ADVOCATZ President Betsy Combier Unravels The 3020-a Arbitration Procedure in New York City
For fourteen years I have been researching the 3020-a Arbitration charging process used in New York City, and in particular the omission of a vote in Executive Session by the New York City Panel For Educational Policy which is mandated by Education Law 3020-a(2)(a). I ignored the verbal attacks by attorneys who chose to threaten me with doom if I continued to ask for the vote - and I went to both NYSUT and Department of Education Attorneys working on 3020-a cases. I have never received a rational response to "Betsy's Motion", until Judge Green stepped into the fray. On March 29, 2018, Judge Green in Richmond County Supreme Court granted the petition of Rosalie Cardinale wherein we argued that her right to a fair 3020-a hearing was denied by an unlawful determination of probable cause. Ergo, my argument that the 3020-a process in New York City has a lawless charging procedure. What does that mean? What you want it to.
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UPDATE April 7, 2018:
On April 5, 2018, a recently terminated teacher who used NYSUT for her 3020-a Arbitration, sent me the following email from /to her NYSUT Attorney:
"Date: April 5, 2018 at 12:23:45 PM EDT
"I spoke to a lawyer about the Staten Island decision and he had a warning shot for the UFT. I am not sure why i would have to hire a private lawyer to have my case revisited when the UFT has a duty to all terminated tenured teachers that can’t be brushed away in light of this decision. The Uft opens itself up to personal liability if it fails to take action - such as intervening in the Staten Island case or bringing its own case against the DOE that is appropriate to protect the collective bargaining rights of tenured teachers who were improperly termination under the Staten Island decision. The UFT would be making a seriously unwise strategic decision if it were to do nothing simply because there are competing lower court decisions on the issue. The UFT’s liability would be subject to appellate decision(s) that are unpredictable. My case was never presented to the PEP and I would appreciate knowing how the Union intends to help people in my position in light of this decision.
The NYSUT attorney responded:
"I have now read the entire decision and the content of the Post article and any advice you are receiving which is the basis of your e-mail is misleading.
The Judge in the Staten island case did not rule that all 3020a cases have to be voted upon by the PEP in order to be validly brought. In fact, the Judge accepted the reasoning of other courts that the Chancellor (Farina) can delegate the authority to find probable cause and bring charges to Superintendents who can then delegate that authority to principals. What the Judge found was that in this case the DOE/ NYC Corporation Counsel failed to provide him with proof of such written delegations of authority.
The case you cite to is just the result of poor lawyering on the part of the DOE's counsel in the matter. The Delegation letters in question exist and my office has copies of those letters. When Chancellor Farina was installed we demanded copies of such letters from the DOE in order to ensure that the law was being respected/followed and that all cases were being properly brought. As a result, this office is satisfied that the law is being followed and that findings of probable cause underlying 3020a charges are being properly made.
I understand your frustration and anger. However, this decision is not a basis to challenge any 3020a result."
Hmmmm. First, I don't believe that Judge Green wrote that he 'accepted' that "Chancellor (Farina) can delegate the authority to find probable cause, and all the NYC DOE has to do is get the paper saying that the Chancellor delegates "...authority to (do anything)" and boom, probable cause is determined? That's just unfair and unjust.
Additionally, the delegation memos are based upon Education Law 2590, not 3020-a, so they don't apply to the procedural error I am saying exists by the Department pursuing charges against tenured teachers without a proper determination of probable cause.
Yes, I do challenge NYSUT's conclusions (and no, I'm not an Attorney). The NYSUT Attorney's statement above is troubling in it's misinformation.
I of course have the backstory on the "Delegation" statements submitted to countless arbitrators. They are worthless. Yep, that's what I have said, what I am saying, and what I will say, and I can prove it. In my work, I know that there is always a DOE Attorney and/or a NYSUT Attorney who will gladly say that I'm wrong, I don't know anything, I am not an Attorney, etc (I'm NOT an attorney, so that part is good), however I have spent 10 years coming up with facts and research to back up what I say and write.
How does the decision of Judge Green affect tenured teachers who have been given an unfair 3020-a decision in New York City?
We dont really know yet. What we do know is that we are ready to assist any DOE employee who has been charged with 3020-a in New York City (or New York State). We believe that every case is unique, and therefore we need to look at the circumstances in each case very carefully. Teacher trials are serious events.
I have tried to find any mention at all of probable cause determination in Education Law 2590, anywhere. I haven't found it. I have worked on 3020-a arbitration with about 8 different attorneys, and each of these attorneys except two, Attorneys Bryan Glass and Jordan Harlow, believed that this issue of the procedural error due to a missing vote on probable cause was valid, and placed my essay/motion into the mix. The side agreements between the UFT and the NYC DOE, the April 15 2010 letter and the previous letter dated June 27 2008 focus on what happens AFTER the charges are served on the tenured employee.
As the paralegal for Attorney Jonathan Behrins in the Article 75 Appeal of Rosalie Cardinale, we once again made the argument that the Department of Education in New York City never gave any 3020-a arbitrator the right to make a decision, or, in legal terms, the arbitrator did not have subject matter jurisdiction. We are saying that due to the Department' s desire for speed above rights, no vote in Executive Session took place at the Panel For Educational Policy, and therefore no arbitrator has subject matter jurisdiction and cannot hear evidence or decide on penalty. Our win in Staten Island for Rosalie changes the landscape of tenure rights and 3020-a, big time.
