In November of 2007, the Department of Education formed a new group, the Teacher Performance Unit (TPU); a team of five lawyers and consultants who were tasked with the job removing teachers that the department identified as 'bad'. At that time, Dan Wesier, the chief labor relations officer for the DOE was quoted as saying that the TPU would "...ensure we have the capacity to seek the removal of all ineffective tenured teachers..". He also said that the new team would "... also allow us to seek discipline where appropriate in a wider range of cases than before..".
Former UFT president Randi Weingarten responded to the formation of this group by asserting that the DOE was ".. relying on an unnecessarily punitive and counterproductive management style that is intended to create a climate of fear, rather than collaboration, in our city schools." She lead a candlelight vigil on the 27th of that month to protest the group's forming.
Six years, and a brutal recession, have passed since this policy initiative was launched. During this time, the ranks of lawyers who work for the TPU, and it's sister group, the Administrative Trials Unit (ATU) have swelled, while many of us who teach in New York City's classrooms have witnessed the numerous attempts to fire our colleagues, many for reasons that we can only be described as frivolous and petty . The Movement of Rank and File Educators believes that it is time to begin examining how many teachers have lost or have been forced from their jobs by the department since this policy began.
This, to be clear, is no easy task. Anyone who knows anything about the process of firing teachers in New York knows that much of that process is kept secret. Some of this secretiveness is by statute. The state law that governs the process, 3020-a, guarantees an accused teacher his or her confidentiality throughout the entire process (unless he or she chooses to have its proceedings made public). And some of this secrecy is because the DOE and the union have both agreed to keep the actual numbers -the specific amount of people who have been put through this process- secret. The resulting fact is that there is no data that tells people how many tenured teachers lost their job in New York City in any given year. As a consequence, no one actually knows how many teachers the city has fired, or even how many it has tried to fire since the formation of what Weingarten termed the 'Gotcha Squad'. There are guesses and nuggets and tidbits of information that has surfaced from time to time. But there is no real hard number that anyone can point to. This number could be ten or it could be ten thousand and none of us would know. The first step in finding out is to examine exactly how much money was spent since these years in the pursuit of firing teachers.
It is, of course, is impossible to track every dollar that has been spent pursuing 3020-a charges of tenured teachers. The school district who decides to fire a teacher pays much of this expense. It is responsible for any investigation related or leading to its decision to begin a 3020-a proceeding. It must also provide a venue where the hearing can occur, a place where that teacher will report to work while he or she is suspended and don't forget the salary of a replacement teacher during the time of the suspension. Most importantly, the district must pay the fees of the lawyer(s) who will try the case. The state teacher union (NYSUT) is, when a member so decides, responsible for the fees representing the teacher during his or her defense. It is simply not possible for us to account for all of the money has been spent.
But it is possible to track the amount of money spent on hearing officers. Those are the arbitrators who are tasked with presiding over a 3020-a case and ultimately decide whether or not a teacher should be fired. In New York State, nearly every teacher who faces 3020-a dismissal charges has a hearing officer assigned to their case and, as it so happens, every hearing officer submits their fees to the same New York Sate Education Department office; the Tenured Teacher Hearing Unit. This unit
Referring to this unit, New York's Deputy Commissioner of NYSED, Theresa Salvo described the state's role in the disciplinary process like this (here):
This unit also manages a fund called the Tenured Teacher Hearings Fund. This is actual account out of which hearing officers and court reporters are paid. This account has an annual budget of approximately $3 Million. Its monthly expenditures are reported on their own line in the NYSED State Education Department Monthly Fiscal Report.
So tracking how much money is spent on trying to fire teachers isn't so difficult after all: We must simply examine how much money is spent on the fees for hearing officers in any given year from the state's Tenured Teacher Hearings Fund. If NYSED was compelled to spend more from this fund than usual, then we know that school districts in New York tried to fire more teachers than usual.
In New York State, the fiscal year ends on March 31. So, in any given year, any money that the state has spent through this date (called "actual expenditures"), and in NYSED's case, any money that is earmarked to be spent through the rest of the school year (called "projected expenditures") is reflected in the monthly fiscal report for March of that year.
Below is the total amount of money that was spent by the Tenured Teacher Hearing Fund between the years of 2005 and 2013 as presented in the Monthly Fiscal Reports for March (the end of the fiscal cycle) of each year. (As you may find the documents a bit dense, I suggest searching for the term "Tenured Teacher Hearings" in each of them.)
It isn't difficult to see that, beginning FY 2008/2009, and continuing through FY '11/'12, there was a significant increase in spending from this fund on fees for 3020-a hearing officers. The only conclusion that can be drawn is that during, and just before, this period of time, hearing officers -who's only job is hear the 3020-a hearings of teachers who were in the process of being fired by their district- were presiding over a great many 3020-a cases -many more than usual. So much, in fact, that the fund ran in deficit. During these years, more money was spent on fees for hearings officers and court reporters than NYSED or the state legislature had anticipated.
You'll also note an increase in spending from this fund just two years after the formation of the 'gotcha squad' of at least $2 million each year. In 2007, with New York City's Rubber Rooms still open, it took approximately that long to bring a teacher to trial. While some of this money is, indeed, carry over debt from previous year, an examination of the budget reports will show you that new money -at times at an alarming rate- was spent from this fund during the subsequent four years.
Just another look at the line graph depicting expenditures from this fund..
We now know that more teachers experienced the 3020-a termination process during these years than ever had before. While he hesitate to guess the amount of teachers, we anticipate that this number must be staggering. That money, however, reflects 3020-a hearings from all across the state, not only here in New York City. In order to show that the lion's share of this money was spent firing city teachers, it's important to seperate New York City's expenditures from the Tenured Teacher Hearings Fund from the rest of the state's 694 school districts. Fortunately, there is a way to do that.
In May of 2011, NYSUT's Andrew Pallotta offered testimony to the New York State Senate about the process of disciplining teachers. During those remarks, he made it a point to draw a stark dividing line between New York City's 3020-a experiences and the rest of New York State. Time and again he reminds the committee that, when talking about 3020-a, there is a difference between New York City and the rest of the state. He starts off here
And then reminds the committee here (twice)
And again here
And when he addresses New York City's 3020-a statistics, he specifically mentions that remarks pertain to (only) the city:
This difference between the city and the rest of the state when discussing the 3020-a process is no coincidence. Thanks to the 2005 UFT contract, the actual process for terminating teachers in New York City is much more different than it is in the rest of the state (see here).
Let's take another quick look Vice President Pallotta's testimony about the 3020-a statistics outside of New York City:
The number he sites reflects only those teachers who were charged, who chose the free legal defense from NYSUT (a great number of teachers opt to hire their own private defense attorney) and who's charges were not settled before the hearing concluded. Anecdotaly , we know that the overwhelming majority of charges filed end up in settlement. A settlement is an agreement entered into between the department and the teacher who has been charged whereby the teacher agrees to some type of penalty. In the past, this penalty has included a letter to file, a course (that the teacher must pay for) and in many settled cases, a monetary fine that is deducted from the teacher's pay over a series of months. The numbers Mr. Pallota cites represent the smallest fraction of teachers who have been charge: Those who were charged, were not offered (or didn't accept) a settlement and did not opt for private attorney representation, instead choosing the services that NYSUT offers. However, using this number, which we have no reason to doubt, we are able to estimate that approximately 208 teachers outsideof New York City experienced this process through it's entirety (with NYSUT representation) between September of 2009 June of 2010.
