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

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

Betsy Combier

 

                                                   

 JUST CAUSE FOR DISCIPLINE

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

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

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

A LITTLE HISTORY:

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

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

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

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

DID THE EMPLOYER HAVE JUST CAUSE?

Using the Seven Tests

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

Issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Tips for Handling Discipline & Discharge Cases

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

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

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

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

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

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

Babies At The Bar Part 1: Violations of Law By NYSUT and The DOE

Babies At The Bar

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:

Waiver from Steiner To Dennis Walcott

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.  

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.

NY Appellate Bench Rips Cardozo in Law Journal Letter

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

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

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

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

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

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

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

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

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

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

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

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

Michael Bloomberg and Michael Cardozo

 From Betsy Combier:

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

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

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

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

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

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

Waiver from Steiner To Dennis Walcott

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NY Appellate Bench Rips Cardozo in Law Journal Letter

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

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

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

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

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

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

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

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

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

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

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

The Business Partnership of 3020-a Arbitration

Re-posted from NYC Rubber Room Reporter

How Bad Is NYSUT as Providers of Due Process at 3020-a Arbitration?

My opinion is that the NYSUT/UFT "play along to get along" with Mike Bloomberg has caused the destruction of the lives of hundreds, if not thousands of effective, professional, caring teachers and staff of the New York City Board/Department of Education ....all members of the UFT....for at least the past 10 years. Their goal was to get tenured teachers out of public schools because Mike Bloomberg hated tenure protections and the thought that someone could not be fired in a second for no reason other than that the administrator wanted this person gone. This is good business, says Mike and Jack Walsh (pictured below).

I guess everyone knows that you do not have to use NYSUT to defend at 3020-a. Right?
You can use a private Attorney and team, use a friend/advocate as your assistant, or you can do the 3020-a yourself  "Pro se" 

NYSUT cannot tell you this, nor does NYSUT bother to tell you any of your due process rights. Thus you should find out what you need to know by seeking information on your own. A person brought to 3020-a arbitration is given paperwork with Education Law 3020-a when they are charged. Few read it. Everyone should, but teachers seldom are lawyers too, so they rely on their NYSUT Attorney to tell them what it says.

That's a mistake.

Why is it a mistake? Because your Union, the UFT, and the NYSUT lawyers contracted to protect your due process rights at 3020-a, neglect to do that. See an email from NYSUT Attorney Paul Brown to a client who fired him when she received this:

From: Paul Brown <pbrown@nysutmail.org>
To:
Sent: Wed, 2013
Subject: Re: - WITNESSES


I have an ethical obligation not to put on witnesses that I believe will be damaging to your case. I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....

Please call me should you have any further questions.

Paul K. Brown


New York State United Teachers


(212) 533-6300 Ext. 168"

NO WITNESSES????? That will get you fired and forever guilty of the charges filed against you. 

Below is the Education Law 3020-a (1) and (2)(a):

NY CLS Educ § 3020-a (2014)

§ 3020-a. Disciplinary procedures and penalties

1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

2. Disposition of charges.

a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying [i] the charges in detail, [ii] the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and [fig 1] [iii] the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.

New York State School Boards Association is no fan of teachers' rights, either:

See ON BOARD from 2007

However, as NYC has no school board, NYC is not technically a member of NYSSBA. Several years ago I went to the NYSSBA annual conference as Press at the NY Sheraton Hotel, and sat at the only table with any seats, the NYC table. I sat next to Courtenaye Jackson-Chase (left). At the same table were leading names from the Office of Legal Services, such as Judy Nathan. In the program, my name and the name of the former General Counsel (before Courtenaye), Michael Best, Esq. were listed as representing New York City. I sent the post below to a listserv, nyceducationnews on October 28, 2007:


"To all:

As a paralegal and a non-Attorney, I attended an all day seminar on School Law held at the Sheraton Hotel on Thursday, October 25, 2007. The seminar was part of the New York State School Boards Association conference.

The book that all participants received describes Open Meetings Law and the requirement that all Executive Sessions of a public body be voted on in a full meeting, and minutes are taken during the subsequent Executive Session where a majority votes on probable cause.

