NYC Teacher Wins More Than $250,000 From New York City and the NYC Department of Education Gotcha Squad by Betsy Combier
I have been working with David since he was in the NYC rubber rooms about 6 years ago and he was willing to fight for his good name until he won, which he just did, thanks to the ruling by Arbitrator Susan Sangillo Bellifemine, Esq.. David Suker was charged and terminated by the NYC Department of Education "Gotcha Squad" in 2013 after NYC Administrative Trials Attorney Theresa Europe ("Terrie") asked for an investigation of David's daughter's enrollment in a NYC public school in 2001, more than 10 years earlier. That was a mistake, costing the City more than $1 million in legal fees and another quarter of a million for David's Award. This case should be studied as a test case on why the Gotcha Squad needs accountability. The NYC 3020-a hearing procedure is illegal and corrupt.
Congratulations are in order for NYC teacher David Suker, who believed in his right to fight until his name was cleared, and has now firmly put the NYC Department of Education into my pile of already convicted felons charged with corrupt spending of taxpayer money.
I had the honor to assist David in this fight, and participate in helping him hold the NYC DOE Gotcha Squad accountable for their actions. It's been a long time coming, but the result was well worth the time spent..(..however, I would not wish the years of suffering by David Suker on anyone).
Thanks to David's lawyers at Eisner & Mirer, and in particular Maria Chickedantz for excellent, dedicated work on this case!
David's statement on the reason for his being charged:
"The saga of my current ordeal, the 3 year termination, and subsequent reinstatement by some of the highest courts in New York State, oddly began back in August of 2008 on my way to the Democratic National Convention in Denver to witness history. Barack Obama was being nominated, and as a licensed high school social studies teacher, I wanted to say that I was there. Well that didn't happen. About 100 miles from Denver I was blindsided by an 18 wheeler from behind while riding my Vespa Scooter there from New York City. It's safe to say I was lucky that I escaped with my life, a broken jaw, and some really bad scrapes and nothing more. I took 3 months off to recuperate, but oddly enough, when I came back to teach I was placed in a stairwell, outside of the main office, where my program, GED-Plus was located. At the time I thought this was odd, but I was just glad I was alive and back to making a living. I didn't view this s punishment, but now with hindsight, I see how vindictive this system can be.
The reason I was sitting in the stairwell for over a month and sent back to my site grudgingly to teach my GED students, had nothing to do with my competency, but did have everything to do with my big mouth. You see, my principal, Robert Zweig, was appointed Deputy Superintendent to District 79 a year previous, but that was held up on allegations that he had a liaison with an assistant principal. The investigation took about a year and I'm pretty sure he was cleared, but now he was newly emboldened to go after those teachers he felt responsible for ratting him out.
The previous incarnation of GED-Plus was called OES, or Offsite Educational Services, and that was closed in June of 2007. Principal Zweig was promoted, the teachers had to reapply for their jobs, and we were all very nervous. Few people spoke out, but I did and now I see the price was huge. I was Rubber Roomed for 18 months shortly after being placed back in the classroom in 2009, but charges were never brought. The Rubber Rooms were supposedly closed in June of 2010, and in October I finally went back to teaching. I wasn't sent back to my old site on 145th Street In Harlem where I had previously been so successful, getting over 100 GED's over 3 years in a one teacher site. No, I was sent to a dumping ground for teachers and students alike at Bronx Regional High School, a GED-Plus "Hub" where our 17-21 students were the most disenfranchised in the system. This ESL/Literacy/Pre-GED site was where I was to be kept an eye on by my principal. I know this because I was standing outside my AP's door on my first day there and I overheard his conversation with her.
Things at this new site were not terrible by NYC standards, but even I was surprised at the lack of concern for moving our students along into more advanced programs. All the administration cared about was attendance, and enrollment. At the end of the year I was given a U for 10 absences and a $1,000 fine through an expedited 3020-a process. Most of my 10 absences revolved around the care for my dad who has Parkinson's, but Zweig didn't bother to ask.
