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Prelim statement - misconduct

I argue below that under the unjust procedures followed during this arbitration, where the so-called victims do not come in to testify, anyone could be found guilty of anything and in this case the Department failed to prove any of them. This case has no facts upon which a penalty can be made, due to procedural and substantive due process violations by the Department which indeed are alarming.
The Department brought in only one of the alleged "victims" to testify to the alleged harm done by me because the Department knew that the victims were not victims at all, but perpetrators, miscreants in the classroom, who created chaos and an unhealthy environment in the classroom for the other students who were trying to learn.
N.Y.C. Arbitrator Josh Javits ruled in a decision (Woda, SED file #10, 831):
“It would be unacceptable to accept the hearsay evidence of an individual as conclusive proof of an allegation over the live testimony of a teacher with fourteen (14) years of teaching. The Respondent has the right to confront and challenge the testimony of her accuser, and to have the accuser’s credibility tested. Absent this right, the Hearing Officer cannot accept that hearsay evidence alone satisfies the Department’s burden of proof with respect to this issue.”

Also, in this matter, the hearsay testimony should not be given any weight. “It is well established that a disciplinary charge pursuant to Education Law 3020-a cannot be sustained when the only evidence to support a charge is uncorroborated hearsay.” DOE v. Rykman, SED File No. 17,731 (Bluth, 2012), at 49. The Rykman decision is attached.
A tenured teacher facing the loss of his employment is entitled to due process of law. Moreover, in labor relations matters, while the rules of hearsay are relaxed, when it comes to the very heart of the matter, the very allegations which led to the charges must afford the employee due process rights. Hearsay evidence may not be used by an administrative tribunal or officer in such a manner as to deprive a part of the right to a fair hearing where that right is guaranteed by law. Such right would be illusory if the administrative tribunal or officer could ground its determination on investigatory data and hearsay evidence. Erdman v. Ingraham, 28 A.D.2d 5, 8, 280 N.Y.S. 2d865,869(1st Dep’t 1967).
In this case we heard testimony from the Department's witnesses, and none were credible. Each witness had a motive to lie, or stretch the truth around charges that they created, substantiated, and testified to. The principal found probable cause, which is not supported in the law, namely Education Law 3020-a(2)(a).
Hearsay not only denies “Respondent’s counsel the opportunity for cross-examination,” it denies the Hearing Officer “ the opportunity to assess said witnesses’ credibility.” Rykman, at 49.
I believe that without any testimony from the so-called victims, each and every charge must be dismissed.
Even the most elaborate procedural safeguards in a statutory or contractual disciplinary system are useless if a teacher's conduct is measured against subjective standards, the opinions of a single person, namely the Principal. Although subjective values can never be eliminated from the determination of conduct unbecoming a teacher, their negative influence can be substantially reduced by requiring school districts and administrators to demonstrate an objective evidentiary nexus - instead of a speculative subjective nexus - between an alleged misconduct and a teacher's job performance.
This failure to require a nexus between conduct and teaching performance is the major reason for the failure of the Department in this case to present a valid reason to sustain any of the Specifications against me. I am a caring, excellent teacher who was targeted for removal from my school simply because I have a long record of excellent service and a high salary.
I had a very good rapport with my students. I am not guilty of the specifications, and the Just Cause Standard has not been reached as there was no fair investigation upon which to base any penalty here.
When you hear the word “misconduct", look at the person who is writing or saying it. The word itself is situation specific. For example, if a teacher is tenured and teaches chemistry for 10 years without any disciplinary action whatsoever and then suddenly, after earning a position of seniority, he becomes an abusive person who belittles and insults the students in his class, the conclusion might be that his character was abusive before being charged, but it was overlooked.
This is what the Department wants you to believe, and this conclusion is not rational.
The factual basis for the charges of misconduct here is that the principal has the authority to remove senior teachers from the school payroll only if the teacher is accused of something and is brought to 3020-a. A principal who gets a senior teacher off of the payroll benefits in many ways. The rewards from the Department and the Community for getting the "bad" teachers out of the school are acclaimed every day in the media. The media do not write about good teachers trying to teach violent or misbehaving students. Principals get bonuses for reducing their budgets.
It is well-known that when a principal sends an incident to the Office of Special Investigations, this starts an investigation of a teacher, not a student. OSI does not investigate student misconduct. Key to this fact is the SOHO report given to me and put into evidence, showing that zero reports were made about a student's superintendent's suspensions, but there were suspensions. Suspensions and student violence are not reported.
When an incident happens in a classroom and the principal reports it, he/she is rewarded if the perpetrator is the teacher. The media love it, parents love it because their child is not punished, and often a bonus is given to a principal for reporting a teacher for alleged "bad acts". Then, as soon as the charges are filed and a 3020-a is brought, the teacher is removed from the school payroll. ATRs are paid out of a central office, not by the school. This is a great benefit to a principal, who cannot rid the school of an expensive teacher any other way.
The major flaw in this case is the fact that there was no proper investigation. I never had a voice in what happened at the school. Throughout these hearings we have heard testimony about how I was denied due process. For instance, there are two cameras on the fourth floor, one facing my room and the other facing the hallway. I asked the Principal whether or not there was any relevant video of the incident. This is alarming testimony, where the principal does not make sure that cameras are working to protect the due process of the teachers and students.
The principal did not seem to know whether the UFT contractual clause on a 48-hour notice was honored. When the parent came to the school to file a complaint against me, the Principal stated that she never asked to speak with me about what my side of the story was. Where are my rights? Not here.
When asked how a report is filed to send to OSI, the Office of Special Investigations, did was not sure who, when, or how the report is filed.
I was never asked during any investigation about what I saw or heard. This process is very unfair, because all a student has to do is misbehave, then lie to the parent, have the parent come in and speak with the Principal to complain about an incident that never happened, and the principal files a report substantiating the allegation, without ever speaking with the teacher, in this case, me.
The other side of this story is that kids who act up do not get reported, because then the State does not put the school into State reports on school violence, which could lead to removal of the principal. I argued during the evidentiary part of this proceeding that current Department policy is to hide student violence and incidents.
Also, we must remember how the charging process works. The principal uses kids who need the most help. He picks students who have trouble with discipline, kids that have trouble with acting up in class, kids who have trouble at home. He makes promises to these kids.
I deal with the kid in my classroom. I deal with the kid's parents. I deal with the kid's counselor. I give the kid every opportunity to earn credit in his classroom." The charges presented here are frivolous.
There is also the timing problem. The UFT contract says that a charge must be reduced to writing within 90 days. In this case, the 90-day rule was not followed. Then the 48-hour notice was not complied with either.
The VADIR reports to New York State Education Department lack credibility because the media has picked up the fact that schools do not report incidents. See " Education Dept. failed to report hundreds of violent incidents at city schools: audit", attached, as well as the Report by the New York State Comptroller's office.