Vice President Pallatto accounts for this same period of time, and the same percentage of teachers who experienced the full process and opted for a NYSUT attorney, when revealing how many teachers within New York City:
That's 561 cases (counting the backlogged cases that lead to the famous April, 2010 agreement to end the rubber rooms and speed up the process) that were handled by NYSUT attorneys within New York City. We can now see that, according to NYSUT, 353 more teachers cases were handled by NYSUT inside New York City during the same period of time.
There are 120,000 tenured teachers across the rest of New York State, where 208 cases were settled during this time. In New York City, it is generally understood that approximately half of that amount, 60,000, enjoy the same protections. Yet it seems the amount of city teachers who have faced termination charges double. In fact, using these numbers, it becomes clear that city teachers during were at least 4.6 times more likely to face 3020-a charges than were teachers from across the rest of the state.
We can now see that between the years of 2009 and 2012 New York City spent the lion's share of $32.8 million in state funds, running the state into a $19.7 million deficit in the process, to dutifully try to fire more than four times the amount of teachers as anywhere else in the state. Only two possible conclusions can be drawn from this realization: Either an astoundingly high amount of teachers here in the city are bad, or our employer, the city's Department of Education, has zealously pursued a course to fire as many teachers as it can.
We believe the latter: That, instead of spending badly needed money on children and on schools during the depths of the recession, the department engaged in a zealous attempt to fire as many teachers as possible and used the state's money -more than $19 million of which it did not have- to prosecute those attempts. We also believe this policy continues to today.
Former president Weingarten's prediction was correct; the DOE has created a climate of fear and intimidation in our schools. This climate of fear has had an adverse effect on the working conditions of our colleagues and must end. We must establish an open environment of collaboration if we expect our teachers to excel. In addition, the department must direct as much money as possible to the actual classroom -to actual students- instead of using it in an attempt to fire teachers (at a rate at almost five times as frequent as other districts throughout the state) if they expect their schools -our schools- to be successful.
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Monday, April 29, 2013
MORE: Teacher Discipline In NYC Spends Extraordinary Amounts of Money To Fire Tenured Personnel
Sunday, April 14, 2013
Babies At The Bar Part 1: Violations of Law By NYSUT and The DOE
Babies At The Bar
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| Michael Bloomberg and Michael Cardozo |
From Betsy Combier:
First, I am not an attorney, just a writer/journalist.
The New York City Department of Education as set up by Mayor Michael Bloomberg and his sidekick New York City Law Department Corporation Counsel Michael Cardozo, (see below for a 2009 rebuke from the NY Appellate Court Judges) are breaking the law. Specifically, New York State Education Law Section 3020-a. Lawyers who work for The Gotcha Squad and prosecute tenured teachers brought up on bogus charges of misconduct and/or incompetency know this, so do NYSUT Attorneys, and attack anyone who notices their lawless procedures in bringing "Just Cause for Termination" to all cases of 3020-a arbitration.
If you are handed your specifications with a cover letter that says "...Principal __________ has found probable cause on the charges preferred against you" tell your attorney to ask, on the record and to the arbitrator, how the principal can find probable cause against you, considering the fact that Education Law 3020-a states that the school board must go into Executive Session and vote on whether there is probable cause? Bring in Appendix A, usually served with the specifications - if you dont get this document, print out Education Law 3020-a and bring in those pages.
Also, the April 15, 2010 so-called 'agreement' signed by Joel Klein and Mike Mulgrew cannot be legally binding because Joel Klein signed the 'agreement' as chancellor, and he was never legally chancellor because he never had a contract, required by Education Law Section 2590-h. I wrote the "Who Are You Kidding Award Goes To Joel Klein" in 2007, but Mike Bloomberg never gave out any contracts to Klein, Black or Walcott. On January 7, 2013, Arbitrator Roy Watanabe asked DOE Attorney Lisa McFadden if Walcott had a contract. She said yes, and brought into the 3020-a hearing the waiver given to Walcott by New York State Commissioner David Steiner, giving Walcott permission to be chancellor:
This is Dennis Walcott's "contract" so that he can be "chancellor" pursuant to New York State Education Law 2590-h? I am not a lawyer, but I believe that as Mr. Walcott did not sign this document, there is no term of officer, and for many other reasons, this is not a contract, howevermuch the Gotcha Squad says it is. Compare with the contracts of Harold Levy and Rudy Crew in my 2007 article "The Who Are You Kidding Award Goes To Joel Klein"
I noticed what they were doing eight years ago. For 5 years I remained a silent observer, writing notes on everyone from a corner by the wall as a member of the public. Then someone at the DOE made up that I taped during a hearing, and this was completely false, but I became the omen of doom when the Attorneys realized that I knew what the fraud was. An example: NYSUT Attorney Shawn T. Kelly, now a NYS Civil Court Judge, on May 25 2011 while everyone at 49-51 Chambers Street was on the sidewalk due to a firedrill, screamed "Dont talk with Betsy Combier, you will be terminated..." and other nonsense. I have NYSUT Attorney Maria Elena Gonzales Lichten telling a client (not Eric Fuller) that I am not to be believed, he should never talk with me, and he should immediately resign his position.
I noticed what they were doing eight years ago. For 5 years I remained a silent observer, writing notes on everyone from a corner by the wall as a member of the public. Then someone at the DOE made up that I taped during a hearing, and this was completely false, but I became the omen of doom when the Attorneys realized that I knew what the fraud was. An example: NYSUT Attorney Shawn T. Kelly, now a NYS Civil Court Judge, on May 25 2011 while everyone at 49-51 Chambers Street was on the sidewalk due to a firedrill, screamed "Dont talk with Betsy Combier, you will be terminated..." and other nonsense. I have NYSUT Attorney Maria Elena Gonzales Lichten telling a client (not Eric Fuller) that I am not to be believed, he should never talk with me, and he should immediately resign his position.
Then there are the screamers and naysayers from the DOE, Ian Nikol, Nancy
Ryan, Dennis Da Costa, and Mallory Sullivan, all Department Attorneys
who would rather scream at me and try to get me run over by a bus
than address the fact that they are harming innocent people without
just or probable cause.
EDUCATION LAW §3020-A MANDATES A VOTE ON SPECIFICITY BY A SCHOOL BOARD
Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a, Article 61) This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one.
NYS Education Law §2590-g does not address the issue of review and scrutiny of whether there is probable cause to proceed with the prosecution of disciplinary charges against tenured educational personnel. The requirements of NYS Education Law §3020-a and §3020-a (2)(a) , under which tenured personnel may be disciplined for “Just Cause”, are absolute and require that before charges can be brought against a tenured educator, the School Board must:
a. Determine that there is “probable cause” for the proceeding with charges by a majority vote by the Board.
b. Make this determination within 5 days of the charges being filed with the Board.
c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.
Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.
The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law, as all arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a.
The relevant parts are as follows:
“Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required.”
Section 3020a(2)(a) of The NY Education Law states:
“Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee’s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.”
Furthermore, Section 2590(j)(7)(b) of The NY Education Law specifically states:
“Charges may be initiated by the community superintendent against any such employee.” There is no mention of a principal finding probable cause. Certainly it is unreasonable to believe that due process exists when a principal charges a teacher without any accountability to anyone for that decision, and then finds probable cause for charging the teacher. Therefore the Just Cause Standard is not reached, and no hearing can proceed.
Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a)).
Compliance with this provision is a jurisdictional condition precedent to a §3020-a disciplinary hearing. Without it, the hearing cannot go forward. Prohibition is the appropriate procedural remedy for the assertion of a claim where prohibition is available “to prevent a body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction.” See: Matter of Schumer v Holtzman, 60 N.Y. 2d 46, 51; Garzilli v Mills, 250 A.D.2d 131 (3d Dep’t 1998); Community School Board No. 29, SED No. 3562 (Howard Edelman, a member of the UFT-DOE arbitration panel in New York City -Dec. 14, 1998).
