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Saturday, May 13, 2017

New Jersey Judge Dismisses a Lawsuit Challenging State Rules Requiring School Districts to Base Teacher Layoffs on Seniority

74 co-founder and board member Campbell Brown
Campbell Brown loses another lawsuit aimed at ending the tenure protections of teachers. Her latest attempt involved stopping the "last in first out" excessing, where senior teachers stay and newbie teachers leave if there are layoffs.

See the Lawline episode on that with me, Attorney Bryan Glass (who asked for my participation for this show) and former DOE prosecutor Attorney Michael Mazzariello:

Lawline TV: Teachers Unions & the Last In First Out Rule

Enjoy.

Betsy Combier





HG v. Harrington Legal Filings


New Jersey Judge Tosses Parents’ Lawsuit Claiming Last In, First Out Layoff Rules Harm Students

New Jersey judge swiftly dismissed a lawsuit Wednesday that challenged state rules requiring school districts to base teacher layoffs on seniority regardless of performance in the classroom.
New Jersey Superior Court Judge Mary C. Jacobson told a Trenton courtroom that the plaintiffs had failed to establish how seniority-based layoff rules known as “last in, first out” were harming their children.
“I don’t see any link other than speculation and conjecture between the LIFO statute and the denial of a thorough and efficient education to these 12 children,” Jacobson said.
The lawsuit, HG v. Harrington, was filed in November on behalf of a dozen Newark students, claiming that “last in, first out” mandates governing teacher layoffs violate their right to a “thorough and efficient” and “equal” education system under the state Constitution.
The complaint was sponsored by The Partnership for Educational Justice, a national education reform nonprofit founded by 74 co-founder Campbell Brown. Named defendants include the New Jersey State Board of Education and Newark Public School District.
The American Federation of Teachers and the New Jersey Education Association, considered “intervening” defendants in the case, filed the motion to dismiss.
(Read: New Jersey Parents File Lawsuit to End First-In, Last-Out Layoffs)
The parent plaintiffs charged that children attending Newark Public Schools and other poverty-ridden districts are denied an equitable education because statutes requiring “quality-blind” layoffs force those districts to lay off effective teachers rather than ineffective ones, or to cut spending elsewhere in the budget rather than lay teachers off.
In recent years, Newark Public Schools avoided layoffs by refusing to assign ineffective educators to any job, placing them instead in the Educators Without Placement Sites (EWPS) pool.
Even without a job, those educators are still paid — a cost that ballooned from $6.4 million in the 2011–12 school year to $22.6 million in the 2013–14 school year. Newark Public Schools Superintendent Chris Cerf, who was appointed in 2015, has since transitioned hundreds of those unassigned educators back to the classroom. Newark Public Schools plans to spend about $8 million for an estimated 80 educators in the EWPS pool next school year, according to the district.  
Kathleen Reilly, a lawyer for the plaintiffs, called the EWPS pool a “work-around” that “diverts the district’s already limited resources” to pay the salaries of ineffective teachers.
But union lawyers argued that because Newark Public Schools has not laid off teachers recently or announced a plan to do so in the immediate future, the plaintiffs did not establish negative consequences of the rules.
“They don’t name a single program or resource or opportunity that any individual plaintiff has been denied and which has caused that individual plaintiff harm,” said Steve Weissman, a lawyer for the AFT. “There is absolutely no specificity here.”
Reilly said the plaintiffs might appeal the dismissal to the appellate court or replead the case.
“I don’t think these parents want us to move on” from the case, she told reporters after the hearing.
HG v. Harrington is the third lawsuit filed by the PEJ challenging teacher tenure protections. In 2014, the group filed Wright v. New York, which is currently before the state Supreme Court. Last year, the group filed Forslund v. Minnesota, but it was dismissed by a judge who said issues governing teacher layoffs should rest with state lawmakers. The plaintiffs in that case have since appealed the judge’s decision.
Editor’s Note: 74 co-founder and board member Campbell Brown founded the Partnership for Education Justice. The Walton Family Foundation partially funds The 74 and PEJ

