twelve shall be paid in accordance with rules promulgated by the commissioner. Claims for such compensation for days of actual service and reimbursement for necessary travel and other expenses for hearings commenced by the filing of charges prior to April first, two thousand twelve shall be paid from an appropriation for such purpose in the order in which they have been approved by the commissioner for payment, provided payment shall first be made for any other hearing costs payable by the commissioner, including the costs of transcribing the record, and provided further that no such claim shall be set aside for insufficiency of funds to make a complete payment, but shall be eligible for a partial payment in one year and shall retain its priority date status for appropriations designated for such purpose in future years.

(B) Notwithstanding any other provision of law, rule or regulation to the contrary, for hearings commenced by the filing of charges on or after April first, two thousand twelve, the hearing officer shall be compensated by the department for each day of actual service plus necessary  travel  and other reasonable expenses incurred in the performance of his or her duties, provided that the commissioner shall establish a schedule for maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed.

(ii) The commissioner shall mail to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.

(iii) Within fifteen days after receiving the list of potential hearing officers as described in subparagraph (ii) of this paragraph, the employing board and the employee shall each notify the commissioner of their agreed upon hearing officer selection. If the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list. The provisions of this subparagraph shall not apply in cities with a population of one million or more with alternative procedures specified in section three thousand twenty of this article.

(iv) In those cases in which the employee elects to have the charges heard by a hearing panel, the hearing panel shall consist of the hearing officer, selected in accordance with this subdivision,  and  two additional persons, one selected by the employee and one selected by the employing board, from a list maintained for such purpose by the commissioner. The list shall be composed of professional personnel with administrative or supervisory responsibility, professional personnel without administrative or supervisory responsibility, chief school administrators, members of employing boards and others selected from lists of nominees submitted to  the  commissioner  by  statewide organizations  representing  teachers,  school  administrators  and supervisors and the employing boards. Hearing panel members other than the hearing officer shall be compensated by the department at the rate of one hundred dollars for each day of actual service plus necessary travel  and  subsistence  expenses. The hearing officer shall be compensated as set forth in this subdivision. The hearing officer shall be the chairperson of the hearing panel.

c. Hearing procedures. (i) (A) The commissioner shall have the power to establish necessary rules and procedures for the conduct of hearings under this section.

(B) The department shall be authorized to monitor and investigate a hearing officer's compliance with statutory timelines pursuant to this section. The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this section for conducting such hearings are to be strictly followed. A record of continued failure to commence and complete hearings within the time periods prescribed in this section shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such hearings.

(C) Such rules shall not require compliance with technical rules of evidence. Hearings shall be conducted by the hearing officer selected pursuant to paragraph b of this subdivision with full and fair disclosure of the nature of the case and evidence against the employee by the employing board and shall be public or private at the discretion of the employee. The employee shall have a reasonable opportunity to defend himself or herself and an opportunity to testify in his or her own behalf. The employee shall not be required to testify. Each party shall have the right to be represented by counsel, to subpoena witnesses, and to cross-examine witnesses. All testimony taken shall be under oath which the hearing officer is hereby authorized to administer.

(D) An accurate record of the proceedings shall be kept at the expense of the department at each such hearing in accordance with the regulations of the commissioner. A copy of the record of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved. The department shall be authorized to utilize any new technology or such other appropriate means to transcribe or record such hearings in an accurate, reliable, efficient and cost-effective manner without any charge to the employee or board of education involved.

(i-a)(A) Where charges of incompetence are brought based solely upon a pattern of ineffective teaching or performance of a classroom teacher or principal, as defined in section three thousand twelve-c of this article, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in this subparagraph. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

(B) Such charges shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance with subdivision four of section three thousand twelve-c of this article for the employee following the first evaluation in which the employee was rated ineffective, and the immediately preceding evaluation if the employee was rated developing. Notwithstanding any other provision of law to the contrary, a pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article shall constitute very significant evidence of incompetence for purposes of this section. Nothing in this subparagraph shall be construed to limit the defenses which the employee may place before the hearing officer in challenging the allegation of a  pattern  of ineffective teaching or performance.

(C) The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this subparagraph for  conducting expedited hearings are to be strictly followed. A record of continued failure to commence and complete expedited hearings within the time periods prescribed in this subparagraph shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such expedited hearings.