In New York City, §3020-a teacher disciplinary proceedings have become penal in nature and not arbitral in the same manner labor grievances are resolved. Matter of Clayton v Bd. of Educ., 49 A.D.2d 343 (3rd Dept 1975). Submission to these disciplinary hearings are compulsory and the jurisdiction of the hearing officer is derived from statute. Teachers are charged, similar to an indictment in the criminal world, upon determination of probable cause.
When I started examining the procedures used by the newly instituted Department of Education, I saw that my knowledge of education law and arbitration, which I got by reading my own books (I am not an attorney) did not give me any clue as to the random and arbitrary nature of the 3020-a hearings I was asked to attend in NYC. So, I studied the lawyers and the arbitrators to try to find out how the law could be ignored. Then the Gotcha Squad realized that I was on to something, and took it upon themselves to attack me.
Luckily, I didn't fall apart or walk away.
So now I can write about the lawyers who decided to attack, and will provide my website with the names of the Attorneys who threw aside the lives, careers, health benefits and tenured positions of teachers in order to make a profit.
This article and the several which follow are for you, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan.
LINK
In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.
The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).
But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:
You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:
And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:
It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”
The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.
Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a, Article 61) This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one.
NYS Education Law §2590-g does not address the issue of review and scrutiny of whether there is probable cause to proceed with the prosecution of disciplinary charges against tenured educational personnel. The requirements of NYS Education Law §3020-a and §3020-a (2)(a) , under which tenured personnel may be disciplined for “Just Cause”, are absolute and require that before charges can be brought against a tenured educator, the School Board must:
a. Determine that there is “probable cause” for the proceeding with charges by a majority vote by the Board.
b. Make this determination within 5 days of the charges being filed with the Board.
c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.
Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.
The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law, as all arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a.
The relevant parts are as follows:
“Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required.”
Section 3020a(2)(a) of The NY Education Law states:
“Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee’s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.”
Furthermore, Section 2590(j)(7)(b) of The NY Education Law specifically states:
“Charges may be initiated by the community superintendent against any such employee.” There is no mention of a principal finding probable cause. Certainly it is unreasonable to believe that due process exists when a principal charges a teacher without any accountability to anyone for that decision, and then finds probable cause for charging the teacher. Therefore the Just Cause Standard is not reached, and no hearing can proceed.
Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a)).
Compliance with this provision is a jurisdictional condition precedent to a §3020-a disciplinary hearing. Without it, the hearing cannot go forward. Prohibition is the appropriate procedural remedy for the assertion of a claim where prohibition is available “to prevent a body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction.” See: Matter of Schumer v Holtzman, 60 N.Y. 2d 46, 51; Garzilli v Mills, 250 A.D.2d 131 (3d Dep’t 1998); Community School Board No. 29, SED No. 3562 (Howard Edelman, a member of the UFT-DOE arbitration panel in New York City -Dec. 14, 1998).
In New York City, §3020-a teacher disciplinary proceedings have become penal in nature and not arbitral in the same manner labor grievances are resolved. Matter of Clayton v Bd. of Educ., 49 A.D.2d 343 (3rd Dept 1975). Submission to these disciplinary hearings are compulsory and the jurisdiction of the hearing officer is derived from statute. Teachers are charged, similar to an indictment in the criminal world, upon determination of probable cause.
When I started examining the procedures used by the newly instituted Department of Education, I saw that my knowledge of education law and arbitration, which I got by reading my own books (I am not an attorney) did not give me any clue as to the random and arbitrary nature of the 3020-a hearings I was asked to attend in NYC. So, I studied the lawyers and the arbitrators to try to find out how the law could be ignored. Then the Gotcha Squad realized that I was on to something, and took it upon themselves to attack me.
Luckily, I didn't fall apart or walk away.
So now I can write about the lawyers who decided to attack, and will provide my website with the names of the Attorneys who threw aside the lives, careers, health benefits and tenured positions of teachers in order to make a profit.
This article and the several which follow are for you, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan.
NY Appellate Bench Rips Cardozo in Law Journal Letter
LINKIn a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.
The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).
But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:
“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).
You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:
In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:
The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):
In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority. A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.
And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:
[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.
It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”
The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.
Sunday, February 3, 2013
Malcolm Menchin, Terminated By Arbitrator Patricia Cullen, Loses Again on Appeal
[*1] Malcolm Menchin, Petitioner, for a Judgment under Article 75 of the Civil Practice Law and Rules against New York City Department of Education, Performance Conservatory High School, Respondents.
2250/2011
SUPREME COURT OF NEW YORK, ROCKLAND COUNTY
2011 NY Slip Op 51344U; 2011 N.Y. Misc. LEXIS 3520
July 13, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: chancellor, probable cause, employing, delegate, teacher, petitioner claims, board of education, arbitration, arbitrator, delegated, teaching, staff, high schools, tenured teachers, procedural protections, executive session, authority to issue, superintendents, supervisory, originated, tenured, entity, disciplinary charges
COUNSEL: [**1] For Petitioner: Perkins-Cline, LLC, Suffern, NY.
For Respondents: Corporation Counsel of the City of NY, by Christopher A. Seacord, Esq., New York, NY.
JUDGES: HON. LINDA S. JAMIESON, Justice of the Supreme Court.
OPINION BY: LINDA S. JAMIESON
OPINION
Linda S. Jamieson, J.
Petitioner is a former tenured New York City school teacher who was dismissed from his position at the Performance Conservatory High School in the Bronx (the "School") pursuant to an Opinion and Award of an arbitrator, Patricia A. Cullen (the "Arbitrator"), dated February 17, 2011 (the "Decision"). The Decision found that there were grounds to sustain 17 of the "Specifications" (the allegations made against petitioner), and dismissed the remaining five Specifications. (One other Specification was withdrawn during the proceedings.)
Petitioner does not contest the Decision — which the Court finds to be even-handed, thoughtful, and carefully reasoned and written. Instead, the sole basis for the petition is that petitioner claims that he was deprived of due process, and the Arbitrator "exceeded her statutory powers by denying Petitioner's motion to dismiss and conducting a hearing without the requisite jurisdictional finding of probable cause over Petitioner's [**2] continuing objection." Amended Petition at ¶ 12.
The whole crux of petitioner's claim is that the "probable cause" finding required by NY State Education Law §3020-a was improper, because it was made by the principal of the School, which is not allowed.State Education Law § 3020-a, "generally known as the Tenure Law, affords procedural protections to tenured teachers, in that a tenured teacher cannot be discharged from employment without proper cause, notice, and a hearing. The purpose of the statute is to protect teachers from the arbitrary imposition of formal discipline or removal." Morrell v.
New York City Dept. of Educ., 30 Misc 3d 1212(A), 924 N.Y.S.2d 310, 2010 WL 5600939 (Sup. Ct. NY Co. Dec. 3, 2010) (citation and quotations omitted).
Specifically, "The petitioner, as a tenured teacher, was entitled to the procedural protections set forth in Education Law § 3020—a. That statute provides, inter alia, that prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (see Education Law § 3020—a[1]).
Thereafter, the employing board of education, in executive session, must vote [**3] as to whether there is probable cause for the charges (see Education Law § 3020—a[2]). If the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee." Pollock v. Kiryas Joel Union Free School Dist., 52 AD3d 722, 860 N.Y.S.2d 605 (2d Dept. 2008).