Then Occupy happened. I was arrested at the lead of Brooklyn Bridge and 4 more times, of which I plead guilty to one violation, and was found guilty of of another because I ignored the lawful order to get off the bridge. I was happily an "Occupier" and teacher and felt the two could coincide. That thought didn't last very long. At around my third arrest the DoE removed me from the classroom, placed me in a "working" Rubber Room and started a full-on 3020-a termination hearing against me."
Background from David's Opposition to the NYC Law Department Motion To Dismiss his Article 75 Appeal to vacate his termination:
David had several charges when brought to 3020-a in 2012, but the most serious was a charge of fraud after he allegedly intentionally placed his daughter in an Upper West side school despite the fact that he did not give a permanent address in the district, an alleged violation of NYC DOE Chancellor's Regulations A-101. David's daughter entered the school in 2001, after testing into the school just like all the other students entering kindergarten. The only way a teacher can be charged more than 3 years after the event is if the event charged was a crime when committed. In David's case, he was never charged or convicted of any crime in 2001-2002, and this became the biggest error of the Arbitrator, Glanstein, in her award of termination for David after his 3020-a.
The burden was on the Department to prove that Petitioner deliberately wrote an address into his daughter's application for her middle school that was not correct in order to defraud the Respondent and knowingly put his employment at risk. There is not a scintilla of proof that these requirements to find evidence of fraud were present. At the time that Petitioner's daughter applied to her middle school, she was already in the public school system in District 3. In addition, the middle school Petitioner applied to for his daughter, Columbia Secondary School (CSS) required a test, which Petitioner's daughter took and achieved a score which enabled her to get admitted. Children the same age who got similar scores were admitted to CSS from addresses throughout New York City - i.e. Manhattan, Bronx, Brooklyn, Queens, and Washington Heights. There was no requirement at any time that students had to live in District 3.
In 2002 Petitioner was interviewed by investigators of the NYC Department of Education and was asked questions about the addresses he put on his daughter's application to her District 3 elementary school. At that time Petitioner had no permanent address, and his daughter's mother - who lived in the Bronx - did not have any input into the education of her daughter; Petitioner was solely responsible. Both parents resided in the New York City School District as defined under the Chancellor's Regulations. In order for Petitioner to give an address where he could keep in touch with mail from his daughter's school, he gave the investigators the address of where his daughter often stayed during the week - with her friend - as well as where he worked. He never heard back from these investigators and never received any reprimand for his "homeless" status before being charged and brought to 3020-a, where he offered Chancellor's Regulation A-101, limiting charges against a parent for residency errors to just 30 days from the time of application (Verified Petition Ex. 2).
In sum, at no time did anyone at the NYC DOE question Petitioner about his address since September of 2002, at which time he explained his circumstances to the officials at District 3. The investigation, he believed, was dropped. At no time until parent teacher conferences in February 2012 did Petitioner know that CSS had the wrong address for his daughter, who now lives with her mother in the Bronx just like many other students at CSS do. When Petitioner saw that the school still had the former school address of Petitioner's employment in February 2012, he tried to change this, but Petitioner could not obtain proof of the current address for his daughter from her mother. The school kept the address as is, Petitioner's prior employment. At no time prior to February 2012 did anyone, for 11 years, from the NYC DOE, give Petitioner Notice that he was allegedly "lying" to Respondent and that this would lead to charges of fraud and possible termination, and at no time did Petitioner intend to defraud the Respondent.
The conclusion that was reached by Arbitrator Eleanor E. Glanstein, namely that
"The evidence established that Respondent's daughter did not meet the residency requirements for admission to schools in District 3".... (Glanstein decision, p.33, Verified Petition EX. 1) was arbitrary, capricious, unconscionable and shocking because there was no residency requirements for CSS, and when his daughter was admitted to elementary school in District 3 Petitioner had no permanent address but gave this information to the school and the investigators, who accepted his explanation and the address he gave.
