Showing posts with label NYC DOE. Show all posts
Showing posts with label NYC DOE. Show all posts

Sunday, August 5, 2018

DeWitt Clinton High School Principal Charges Teachers With 3020-a If They Don't Change Students' Failing Grades



We now know that Principal Pierre Orbe demanded that 23 teachers meet with him who had, in the September 2016-January 2017 school semester, students with failing grades. He wanted to see their gradebooks. Then, they got packets with transcript update forms to change grades, along with the student name and grade to be changed. He then "suggested" that students who failed in the third marking period (January 2017) have their grades averaged so that they would pass.

When the UFT heard about this, the Chapter Leader told Orbe to immediately stop. Orbe said no.

A source told me that when former Chancellor Carmen Farina heard about these 'gradebook' meetings, she ordered Orbe to stop. Orbe said no, he was the principal. But he finally stopped after seeing 11 teachers.

Out of these 11 teachers, two told Orbe that they felt that the grades given were fair, and they would not change them. Both these teachers were charged with 3020-a.
 
Ridiculous. Orbe's charging these two teachers shows how flimsy an excuse principals need to bring an employee to 3020-a.
 
This has to change.
 
Betsy Combier
betsy.combier@gmail.com
betsy@advocatz.com

The NY POST published a story online on June 16, 2018, and in the paper on June 17, 2018, about DeWitt Clinton High School Principal Pierre Orbe and his handing out "mastery packets" to students so that students can gain passing grades in courses which they never attended, or missed tests, homework, and/or did not "master" the content.

In my opinion, there is alot more to this story, namely that Principal Pierre Orbe had meetings with teachers who he felt did not grade their students "correctly" in order to force these teachers to pass the students who had failed. And he disciplined the two teachers who said "no" to his "request", with 3020-a arbitration. Only two teachers said no to changing the students' grades and both hired me and Attorney David Barrett to represent them at their 3020-a.
Pierre Orbe


All principals change grades or, try to. It is the right thing to do, if the grade is unfair to the student or needs to be changed because it is a misprint or whatever. I have completed more than 60 3020-a cases, and I do massive research into all the actions of the principal, Superintendent, teachers, para, anyone who participates in the charging process. Changing grades of students and credit recovery are standard in all schools. Principals are supposed to change grades unless there is some kind of media attention to the way they do it, which occurred in the case of the previous Principal of DeWitt Clinton, who was Santiago Taveras. He was given another job at the NYC Department of Education, with a high salary after he was "punished" for changing 900+ grades without the teacher's approval.

I am the parent of four daughters, and I understand that stuff happens.

But Orbe is wrong to charge teachers with 3020-a if they dont think the student merits a grade change and will not change a grade for that reason.

The UFT Collective Bargaining Agreement states in Article 8J that a teacher's grades must be respected. In other words, the teacher must sign off on the grade change. But Pierre Orbe was brought in to DeWitt Clinton to make the school, a failing Renewal School, look good. He did not want to get any teacher's approval, he wanted to order teachers to do what he wanted.

Pierre Orbe started as Principal at DeWitt Clinton Feb 6, 2017.

He spent the month of January at the Superintendent’s office, studying what Santiago Taveras had done at DeWitt Clinton. He saw that HE, Pierre Orbe, had to collaborate with teachers in order to change failing grades to passing grades. But he was hired to make DeWitt Clinton, a Renewal School, look good, and support Carmen farina, the Chancellor, who pushed through the program. The program was failing (and Carmen was NOT happy).

What is clear to me having completed one of the 3020-a hearings, is that Pierre Orbe despises teachers and their right, in the Collective Bargaining Agreement, to have autonomy in grading as they see necessary. Here is a quote from of Orbe’s testimony, on February 7, 2018:

"To any lack of transparency, to
9 not sharing anything, but in a school where it's
10 75% stricken with below the poverty line, or
11 maybe the parent involvement is a little bit
12 lower, and they've gotten used to not having
13 transparency, to having what you would consider
14 a second or third rate level of treatment, this
15 is what I would expect. The impact is dramatic.
16 There is a sense of learned helplessness that
17 overcomes a community. You start to become--you
18 accept this, but you become angry. You accept
19 it, but you're really annoyed that no matter how
20 angry you get, you're still at the mercy of the
21 grade creators."