The Unlawful Randomness of Labor Arbitration 3020-a in New York City

re-posted from Parentadvocates.org:


From Editor Betsy Combier: For 14 years I have observed and worked on the labor arbitration known in New York City as 3020-a. 3020-a arbitrators, one in each case, sit in judgment of a tenured employee of the NYC DOE and can exonerate, fine, suspend from employment without pay or terminate any charged person brought before them.The United Federation of Teachers and the New York City Department of Education run these hearings in such a way as to deny the charged employee their rights under New York State law.

On this website I have reviewed countless cases of arbitrator abuse and worked as a paralegal to overturn some of the worst (see the cases of Lisa Broad, where I assisted Attorney Candace Deamer, and David Suker, where I assisted Attorney Maria Chickedantz; see here as well). These are two of the 35 Appeals I have assisted with where New York State Supreme Court Judges overturned the decision of the arbitrator based on this decision being "excessive" for the crime or misconduct sustained at the hearing.

The trouble with all of this is that the process is random.

Every hearing is unique. I know, because I have attended/worked on at least 60 if not more, and I have reviewed hundreds of decisions of arbitrators and, before 1994, the Commissioner of New York State Department of Education. I find the randomness fascinating. How did one arbitrator find that a teacher was guilty of slamming a child against a wall to remove them from a fight in the classroom and give a $7500 fine, while another gets terminated for the same act, or less?

The fines, suspensions and terminations are not uniform or set to any standard. This is unlawful, because tenure in New York State is protected, public policy. There is a high standard for termination, and the arbitrators write their decisions often to get away with doublespeak on how egregious the charges were, to try to reach a justification for termination that they were told by a DOE person before the hearing began that they had to find. The case of Peter Principe went to the Court of Appeals on the issue of bias by Arbitrator Stuart Bauchner against him, and, as Peter insisted he was innocent of the misconduct, he would not be remorseful. Peter won .

Oh yes, folks, the permanent panel in New York City lends itself to all kinds of legal abuse. In other parts of New York State outside of New York City, when an tenured school employee is charged, these charges immediately go to a vote in an Executive Session of the school board on probable cause. As tenure is a property and liberty right in New York State, the Fourth and Fourteenth Amendment covers any unlawful seizure (I am not a lawyer, this is my opinion). have you been re-assigned, and told you must leave the school building immediately, leaving all your personal possessions in your classroom or elsewhere? You must get your belongings back or this is theft, and you should file a complaint with the police, not with the principal.

"C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property."


The Fourteenth Amendment:

"Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Try your best to find out if your stuff has been moved, where its been moved, and what is there. Request a visit to gather up your stuff, and if denied, file a grievance and then go to the police with a list of your property you dont have.

Any arbitrator who agrees to take a case handed to them, randomly - not - by the NYC DOE and the UFT, knows that they must meet a Constitutional Standard in their decision for/against penalty in each case.

Many arbitrators don't care, and do what is fair. My favorite arbitrator of recent years is Eugene Ginsberg. I believe that he was the most thorough, fair arbitrator on the panel. He was fired in September 2016.

He told me that if that was because of his decisions, so be it. See his decision in the case of Ann Legra.

Where some arbitrators will terminate anyone with so-called "excessive" absences, Arbitrator Ginsberg did not.

As I wrote above, some arbitrators have a problem being fair, and go along to get along with the Department of Education in order to stay on the permanent panel. When you are in a hearing, you can spot these arbitrators a mile away. I will write about them in a later post.