Glanstein finished her sentence with "...and Respondent knew she did not meet the requirements." (Glanstein decision p.33)
Who Glanstein was referring to as "she" is unclear. Was she referring to Petitioner's daughter? If so, this is not true as Petitioner's daughter knew nothing about this issue. Is Glanstein referring to Petitioner, and made an error of putting an "s" before "he"? If so, this is untrue as well, as Petitioner did not know that his daughter was subject to District 3 residence requirements that were being violated and that he could be charged and brought to 3020-a for not knowing this.
Similarly, Glanstein's statement that:
"Respondent knowingly and intentionally submitted fraudulent documents to his employer, the Department of Education, over a ten year period"(p. 33) was not a credibility issue but a factual error by Glanstein to deliberately terminate Petitioner without there being any law, regulation or rule to support her conclusion. Petitioner brought up the issue of laches in his Petition (see p.3) and relies on his defense given in his petition, namely that investigators had 30 days from the time of their investigation interview with him in 2002 (Chancellor's Regulation A-101) to charge him with fraud, give him Notice that he had to remove his daughter from her elementary school, or in some way give him Notice that he was committing "fraud" and could lose his job as a teacher because of it if he didnt fix this so-called "harm". No discussion, no final report, no conclusion was ever told to Petitioner until he was charged with 3020-a. Glanstein did not, therefore have the authority to punish Petitioner with termination on these charges submitted by Respondent in this matter.
Eleanor and her sidekicks, Attorneys Steve Friedman (NYSUT) and Nancy Ryan (NYC DOE) created quite a show for me as I watched them terminate so many teachers. Indeed, the teachers who were terminated always gave me her decisions and all of the transcripts, exhibits, etc., so I could really see the lack of evidence. In my opinion, Steve Friedman is the least competent attorney in the NYSUT roster. Nancy Ryan is not on the 3020-a circuit anymore, but she was the most insulting least professional DOE attorney that I watched over the years 2003-2011. And then there is Eleanor Glanstein, always very polite to me and everyone else, but totally clueless about the UFT contract or Education Law 3020-a - at least, that is my opinion. One teacher charged went the first day of her 3020-a, told Eleanor that she would not be back due to the violation of her due process rights, and then got hold of the voucher that Eleanor submitted to New York State Education Department for $12,594.50. Not a bad salary for 1 1/2 days' work.
After David submitted an Article 75 Appeal to the Supreme Court to get the decision by Glanstein overturned, New York State Supreme Court Judge Alice Schlesinger agreed with David's argument, and vacated the Glanstein decision of termination. Judge Schlesinger wrote:
"David Suker has been a teacher for 14 years at GED Plus at Bronx Regional Referral Center and has attained tenure. With the exception of having been fined $1000 in 2011 as a penalty for excessive absenteeism, he has had no other disciplinary claims made against him. That was the case until December 21, 2011, when Robert Zweig, Principal of the school where Mr. Suker has taught his entire 14 years, decided that he wanted to terminate Mr. Suker. A hearing was held pursuant to Education Law § 3020-a and a decision was rendered approving the termination; Mr. Suker challenges that decision here....
the school's leadership did not want petitioner Suker to remain there as a teacher. They did not like him or approve of his actions. They believed he was insubordinate, that he did not conduct himself properly, that he was getting arrested too often, and probably that he was not a team player. It is possible that much of that is true. But with the exception of the two episodes involving disruptive students, which had occurred almost three years earlier in 2009 and had not resulted in discipline, no one has claimed that David Suker is not a good and/or effective teacher.