All Respondents automatically become ATRs after a 3020-a hearing, unless the charges are withdrawn before a decision is made by the arbitrator, or all the charges are proven to be false. No one but me cares about the stigma attached. The effect of having these charges filed against me will be to forever change my life and career.

I am arguing here that the dismissal of all the charges is the correct decision. All of the claims made by the Department are frivolous, and remain unproven by a preponderance of the evidence.
As the Department's direct case to terminate me is absent any genuine issue of material fact, the specifications must be dismissed in their entirety and no penalty at all should be awarded.
In this case the Principal was on a “witch-hunt” powered by the “gotcha mentality” as evidenced with constant charges of corporal punishment claims made against me. Nothing I did was good enough. In his zeal to assist in gathering as much evidence as possible against me in order to have me removed, he threw caution, and reason, to the wind and devised ways to accomplish his goal.
The Specifications submitted by the Department are baseless and are the product of a group of administrators and sadly, students, who could, and did, go after an excellent, hardworking teacher that forever damaged my career and character without Just Cause.
“The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

1. Did the employer give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2. Was the employer's rule or regulation reasonably related to (a) the orderly, efficient, and safe operation of the Department of Education/school's educational guidelines and (b) the performance that the employer might properly expect of the employee?

3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of the administration?

4. Was the company’s investigation conducted fairly and objectively?

5. Did the investigator obtain substantial evidence or proof that the employee was guilty as charged?

6. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline considered by the employer reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?” Lehigh Cement Co., 122 LA 643 (Gaba 2006).