As the Court in Morrell went on to state (quoting Lackow v. Department of Educ. of City of NY, 51 AD3d 563, 859 N.Y.S.2d 52 (1st Dept. 2008)),Education Law section 3020—a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR [*2] 7511. Under such review, an award may only be vacated on a showing of misconduct, bias, excess of power or procedural defects. Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.
The party challenging [**4] an arbitration determination has the burden of showing its invalidity. Morrell, 30 Misc 3d 1212(A), 924 N.Y.S.2d 310, 2010 WL 5600939. Petitioner here has not met this burden, as set forth below.
Petitioner claims that the probable cause finding was improper because it was made by the principal of the School, and not the "the employing board of education, in executive session." He argues that the then-New York City Schools Chancellor Joel I. Klein had no authority to issue the August 16, 2007 Delegation (the "Delegation") of power to the principals of high schools in District 75 and 79 (which encompasses the School). The Delegation states, in relevant part, that the Chancellor delegates to "each high school, District 75 and 79 principal the power to" "Initiate and resolve disciplinary charges against teaching and supervisory staff members in your school. . . ."
There is no dispute that this proceeding involves disciplinary charges against a "teaching staff member" in the School. The Court finds that the Chancellor did have the authority to issue the Delegation, pursuant to Education Law §§ 2590-h(38-a) and (19). "Section 2590-h(19) of the Education Law provides that the Chancellor may [**5] "[d]elegate any of his or her powers and duties to such subordinate officers or employees as he or she deems appropriate and to modify or rescind any power and duty so delegated." Rivers v. Board of Educ. of City School Dist. of City of New York, 66 AD3d 410, 886 N.Y.S.2d 159 (1st Dept. 2009). Petitioner argues that this means that only certain powers can be
delegated, those powers that originated with the Chancellor. See Amended Petition at ¶ 33.
Under this reasoning, powers which originated with other entities, such as the employing board, cannot be delegated. The Court, however, finds that Section 2590-h(19) of the Education Law is very broad, and has no such limits in its text.
Petitioner also claims that Education Law § 2590-h(38-a) sets a limit on what the Chancellor can delegate. The Court disagrees. Education Law § 2590-h(38-a) states that the Chancellor has the power "To exercise all of the duties and responsibilities of the employing board as set forth in section three thousand twenty-a of this chapter with respect to any member of the teaching or supervisory staff of schools which are [*3] not covered under subdivision
thirty-eight of this section." That means that the Chancellor [**6] him- or herself has the power of the "employing board" — the entity charged in Section 3020-a with the power to "vote as to whether there is probable cause for the charges" — and, having the power of the employing board, the Chancellor may delegate it pursuant to Section 19, as he or she sees fit.
Petitioner's argument that Section 2590-h(38) does have a limiting provision ("The
chancellor shall exercise all such duties and responsibilities for all community districts or may delegate the exercise of all such duties and responsibilities to all of the community superintendents of the city district") (emphasis added), restricting the Chancellor to delegating only to community superintendents, does not apply to this case, which undisputedly arises under Section 2590-h(38-a). See Amended Petition at ¶ 34. Indeed, the fact that Section 38 does have such a limit, whereas Section 38-a does not, underscores the power of the Chancellor to delegate.
Therefore, Education Law §§ 2590-h(38-a) and (19) allow the Chancellor to delegate his or her powers with respect to Section 3020-a. And in 2007 Chancellor Klein did just that, by issuing to the principal of the School the Delegation, pursuant to which [**7] the principal found probable cause to proceed against petitioner. To the extent that petitioner claims that
it is not fair to have the complaining principal be the same person who found probable cause against him, the Court notes that the Decision amply documented multiple complaints about petitioner, most of which were not initiated by the principal. Accordingly, the petition is dismissed.
The foregoing constitutes the decision and order of the Court.
Dated: July , 2011
New City, New York
HON. LINDA S. JAMIESON
Justice of the Supreme Court
Wednesday, January 30, 2013
Extortion At 3020-a Arbitration
Extortion At 3020-a Arbitration in New York City
Parentadvocates.org
LINK
There's a little note to you, Claude Hersh, Richard Cassagrande, Richard Iannuzzi and Sean Kelly in the posting below, which will be followed up soon with more documents and stories.
B
Black’s dictionary, 6th edition, defines “extortion”
as: “The obtaining of property from another induced by wrongful use of
actual or threatened force, violence or fear, or under color of official
right.”
Lately it seems that every tenured employee of the NYC Board of Education brought to 3020-a arbitration is being terminated. The arbitrators currently serving on the UFT-BOE New York City panel seem to be unwilling or unable to find a lesser penalty for any level of misconduct or incompetence.
No one is really listening to the facts of any case (and I don’t mean ‘hearing’ the facts, I mean listening), and, in my opinion as well as in my experience with the UFT Representatives, the UFT Reps. and NYSUT Attorneys really believe that anyone receiving charges is actually guilty of those charges. Oh, the UFT Rep. will help you file for your arbitration hearing – either 3020-a or “U”rating appeal - but then you will not hear from the rep. again, no matter what you do. They don’t want to get involved and put themselves into a chance encounter with SCI (Special Commission of Investigation) or an agent (notice I don’t call them “investigators”) from the Office of Special Investigations (OSI) or Office of Equal Opportunity (OEO). People from these sub-agencies of the NYC BOE have the right of way.
The teachers who have had the sentence “you are terminated” handed to them since January 2011 don’t understand what happened. Of all the cases told to me by the teachers themselves, and after reviewing many pages of transcripts from many different cases, my opinion is that very few of the fired teachers deserved this fate. The rest were brought up on absurd charges that should have been written into a counseling memo (if at all) or given to the employee with, at most, a couple of weeks’ suspension. All were targets of a vindictive principal and/or “legal” (the NYC Office of General Counsel) who, under orders of “legal” and Mayor Bloomberg, go for termination in every case. There have been many success stories, too, but I’m here to tell you about a person who could have been successful in her case if her NYSUT attorney and the arbitrator had not used extortion and harassment to get her to resign.
While observing the hearings as a volunteer journalist, I was asked by Randi Weingarten to work as staff at the United Federation of Teachers and help members, including the members in temporary reassignment centers or “rubber rooms”. When I started at the UFT in August 2007 there were seven locations where tenured (and some non-tenured) employees sat every day, from about 8:30AM to 3-3:30 PM, depending on their school hours. In the 2007-2008 school year I went to all of the TRCs, then in 2008-2009 and 2009-2010 I visited each of my locations (25 Chapel Street, 355 Park Place in Brooklyn and 501 Courtlandt Ave, Bronx) every week and stayed all day because the people in these locations wanted to talk to me, or anybody (and I was the only person who visited every week). As I wrote above, I attended the 3020-a hearings – and still do – as a volunteer. My agreement with the UFT allowed me to pursue my own advocacy outside of the 14 hours.
The 'NYC Rubber Rooms' refer to the eight locations open until July 1 2010 scattered throughout New York City where targeted tenured employees of the NYC public schools were told to sit until charged, often for 2 - 7 years. I also use the term to mean the process of putting people out of their jobs under false pretenses. While these people sat and awaited their “fate,” which was unknown and some were never charged at all, The Gotcha Squad created charges against them without their knowledge or consent. The United Federation of Teachers (UFT) the New York State United Teachers legal group (NYSUT) and the New York City Board of Education (NYC BOE) all conspired together to deny thousands of people their constitutional due process rights. Many did not go away willingly or quietly after receiving unfair decisions through mediation/arbitration, so the 3020-a process was and currently is used to force employees out of the system. The NYC BOE Gotcha Squad could be held accountable if the charges are proven completely false and/or the employee brought to 3020-a is exonerated, so arbitrators on the UFT/BOE must prove something in order to get the NYC BOE paid back for the time and money spent on trying to get charges to stick (doesn’t matter if the charges are true or not).