New York State Supreme Court Judge Lucy Billings has a problem with the randomness of the New York City 3020-a arbitrators in their penalties, as she wrote in the case of Moreno-Lieberman, which I use in all my closing arguments:

"IV.THE INVITATION TO ARBITRARY ASSESSMENT OF PENALTIES

In fact, the absence of any specific guidelines for the imposition of fines in teachers' disciplinary proceedings shocks the conscience and is a deficiency to be addressed by respondents or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decisionmakers must do so fairly, not arbitrarily. General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 (2004); Abraham & Strauss v. Tully, 47 NY2d 207, 213-14 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d 796, 804 (Sup. Ct. Bronx Co. 2008). Neither the Education Law, nor the Chancellor's Regulations, nor any other code fixes any "primary standard" or articulates any objective test or gauge, General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d at 254; Nicholas v. Kahn, 47 NY2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805, to guide respondents' or Hearing Officers' exercise of authority and discretion in their assessment of monetary penalties. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d 402, 407-408 (1997); Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805. See Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 405-406. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, e.g., Goodwin v. Perales, 88 NY2d 383, 392 (1996), yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty. Nicholas v. Kahn, 47 NY2d at 33-34; Levine v. Whalen, 39 NY2d 510, 518-19 (1976); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805-806.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decisionmaking. 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806. 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. Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 408; Nicholas v. Kahn, 47 NY2d at 28, 33-34; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 806; Dawson v. Village of Spring Val., 151 Misc 2d 128, 134 (Sup. Ct. Rockland Co. 1991). See C.P.L.R. § 7803(3)."

So what is a teacher supposed to do who is charged with 3020-a? Fight. Don't  settle, resign or disappear. The charges will follow you for the rest of your career. But be wary of anyone who belittles you, your charges, or does not have experience in NYC 3020-a. NYC is a minefield with bizarre statements made on a consistent basis, which must be addressed on the spot, at the hearing. The DOE wants their witnesses to lie, if that is what it takes to terminate a charged employee. Catch the lie, and have your representative squeeze out the truth in cross examination. The record made is what you work with on appeal.

In my opinion there are NYSUT attorneys who know what to do, but don't do work on any case if at all possible; some NYSUT attorneys do a minimum amount of work but are reluctant and must be pushed, and then there are NYSUT attorneys who seem to work diligently, but nonetheless will not get all your requests (medical, witnesses, exculpatory evidence) into the record, which in my mind is absolutely required, if you are to win at the 3020-a or in appeal.

The process in NYC starts out on the wrong foot when, in the charging papers, the Notice of Determination of Probable Cause Pursuant to Education Law 3020-a, has no date for the Executive Session of the school board (in NYC the Panel For Educational Policy) required by Education Law 3020-a(2)(a). The reason is that the NYC Department of Education never allows or schedules an executive session for the NYC school board, because they don't want it.

Really,  and they get away with this in NYC because.

Just because you don't want to do something does not mean that you can allow a law to be ignored, but that is exactly what the NYC DOE does, and has done. In every case that I work on, we - the Attorney and I - submit a Motion To Dismiss the charges based on this procedural error. The arbitrator always dismisses this motion. But we use this in an appeal to the Supreme Court, and as I wrote above, we have overturned 35 decisions of arbitrators to date.

We have no secret on winning 3020-a. In every case the standard is to be respectful to the arbitrator but not to accept any Department nonsense without vigorously objecting, pointing out lies, submitting documentation about violations of law and UFT rules (there are always many in every case) and submit a dynamite closing argument that shows the arbitrator that the legal team - the Respondent, Attorney, paralegal - mean business, and will take any penalty seriously (and appeal, get media coverage of the arbitrator, etc.).

In sum, what I'm saying is that NYC 3020-a is a random and arbitrary mess, but it is entirely possible to clear the name of a charged employee , or avoid termination, by going to a decision of the arbitrator. The Respondent (charged employee)'s legal team MUST work together, sharing the transcripts as the hearing moves forward, and constantly working through the lies and violations of law and contract presented by the DOE. Then you can win.