Jonathan and I have been working together on 3020-a hearings for almost two years (I have worked on about 58 cases over the past 7 years as an independent consultant/paralegal for several attorneys). We believe that Ms. Cardinale's termination at 3020-a arbitration in New York City was not rational, and Arbitrator Michael Lendino lawlessly took on the case (at $1400/day) despite our submission of "Betsy's Motion" to Dismiss For Lack of Subject Matter Jurisdiction, now cited by Staten island by Judge Green:
DOE took illegal steps to fire tenured teacher: judge
Selim Algar, NY POST, April 3, 2018
City teachers facing termination have been thrown a legal life preserver.
In a precedent-setting decision, a Staten Island judge ruled last week that the Department of Education took illegal shortcuts in firing a tenured teacher.
Judge Desmond Green said that a termination hearing can take place only after a vote by the Panel for Educational Policy establishes probable cause.
Green said the DOE ignored that requirement in canning Rosalie Cardinale and ordered her reinstated.
Longtime advocate Betsy Combier, who worked on Cardinale’s case, said the DOE has ignored the law for more than a decade — and thinks Green’s ruling sets a precedent to challenge other firings.
“This is huge,” she said. “This is a protection we are supposed to be giving tenured teachers. For all these years, they have not gotten it. It’s not right.”
Neglecting the probable- cause vote “violates Petitioner’s due-process rights and violates New York’s strong public policy protecting the integrity of the tenure system,” Green wrote in his decision.
Cardinale’s lawyer, Jonathan Behrins, said the DOE purposefully avoids the PEP vote because it exposes dubious terminations to more scrutiny.
A city Law Department spokesman defended Cardinale’s firing.
“We believe DOE’s determination was appropriate and lawful,” said spokesman Nick Paolucci.
For 14 years as a teacher advocate in New York, my focus has been assisting educators with problems concerning their workplace, and/or, if they were tenured, researching the backstory of 3020-a charges served on them in the rubber room or reassignment.
In New York City, I knew that the controlling Law for 3020-a arbitration is Education Law 3020-a. It says so in the charging papers. But Ed Law 3020-a (2)(a) says that there must be an Executive Session and a vote by the school board (in NYC the "PEP") on probable cause for the charges before the charges are served. In NYC, this Executive Session never takes place and there is no date in the charging papers for this meeting and vote.
For many years teachers charged with 3020-a Specifications received the 3020-a charges ("Specifications") with APPENDIX A in the packet. I asked NYSUT and the DOE why this was sent out to all tenured charged educators if there was no compliance in NYC, and the answer was always, "that's the way it is".
I used to attend PEP meetings and spoke about the "Executive Session" being held before the public meeting began, which is a violation of Open Meetings Law #105. I collected the Agendas 2007-1013, whenever there was an Executive Session which violated Open meetings Law. I did not understand then nor do I understand now, why PEP members violated Open Meetings Law consistently, without any questions asked by the PEP members themselves. I also filed a Freedom of Information request for the contract of Joel Klein, and I was told by the NYC Department of Education that Mr. Klein did not have a contract!
See The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender
I also spoke about my dismay that the charging process for teacher tenure hearings was a violation of the tenure law, in my non-attorney opinion.
When speaking at PEP meetings (video produced by Norm Scott) - where I called Joel Klein "Mr." Klein, because I do not believe he ever had a valid contract, and no Chancellor who followed him had one either - I carefully tried my best to take less than 2 minutes, leaving 45-50 seconds for former NYC schools Chancellor Joel Klein to give me an answer. He rolled his eyes, sometimes looked at DOE General Counsel Mike Best with his "there she goes again" look and took 10 seconds to tell me " your time is up, Ms. Combier, next speaker please" and 10 seconds for me to say "...but you didnt answer my question..."
I did not attend PEP meetings since then because they are useless, except for the PEP meeting on Feb 28 2018, where the two schools I was helping, MS 53 and PS/MS 42, were allowed to continue, open and free.
I have been writing about the PEP and teacher tenure on my blogs and websites since 2007, and I have submitted these issues to the DOE Attorneys as well as the Attorneys I work with and NYSUT, for at least that long, if not longer (I started working with teachers in 2003). I now assist at 3020-a as a member of the legal team (Im not an attorney). An educator charged with 3020-a does not need an Attorney in arbitration, but if anyone goes Pro Se, I highly recommend an assistant to help with the process. I do that, but I most often work with attorneys.
In 2003 I started asking all of the Attorneys I knew why there was no compliance with this section of Ed Law 3020-a. The answer I received always was, "...because that's the way it is", or "Don't worry about it". But I did worry about it, and when I began working on 3020-a hearings as an assistant to teachers who wanted to be pro se (without an attorney) or who wanted me and a private attorney to be the legal team, we always presented a Motion To Dismiss on the issue that if there was no vote on probable cause, then the arbitrator had no authority to proceed to a decision, and any decision was invalid.
We were denied on our Motion in the Supreme Court until Judge Desmond Green saw it differently:
“The DOE’s failure to make a finding of probable cause and adhere to the procedural protections guaranteed to Petitioner in Education Law § 3020-a violates Petitioner’s due process rights and violates New York’s strong public policy protecting the integrity of the tenure system.”
It appears that this decision unravels the 3020-a panels and nullifies the decisions made by any arbitrator who refused to grant the Motion To Dismiss on the basis of a lawless determination of probable cause signed by a Principal or Superintendent. There is no rule, law, or memo that specifically gives either Principals or Superintendents the authority to sign that paper, NOTICE OF DETERMINATION OF PROBABLE CAUSE.
I am writing a book about my experiences in 3020-a hearings after I brought up this issue.
The Department Attorneys have submitted responses, or Opposition to the Motion To Dismiss that range from the boring to the funny and ridiculous. One theme always appears: the Chancellor has the right to charge anyone, and can delegate this authority to anyone.
Again, I am not an attorney, but preferring, or serving, charges on tenured educators is not the same as determining "probable cause". My final answer.