So, one month after entering DWC, he set up “Gradebook meetings” for all the teachers who failed students “too much”. This is the scholarship report, or “failure report”. At the 3020-a we were handed 52 pages of students, their names, classes, teacher, and grades for the September 2016-January 2017 Fall semester.

Orbe called 23 teachers to a “gradebook meeting” in March-April 2017, after Taveras left. But Orbe was able to meet with only 10 teachers before the UFT and/or the DOE stopped the meetings.These meetings were stopped because he was using his power and authority to force teachers to change grades or be disciplined. He could not do this.

Each teacher left the meeting with the names and grades that were supposed to be changed upward. Each teacher was given a packet with a Transcript Update Form to fill out and sign. As you can see, the Transcript Update Form must be signed off on by the teacher and principal. The two 3020-a charged teachers filled his out, but did not agree with Orbe that these students’ grades should be changed, so never handed the Form in.

The other teachers all, evidently, changed the grades as requested., and were not charged with 3020-a at that time. I am not blaming them, or anyone. Teachers must do as told and grieve later.

Both teachers who would not change the students' grades (they felt that the students should not be given passing grades for not showing up) were given 3020-a charges and reassigned to a Bronx rubber room. What is shocking is that both teachers were charged in the same OSI investigation, and the OSI Investigator was not given the right information about grading policy (he was not told about the school approving a grade of 60 which had been in place for many years). The investigator nevertheless UNSUBSTANTIATED the charges and found both teachers not guilty of misconduct.

This was not ok with Orbe. Quickly, OSI Supervisor Francine Campbell substantiated the charges against the two teachers who did not change the grades of their students. Ms. Campbell, an Attorney, did not do her own investigation, changed the "unsubstantiated" to "substantiated, then left her job at OSI. See p. 1 of the OSI report, last entry dated 7/21/17.She no longer works at OSI.

We wanted Ms. Campbell to come in to tell us why she changed the conclusion but the DOE refused to bring her in or give us her address to serve the subpoena SIGNED BY the ARBITRATOR.

I found her address and email from the Attorney Grievance Committee in Albany and called Joanne Vargo to confirm. Vargo told me to stop immediately from looking into her – Campbell – because she no longer worked for the DOE . She added, “her employment with us did not end well”.

Francine Campbell refused to come in:

From: Francine Campbell [mailto: ]
Sent: Friday, April 13, 2018 1:14 PM
To: David Barrett, Esq.
Subject: Re: Subpoena in 3020a Hearing

Mr. Barrett,

I have made it abundantly clear that I do not wish to appear at this hearing, and that there are other current DOE employees who can speak to the content of the report and the investigation as a whole. My current work schedule would not permit me to appear at the hearing. Moreover, there is nothing more that I can add to the reasoning behind the decision made in the investigation that is not already in the case file or that can be explained by the Executive Director or the Deputy Director of OSI. Please do not waste your time or money serving me with a subpoena, as I know that you will not glean any more information from my testimony that you do not already know.

~~~~~~~~~~~~~~~~~~~

Francine A. Campbell, Esq.

~~~~~~~~~~~~~~~~~~~

Here is the NY POST's article published June 17, 2018:

Principal lets students pass even if they never went to class
by Susan Edelman and Sara Dorn, June 16, 2018

This high school is a hooky player’s dream.

At DeWitt Clinton HS in the Bronx, kids who have cut class all semester can still snag a 65 passing grade — and course credit — if they complete a quickie “mastery packet.”

Insisting that students can pass “regardless of absence,” Principal Pierre Orbe has ordered English, science, social studies and math teachers to give “make up” work to hundreds of kids who didn’t show up or failed the courses, whistleblowers said.