The Mayor of New York City, Michael Bloomberg, started the campaign to close the Temporary Re-Assignment Centers (“TRCs”) in 2007, after the New York City newspapers began a series of articles on the “Rubber Rooms”, popularizing the nickname as well as the fact that hundreds of teachers, school counselors and other tenured personnel were being warehoused at their full salaries while they sat for months, and years in the so-called rubber rooms.
My sources say Bloomberg realized that the setting up of warehouses for teachers and NYC BOE personnel was one of the biggest errors of his administration. The stories ripped into the minds of New Yorkers, who pay the highest taxes in the country. There was an uproar of disgust at the stories of so many highly paid public servants who would sit around and do nothing on the public dime. Actually the truth of the matter is that no one was in charge, so no data existed about why all these employees were placed in the warehouses, and no one wanted to admit that many were placed there unfairly.
I decided in 2003 that someone ought to investigate what was going on, and it might as well be me. By the way, Mike Bloomberg’s second biggest mistake was hiring Joel Klein, whose style of verbal abuse of anyone who refused to do what he wanted was the opposite of what Bloomberg wanted.
In 2008 Bloomberg, ordered Joel Klein and the UFT to expedite all the 'teacher trials' (3020-a arbitration hearings). As this arbitration is compulsory, teachers who are charged and who request a hearing have only this venue to defend their position pursuant to Education Law 3020-a. The first agreement, in June 2008 actually was never implemented. Everyone ignored the clause in there that principals should be held accountable for making false claims against any of their employees. Also, the signing of a document giving everyone a “speedy” hearing outraged almost everyone sitting in the temporary re-assignment centers or TRCs. None of the rubber roomers accused of wrong-doing or incompetency wanted an ‘expedited’ hearing that denied him or her a full and fair hearing, but no one at the helm of the UFT or BOE were listening. I and several of the temporary re-assignment centers’ liaisons were protesting all the time on our blogs and in person to the leaders of this fraud, to no avail.
In fact, I was told on countless occasions to stop writing anything on my blog NYC Rubber Room Reporter because I started it after I started working at the UFT, therefore it was “theirs”. I didn’t see their point, so I ignored the “suggestions” to end the blog.
The lawyers who are assigned to handle the 3020-a arbitration seem to be unwilling or unable to be bothered to spend large amounts of time on any single case. Many members complained to me and anyone else who would listen about how they, after sitting in a rubber room for two+ years, were given 1 hour to talk about the case and describe why the charges were filed when the NYSUT lawyer calls for an intake, a few days before the 3020-a begins. From 2007 to 2010 there were simply too many UFT members charged with incompetency and/or misconduct to spend any amount speaking to and/or defending any one client. Some NYSUT attorneys made this very clear to their client, especially if the person spoke slowly, didn’t have all the papers necessary, whose language was not English, or who simply didn’t get The Plan, which was to quickly run through the evidence and get you fined, resigned, or terminated, by force if nothing else worked. I often asked the lawyers – as did their clients – to subpoena witnesses, so that the proper testimony could be recorded, but NYSUT will not subpoena witnesses. This is a lethal error, in my opinion.
Sidebar: My opinion doesn’t matter, anyway, according to NYSUT Assistant General Counsel Claude Hersh, the new General Counsel Richard Cassagrande, and Richard Iannuzzi, President of NYSUT, because I am not an Attorney, right guys? NYSUT’s current thoughts on my speaking out about what I have seen and what conclusions I have made as a volunteer observer of 3020-a for 8 years are that I am a criminal, I have sued all the arbitrators and thus all of them hate me, and that I don’t know what I am talking about, etc., etc. Their comments are insulting and wrong, and I will address them in another forum.
For some reason the NYSUT Attorneys think that their clients come to the offices at 52 Broadway without a small digital tape recorder in their pockets. The lack of understanding about the 21st Century technology is astonishing, particularly when many clients have taped the investigators, the principals, assistant principals, and all other personnel for years at their respective schools. Why the NYSUT attorneys wouldn’t think that their clients are taping them as well is beyond me. Anyway, in New York State the law protects anyone taping anybody else with whom he/she is in a conversation without telling the other person. NYSUT attorneys, and you know who you are, remember that whatever insults and comments you say will be repeated, and may haunt you in the future. Just a friendly reminder. (Oh yes – the partner of the lawyer that sent you the letter, Claude, that you sent me - and that you sent to all the attorneys who work for you - gave me a check to cover working with Tom as his paralegal on the case of MM because, he said, Tom was mentally unstable…I’ll be in touch soon).
Back to a short recent update on the Rubber Rooms. On April 15, 2010 the UFT President Michael Mulgrew, NYC BOE CEO Joel Klein, and Mayor Mike Bloomberg announced that there was a new agreement to end the rubber rooms forever. This agreement was negotiated, signed, sealed, and delivered in total secrecy. Not I nor anyone else knew about it outside of a select few at the UFT headquarters and district offices. On the 15th I received a call at home from Luis Crespo, the Brooklyn TRC ‘Principal’ at 25 Chapel Street and he told me to get over there ASAP, as there was a major announcement in a few hours. It was 8AM.
The April 15, 2010 agreement mandated the closure of the eight locations that, altogether, held approximately 500 people awaiting their "trial", freedom and exoneration, or termination. The rubber room process – false charges substantiated at 3020-a followed by excessive penalties - didnt end, only the rooms. Teachers continue today to be thrown out of their classrooms often for little or no reason and without evidence of the allegations, but now, after April 15, 2010, the effort to get the people removed and tainted by charges has taken on a new urgency, fueled by Mike Bloomberg who dictates the rules. Most of the agreement dictated new rules for 3020-a that took away the few rights tenured members had. In my opinion this agreement was a disaster in terms of honoring procedural and substantive due process rights for any person subjected to charges pursuant to 3020-a. The UFT has continued the "hands off" strategy, and rules in the UFT contract are being ignored without any accountability. Employees charged with anything are removed from their classrooms and told to sit in the office of the school, the suspension room, at 65 Court Street, or 131 Livingston, both in Brooklyn, and Long Island City, just to name a few locations.
By 2010 the order from Mike Mulgrew, Klein and Bloomberg was to get all 'rubber roomers' off the arbitration calendar and, hopefully off of the NYC BOE payroll. To show how this played out, I will now tell the story of "Jane" - not her real name. I have redacted all mention of her real name in the papers that she gave me that details what happened to her at the hands of NYSUT attorney Keith Gross and Arbitrator Bonnie Siber Weinstock on May 13, 2010 to show how teachers are made into victims in this New York City arbitration known as 3020-a. Something must be done to stop what happened to Jane and countless others.
Jane was in the oldest rubber room, located at 25 Chapel Street in Brooklyn, NY, not far from the Brooklyn Bridge. She took a seat at the far end of the long room where she made beautiful and colorful small paper planes. I still have mine. She was very very upset at the charges as she loved 'her' children and her job, and would never do anything that represented harm to a child. She believed that the NYC BOE targeted her wrongly and framed her with false charges. After reading her charges and listening carefully to her story, my opinion was that she should never have been removed from her classroom. She was one of the “innocent” members of the rubber room. (My assessment/opinion).