(ii) The hearing officer selected to conduct a hearing under this section shall, within ten to fifteen days of agreeing to serve in such position, hold a pre-hearing conference which shall be held in the school district or county seat of the county, or any county, wherein the employing school board is located. The pre-hearing conference shall be limited in length to one day except that the hearing officer, in his or her discretion, may allow one additional day for good cause shown.

(iii) At the pre-hearing conference the hearing officer shall have the power to:

(A) issue subpoenas;

(B) hear and decide all motions, including but not limited to motions to dismiss the charges;

(C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements),  investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.

(iv) Any pre-hearing motion or application relative to the sufficiency of the charges, application or amendment thereof, or any preliminary matters shall be made upon written notice to the hearing officer and the adverse party no less than five days prior to the date of the pre-hearing conference. Any pre-hearing motions or applications not made as provided for herein shall be deemed waived except for good cause as determined by the hearing officer.

(v) In the event that at the pre-hearing conference the employing board presents evidence that the professional license of the employee has been revoked and all judicial and administrative remedies have been exhausted or foreclosed, the hearing officer shall schedule the date, time and place for an expedited hearing, which hearing shall commence not more than seven days after the pre-hearing conference and which shall be limited to one day. The expedited hearing shall be held in the local school district or county seat of the county or any county, wherein the said employing board is located. The expedited hearing shall not be postponed except upon the request of a party and then only for good cause as determined by the hearing officer. At such hearing, each party shall have equal time in which to present its case.

(vi) During the pre-hearing conference, the hearing officer shall determine the reasonable amount of time necessary for a final hearing on the charge or charges and shall schedule the location, time(s) and date(s) for the final hearing. The final hearing shall be held in the local school district or county seat of the county, or any county, wherein the said employing school board is located. In the event that the hearing officer determines that the nature of the case requires the final hearing to last more than one day, the days that are scheduled for the final hearing shall be consecutive. The day or days scheduled for the final hearing shall not be postponed except upon the request of a party and then only for good cause shown as determined by the hearing officer. In all cases, the final hearing shall be completed no later than sixty days after the pre-hearing conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension.

(vii) All evidence shall be submitted by all parties within one hundred twenty-five days of the filing of charges and no additional evidence shall be accepted after such time, absent extraordinary circumstances beyond the control of the parties.

d. Limitation on claims. Notwithstanding any other provision of law, rule or regulation to the contrary, no payments shall be made by the department pursuant to this subdivision on or after April first, two thousand twelve for:

(i) compensation of a hearing officer or hearing panel member, (ii) reimbursement of such hearing officers or panel members for necessary travel or other expenses incurred by them, or (iii) for other hearing expenses on a claim submitted later than one year after the final disposition of the hearing by any means, including settlement, or within ninety days after the effective date of this paragraph, whichever is later; provided that no payment shall be barred or reduced where such payment is required as a result of a court order or judgment or a final audit.

4. Post hearing procedures.

a. The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

b. Within fifteen days of receipt of the hearing officer's decision the employing board shall implement the decision. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph b of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his or her pay and other emoluments restored, for the period from the date of his or her suspension to the date of the decision.

c. The hearing officer shall indicate in the decision whether any of the charges brought by the employing board were frivolous as defined in section eighty-three hundred three-a of the civil practice law and rules. If the hearing officer finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges.

5. Appeal.

a. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.

b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Last Updated: June 19, 2012

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

Re-posted from NYC Rubber Room Reporter

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

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

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

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

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

Mecca Santana

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

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

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

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

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

The ATU is described below on the NYC BOE website:

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

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

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


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

want to work there? Here is the personnel ad:

Teacher Performance Unit Litigation Attorney
Tracking Code 6036
Job Description

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

Reports to: Executive Deputy Counsel

RESPONSIBILITIES

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

QUALIFICATIONS

Minimum Requirements

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

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

Preferred

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

Salary: $75,962+

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

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

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

Teacher Performance Unit

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

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

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

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

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Monastic Individuals

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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



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

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

Bring a union representative to any interrogation

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

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

Corporal punishment

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

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

False accusations

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

Verbal abuse

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

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