“This is crazy!” a teacher told The Post. “A student can pass without going to class!”

The 1,200-student Clinton HS is one of 78 struggling schools in Mayor deBlasio’s “Renewal” program. Last year, 50 percent of seniors graduated, but only 28 percent of the grads had test scores high enough to enroll at CUNY without remedial help.

The DOE’s academic-policy guide says students “may not be denied credit based on lack of seat time alone.” Passing must be based “primarily on how well students master the subject matter.”

Orbe has taken the policy to a absurd extreme, teachers charge.

“We’re kind of being forced to pass students who don’t deserve to pass,” one said.

Another said, “It’s unfair to the students who made every effort to come to class, complete assignments — and earn the credit.”

In a meeting, Orbe dismissed their concerns, teachers said. They also complained he gave no written guidance on what to put in the packets, which were handed out starting June 12 — after the last day of classes. Kids have until June 26, the last day of school, to turn them in.

One girl never attended a single class during the whole spring term — Jan. 30 to June 11, a teacher said. Another came one day. Both skipped homework, classroom writing tasks, group discussion, quizzes, and essay assignments or exams. Another kid showed up but failed tests and “didn’t do any assignments or participate in class.”

Their packets require only completion of tests. One student who has returned the packet “did not demonstrate mastery” — and will fail, the teacher said.

Since the work can be done at home, teachers said, kids can copy off the Web, or otherwise cheat.

Students had mixed feelings about the packets. “I’m grateful for it,” said junior Ronny Ravelo, 17. “Let’s say you’ve been absent a lot or you don’t really understand the course. It gives you a chance to get your grade back up instead of going to summer school.”

Freshman Jeremy Bautista, 14, disagreed, saying a packet did a pal no favors because he’ll likely flunk the Regents exam: “In the long run it’s going to mess him up.”

CUNY education professor David Bloomfield said the DOE make-up policy leaves room for abuse. “These packets may not reflect subject mastery. If so, they’re a scam and shouldn’t be allowed.”

Phil Weinberg, deputy chancellor for teaching and learning, said, “We’re reviewing this matter to see if the concern is valid and are prepared to take follow-up action if necessary.”

Orbe did not return a message seeking comment.

*********************************
"Mastery packets", credit recovery, social promotion, or whatever you call allowing students to pass by doing alternative work to the required test or homework, is nothing new, as we all know. Parents like it, because their little angels can graduate with their friends. Principals and Superintendents want it, because the more kids that graduate the better.

Teachers who know that kids are not learning and not making an effort usually try to work with these kids, and give them second and third chances to make up what has been left undone. But simply changing a grade from F to P(failure to pass) without earning the change and missing all the classes, does not help the student at all.

Mayor Bloomberg fought social promotion. But kids are promoted to the higher grade or graduated throughout NYC today, because this makes Mayor Bill DeBlasio and now Chancellor Richard Carranza look good.

See this article published in 2008:
Lacking Credits, Some Students Learn a Shortcut
By ELISSA GOOTMAN and SHARONA COUTTSAPRIL 11, 2008

Dennis Bunyan showed up for his first-semester senior English class at Wadleigh Secondary School in Harlem so rarely that, as he put it, “I basically didn’t attend.”

But despite his sustained absence, Mr. Bunyan got the credit he needed to graduate last June by completing just three essay assignments, which he said took about 10 hours.

“I’m grateful for it, but it also just seems kind of, you know, outrageous,” Mr. Bunyan said. “There’s no way three essays can possibly cover a semester of work.”

Mr. Bunyan was able to graduate through what is known as credit recovery — letting those who lack credits make them up by means other than retaking a class or attending traditional summer school. Although his principal said the makeup assignments were as rigorous as regular course work, Mr. Bunyan’s English teacher, Charan Morris, was so troubled that she boycotted the graduation ceremony, writing in an e-mail message to students that she believed some were “being pushed through the system regardless of whether they have done the work to earn their diploma.”