On May 13, 2010 I happened to be in the room when a little before 12 noon Jane received a call from her NYSUT lawyer whose name is Keith Gross. He had an urgent message, that Jane must come to the administrative trial office immediately, at 51 Chambers Street, because her arbitrator, Bonnie Siber Weinstock, was waiting. Jane had been up most of the night before, and she was very tired we all heard her say, and couldn't she come on monday instead? Mr. Gross told her absolutely not.
As Jane told us later, she had no money that day for the subway to Chambers Street, so she ran across the Brooklyn Bridge to get to 51 Chambers Street ASAP, as Gross had ordered her to do. Jane went immediately into her hearing room with Gross, and Bonnie Siber Weinstock sat at the head of the table. The NYC BOE Attorney, Chrystal Barrows was there, Mr. Gross was there, and a transcriptionist from Ubiqus, the company hired by the NYC BOE to transcribe the record.
Jane told us Arbitrator Weinstock told her to sit down, and constantly mispronounced Jane’s last name. Jane has a simple last name, and thought that the mis-pronounciation by Weinstock was to upset her from the very start of the meeting. It did. She was. Weinstock mentioned that if Jane went to a full hearing she could be terminated, and she told Jane that this is what would probably happen if she did not agree to sign the settlement agreement that was on the table. Jane really did not want to resign. She wanted to make some sort of agreement, but she didn’t want to be terminated, and she felt harassed by Weinstock. Nonetheless, Jane was not ready to sign her resignation, so Keith Gross said to her, let me take you outside for a moment.
When Gross got outside, Jane said, he and she went into another room, where Gross said something to the effect of “What do you think this is, a circus? You better resign, or you will be terminated”.
Jane was very scared at this point, so she said ok, but felt that this wasn’t ok at all. Gross and Jane went back into the arbitration room, and Weinstock put on the record that Jane had agreed to the terms of the settlement, and the hearing was over. In Exhibit "A" you will read the name 'Martin Weinstein'. He was the former Superintendent and coincidentally I happen to know Marty. I called him up and asked him if he ever saw or heard of the specifications and/or settlement of "Jane" - I of course gave Jane's real name - and Marty told me that he had never seen or heard that name, and never saw or read any paper with Jane's real name on it.
See the transcript (which Jane says is not actually what was said, she told us at 25 Chapel Street that the roughest spots were omitted).
Jane did not return that day to Chapel Street, so a few days later I returned to Chapel Street and heard that she was still extremely upset, crying on and off. I sat down with her and she told me about what happened. I suggested that she call Mr. Gross up, which she did, and ask him to send her a copy of the transcript, which she received a few days later and gave to me.
I also asked her if she would write down her feelings of that day, which she did, and here is her statement:
"On May 13, 2010, my NYSUT Attorney, Keith Gross told me that I needed to immediately report to Chambers Street or the “deal” would be taken off the table – the deal – I could remain in the TRC until June 28 and not be sent to the ATR the minute I resigned – because there would be no need to be in the TRC once there was a “deal”.
Also, I’d get to receive my summer pay checks and receive my benefits through August – Benefits Id already earned. My Attorney said this was the best he could do for me and that if I didn’t take the deal that day it would be off the table and there would be a hearing beginning the following week . If I lost the case I would lose my pay from May through June.
We both felt there was no point in going through the hearing since I had other plans and new prospects for September.
I requested that I be allowed to meet with him to go over the paperwork on the following Monday – the 17th – because I was struggling to stay awake because I already started my course (?) transition and I was working nights and surviving on an average of 2 hours or less of sleep per night during the week.
I was told to stop making excuses, that even after I still wanted out that I did not have subway fare – no never until pay day. I was told that I’d have to come up with the money if I was going to attend hearings because I literally had less than 20 dollars in my checking account that day.
I received a text message from Keith Gross to report to Chambers Street ASAP. I texted him the details of my situation and that if I felt better by the PM I’d walk over the bridge to get there.
I did do this. My Attorney wen(t) over the paperwork with me and the stipulations of the “deal”. I was assured I would never have a problem getting a teaching job outside of the city because the only information sent out would be the recommendation letter included in this packet.
When the arbitrator asked me if I had been coerced into making the agreement, I tried to explain that this really was coercion since there was few choices available to me and none that were very appealing.
She snapped at me and said that if I felt I was being coerced she would listen to the evidence at a three day hearing and render her decision in three days. That’s what I heard. What is written in the transcript is quite different.
My Attorney made me go to the room next door and told me “This isn’t a game. And you said that you were ready to sign and you agree with the terms.”
I knew then that the UFT and DOE and NYSUT lawyers really are mostly all the same.
I was crying when I signed the paperwork. The arbitrator had the nerve to congratulate me and wish me luck. She never even asked how I pronounced my name – it was like she was deliberately pronouncing it incorrectly. If half my dues go to her for pay I want my half back.
I felt like all anyone cared about that day was how many people they could get off the payroll.
I did not “take a deal”. I quit because I don’t need or want anything from the DOE. But honestly, I want the DOE erased completely from my work record."
Jane now works at cleaning doctor's offices at night. She says that she is happy because she is out of the Department of Education.
Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, NYCourts - New York Court Corruption
Editor, NYC Public Voice
Parentadvocates.org
LINK
There's a little note to you, Claude Hersh, Richard Cassagrande, Richard Iannuzzi and Sean Kelly in the posting below, which will be followed up soon with more documents and stories.
B
 |
| Michael Mulgrew |
Lately it seems that every tenured employee of the NYC Board of Education brought to 3020-a arbitration is being terminated. The arbitrators currently serving on the UFT-BOE New York City panel seem to be unwilling or unable to find a lesser penalty for any level of misconduct or incompetence.
No one is really listening to the facts of any case (and I don’t mean ‘hearing’ the facts, I mean listening), and, in my opinion as well as in my experience with the UFT Representatives, the UFT Reps. and NYSUT Attorneys really believe that anyone receiving charges is actually guilty of those charges. Oh, the UFT Rep. will help you file for your arbitration hearing – either 3020-a or “U”rating appeal - but then you will not hear from the rep. again, no matter what you do. They don’t want to get involved and put themselves into a chance encounter with SCI (Special Commission of Investigation) or an agent (notice I don’t call them “investigators”) from the Office of Special Investigations (OSI) or Office of Equal Opportunity (OEO). People from these sub-agencies of the NYC BOE have the right of way.
The teachers who have had the sentence “you are terminated” handed to them since January 2011 don’t understand what happened. Of all the cases told to me by the teachers themselves, and after reviewing many pages of transcripts from many different cases, my opinion is that very few of the fired teachers deserved this fate. The rest were brought up on absurd charges that should have been written into a counseling memo (if at all) or given to the employee with, at most, a couple of weeks’ suspension. All were targets of a vindictive principal and/or “legal” (the NYC Office of General Counsel) who, under orders of “legal” and Mayor Bloomberg, go for termination in every case. There have been many success stories, too, but I’m here to tell you about a person who could have been successful in her case if her NYSUT attorney and the arbitrator had not used extortion and harassment to get her to resign.
While observing the hearings as a volunteer journalist, I was asked by Randi Weingarten to work as staff at the United Federation of Teachers and help members, including the members in temporary reassignment centers or “rubber rooms”. When I started at the UFT in August 2007 there were seven locations where tenured (and some non-tenured) employees sat every day, from about 8:30AM to 3-3:30 PM, depending on their school hours. In the 2007-2008 school year I went to all of the TRCs, then in 2008-2009 and 2009-2010 I visited each of my locations (25 Chapel Street, 355 Park Place in Brooklyn and 501 Courtlandt Ave, Bronx) every week and stayed all day because the people in these locations wanted to talk to me, or anybody (and I was the only person who visited every week). As I wrote above, I attended the 3020-a hearings – and still do – as a volunteer. My agreement with the UFT allowed me to pursue my own advocacy outside of the 14 hours.