Therefore, all the votes taken and teachers terminated by a vote of the PEP members in Executive Session over the past 5 years are contrary to the law. The NYC BOE has required all persons interested in obtaining a copy of the tape of each meeting to file a Freedom of Information request, therefore the NYC BOE has substantiated the belief that the PEP is a public body. A powerless one, as Michael Best wrote to me “The PEP has no administrative or executive functions”.

Further news distressing to anyone in the New York City school district (NYC and boroughs) who would like to have any voice at all in creating policy or deciding complaints/issues: New York City has the largest school system in the nation, but was not represented at the NYSSBA conference. The only attendees listed from NYC Area 13 were me and Michael Best, a presenter of the “Contract For Excellence” session. Two other people from NYC (who kindly sat next to me at my table) were Ms. Judy Nathan and Ms. Courtenaye Jackson-Chase, both listed as “Attorney” for the NYC BOE.

We thus have a quasi-legal system set up to prevent any opposition to a resolution/vote/consent set by the Mayor/Mr. Klein.........

We have no right to get an independent decision on any complaints we may have, as everyone making decisions on grievances/special education hearings belong to Joel and Mike

Gosh, how could we get in this position?"

David Bloomfield answered with Open Meetings Law, Sections 105 and 106

As we all now know, NYC does not have a school board/employing board and no longer has Executive Sessions at the PEP meetings. When the PEP did hold Executive Sessions, the group violated Open Meetings Law Section 105 by having the Session before the public meeting began. I used to speak at the public meeting part of the monthly PEP meeting, and ask for the reason for that, as well as a tally of each member's vote. Joel Klein would not nicely tell me to sit down, shut up and my time was up. I would say that my time was not up, but he would not give me an answer. Still don't have one.

In fact, if you look at the Notice of Determination of Probable Cause (paperwork sent to all teachers/employees charged with 3020-a), the date of the Executive Session at which probable cause was voted on, is blank. There is no date for the Executive Session listed. Superintendent Erminio Claudia

Ermina Claudia 

testified at a teacher's 3020-a that there WAS an "Executive Session", namely when she met with "legal" on the case and they "found" probable cause for the charges. I would suggest that this meeting is not what is cited in the law, Open Meetings Law, or 3020-a(2)(a). Where did she get this version?

So in all cases brought to 3020-a arbitration, probable cause is determined improperly. Without the proper determination of probable cause according to Education Law 3020-a (1) and (2)(a), arbitrators appointed to hear 3020-a cases have no subject matter jurisdiction to decide on whether there is Just Cause for any penalty.

This is what NYSUT doesn't want you to know. In fact, your NYSUT attorney may rush you into a pre-hearing and then a full hearing/resignation/retirement/fine and settlement without any time to discuss the charges against you. NYSUT states in letters to those who opt to hire a private attorney or advocate, or do the 3020-a themselves:

"...changes to the Education Law negotiated by the UFT and the Board supercede the statutory provisions. Even though you are not utilizing NYSUT legal counsel, your case must be processed pursuant to the disciplinary procedures negotiated by the UFT and the Board. You do not have the right for your case to go forward pursuant to the Educational Law as it exists without the negotiated changes contained in Article 21 (G).(scroll to p. 113)."

No mention of probable cause found as required by Education Law 3020-a. But NYSUT isn't saying that the Law isn't there, just that you cannot use it for your case.

Bulloney.

This is, in my thinking, the biggest error of NYSUT representation. Because without a probable cause determination in an Executive Session of the employing board, and a vote by a majority of members, you are left with anyone "finding" probable cause, and charging you with something that may or may not be true. The arbitrator hears only what the NYC DOE wants him/her to hear.

But arbitrators on the NYC permanent panel are paid $1400/day, and if they agree that probable cause has not been properly determined they wont get paid. So the arbitrators deny the dismissal of the case on any grounds, or there will be no payment coming their way.

Teacher discipline and termination are what the Department of Education calls "their business". It's not a business, it's a partnership. With NYSUT and the UFT.