Throughout the city, an ad hoc system of helping students like Mr. Bunyan over the hump is taking root in public high schools, sometimes over the protests of teachers, who call credit recovery programs a poor substitute for classroom learning and say they ultimately devalue the diploma. In interviews, teachers or principals at more than a dozen schools said the programs ranged from five-day crunch sessions over school breaks, to interactive computer programs culminating in an online test, to independent study packets — and varied in quality.

Top officials with the city’s Education Department say good principals have always found creative ways to help struggling students make up missed work, describing such efforts as a lifeline for students who might otherwise never earn their diplomas. And across the country, school systems confronting abysmal graduation rates are turning to online credit recovery courses, which roughly a third of states have either developed or endorsed in recent years, according to the National Dropout Prevention Center at Clemson University.

Schools Chancellor Joel I. Klein, in a statement, called credit recovery “a legitimate and important strategy for working with high school students.” He said there was “no indication” that the practice “has been abused more in recent years.”

“If credit recovery is not conducted properly, just as with any other required course, we will take appropriate action,” he added. “We do students no favors by giving them credit they haven’t earned.”

But city officials acknowledged that credit recovery programs are neither centrally monitored nor tracked.

The State Education Department, after seeing a copy of “independent study” guidelines in use at Wadleigh and a number of other schools, said it was examining whether the practice met its standards. State law requires students to earn credits by completing set hours of “seat time” — essentially, showing up for class — and demonstrating subject mastery. To graduate, they must also pass Regents exams.

“We are looking into this situation very carefully,” said Johanna Duncan-Poitier, the senior deputy state education commissioner. “We want to make sure that the student is getting what they deserve.”

Critics say the practice is poised to become more prevalent as principals enjoy greater freedom from supervision at the same time as they are held more accountable for student performance, two hallmarks of Mayor Michael R. Bloomberg’s plan to overhaul city schools. Last fall, schools received letter grades based on student performance, with principals at D or F schools in danger of losing their jobs.

Diane Ravitch, a historian of the city’s public schools who has been a frequent critic of the mayor’s efforts, says the practice of credit recovery could raise questions about the validity of gains in the city’s graduation rate. According to the state, the city had a 50 percent four-year graduation rate in 2006, the most recent year for which data was available, up from 44 percent in 2004.

“I think when it’s used correctly, it might be a good thing,” Ms. Ravitch said of credit recovery, “but when used incorrectly it’s a way of gaming the system.”

But Mr. Klein said there was “no basis to suggest that improper credit recovery has affected graduation rates.” Saying that 39,000 students received Regents or local diplomas last year, 8,000 more than in 2002, when the mayor took control of the schools, he added, “A few anecdotes don’t materially affect this rise.”

Randi Weingarten, president of the United Federation of Teachers, said that the union had received “enough complaints about it that we are really concerned,” but that without hard numbers on the prevalence of credit recovery, she could not say whether the graduation rate was suspect.

“It clearly raises questions about the graduation statistics, but I can’t tell you right now as I sit here how widespread it is,” she said. “I don’t know if it raises questions about a statistically significant number of kids.”

Elizabeth Dougherty, a social studies teacher and teachers’ union chapter chairwoman at the Pelham Preparatory Academy, a small public school in the Bronx, said her school offered several credit recovery programs. “The pressure is so overwhelming now for graduation rates,” she said. “The principals are getting pressure, and the pressure gets put on the teachers.”

One Manhattan principal who has worked in the school system for more than a decade and, like many educators, requested anonymity for fear of retribution by the department, said: “I think that credit recovery and the related topic independent study is in lots of ways the dirty little secret of high schools. There’s very little oversight and there are very few standards.”

Mónica Ortiz-Ureña, the principal of Evander Childs High School in the Bronx, a large school scheduled to close in June after years of poor performance, said its credit recovery programs were developed after the city cut its centrally run summer and evening schools. She said many teachers did not like the practice, which at her school includes online programs in which students complete some work at home and some at school, because “they feel that you’re taking away their jobs.”

