More Tales “Shocking to the Conscience”
by The Assailed Teacher
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There might have been a time when the 3020a process had some integrity. Under the reign of Pharaoh Bloomberg, however, whatever integrity it once had has come into question.

When a teacher does not agree with a ruling of the independent arbitrator, their only recourse is to appeal to an actual court of law. For many teachers, the cost of lawyering up and the inordinate amount of time it takes to go through the court system makes appealing the arbitrator's decision out of the question.

Yet, more and more, teachers who go to the court system see some form of justice served. It must be pointed out that judges generally do not like vacating decisions of labor arbitrators, since doing so reduces the integrity of the arbitration process. The fact that so many judges are doing so proves that NYC's 3020a process is broken.

Take the case of Nicole Moreno-Lieberman. The NY State Supreme Court vacated the independent arbitrator's ruling of a $7,000 fine. Judge Lucy Billings' recent decision says a mouthful about the pitfalls of the 3020a process.

Ms. Moreno-Lieberman was a dean at P.S. 169, a district 75 school. She received a complaint that "Student A" had tried to kiss and grope his former girlfriend, "Student B". "Student B" complained to Moreno-Lieberman about the harassment, who called "Student A's" father in for a conference on the following Monday (this all took place on a Friday). "Student A" then wrote a note on a napkin to another student, "Student C", explaining that he would rather kill himself than allow this complaint to be the reason he has to return to the Dominican Republic. He asked "Student C" to deliver the note to "Student B", which also contained a request that she retract her complaint. "Student C" dutifully delivered the note to "Student B" and "Student B" delivered the note to dean Moreno-Lieberman.

The note was written in Spanish. A school aide translated the note into English for Moreno-Lieberman. Appropriately, Moreno-Lieberman brought the note to the school guidance counselor. The counselor interviewed "Student A" and required him to write another note promising that he would not hurt himself. She then determined that "Student A" was well enough to return home on his own.

When "Student A's" father came in for the meeting on Monday, Moreno-Lieberman learned that the boy did indeed try to hurt himself and was hospitalized. Moreno-Lieberman showed the napkin note to the father, at which time the guidance counselor came into the room. They talked about the attempted suicide of "Student A", then left the room to ask the principal if they could see the distraught boy in the hospital. When they returned to the room, "Student A's" father was preparing to leave. Moreno-Lieberman did not realize he had taken the note with him. She called him later in the day to ask if he could return the note, but he never did.

Both Moreno-Lieberman and the counselor were brought up on 3020a charges. Moreno-Lieberman's charges demonstrate the underhanded way the Department of Education goes after teachers. Why Nicole Moreno-Lieberman was brought up on charges at all in this scenario is tough to understand. She seemed to go through all of the proper channels when it came to both the harassment and the threatened suicide. Keep in mind that District 75 is for special needs students, and perhaps scenarios like this are pretty common in this school.

Yet, because a student tried to hurt himself, someone's head needed to roll. The DOE slapped Moreno-Lieberman with the following four charges:

a) upon learning of Student A ' s suicide threat, she failed to notify the principal, allowed Student A to be released from school without notifying his father of the suicide threat, and did not telephone 911 for help for Student A

b) based her conduct set forth in Specification I, she endangered the physical, mental, and moral welfare of Student A, a child

c) based on her conduct set forth in Specifications I and 11, she failed to prevent or contributed to Student A ' s suicide attempt and hospitalization

d) She, albeit unintentionally, negligently allowed a student's handwritten suicide note, written on a napkin and referred to as the "napkin note," to be taken from the school by the student's father without preserving a copy of the note. Further, her serious negligence . . . impeded the investigation" by Department of Education into school personnel's handling of the student's threat to harm himself.

These charges are designed in a way that, if you are found guilty of the first one, chances are you would be found guilty of the next two. However, if you are exonerated on the first one, then you must be exonerated on the next two. That is why the fourth one is there. If the DOE cannot get you on one major thing, they will throw a trivial thing on there, or several trivial things. As a chapter leader and someone who has read dozens of 3020a charges of teachers across the city, this is the standard way the DOE tries to get teachers.

As an arbitrator, someone who needs to be approved every year by the DOE to retain my position, I would look at these charges and ask "which one(s) will this teacher be found guilty of?" That is how the system is designed. Arbitrators always have to split the baby. The DOE knows this, and always slaps teachers with charges that make it easy for the independent arbitrators to do just that. Therefore, teachers are rarely ever exonerated. This allows the DOE to turn around and say "see, we never accuse a teacher who is not guilty of something". It makes it seem as if the DOE and the 3020a process have integrity. Yet, "integrity" is the last word that comes to mind when you look at this crooked process.

The DOE's arbitrator, David Hyland, dismissed the first three charges. On the fourth charge, Hyland found Moreno-Lieberman guilty. She allowed the "napkin note" to walk out of the school with the father, which hindered the DOE's investigation into how this matter was handled. Hyland fined Moreno-Lieberman $7,000 for her "negligence".