Labels: 3020-a, arbitrators, Courtenaye Jackson-Chase, Erminio Claudia, Jack Walsh, probable cause  

Appealing 3020-a decisions

I posted the article below in July 2012 after some Article 7511 appeals overturned the decisions of 3020-a Arbitrators. I am posting it also as a heads up about the story I will do very soon on the most unfair and biased Arbitrator on the UFT-DOE panel in NYC right now, in my opinion: Eleanor Elovich Glanstein. She is hired to fire.

People who receive unfair decisions in the 3020-a process should appeal these biased decisions!

Betsy Combier

The NYC Rubber Room Gotcha Squad Is Slammed By The New York State Supreme Court

Betsy Combier, Editor of Parentadvocates.org and NYC Rubber Room Reporter

Link

Arbitrator David Hyland ruled in February 2011 that a NYC Dean had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Lucy Billings says this fine is "shocking to the conscience...By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion." From Betsy Combier: Thank you, Judge Billings!!!

From Betsy Combier, Editor of Parentadvocates.org and NYC Rubber Room Reporter, NYCourts-New York Court Corruption, NYC Public Voice and National Public Voice:
When I first started looking into the "NYC Rubber Rooms" and the teacher trials for tenured teachers, (3020-a) in 2003 after speaking with Polo Colon, teachers David Pakter, and Teddy Smith, I was stunned to see what was going on.
In my opinion, Mayor Bloomberg had made a business out of framing people.

Children and their parents were, and still are, bribed to lie about what a teacher has said or done, and the rewards are diverse, such as a higher score on a test, graduation from school, promotion to another grade level, etc, all done in secret with the administrators of the school and the Superintendents and even higher ups, Deputy Chancellors and the Chancellor himself - or herself, as in the case of Cathie Black. Putting all of this together is not difficult, as few people believe that a public servant is actually out to "get" him or her until it is too late. If a teacher knew that the child(ren) were lying, all they had to do was contact the parent(s) or tell a superior what was going on, and sooner than a blink of the eye, the teacher is shot down with charges either about some corporal punishment that he/she didnt do, or the ever-ready charge of "actual" tampering with an investigation, which was slipped into Chancellor's Regulations A-420 in June 2009 is charged against him/her. Anyone can interpret what the term "actual tampering" means. My point here is, once the train has left the station, there is no stopping it.  At least, that's what Mayor Bloomberg, the UFT, NYSUT and private Attorneys want teachers subjected to the rubberization process to believe. It just is not legally sound.

What is "Actual Tampering?" "Actual" tampering, according to Federal law, specifically 18  U.S.C. §1503: "unlawful to "influence, obstruct, or impede the due administration of justice" and  §1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding". Under 1503, a government agent must prove that a defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See United States v Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990).
Acting "corruptly": some courts have defined this term as acting with "evil and wicked purposes" see United States v Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v Moon, 718 F2d 1219, 1236 (2d Cir. 1983): United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v Anderson, 798 F.2d 919, 928 (7th Cir, 1986; ) United States v Rasheed, 663 F.2 843, 847 (9th Cir. 1981). Thus it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.
Section 1512 specifically applies to "witness tampering": a defendant was proven to have knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. The defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; §1512 does not apply to defendants' innocent remarks or other acts unintended to affect the proceeding. See United States v Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). 

None of this applies to most of the specifications currently charged teachers in NYC, but the DOE Gotcha Squad spends hundreds or thousands of dollars trying to prove "actual" tampering, anyway. As I mentioned above, this is a business and everyone profits (except the Respondent).

From 2003 to 2008 there was little, if any, opposition to the false claims business run by the NYC DOE and the Office of General Counsel, headed by Theresa Europe ("the Gotcha Squad"). See also my article on the misinformation of the Bloomberg/klein/education mafia, Steven Brill for more on exactly how the Gotcha Squad works at 3020-a. Many people gave up, settled out of the 3020-a, resigned or retired. The effect of getting out early, before an arbitrator determined a punishment for your supposedly horrific misconduct or incompetency at 3020-a, was to put you in a precarious position as an ATR ("Absent Teacher Reserve") without rights or without any job at all. 