“I think credit recovery, as long as it’s done properly and is done according to state law, I think it’s a wonderful opportunity for students who have experienced failure before to experience success,” she said.

At Franklin K. Lane, a large high school in Brooklyn, an advertisement for credit recovery programs offered last year urged students: “If you failed a class, don’t despair ... turnaround your 55 into a 65 in 6 weeks!!! Ask your teacher for details!!!”

Adam Bergstein, a teacher who is head of the school’s union chapter, said the six-week program, which consisted of six classes, had troubled teachers.

“A 55 could be indicative of anything from a 1 to literally a 55 average,” he said. “It’s not a mere nudge ahead; it could be an astronomical leap.”

“It undermines the whole concept of teaching and grading,” Mr. Bergstein continued.

At Lafayette High School in Brooklyn, a February memorandum from two assistant principals described “our first five-day Intensive Program for Credit Recovery” for English classes, consisting of “two days of full instruction from 9-2 p.m. and three days of classroom instruction and field trip experiences.”

Credit recovery programs generally take place on school grounds; teachers who lead them can receive overtime pay.

At Wings Academy in the Bronx, several teachers, all of whom requested anonymity, said credit recovery programs shortchanged students because they may never acquire the discipline and work habits to succeed beyond high school. The programs include crunch sessions after classes end for the semester and independent study packets.

At the Felisa Rincón de Gautier Institute for Law and Public Policy, also in the Bronx, Natasha Ramos, a top student, said she was dismayed by a new “term extension program,” in which seniors could make up missing credits during the week when classes stop for Regents exams.

“I didn’t think that that was fair to the kids who had to go to class during the whole semester,” she said. “It takes away from an actual learning environment.”

A teacher at another Bronx school, who did not want the name of his school published for fear of retribution, said a program there let students earn a year’s worth of science credits by responding to 19 questions on 5 topics. “Research and list all the global environmental issues that science focuses on,” read one, under the “environmental studies” category. “What are some ways that you, as an individual, can help?” read another.

Ms. Morris, the teacher who boycotted the Wadleigh graduation, declined to comment; her e-mail message was provided by a recipient. Wadleigh’s former principal, Karen Watts, was rewarded in January for the school’s performance by being named the city’s first “executive principal.” She was reassigned to a troubled school, in exchange for a $25,000 yearly bonus.

In an interview, Ms. Watts said she believed that no more than five of the more than 100 graduates last June had benefited from the credit-recovery work packets, which were meant to take 54 hours and were “just as rigorous as courses they would have taken sitting in the classroom every day with a teacher, or even more rigorous.” She said she believed she had been following “standard practice.”

Thursday, October 2, 2014

Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning charges brought against him by the Board of Education of the City School District of the City of New York.
Decision No. 13,021
(October 15, 1993)
Neal Howard Rosenberg, Esq., attorney for petitioner
Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel
SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.
Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.
On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).
On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.
On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.
A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.
This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.
There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.
Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.
Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.
Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.
With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).
With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.
With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.
Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.
With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.
Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.
The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.
With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambachsupra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.
In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.
I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.
Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.
In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.
END OF FILE

Sunday, August 3, 2014

Aeri Pang, Judge Cynthia Kern, The Gotcha Squad and Article 7511

Re-posted from NYC Rubber Room Reporter

SATURDAY, FEBRUARY 26, 2011

New York State Senator John Flanagan's Bill, and "Gotcha Squad" Attorney Aeri Pang

The not surprising news to participants in the New York City public school system - employees/administrators/f status personnel/custodians/vendors/consultants/Tweedies/ (that is, all who have not had their heads in the sand for the past 5 years) - seniority rights ended many years ago.