Consultations are always free, and confidential.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


Teacher Marilyn Martinez is Cleared of All Charges in Her 3020-a, Proving CPE1 Principal Monika Garg's Vindictiveness

and proving that Principals can, and do, use 3020-a labor arbitration as a tool to remove teachers from their school who speak up, are too expensive, or otherwise a pain in the a__.

Retired teacher Norm Scott and the wonderful, dedicated New York teachers and parents and friends of Central Park East 1 (CPE1) have done it! Through their amazing reporting and participation on exposing the unlawful charges filed against Marilyn Martinez , a teacher at Central Park East 1, there was an exceptional outcry against the NYC Department of Education and the United Federation of Teachers for allowing this to happen. Everyone should rush to his blog and review his posts on exactly what happened.

It takes a community, sometimes, to win a case.

Norm has not worked on 3020-a and does not have any first hand information about how it works or about any of the arbitrators, however he never mentions me, my blog, or blog posts on his blog Ed Notes Online, or posts any of my information on 3020-a.

I don't have all the first hand information about NYC schools and the Department that Norm has, so we are not competitors in any way.

Luckily, I dont need Norm's stamp of approval for my work, as my experience and expertise is 3020-a, and I do not have the same animosity towards him. So, I commend him for his work on this case! Norm and all the supporters of Marilyn Martinez, who showed up at 100 Gold Street despite the fact that Marilyn did not have an open and public hearing, showed arbitrator Burrell that the charges were based on nothing but Principal Garg's unconscionable vindictiveness and retaliation.

I also praise Arbitrator Dean Burrell for his excellent decision.

Arbitrator Dean Burrell

He is new to the permanent panel in NYC, and is one of the best arbitrators currently there.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

DOE/Legal Rushes to 3020a Kangaroo Court for Central Park East 1 Chapter Leader Starting Today: Parents to Rally OutsideEd Notes Online

Supporters of Marilyn Martinez in the waiting room at 100 Gold Street, 3020-a arbitration hearing office


SATURDAY, MAY 13, 2017

You might be asking why the constant reporting on CPE1? Because the story contains the essence of so much that is going on in the NYC DOE and the UFT. 
Abuse by principals and superintendents and Farina at the top in targeting schools and senior teachers.
They follow a  blueprint that the UFT doesn't share with its members.
Teachers and parents at first accept the principal who lies and manipulates -- it takes them months since they had never seen anything like that before. 
UFT ignores situation for over a year with teachers charging the Dist Rep with showing favoritism toward the principal and the Supt over them.
In desperation, teachers contact MORE despite being warned by UFT that MORE is only interested in using them. Or any other lies they can make up.
UFT says it is working behind the scenes but will not call publicly for Garg's removal nor use its PR machinery to promote the story.
Here is where we diverge from the typical story. 
Parents take charge -- not a small group -- like the Garg supporters -- but a massive outpouring. We suggest they go to the PEP meetings when we met with them in Feb. 2016. They weren't even clear what PEP meetings were but they learned fast and have attended every one since March 2016. They even begin going to the Delegate Assembly to pass out leaflets.
MORE/NA elect 7 HS Ex Bd reps who begin bringing them to Ex Bd meetings soon after Marilyn - the CL - removed in February-- the impact hits union leaders right in the face.
We expect the hearing officer to split the baby and fine Marilyn, thus preventing her return to the school. But she wins outright.
The return of Marilyn Martinez to the classroom this Monday and the appointment by Farina of a Superintendent who may not have the same buddy buddy relationship that existed between the current Dist 4 Supt Alexandra Estrella and Monika Garg.
Later today the parents are throwing a party for Marilyn at a restaurant in East Harlem to celebrate but the struggle against Garg will continue because she had broken trust with everyone.

Fact is both Estrella and Garg have committed acts of a vendetta that should get them both fired. But we know supervisors will never go away -- like Townsend Harris' Rosemary Jahoda is sitting somewhere waiting for a new assignment -- and there are rumors she was offered some principalships which is like putting Willie Sutton in charge of running a bank.