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes: “Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship...We hold "just cause" is a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.”
The NYC panel of Arbitrators are told by the Gotcha Squad to disregard these well known rules. Alan Berg, an Arbitrator on the panel, exonerated a teacher brought to 3020-a before him, and told me that he was punished by Theresa Europe for making the decision that he did; following his determination, he was moved from the Administrative Trials Unit (ATU) to the dreaded Teacher Performance Unit or TPU. I have heard Gotcha Squad member Dennis Da Costa screaming at Arbitrator Anne Powers that she "better do what he says, "or else".She does as she is told by Dennis.

Additionally, the Department places everyone who has been charged on a blacklist which will hamper any employer from hiring you in the future. This blacklist is the notorious "Ineligible/Inquiry" List from which attorney Ed Wolf was able to remove Philomena Breenan. The Department's Office pf Personnel Investigations can take people off if they want. NYS Supreme Court Judge Alice Schlesinger ordered Ms. Europe to tell her how she, Europe, put people on the list and took the names off, in the case of Philomena Brennan v NYC DOE (Index no. 112977/09).

The rubberization process is arbitrary, malicious, and discretionary. 

First of all, the Rubber Room Gotcha Squad is a group comprised mostly of attorneys who are given the authority by Mayor Michael Bloomberg and his allies in NYC to remove tenured teachers - or non-tenured, depending on the circumstances - from their classroom duties because someone in the chain of command at the NYC Department of Education wants them to be out of the school. It's very simple, really.

Secondly, the initial targeting is followed by a strategy of threats, humiliation, fear and retaliation supported the Gotcha Squad as the group denies rights to anyone who opposes their false claims and conspiracy of harm. All anyone has to do to be a target is to ask, "Why?", or "Where's the money?" 

Thirdly, the agents or messengers of harm must be protected, and given special status, so that those people who are fearless and refuse to be squashed by the Gotcha Squad's lawless lies and then the retaliation, threats and verbal abuse used to punish anyone who remains standing after #1 and #2 above, can be denied a resolution to the "problem", which is basically that these fearless souls wont go away never to be heard from again. Thus the Gotcha Squad's subgroups such as the Office of Equal Opportunity (OEO), Special Commissioner of Investigation (SCI) and Office of Special Investigation (OSI) are given authority similar to the SS in World War II (but not military; mostly civilian attorneys or people willing to follow the orders of the Mayor, the Chancellor, and the New York Law Department). 

The UFT and NYSUT, the legal arm of the teacher's union, can and do act in the interest of the Unity caucus, and not in support of individual members. Very few members believe me when I tell them this before they are brought to 3020-a, but many believe this is true after the 3020-a is over, and the Hearing Officer has made a decision that often does not rest on any fact or law. NYSUT attorneys often do not do a good job defending the member at 3020-a because, I was told, everyone charged is presumed "guilty". In fact, the Unity brass told me over and over again that all people housed in the infamous "rubber rooms" - which today are smaller rooms with a few re-assigned DOE employees in each room in an office or school - are not supposed to talk to each other, cannot dispute an investigator, and are guilty of whatever he or she is accused of, so dont try too hard to find a way to save his or her career. I worked for the UFT from 2007 to 2010, and I was hired by Randi Weingarten. I did not agree that everyone was automatically guilty of the specifications they were given, and I looked into each case. 

The DOE and UFT, in order to stop any employee targeted for termination from getting a vacatur or dismissal of the decision of an arbitrator, changed the rules for appealing a determination made at 3020-a in 1994 and several times afterwards. The New York State Education Department Commissioner no longer was the office of jurisdiction where decisions were made to sustain or vacate the decisions made at 3020-a. After 1994 people dissatified at 3020-a had to file an Article 75 to the New York State Supreme Court instead of NYSED. To many non-Attorneys, filing anything in court is frightening. That was, I am sure, a main reason for the change.