In 1994 appeals of 3020-a arbitration decisions were legislated out of the office of the Commissioner of Education to the State Courts in the form of anArticle 7511. This was a huge move in terms of denial of due process rights to those tenured teachers who were victimized by the arbitration and charging process. If you read decisions of the Commissioner (see NYSED decisions - type "3020-a" into  the search box, pick a year) you will be able to read analyses of why a principal cannot simply point at an employee and get him or her terminated, etc. Some decisions are very detailed about the absence (or not) of due process rights in the charging and Just Cause area, which is currently the problem in New York City. Read my book (I haven't sat in on open and public 3020-a hearings for 8 years for nuthin'). Another helpful link may be this one, Article 61 of Education Law, and in particular Section 3012.

Since 1994 the only remedy for a shockingly arbitrary or capricious decision handed down after 3020-a is to file an Article 7511 in New York State Supreme Court, within 10 days of receiving the decision of the arbitrator, or "award" (I dont like the way this term is used, as if termination is an award). Actually you get 25 days: 10 days to file an appeal notice and buy the Index number, then 15 days to file a Verified Petition and serve the Corporation Counsel the Notice and Petition, then file. The Corporation Counsel is located at 100 Church Street, and the service window is on the 4th floor. DO NOT simply drop off your notice and Petition at Tweed.

OMG, just how is a teacher supposed to do that, considering that in 99% of all cases where NYSUT was the counsel on the case, the attorney drops the client the minute the hearing decision is received? If you find an attorney or someone to write the Notice and Verified Petition, or you do it yourself Pro Se, which you can do, then you, as the Petitioner, must pay the $210.00filing fee in the court, and the $95.00 for the Request For Judicial Intervention (RJI). Petitioners do not pay the $45.00 fee for motions.

The City Part of the New York State Supreme Court is notorious for loathing Pro Se litigants. And, the Corporation Counsel has the very same people working in the Court that worked for the Gotcha Squad. For example, look at Judge Cynthia Kern, City Part, 80 Centre Street. She is very pretty, blond, and a former law clerk in the Matrimonial Part with Judge Lobis. Kern knows very little about education law and about the denial of due process inside the 3020-a in New York City, and she has in her chambers the former NYCDOE Gotcha Squad Attorney Aeri ("Eddi")  Pang writing her decisions for her. Ms. Pang was transferred from the Gotcha Squad 3020-a hearings of arbitrator Joshua Javits to the Supreme Court in the spring of 2010. I have the honor of being an observer of a 3020-a with Javits and Pang, and in my opinion you wont find a more verbally abusive attorney than Pang, unless it's my old friend Dennis Da CostaMr. Da Costa still holds the Most Insulting And Loudest Screamer Award. Pang is in second place. Pang needs someone to read rules of Ethics, or the CPLR.

Here is Judge Kern's listing on the Court Judicial Directory:
HON. CYNTHIA KERN

Chambers: 80 Centre Street, Room 326
New York, New York 10013
Phone: (646) 386-3729
Principal Court Attorneys: Rachel J. Fremmer, Esq. and Aeri Pang, Esq.
Junior Court Attorney: Yael Wilkofsky, Esq.

The current law clerk in Judge Kern's courtroom is James Adamo, who, in another matter, decided to call me at home and on my cell to give me false information. I have preserved all of his messages and conversations, which may make sense to someone who supervises the law clerks at the court.

Here is the list of Attorneys who work at the NYC DOE Administrative Trials Unit (ATU=Gotcha Squad):
The Teacher Performance Unit (“TPU”) is a new unit comprised of experienced attorneys who will litigate incompetence cases against ineffective tenured pedagogues. TPU’s goal is to help improve teacher quality in schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

In partnership with the consultants of the Labor Support Unit (“LSU”), TPU will offer high quality and responsive support to principals, and other school officials in connection with cases involving previously identified tenured teachers in need of support and remediation. This support will include, among other things, providing these ineffective tenured teachers with quality professional development.

Additionally, TPU in consultation with the principal will make a determination, on a case by case basis whether to commence the 3020-a process. Thereafter, TPU and LSU will continue to provide counsel to the principal and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges.