Finally, it should be noted that the conduct spelled out in Charge 3, regarding a false address for his daughter, never involved Suker's own school and never would have been discovered but for the DOE's decision to target Suker to see if an investigation could find something to be used against him, which it did. But that "something" should not be a basis for terminating this tenured teacher, for the reasons already discussed.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the petition is granted to the extent of annulling those portions of ALJ Glanstein's decision which sustained Charge 3 and imposed the penalty of termination, and the matter is remanded to respondent for the imposition of an appropriate lesser penalty in accordance with the terms of this decision.
Dated: July 25, 2013
Judge Alice Schlesinger"
Then, in their desire to squash David Suker permanently, the New York City Law Department filed an Appeal to the New York State Supreme Court First Department, where David won again:
15398 In re David Suker,
The New York City Board/ Department of Education,
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for appellant.
Eisner & Associates, P.C., New York (Maria L. Chickedantz of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered August 23, 2013, which, in this proceeding brought pursuant to CPLR article 75, granted the petition to vacate a hearing officer 's award to the extent of annulling the portion of the award that sustained the third set of charges against petitioner and imposed the penalty of termination of his employment as a tenured New York City public school teacher, and remanded the matter to respondent New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty, unanimously affirmed, without costs.
There is no evidence in the record to support petitioner' s claims that his due process rights were violated, since he was provided with the third set of charges more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him. Even though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised petitioner of the basis of the alleged misconduct (see Duncan v New York City Dept. of Educ., 124 AD3d 463, 464 (1st Dept 2015)).
Nevertheless, Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(l) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(l) as a defense in the disciplinary proceeding. Where, as here, "a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a (s)tatute of (l)imitations which must be asserted by way of defense" (Lincoln First Bank of Rochester v Rupert, 60 AD2d 193, 196 (4th Dept 1977)).
Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(l) or that the crime exception to the time requirement applied (see Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, 999-1000 ) . DOE failed to meet its burden. The record shows that the alleged misconduct, petitioner 's submission of false documentation to DOE in order to improperly obtain his daughter 's admission to DOE schools for which she was not zoned, occurred more than three years before DOE brought the third set of charges against petitioner.
Although DOE requested that the Hearing Officer take judicial notice of two sections of the Penal Law and repeatedly characterized petitioner' s conduct as ft criminal," the Hearing Officer never found that the conduct constituted a crime, and there is no basis for making such a finding. Accordingly, the third set of charges were time-barred.
As the DOE essentially conceded at the disciplinary hearing, the first and second set of charges against petitioner do not support the penalty of terminating petitioner 's employment with DOE. Accordingly, Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 11, 2015
Then, the final ruling came on December 22, 2015 from Arbitrator Susan Sangillo Bellifemine, who threw Glanstein's termination away for good.
Thanks to NY POST stellar reporter Susan Edelman for writing about this final win for David! See below for Sue's article, and below that, my first post about David Suker's win on this website, Parentadvocates.org (9/30/2013):
City loses $1M bid to fire teacher arrested in Occupy Wall Street
By Susan Edelman December 27, 2015
The city has lost a four-year, $1 million battle to fire a teacher arrested in the Occupy Wall Street protests.
David Suker, a US Army veteran who taught at-risk youths in The Bronx for 14 years, was removed from the classroom in December 2011. He was charged with riling up students during an NYPD presentation at a school town-hall meeting by complaining he had been roughed up by cops, showing a scar on his head, and exchanging high-fives and fist bumps with teens.
Suker was also charged with failing to immediately report one of his five Occupy Wall Street arrests in Washington Square Park on Nov. 2. He notified the Department of Education three days after getting out of jail.
But now Suker, 47, has won his job back — and $260,000 in back pay.
“I’m no angel, but I’m also a great teacher and a loving father who believes in the founding ideals of this country. I’ve served in the military and I’ve served in public schools for these beliefs. I deserve justice, and I feel now I’ve been vindicated,” he told The Post.