The 'NYC Rubber Rooms' refer to the eight locations open until July 1 2010 scattered throughout New York City where targeted tenured employees of the NYC public schools were told to sit until charged, often for 2 - 7 years. I also use the term to mean the process of putting people out of their jobs under false pretenses. While these people sat and awaited their “fate,” which was unknown and some were never charged at all, The Gotcha Squad created charges against them without their knowledge or consent. The United Federation of Teachers (UFT) the New York State United Teachers legal group (NYSUT) and the New York City Board of Education (NYC BOE) all conspired together to deny thousands of people their constitutional due process rights. Many did not go away willingly or quietly after receiving unfair decisions through mediation/arbitration, so the 3020-a process was and currently is used to force employees out of the system. The NYC BOE Gotcha Squad could be held accountable if the charges are proven completely false and/or the employee brought to 3020-a is exonerated, so arbitrators on the UFT/BOE must prove something in order to get the NYC BOE paid back for the time and money spent on trying to get charges to stick (doesn’t matter if the charges are true or not).
The Mayor of New York City, Michael Bloomberg, started the campaign to close the Temporary Re-Assignment Centers (“TRCs”) in 2007, after the New York City newspapers began a series of articles on the “Rubber Rooms”, popularizing the nickname as well as the fact that hundreds of teachers, school counselors and other tenured personnel were being warehoused at their full salaries while they sat for months, and years in the so-called rubber rooms.
My sources say Bloomberg realized that the setting up of warehouses for teachers and NYC BOE personnel was one of the biggest errors of his administration. The stories ripped into the minds of New Yorkers, who pay the highest taxes in the country. There was an uproar of disgust at the stories of so many highly paid public servants who would sit around and do nothing on the public dime. Actually the truth of the matter is that no one was in charge, so no data existed about why all these employees were placed in the warehouses, and no one wanted to admit that many were placed there unfairly.
I decided in 2003 that someone ought to investigate what was going on, and it might as well be me. By the way, Mike Bloomberg’s second biggest mistake was hiring Joel Klein, whose style of verbal abuse of anyone who refused to do what he wanted was the opposite of what Bloomberg wanted.
In 2008 Bloomberg, ordered Joel Klein and the UFT to expedite all the 'teacher trials' (3020-a arbitration hearings). As this arbitration is compulsory, teachers who are charged and who request a hearing have only this venue to defend their position pursuant to Education Law 3020-a. The first agreement, in June 2008 actually was never implemented. Everyone ignored the clause in there that principals should be held accountable for making false claims against any of their employees. Also, the signing of a document giving everyone a “speedy” hearing outraged almost everyone sitting in the temporary re-assignment centers or TRCs. None of the rubber roomers accused of wrong-doing or incompetency wanted an ‘expedited’ hearing that denied him or her a full and fair hearing, but no one at the helm of the UFT or BOE were listening. I and several of the temporary re-assignment centers’ liaisons were protesting all the time on our blogs and in person to the leaders of this fraud, to no avail.
In fact, I was told on countless occasions to stop writing anything on my blog NYC Rubber Room Reporter because I started it after I started working at the UFT, therefore it was “theirs”. I didn’t see their point, so I ignored the “suggestions” to end the blog.
The lawyers who are assigned to handle the 3020-a arbitration seem to be unwilling or unable to be bothered to spend large amounts of time on any single case. Many members complained to me and anyone else who would listen about how they, after sitting in a rubber room for two+ years, were given 1 hour to talk about the case and describe why the charges were filed when the NYSUT lawyer calls for an intake, a few days before the 3020-a begins. From 2007 to 2010 there were simply too many UFT members charged with incompetency and/or misconduct to spend any amount speaking to and/or defending any one client. Some NYSUT attorneys made this very clear to their client, especially if the person spoke slowly, didn’t have all the papers necessary, whose language was not English, or who simply didn’t get The Plan, which was to quickly run through the evidence and get you fined, resigned, or terminated, by force if nothing else worked. I often asked the lawyers – as did their clients – to subpoena witnesses, so that the proper testimony could be recorded, but NYSUT will not subpoena witnesses. This is a lethal error, in my opinion.
Sidebar: My opinion doesn’t matter, anyway, according to NYSUT Assistant General Counsel Claude Hersh, the new General Counsel Richard Cassagrande, and Richard Iannuzzi, President of NYSUT, because I am not an Attorney, right guys? NYSUT’s current thoughts on my speaking out about what I have seen and what conclusions I have made as a volunteer observer of 3020-a for 8 years are that I am a criminal, I have sued all the arbitrators and thus all of them hate me, and that I don’t know what I am talking about, etc., etc. Their comments are insulting and wrong, and I will address them in another forum.
For some reason the NYSUT Attorneys think that their clients come to the offices at 52 Broadway without a small digital tape recorder in their pockets. The lack of understanding about the 21st Century technology is astonishing, particularly when many clients have taped the investigators, the principals, assistant principals, and all other personnel for years at their respective schools. Why the NYSUT attorneys wouldn’t think that their clients are taping them as well is beyond me. Anyway, in New York State the law protects anyone taping anybody else with whom he/she is in a conversation without telling the other person. NYSUT attorneys, and you know who you are, remember that whatever insults and comments you say will be repeated, and may haunt you in the future. Just a friendly reminder. (Oh yes – the partner of the lawyer that sent you the letter, Claude, that you sent me - and that you sent to all the attorneys who work for you - gave me a check to cover working with Tom as his paralegal on the case of MM because, he said, Tom was mentally unstable…I’ll be in touch soon).
Back to a short recent update on the Rubber Rooms. On April 15, 2010 the UFT President Michael Mulgrew, NYC BOE CEO Joel Klein, and Mayor Mike Bloomberg announced that there was a new agreement to end the rubber rooms forever. This agreement was negotiated, signed, sealed, and delivered in total secrecy. Not I nor anyone else knew about it outside of a select few at the UFT headquarters and district offices. On the 15th I received a call at home from Luis Crespo, the Brooklyn TRC ‘Principal’ at 25 Chapel Street and he told me to get over there ASAP, as there was a major announcement in a few hours. It was 8AM.
The April 15, 2010 agreement mandated the closure of the eight locations that, altogether, held approximately 500 people awaiting their "trial", freedom and exoneration, or termination. The rubber room process – false charges substantiated at 3020-a followed by excessive penalties - didnt end, only the rooms. Teachers continue today to be thrown out of their classrooms often for little or no reason and without evidence of the allegations, but now, after April 15, 2010, the effort to get the people removed and tainted by charges has taken on a new urgency, fueled by Mike Bloomberg who dictates the rules. Most of the agreement dictated new rules for 3020-a that took away the few rights tenured members had. In my opinion this agreement was a disaster in terms of honoring procedural and substantive due process rights for any person subjected to charges pursuant to 3020-a. The UFT has continued the "hands off" strategy, and rules in the UFT contract are being ignored without any accountability. Employees charged with anything are removed from their classrooms and told to sit in the office of the school, the suspension room, at 65 Court Street, or 131 Livingston, both in Brooklyn, and Long Island City, just to name a few locations.
By 2010 the order from Mike Mulgrew, Klein and Bloomberg was to get all 'rubber roomers' off the arbitration calendar and, hopefully off of the NYC BOE payroll. To show how this played out, I will now tell the story of "Jane" - not her real name. I have redacted all mention of her real name in the papers that she gave me that details what happened to her at the hands of NYSUT attorney Keith Gross and Arbitrator Bonnie Siber Weinstock on May 13, 2010 to show how teachers are made into victims in this New York City arbitration known as 3020-a. Something must be done to stop what happened to Jane and countless others.