Here, the Department desperately tries to make the Arbitrator believe that a finding of “Just Cause” is subjective and discretionary. In New York State and New York City it is not, at least in disciplinary hearings where public school tenured teachers are involved.
When an investigation is found to be inadequate, arbitrators may conclude that the just cause standard has not been met. (Penn Window Co., 120 LA 298, 305 (2004) (no just cause where employer acted without investigation). An inadequate investigation is often considered a denial of due process. See Newspaper Agency Corp., 119LA 926, 934-935 (McCurdy 2004); Chevron-Phillips Chem. Co., 120 LA 1065, 1073 (Neas 2005); Goodyear tire & Rubber Co. 98 LA 941 (Nicholas 1992) (inadequate investigation constituted denial of due process).
Arbitrators frequently look beneath the surface of an investigation to determine whether the employer made its decision at an earlier stage and then just went through the motions of conducting investigatory interviews and fact-finding. Roxam Graphics, 111 LA 1176, 1185 (Gangle 1998) ("a one-sided investigation, which tends to lead to an overblown assessment of the seriousness of the circumstances and a marshalling of the facts to substantiate a foregone conclusion that the grievant is guilty as charged, violates the notion of fair play and therefore violated just cause").
The burden of proof in a teacher tenure hearing under Education Law §3020-a is with the complainant. Guilt may only be found on a charge or specification where there is a preponderance of credible evidence to support that charge.
In this case, the Department created opinions tainted by dislike and pursued baseless claims of misconduct without objective standards and with unchecked authority leading to violations of the CBA and policies agreed upon by the UFT and DOE.
All the administrators with malice have to do is add vague descriptions to the opinions given in observations - true or not - in order to deprive me of my protected interest without a lawful statutory finding or factual evidence.
In Bott v Board of Education, Deposit Central School District 41 N.Y.2d 264; 392 N.Y.S.2d 274, 277 (1977), the court ruled that disciplinary charges against teachers are not criminal proceedings and that their primary function is not punitive but to determine the fitness of accused teachers to continue to fulfill their professional responsibilities. Only an objective analysis of evidence, if any, of the job relatedness of a teacher's alleged misconduct does justice to that purpose; merely proclaiming disastrous effects do not.
Without predetermined standards against which teaching performance is to be measured, performance standards are assembled on an ad hoc basis to suit the circumstances of particular cases or even on a post hoc basis to justify administrative action already taken. The teacher must struggle blindly towards undefined and unknown standards of conduct.
In these proceedings the just cause standard must be used as a guide to determining any penalty. Just cause, in the employment context, refers to the employer's right to discipline or terminate employees for misconduct or negligence. In many states employers must at least show just cause for terminating you. Just cause is legal jargon for a legitimate business reason, such as wrongdoing on the employee's part. Just cause is often a matter of interpretation by the courts or arbitrators.

The Due Process Clause of the Fourteenth Amendment of the United States Constitution imposes procedural safeguards against governmental decisions that deprive individuals of liberty or property. A procedural due process analysis entails a two step inquiry: 1) whether a Plaintiff
"possesses a liberty or property interest within the meaning of the due process clause; and, if so,
2) whether existing state procedures are constitutionally adequate." Ford Motor Credit Co. v. NYC Police Dept., 503 F.3d 186, 190 (2d Cir. 2007).
It is well established that the teachers disciplinary procedures outlined in Education Law § 3020-a provide "adequate procedural safeguards to satisfy the plaintiffs due process rights under the Fourteenth Amendment." Montefusco v. Nassau County. 39 F.Supp.2d 231, 239-40 (E.D.N.Y. 1999) (quoting Sullivan v. Bd. ofEduc .. 131 A.D.2d 836, 838 (2d Dep't 1987)); Adams v. New York State Educ. Dept., 2010 WL 624020 *31 (Feb. 23,2010 S.D.N.Y.).
Section 3020(4)(a) authorizes the DOE and the United Federation of Teachers ("UFT") to enter into a collective bargaining agreement modifying the procedures set forth in § 3020-a as long as that modification ensures that tenured teachers are not "disciplined or removed during a term of employment except for just cause."

The Just Cause Standard requires that the employer acted with a subjective motive in tune with public policy and with objective reasonableness. Disciplinary action may take place after compliance with the seven tests which protect the rights of the employee.
In the arbitration concluded today, it is the arbitrator's authority to decide whether or not there is just cause for any penalty. I request that you, Mr. Woods, review the evidence presented and take a fair look at what has been proven in that evidence, and that you decide that no penalty can be given in this case because there is no just cause for any of the Specifications charged in this case.