Suker was terminated in August 2012 after the DOE hit him with additional charges of mishandling two unruly students three years earlier, and 11 absences deemed excessive. Suker was the only teacher in a GED program serving troubled students ages 17 to 21, many released from prison, and had an otherwise spotless record.
The DOE also had investigators secretly follow Suker’s 15-year-old daughter from her mother’s Bronx home to a Harlem high school, and interrogate her. Suker, a divorced dad, was accused of falsifying his address to enroll her in schools since kindergarten, although she passed entry exams.
Suker appealed his firing in Manhattan Supreme Court. Judge Alice Schlesinger tossed out the most serious charge, the record falsification, as years too late. She found Suker a good teacher who deserved to be punished, but not fired.
Last week, another arbitrator set his fine at $7,000.
But the case cost the city an estimated $1 million, Suker and his lawyers say. Besides the back pay, the DOE paid Suker for more than two years to sit idle, hired substitutes, and racked up extensive legal expenses.
“The time and resources that the DOE wasted to get a $7,000 fine is completely absurd and outrageous,” said Suker’s lawyer, Maria Chickedantz.
The DOE had no comment. A spokesman said Suker “remains reassigned.”
NYC Teacher David Suker Fought The Gotcha Squad - Department of Education in NYC - and Wins His Case in Court by Betsy Combier
From the desk of Betsy Combier:
David Suker taught for 14 years at Offsite Educational Services which transitioned into GED Plus, without ever being brought to 3020-a prior to the proceeding described here, namely the 3020-a arbitration hearing, which was brought against him by the New York City Department of Education in 2012. I knew David from the Rubber Room at 25 Chapel Street in Brooklyn, New York. I started walking into this room with David Pakter around 2004, and talked with teachers who were there and followed their stories (see Steve Ostrin and Polo Colon, for example).
David Suker was and is an excellent teacher and a cult hero among students. He was a leader of Occupy Wall street, and had a run-in with the police which became misconduct charged against him. He had the very unfortunate circumstance of taking NYSUT's offer of representation, and not hiring a private attorney. NYSUT Assistant General Counsel Claude Hersh appointed Senior Attorney Steven Friedman. Steve worked in a deadly partnership with Attorney Eleanor Elovich Glanstein and DOE prosecuting Attorney Nancy Ryan. Why do I call this threesome "deadly"? Because their goal was to terminate those people brought before them. See the case of Nicola De Marco). Recently, sources tell me, Eleanor Glanstein was fired or removed from the UFT-DOE Panel. Nancy Ryan and Steve Friedman were moved to other Arbitrators. Thank goodness this team was broken up. I was fortunate enough to watch the three of them for several years, and, most recently, see how Nancy Ryan destroyed a Department of Labor Unemployment Hearing in August 2013. More about that in a later post.
Eleanor Glanstein is a very small woman who shrugs off violations of law and contract. She dismisses Nancy Ryan, a constant screamer and hysteric, as part of the order of business. Everything Nancy says is what Eleanor writes in her decision at the end of the 3020-a. Eleanor had a lot of power and was able to get away with her irrational rulings because her brother Larry Elovich was a political Somebody out on Long Island.
The way the Ryan-Friedman-Glanstein termination process worked was as follows: Nancy Ryan would pursue any and all charges with a vengeance that left everyone in the room stunned. Her attacks are personal and vicious, and she continues now, only with a new arbitrator. There are no rules, laws, or contracts that she cares about. See APPENDIX A and the April 15, 2010 UFT/DOE letter, always ignored by Arbitrators, which say that there must be a vote on Probable Cause in an Executive Session of the school board. There never is a vote in New York City. NYSUT and the DOE lawyers omit any argument about this,,,,why, no one knows.