• Contacts
• Florrie Chapin, Director
(212) 374-7930
FChapin@schools.nyc.gov

• Naeemah Lamont, Deputy Director
(212) 374-6034
NLamont@schools.nyc.gov

• Dennis DaCosta, Attorney
(212) 374-6035
DDaCosta2@schools.nyc.gov

• Elizabeth Cheung-Gaffney, Attorney
(212) 374-6026

Judge Kern and Gotcha Squad Attorney Aeri Pang (second from left)

• Aeri Pang, Attorney (pictured in red dress at right)
(212) 374-6036
Apang@schools.nyc.gov

• Frances Hopson, Attorney
(212) 374-7839
FHopson2@schools.nyc.gov

• Shareema Gadson-Shaw, Attorney
(212) 374-7830
SGadsonShaw@schools.nyc.gov

• Alex Johnson, Attorney
(212) 374-7973
AJohnson34@schools.nyc.gov

So, now that teachers appealing 3020-a decisions cannot appeal to the Commissioner, they must go to Court, and pay to be dismissed.

The State legislature is at fault here. Let me end with my mantra for "fixing" what's wrong with public education in NYC today: we must get rid of the Panel For Educational Policy, and get all members to resign, run away, and get them all tarred and feathered (just kidding about the tarred and feathered part); we must get an elected school board that can, if necessary, say "no" and "absolutely not" to the mayor and anyone else who tramples rights; we must take 3020-a appeals out of the Courts and give them back to the Commissioner of Education's legal team; we must give equal rights to all New York State residents, and preserve and honor these rights by giving oversight and management to a new organization whose sole purpose is to root out miscreants wherever they may be. We must terminate everyone at Tweed, give a few new people management positions and small offices without flags (Burt Sacks - where did you put that huge American flag that was outside of your office at 110 Livingston street?) and put people to work at what they say they do best: put children first. We really dont need to listen to Noguera, Ravitch, Meier, and anyone else. We need transparent strategies that rely on public opinion to remain in force and we need people who put their feet where their mouth is.

The UFT? They haven't been actively involved in preserving tenure and teacher rights for years. Tenure is over.

Betsy Combier

Maze of rules in bill to end seniority layoffs starts with U-rated

by Anna Phillips, Gotham Schools, February 24, 2011
LINK

Mayor Bloomberg’s fight against “last-in, first-out” layoff rules— the policy of laying off teachers by reverse seniority — has made its way to Albany.

Last night, State Senator John Flanagan introduced a bill that would end the practice and the same bill will be introduced in the Assembly by New York City Assemblyman Jonathan Bing.

The bill rules out seniority as the sole factor in determining who gets laid off. To replace the current seniority system, the bill offers eight pages of an extraordinarily complicated, prioritized list of which teachers and school supervisors would be first in line to be laid off.

Bing’s Chief of Staff Jake Dilemani said the bill was written with input from the mayor’s office, along with groups like Educators 4 Excellence — an organization of teachers who, with funding from the Gates Foundation, has put forward its own proposal to change teacher layoffs.

In a statement sent to reporters, United Federation of Teachers President Michael Mulgrew said that the bill would “send us back to the days before civil service protections, when people could be fired for being the wrong race or gender, too young or too old.”

Last year, when Bloomberg was threatening to lay off roughly the same number of teachers, Bing proposed a bill that would end seniority-based layoffs. At the time, opposition to the bill was so fierce that the bill was never voted on. But this year, anti-last in first out sentiments have reached a fever pitch, with the city’s four editorial boards lined up in favor of changes.

This year’s bill is substantially more detailed than the one Bing proposed last year.

If the bill is passed into law, there will be nine categories of school employees who will be laid off before their peers. Employees who fall into all of these categories would lose their jobs first, followed by those who fall into eight of the categories, and so on down the scale to employees who fall into two categories. If the city finds that it still needs the lay off people after that, the next rung of layoffs will hit teachers and supervisors who are in the first category — those with unsatisfactory ratings.

