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. This law is handed out to employees who are charged with misconduct or incompetency and are required to defend themselves against these charges at mandatory arbitration pursuant to Education Law 3020-a. The packet with the charges includes Appendix A and April 15, 2010 UFT/DOE letter. But rarely do the charged teachers read it. Then, to buttress the wrong law, Education Law 2590-j (rather than 3020-a), a New York City Department of Education letter titled "Delegation" pops up at hearings where the law 2590 is being used. See an example of this so-called "Delegation" letter. This is how both NYSUT and the NYC DOE can keep processing cases under the error of having a Superintendent or principal find probable cause without any basis in law.

What is actually happening is, the UFT, NYSUT (NY State United Teachers, the legal arm of the UFT) and the NYC Department of Education secretly agreed to waive the rights to Tenure Law protections detailed in the procedures of Education Law 3020-a(2)(a), but never actually signed an agreement to that effect. Why didn't they put this waiver in writing? Because, we believe, there would have been widespread protest by UFT members. Without putting it in writing and by sending out the Education Law 3020-a as written, they hoped that no one would notice. I did.

In fact, I wrote and copyrighted an essay titled "Betsy's Motion" in or about 2009, and wrote it as if I were writing to submit this at a 3020-a hearing:

Motion To Dismiss For Lack of Subject Matter Jurisdiction

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. Certainly the “Just cause for termination” in this matter is improper. The Department has failed to provide a Delegation Letter from the Superintendent nor have they submitted sufficient proof that the seven (7) tests for Just Cause have been sufficiently completed. 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)).

3020-a hearing process in a nutshell

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.

Over time (8 years donated to doing research on this, 2003-2011) teachers and other employees who are charged with 3020-a started calling me to ask what the heck is going on. I tell them my opinion. I am now hired to work as a paralegal on administrative hearings.

Along the way, I obtain documents which probably should have been kept out of public/my view, and the following documents are part of this category. More than a year ago a special education teacher (tenured more than 20 years) was "put in harms way" by the Gotcha Squad because he simply was too expensive for the school to continue to pay. So, when a student took a red marker and drew a line on her neck to show how he had scratched her, all the people involved in getting this false allegation to the 3020-a table started their work. The work began with the new Director of the Administrative Trials Unit, Laura Brantley, sending the probable cause forms, not filled out, to the Principal (here, Staten Island Principal James McKeon) and asking him to sign the docs and put the name of the school at the top, with the school address. Then Ms. Brantley and the rest of her crew take care of changing the teacher's personnel file, creating the specifications, and setting up the charging people (who would be coached to lie under oath at 3020-a) on exactly what to say.

It's a set up, and NYSUT, the "free" lawyers for UFT members are in on the scam, and consider that they will lose anyway, so why bother to defend? Upon information and belief, no NYSUT Attorney has ever brought up the manner in which Brantley, former Director Theresa Europe, and the Department of Education sets up the 3020-a hearings.

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, Mallory Sullivan, and all the other DOE Attorneys.

I choose to hold them accountable for their actions.

Here is my recent article on 3020-a NYC Department of Education Attorney Michael Francis, the worst attorney on the panel:

Attorney Michael Francis: Suborning Perjury at 3020-a

Michael Francis' personnel records (2013)