Indeed, these are always discarded as wrongly placed barriers to getting to the core of the case, namely, terminating a "criminal" (the poor employee/victim). Nancy must be a very unhappy person to be so malicious. All allegations against a person are "facts", which Nancy defends with her lifeblood. Steve Friedman basically plays along to get along. His defense is the worst of any NYSUT Attorney whom I have observed since I started attending 3020-a hearings in 2003-4. He has none. Steve presents some evidence, but he really would like his client to resign, retire, or go away. He permits, by doing nothing to stop her, Nancy's hysterics. While Steve sits there not doing much of anything and Nancy is screaming that the teacher/employee is criminally insane, Eleanor shrugs off Nancy but almost always terminates the charged employee. Eleanor refuses to concern herself with any issues of probable cause and procedural error. It is good that she is no longer on the panel. No one will miss her....except maybe Nancy.
David was brought up on three sets of charges, the first two sets were unsubstantiated and/or minor, but Eleanor Glanstein found everything charged was valid. Then Steve allowed Nancy and Terri Europe to bring forth a third set of charges about David's daughter's school to which she had been admitted more than 7 years earlier, and Eleanor consolidated this set with the previous two. Former Director of the Administrative Trials Unit, the Gotcha Squad, Theresa ("Terri") Europe, heard from Nancy that David had placed his daughter in an upper west side elementary school and then gave an address for himself which was not supposedly in the district (he did not have a permanent address at the time). According to A-101, the Department of Education had 30 days to investigate. David was not told of any investigation. By the time he was charged with 3020-a, his daughter was in high school, where residence did not matter. David's daughter's mother lived in Bronx the entire time. In other words, this issue was a non-issue.
3020-a charges may go back only 3 years, unless the act charged was a crime when committed. David was not accused of a crime when his daughter started school. Thus, when Nancy told Terri that she had discovered the misconduct of David ten years earlier, Terri told Regina Loughran, Deputy Commissioner of the Special Commissioner of Investigation (SCI) that she wanted an investigation of David, but this violated 3020-a law.
This type of targeting is a violation of law. Yet, Eleanor Glanstein, with Steve Friedman's permission, charged David with the "misconduct" and David was terminated for fraudulently putting his daughter in a school without living in the district of the school.
David asked us at Advocatz to help him appeal this decision. We gladly contributed. At 3020-a, the Department, "Respondent" , had the burden of proof, and failed to provide a minimum amount of evidence that could justify the determination of termination as a just and equitable award. Certainly there was a clear failure to provide "preponderance of the evidence", which is the required standard pursuant to Education Law Section 3020-a.
Glanstein's irrational conclusion was that Petitioner's acts were deliberately planned to throw his long and successful career as a tenured teacher out the window. In other words, Glanstein made a determination reeking of bad faith where she ignored the testimony of David Suker, "Petitioner", that he knew nothing about any residency requirement for Columbia Secondary, and that his satisfactory teaching performance showed he was an excellent teacher, to find that David inexplicably committed fraud on his employer. This made no sense. To be fraudulent, a false statement must be made with the intent to deceive the victim. And, the false statement must be made with the intent to deprive the victim of some legal right, and the victim's reliance on the false statement must be reasonable. Therefore, it would have been reasonable for Columbia Secondary School to question/investigate/address Petitioner's residency within the 30-day period cited in the Regulation, A-101, but not have the NYC DOE Office of Legal Services charge him five(5) years later.
When David filled out the admission forms to Columbia Secondary School for his daughter he gave the address at which he and his daughter were staying in 2007. He did not lie. No one from the school ever questioned him about this address, and the only requirement for the school admissions is that first consideration goes to those students who live above 96th street. Students in the school population come from throughout the New York City area. Here, David never intended any fraud. No misconduct existed then or now, and no notice was given to David about possible wrong-doing, so he could address the issue, until it was "too late", and he was charged by Theresa Europe with 3020-a.
Ms. Europe had no authority, as the Attorney for the Department and Supervisor of the Administrative Trials Unit, to charge David five years after Columbia Secondary accepted his daughter. David invoked the doctrine of laches. From Wikipedia: "Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the (opposing) party." When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of t