Jane was in the oldest rubber room, located at 25 Chapel Street in Brooklyn, NY, not far from the Brooklyn Bridge. She took a seat at the far end of the long room where she made beautiful and colorful small paper planes. I still have mine. She was very very upset at the charges as she loved 'her' children and her job, and would never do anything that represented harm to a child. She believed that the NYC BOE targeted her wrongly and framed her with false charges. After reading her charges and listening carefully to her story, my opinion was that she should never have been removed from her classroom. She was one of the “innocent” members of the rubber room. (My assessment/opinion).
On May 13, 2010 I happened to be in the room when a little before 12 noon Jane received a call from her NYSUT lawyer whose name is Keith Gross. He had an urgent message, that Jane must come to the administrative trial office immediately, at 51 Chambers Street, because her arbitrator, Bonnie Siber Weinstock, was waiting. Jane had been up most of the night before, and she was very tired we all heard her say, and couldn't she come on monday instead? Mr. Gross told her absolutely not.
As Jane told us later, she had no money that day for the subway to Chambers Street, so she ran across the Brooklyn Bridge to get to 51 Chambers Street ASAP, as Gross had ordered her to do. Jane went immediately into her hearing room with Gross, and Bonnie Siber Weinstock sat at the head of the table. The NYC BOE Attorney, Chrystal Barrows was there, Mr. Gross was there, and a transcriptionist from Ubiqus, the company hired by the NYC BOE to transcribe the record.
Jane told us Arbitrator Weinstock told her to sit down, and constantly mispronounced Jane’s last name. Jane has a simple last name, and thought that the mis-pronounciation by Weinstock was to upset her from the very start of the meeting. It did. She was. Weinstock mentioned that if Jane went to a full hearing she could be terminated, and she told Jane that this is what would probably happen if she did not agree to sign the settlement agreement that was on the table. Jane really did not want to resign. She wanted to make some sort of agreement, but she didn’t want to be terminated, and she felt harassed by Weinstock. Nonetheless, Jane was not ready to sign her resignation, so Keith Gross said to her, let me take you outside for a moment.
When Gross got outside, Jane said, he and she went into another room, where Gross said something to the effect of “What do you think this is, a circus? You better resign, or you will be terminated”.
Jane was very scared at this point, so she said ok, but felt that this wasn’t ok at all. Gross and Jane went back into the arbitration room, and Weinstock put on the record that Jane had agreed to the terms of the settlement, and the hearing was over. In Exhibit "A" you will read the name 'Martin Weinstein'. He was the former Superintendent and coincidentally I happen to know Marty. I called him up and asked him if he ever saw or heard of the specifications and/or settlement of "Jane" - I of course gave Jane's real name - and Marty told me that he had never seen or heard that name, and never saw or read any paper with Jane's real name on it.
See the transcript (which Jane says is not actually what was said, she told us at 25 Chapel Street that the roughest spots were omitted).
Jane did not return that day to Chapel Street, so a few days later I returned to Chapel Street and heard that she was still extremely upset, crying on and off. I sat down with her and she told me about what happened. I suggested that she call Mr. Gross up, which she did, and ask him to send her a copy of the transcript, which she received a few days later and gave to me.
I also asked her if she would write down her feelings of that day, which she did, and here is her statement:
"On May 13, 2010, my NYSUT Attorney, Keith Gross told me that I needed to immediately report to Chambers Street or the “deal” would be taken off the table – the deal – I could remain in the TRC until June 28 and not be sent to the ATR the minute I resigned – because there would be no need to be in the TRC once there was a “deal”.
Also, I’d get to receive my summer pay checks and receive my benefits through August – Benefits Id already earned. My Attorney said this was the best he could do for me and that if I didn’t take the deal that day it would be off the table and there would be a hearing beginning the following week . If I lost the case I would lose my pay from May through June.
We both felt there was no point in going through the hearing since I had other plans and new prospects for September.
I requested that I be allowed to meet with him to go over the paperwork on the following Monday – the 17th – because I was struggling to stay awake because I already started my course (?) transition and I was working nights and surviving on an average of 2 hours or less of sleep per night during the week.
I was told to stop making excuses, that even after I still wanted out that I did not have subway fare – no never until pay day. I was told that I’d have to come up with the money if I was going to attend hearings because I literally had less than 20 dollars in my checking account that day.
I received a text message from Keith Gross to report to Chambers Street ASAP. I texted him the details of my situation and that if I felt better by the PM I’d walk over the bridge to get there.
I did do this. My Attorney wen(t) over the paperwork with me and the stipulations of the “deal”. I was assured I would never have a problem getting a teaching job outside of the city because the only information sent out would be the recommendation letter included in this packet.
When the arbitrator asked me if I had been coerced into making the agreement, I tried to explain that this really was coercion since there was few choices available to me and none that were very appealing.
She snapped at me and said that if I felt I was being coerced she would listen to the evidence at a three day hearing and render her decision in three days. That’s what I heard. What is written in the transcript is quite different.
My Attorney made me go to the room next door and told me “This isn’t a game. And you said that you were ready to sign and you agree with the terms.”
I knew then that the UFT and DOE and NYSUT lawyers really are mostly all the same.
I was crying when I signed the paperwork. The arbitrator had the nerve to congratulate me and wish me luck. She never even asked how I pronounced my name – it was like she was deliberately pronouncing it incorrectly. If half my dues go to her for pay I want my half back.
I felt like all anyone cared about that day was how many people they could get off the payroll.
I did not “take a deal”. I quit because I don’t need or want anything from the DOE. But honestly, I want the DOE erased completely from my work record."
Jane now works at cleaning doctor's offices at night. She says that she is happy because she is out of the Department of Education.
Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, NYCourts - New York Court Corruption
Editor, NYC Public Voice
Tuesday, November 13, 2012
Patricia Cullen
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Experience
October 2010 – Present (2 years 2 months)
I am a labor and employment arbitrator, mediator and neutral workplace investigator with over thirty years of combined business and legal experience, licensed to practice law in New York, New Jersey and Pennsylvania. My current practice includes arbitration and mediation, workplace investigations, and workplace training on a variety of labor and employment law, human resources and dispute resolution topics.
August 2000 – September 2010 (10 years 2 months)
Engaged in private law practice concentrating in labor and employment litigation, counseling, and training at both an AmLaw 100 firm and a small boutique firm. During this time I litigated claims of race, gender, age, disability, sexual orientation, and national origin discrimination, sexual and racial harassment, retaliation, breach of employment agreements, and class action claims alleging violations of ERISA and wage and hour laws. I have drafted numerous employer policies, handbooks, and employment agreements, and have represented parties in state and federal courts, administrative proceedings, and mediations in New York and New Jersey. I have negotiated and drafted collective bargaining agreements, and represented employers in labor arbitrations and unfair labor practices charges. I also provided advice, training and counseling on compliance with state and federal employment laws. Also represented employees in contract negotiations and disputes, and ERISA matters.
September 1995 – July 2000 (4 years 11 months)
As an attorney in the the litigation department of a 200+ attorney regional law firm, handled a variety of matters including contested commercial foreclosures, bankruptcy adversary proceedings, real estate tax appeals, minority shareholder and partnership disputes, contract disputes, will contests, employment disputes, lender liability claims, and consumer fraud actions.
Education
Rutgers University School of Law - Newark
JD, Law
1991 – 1994
Activities and Societies: Editor in Chief of Rutgers Law Review
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