Mulgrew - you can say we all put enough pressure on him -- did play a role behind the scenes in demanding Marilyn Martinez be returned to the classroom -- but that is her legal right - and any teacher winning a 3020a should be returned -- it shouldn't take a massive parent protest, sit-ins and boycotts.

That the issue was about Marilyn supposedly giving a parent advice on getting into the school was the cause of the youngest children losing their teacher for 2 months and 3020a firing charge- with Garg luring in a parent and taping her - while telling parents she had no role in the removal of Marilyn - should cause her instant dismissal and charges filed against her. She did the same with the other teacher who has been out of there for 15 months - using a more serious charge of corporal punishment -- also made up - the parent of the child testified for the teacher. I think the teachers have grounds for a personal law suit against Garg and Estrella and possibly Farina.

This is where the UFT is failing -- failing to call public attention to these outrages.

The NY Times' Kate Taylor has another poorly reported and biased story today:

https://www.nytimes.com/2017/05/12/nyregion/after-protests-harlem-elementary-school-principal-gets-new-supervisor.html?smprod=nytcore-iphone&smid=nytcore-iphone-share

Examine these 2 paragraphs:
For more than a year, a group of parents [massive group of parents representing the majority] at the school has been demanding the removal of the principal, Monika Garg, who started in 2015. The parents seeking her removal have accused her of watering down the school’s progressive approach and instigating investigations that led to the temporary removal of two teachers. [Does she know that these removals are often not temporary?]

Another group of parents, and some of the school’s teachers, [a giant wtf - a small group of parents and a few teachers] support Ms. Garg, saying that she has tried to bring order to a school that long flouted department rules.They say that there were inequities in admissions and that some students were underperforming.
Note how Taylor gives the pro-Garg talking points but not the major talking points against Garg -- like a mile long.

Now let's look at this:
The department had sought to remove Ms. Martinez, citing accusations that she had attempted to assist a parent in violating the schools admissions policies, according to a person familiar with the charges.
But an arbitrator found the accusations unsubstantiated and dismissed the charges.
Does Taylor know about the impact of 3020a charges to dismiss instead of putting a letter in her file? Does she even question the idea of the cost to the DOE for trying to get Marilyn fired for "attempt[ing} to assist a parent in violating the schools admissions policies"? Another giant WTF.
The case against the other teacher, Catlin Preston, is still pending. The department is seeking to remove him on charges that he meted out corporal punishment.
Now this -- essentially slandering Catlin by mentioning corporal punishment - but not reporting that the parent was lied to and in fact testified for Catlin. The parent has made public statements and I believe has told Taylor the story. This is not only bad reporting but dishonest, biased reporting.

What about the UFT role?
And then there's the role the district rep, Servia Silva played favoring Garg and Estrella, something we witnessed in person when she gave the pro-Garg crew that showed up at the Ex Bd meeting an effusive greeting while she ignored the vet teachers who have been fighting Garg. We saw no sign of Silva meeting after meeting when parents en masse showed up. I never saw Silva at one of the hearings for Marilyn.

Let's be clear -- all tenured teachers were under investigation by Garg starting in the fall of 2015 -- no red flag at the UFT? They came to MORE in frustration in Feb/March 2016 but after that they took control on their own --some of us came out to support them when we could. They came back to MORE for help in March 2017 after Marilyn was facing 3020a hearings- and we suggested they come to the Ex Bd. But before that there was no reaction at the UFT --- I know - they will claim behind the scenes -- but in fact with these flimsy charges against a CL who fought the principal, the UFT should have raised the riot act when she was removed and charged -- there are many teachers under investigation who remain teaching as long as children aren't involved.

Why did it take the UFT over a year to take note of this situation? Why does so much of the UFT hierarchy seem to be in bed with administrators?

The lesson is that we must shine the light on the cockroaches to flush out the UFT leadership into taking some action, even if weak.