To further hamper anyone from appealing, the statute giving a petitioner 30 days to file an Article 75 was shortened to 10 days, with another 15 to amend. NYSUT attorneys never take on a case that was lost at 3020-a, this is another problem. After a 3020-a is closed and decided, NYSUT attorneys always write the client and say, in general, sorry you did not win at 3020-a, however, we are not going to help you appeal. Goodbye.

The New York State Supreme Court is a mangled mess right now, desperately in need of a total overhaul. The judges are arrogant with their immunity from prosecution, and some judges, like Cynthia Kern now on the 6th floor at 60 Center Street, could not care less about the facts in a case. She grants dismissal of any and all petitions filed by a teacher or any other DOE employee. Her loyalty is very much in the interests of the New York Law Department and the DOE.

Sometimes good decisions do come out of the supreme court. The case of Christopher Asch is a case that won a vacatur of the decision of arbitrator David Hyland. Asch signed his petition as "pro se". NYS Supreme Court Judge Manuel Mendez overturned the 6-month suspension, gave Chris his backpay, and ordered the reimbursement of the money spent on a psychiatrist.

Recently David Hyland was again overturned, this time by NYS Supreme Court Judge Lucy Billings in the case of Nicole Moreno-Lieberman. Arbitrator Hyland ruled in February 2011 that a NYC Dean, Moreno-Lieberman, had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Luck Billings says this fine is "shocking to the conscience...By delegating unbounded latitude to respondents and Hearing Officers in these administrative actions, the statutory and regulatory scheme leaves their decisions subject to untrammeled discretion."

Kudos to Judge Billings, who seems to see that the 3020-a arbitrators in New York City need a reality check, and not just a check from the Gotcha Squad for throwing a case. 

COMMENT from Attorney Joy Hochstadt (I do not work with, nor do I recommend Ms. Hochstadt for any 3020-a):

 

"Its just the beginning, thousands of teachers are harassed and resign before they are brought up on charges. I was told that if I resigned before the charges were presented to me (four months after I was told I was under"investigation"), then I would leave with a clean record--Klaus Bornemann forgot to tell me I'd be on the I/I list forever unless I fought it in Court. I was naive, I believed the arbitrators would not debase themselves and be biased. 

 

Then my NYSUT Attorney told me my arbitrator fired everyone; in fact the UFT had voted her off the panel, ten years ago, but the DOE offered the UFT an extra seat on the collective bargaining committee for as long as the UFT allowed Eleanor Glanstein to remain on the 3020-a permanent arbitrator panel. And so I was fired for being assigned by my Principal self-contained special ed classes for my entire program for an entire year when I have no license or background in dealing with special ed; most of the classes had students diagnosed as Emotionally Disturbed. Then they stipulated to my exemplary subject matter skills but said I was incompetent in classroom management, the administration had seen a student walk out without a pass to get a drink at a water fountain 1 foot from the classroom door. another called out his answer in class during an observation, the "do now" was 7 minutes for a class of students who find it difficult to focus and are distractable--it should be no more than 5 minutes, etc. What a waste when I was the best prepared biology teacher that ever worked for the DOE. Therefore, the Principal would rather put me in a position where she could find B.S. fault with me than to allow the advanced and capable students benefit with what I could imbue then with. The DOE attorney at the 3020-a said the assignment to special ed classes should not be mitigating because I would have had to grieve it and win (and my chapter leader told me it was too late in the term to change every teacher's program--but I grieved it before school started--the Principal elected not to hear it for 7 weeks!) Funny part I offered to help--I wrote a comprehensive plan of incentives to get out students to strive to achieve starting with color coded IDs which would let everyone know what grade placement the student had earned sufficient credits for along outings, Broadway shows, meals in Restaurants, to students of the "month" (a short enough time that students could show improvement--and there would be two cohorts --for best grades and for most improvement. Principal was so threatened she tried to put a letter in my file for distributing my proposal without her consent --UFT chapter leaders consent was all that was necessary, by precedent. 