The categories, in order of layoff priority, are:

1. Teachers and supervisors who have received an unsatisfactory rating in the last five years. If the new teacher evaluation system is put in place before layoffs are carried out, then teachers labeled “ineffective” would be the first to go.

2. Teachers and supervisors who have been fined or suspended without pay in the last five years. This means that teachers who’ve been charged with misconduct or incompetence and have either pled guilty or been found guilty in the last five years would be laid off. For example, the Bronx principal who was found guilty of arbitrarily giving her teachers unsatisfactory ratings and was fined $7,500 would be laid off before another principal. Under the current system, a principal with less seniority would be laid off before her.

3. Teachers and supervisors who have been in the Absent Teacher Reserve pool for more than six months. These are school employees who were forced out of their jobs when their schools could no longer afford them and have not yet been hired by another school. They remain on the city’s payroll while some work in administration and others work as substitute or full-time teachers. Given that it’s rare for schools to excess staff in the middle of the year, the six-month deadline in the law would include most of the teachers in the ATR pool at the present time.

4. Any teacher or supervisor convicted of a crime in the last five years.

5. Teachers and supervisors who have been fined for being chronically absent or late in the last five years. Also includes employees who have been fined for “improper use or recording of leave time.” The terms “chronically absent” and “chronically late” are not defined in the teachers union contract as a set number of days, according to a spokesman for the UFT.

6. Teachers and supervisors who have been the subject of an investigation in the last five years that ended with the charges being substantiated. This covers school employees who have been investigated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity. Having charges substantiated translates to an indictment, but it does not mean that these people have been found guilty.

7. Teachers and supervisors who, by the August 31 of the year in which layoffs take place, have not completed their certification.

8. Teachers who, for two years or more, have been ranked in the bottom 30 percent of teachers based on their students’ test scores. These rankings, which measure students’ progress against a model that predicts what their test scores should have been, cover a small percentage of teachers. Only teachers who teach math and English in grades 4-8 receive teacher data reports.

9. Teachers and supervisors who were not granted tenure after three years, but were put on probation for the year preceding layoffs. Recently, the Department of Education has begun encouraging principals to extend teachers’ probation rather than offer them tenure if they believe the teacher shows promise, but is not yet ready for a lifetime commitment from the city. Anecdotally, I’ve heard from teachers who’ve had their probationary periods extended by one or two years when their schools had a series of new principals, each of whom requested an additional year to get to know her staff.

And we’re not done yet.

If the city lays off all of the teachers who fall into multiple categories, then proceeds to the first category — those with unsatisfactory ratings — but discovers that it only needs to lay off a fraction of these people, then new measures come into play. Employees with the most unsatisfactory ratings in the last five years will be laid off first, followed by those who have been given U-ratings, as they’re commonly known, most recently.

Employees in the Absent Teacher Reserve will be laid off based on how long they’ve been in the pool. And teachers and supervisors who have been convicted of a crime in the last five years will be laid off based on how recent the conviction was. Among those who fall in the low value-added score category, teachers with the lowest scores will be laid off first, unless they teach children with disabilities or who require special education services.

If the city makes its way through this labyrinthine process and still needs to lay off more teachers, the ball rolls into the court of the Board of Regents, who will get to decide what types of teachers are laid of next. The bill contains a measure meant to protect high needs schools — defined as those where 90 percent of students get free or reduced lunch — against being overly burdened by layoffs. It states:

Any such regulations must ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide.

If the Board of Regents does not come up with a layoff plan within 75 days, individual school principals will get to decide who to let go, using guidance from the city’s school chancellor. A committee of parents, teachers, and administrators is supposed to advise the principal in making this decision. However, if the city decides that it wants to eliminate all the positions within a certain license area (e.g. gym or art), it can overrule the Board of Regents and principals’ decisions.

and then read How Teaching Experience Makes A Difference