This ruling was torn apart by Judge Lucy Billings of the New York State Supreme Court:

A review of the testimony by petitioner, the Department of Education investigator Derrick Dottin, the school principal Scallon, and Student A's father shows that, when petitioner handed the "napkin note" to the father, she did not intend that he keep it. Her distress upon learning of Student A ' s suicide attempt, however, overcame her customary professional discipline, so that she neither sought to retrieve the note from the father before he left, nor arranged to copy it. This record supports the Hearing Officer's decision insofar as he found that petitioner was negligent in failing to satisfy her responsibility to preserve school records.

Despite a careful, conscientious opinion, the Hearing Officer nevertheless overstated the importance of the missing "napkin note" to respondents' official investigation of the circumstances surrounding the charges against petitioner. The investigation focused on the possible further step to have been taken by school personnel to prevent Student A ' s suicide attempt. Among the school employees, students, and family who read the note, including petitioner, school aide Gabriel, guidance counselor Vartanova, Student A, his father, and Student B, there was no disagreement about the note's contents. No evidence suggests that the note's exact wording or appearance was of a consequence to the investigation.

As painstaking as the Hearing Officer's recitation of other factual details may be, his decision fails to consider these critical circumstances. The Hearing Officer never explains why documentation of the note's undisputed contents was central to the investigation's conclusions--because, when the missing record is considered in the context of the consistent evidence set forth above, how the note's physical absence hindered the Department of Education, in its investigation or otherwise, is inexplicable.

The Hearing Officer admittedly never explains how physical possession of the napkin would changed the investigation's direction or conclusions, but simply declares that he "will not speculate on exactly how the investigation might have turned out differently had the 'napkin note' been available.

In other words, David Hylan found that Moreno-Lieberman hindered the DOE's investigation when she neglected to secure the "napkin note". Yet, Hylan at no point explains how the absence of the note hindered the investigation. The contents of the note were never disputed by anyone who had ever seen it. Everyone agreed on what it said. Yet, Hylan still found her guilty of hindering an investigation.

And that cost Moreno-Lieberman $7,000. In response, Judge Billings decided the following:

Yet the Hearing Officer justified the amount of the $7,000 fine he assessed against petitioner on the significance of the missing "napkin note" in somehow obstructing respondents'investigation of the charges, to "teach her a lesson about the importance of preserving Department of Education of records. Petitioner already was punished by losing her position as the dean of discipline. The $7,000 fine, arrived at without reference to any specific criteria whatsoever for the imposition of fines, is excessive to the point of shocking the conscience.

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 respondent or a legislative body. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decision makers must do so fairly, not arbitrarily.

Neither the Education Law, nor the Chancellor's Regulations, nor any other code fixes any "primary standard" or articulates any objective test or gauge, to guide respondents' or Hearing Officers' exercise of authority and discretion in their assessment of monetary penalties. Their assessment of penalties that they are charged to administer may be upheld if the assessment is rational and not excessive, yet no statute or interpretive regulation articulates a standard or gradation against which to measure the rationality or excessiveness of a monetary penalty.

In sum, the absence of any statute or implementing regulation to guide the evaluation of fines to be imposed allows unfettered, standardless, arbitrary administrative decision making. 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.

Translation: the arbitrator had no good reason to slap Ms. Moreno-Lieberman with a $7,000 fine. There is no Chancellor's Regulation, state law or legal precedent that sets any sort of penalty for failing to secure school records. Therefore, David Hylan could only have arrived at his $7,000 decision arbitrarily. This is dangerous, since arbitrators in these cases have a tremendous amount of latitude in setting penalties. They have a responsibility to do so fairly and not based upon numbers they pull out of thin air.

Judge Billings even goes further and claims that, based upon her reading of legal precedent, the maximum fine for Ms. Moreno-Lieberman should be $1,000. Not only did Judge Billings vacate the findings of the independent arbitrator, but did his job for him in coming up with a just ruling.

Judge Billings is right on with everything she wrote about this case. More and more judges are looking at the rulings of 3020a arbitrators and claiming that they are "shocking to the conscience" of the court. This should not be, since arbitrators should be fair and impartial. However, because these arbitrators are on the DOE payroll and depend on being reappointed every year by the DOE to keep their positions, they will always find something against any teacher who is brought in front of them, no matter how frivolous or arbitrary the charges.

A $7,000 fine is ridiculous for losing a note that everyone had already seen. The DOE spent what must have been millions of dollars in reassigning Ms. Moreno-Lieberman, paying an arbitrator and hiring lawyers to argue the case in front of both an arbitrator and an actual court of law, not to mention an investigation that must have taken at least a year. In the end, the DOE will not even get $1,000 of that back from the teacher they harassed and demoralized.

This is the unseemly underbelly of the NYC Department of Education. If a real reporter (not the clowns at the Post or Daily News) were to do an expose on the waste and corruption that takes place in these 3020a hearings, they would find enough dirt to outrage taxpayers for years. Until that time, the 3020a process rolls along as corrupt and wasteful and secretive as ever.

Let this be a message to any teacher who finds themselves in the same situation. Do not give up. The independent arbitrator's findings are not the end-all, be-all of the process. It may cost money and time, but if you appeal their ridiculous findings, you have a good chance of being cleared by an actual court of law that does a much better job of meting out justice.