 

Principal lost her school, DOE settled my lawsuit in my favor, and now all the other similarly situated teachers ask for my help --- but it takes the rare judge not to go along with the "program." What observers fail to understand is the scale at which this is being done. I try as best as I can to get the number of teachers given "U" ratings over the last 15 years, the number removed from regular assigments, the number unlawfully brought up on charges by their Principals who are afraid of losing their own jobs--the great old Principal with grandfathered tenure --do not do this --their schools are happy places to works at and have been for decades--it says more about the Principals than the teachers when one Principal sends 9 teachers to the rubber room in 2005-2006 and is voted Principal of the Year for 2006-2007--the Bloomberg Administration is rewarding the Principals for ousting tenured, high paid, and long-service teachers to save billions of $$$$$ by replacing them with cheap inexperienced, teachers who will never earn tenure, will never get vested in a pension plan that the city does not want to honor. Tier I teachers, almost a relic of the past if they worked from 22-62 retired a 100% final years salary plus no FICA, no Medicare tax, no state or city income tax ergo a pension payout equivalent to 125% prior take home. Tier I who worked from 22-42 and then did something else, as long as they had their QPP in Variable A, 13 years later at age 55 would retire at greater than 100% of what their final years pay was when they left--and only now is the life expectancy for teachers (no hard labor, nor dangerous assignments and adequate medical care covered by the employer) 30-40 years after they begin to get the payout. Its to avoid that cost that there is an overwhelming pressure to lock in the pensions where they are rather than accrue an additional liability of ~$80,000.00 in lifetime payout for each year the teacher continues to teach beyond this year for teachers with 20 or more years in the system and $72,000.00/year for each year the teacher teaches until 20 years of service. So economics demand they get out all tier1-2 immediately if not before, that they get out tier 3-4 teachers ASAP and that only tier V teachers where the teacher pays most to the accummulation remain so the city does not go bankrupt. More important so that Bloomberg and his other billionaired friends do not foot the bill. 

 

When confronted with these facts. they answer that they are improving the schools as well--but they are not--its Rumplestiltskin without the elf! The "bottom line" Principals do not know how to achieve higher test scores, so they blame the teachers who know that they can't do it, keep the submissive new and cheap teachers so at least they get kudos for savings. They scrub the scores and get big bonuses for student achievement, (they even embezzle to milk the system as their days are always numbered). And Bloomberg in behalf of himself and his friends have ended tenure, drastically reduced future pension obligations, lowered average salaries--and enriched the union because if there are 70,000 teachers earning S50,000.00 per year instead of 50,000 teachers earning $70,000/year then the UFT earns an additional $22,000,000.00 in union dues so it goes along. 

 

Betsy and I should write a book "Why the DOE does not care that Tyrone does not want to learn to read" --Mayoral control of the schools for reform was for the purpose of saving massive amounts of money. whether or not the students benefited, or even whether the students got less--Because just as the teachers assumed to be guilty or incompetent before the fact--it is worse that the students going to the public schools of NYC are presumed to not be amenable to getting an education, in any event--so at least we should save the money--and not all go bust in the process. 

 

It is a social Darwinism approach that the best teachers and the best students will outmaneuver the system and benefit from it. They'll even give me as an example, that I came to Randi's and her counsel's attention as someone wrongly removed and UFT hired NYSUT attorneys to prosecute a case in my behalf which the NYC Law Department settled almost immediately. They told me there was at least one case that did as well if not better. Demonstrable provable sexual harassment by a superior administrator against a DOE subordinate employee, usually can do well. But wrongful 3020-a charges do not--I was very lucky. A group of us need to go to the legislature and get hearings, because the problems that are seeking a solution need the legislature to intervene. The false accusations, defamation, loss of profession, mental anguish, blackballing I/I list--is simply criminal and intentionally so. Every prosecutor in the ATU and TPU must understand that they all are committing prosecutorial misconduct. It is as bad as prosecutors sending defendants they know to to be innocent to life sentences just so they can add to their conviction rate! Please contact me to volunteer to work on a legislative initiative both to clue in the legislature as to what is going on, and to write and lobby new legislation for NYC that will restore integrity to a corrupt and misused disciplinary process."

Joy Hochstadt, Ph.D., J.D.