Discipline is an adverse action taken by an employer against an employee because of the employee's behavior. Just cause principles require that the discipline imposed upon an employee be just and fair.
Just cause also includes principles of progressive discipline. Progressive discipline is a system of addressing employee behavior over time, through escalating penalties. The purpose of progressive discipline is to correct the employee's unacceptable behavior. Employers impose some penalty less than discharge to convey the seriousness of the behavior and to afford employees an opportunity to improve. The discharge penalty is reserved for very serious incidents of misconduct and for repeated misconduct.
The concept of progressive discipline is based on the premise that both employers and employees benefit when an employee can be rehabilitated and retained as a productive member of the work force. The trained employee is seen as a valuable resource, making it economically prudent to attempt rehabilitation of a current employee. The expected result of progressive discipline is that the employee will recognize he has engaged in unacceptable conduct and will correct his future behavior.

All progressive discipline systems use a series of steps, or disciplinary actions, which increase in severity. The generally accepted forms of discipline prior to discharge are oral warnings, written warnings, and suspensions. Suspensions are typically the next step following oral or written warnings in progressive discipline and may be imposed following one or more incidents of less serious misconduct for which the employer has issued warnings. They result in the employee being removed from the work place for a designated period of time, in loss of pay, and sometimes in loss of seniority for the period of the suspension. The suspension places a blemish on the employee's employment record and, like warnings, can serve as a basis for more severe discipline in the future.
Some arbitrators emphasize that suspensions should be corrective or rehabilitative, not punitive and serve to restore him/her to acceptable levels of production and/or behavior. A suspension may be overturned or reduced if found to be unduly harsh or retaliatory, rather than corrective. Discharge is the most extreme industrial penalty since the employee's job, seniority, and other contractual benefits and reputation are at stake. It was once referred to as "industrial capital punishment."
While arbitrators often speak of discharge as part of a disciplinary progression-a penalty which is a step above lesser penalties-the perception is flawed. Discharge and suspension are separate and distinct penalties. Suspensions are corrective measures designed to rehabilitate. Discharge on the other hand is the severance of an employment relationship.
An employer has no legitimate interest in whether or not a discharged employee ever achieves rehabilitation. Its sole purpose is to unburden the work force of an individual whose conduct has become intolerable. In other words, discharge is designed to abolish the employment relationship; disciplinary suspension is designed to improve it.
Where discharge is the final step in the progressive discipline process, the employee will usually have received several warnings and often at least one suspension.

According to the Court of Appeals of New York in Garrity v Stuart, 40 N.Y.2d 354; 353 N.E.2d 793; 386 N.Y.S.2d 831; 1976 N.Y. LEXIS 2894; 83 A.L.R.3d 1024,
" An arbitrator has no power to award punitive damages, even if agreed upon by the parties. Punitive damages is a sanction reserved to the state, a public policy of such magnitude as to call for judicial intrusion to prevent its contravention. Since enforcement of an award of punitive damages as a purely private remedy would violate strong public policy, an arbitrator's award which imposes punitive damages should be vacated.... Arbitrators generally are not bound by principles of substantive law or rules of evidence, and thus error of law or fact will not justify vacatur of an award. Arbitrators generally are free to fashion the remedy appropriate to the wrong, if they find one, but an authentic remedy is compensatory and measured by the harm caused and how it may be corrected. These broad principles are tolerable so long as arbitrators are not thereby empowered to ride roughshod over strong policies in the law which control coercive private conduct and confine to the state and its courts the infliction of punitive sanctions on wrongdoers."

As noted by New York's Court of Appeals in Ricca v. Board of Ed. of the City Sch. Dist, 47 N.Y.2d 385, 418 N.Y.S.2d 345 (1979):
"The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles . ... Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure."
In this matter we have seen a process that denied me any voice,
and bad faith by the Department. A “desktop definition” of bad faith will include “failure to act in the face of a known duty to act”; and the “conscious disregard” of the duties to be reasonably informed of the business and its risks, and to exercise reasonable oversight.
Here, the prosecutorial misconduct in the improper determination of the charges so pervaded this hearing as to deprive me of due process of law. See attached case of John Sullivan.
In the case of M. P., the issue of the rights of the Respondent were described as follows (p.9):
" The Respondent asserts that the Department's burden of proof with regard to each charge is three-fold. First the Department must establish the factual allegations of the specification charged by a preponderance of the credible evidence. Second, it must prove that the proven facts legally rise to the level of the grounds enumerated in the charge.
And, third, the Department must establish that the proven offense is grounds for the imposition of discipline under the just cause doctrine. The Respondent maintains that because the Department has failed to meet this three-fold burden, the charges against the Respondent must be dismissed."
"Respondent's act of grabbing and pulling this student was not an intentional act of punishment meant to inflict physical pain or suffering." (p. 12)

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