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The NYC Rubber Room Gotcha Squad Is Slammed By The New York State Supreme Court
Arbitrator David Hyland ruled in February 2011 that a NYC Dean had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Lucy Billings says this fine is "shocking to the conscience...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." From Betsy Combier: Thank you, Judge Billings!!!
From Betsy Combier, Editor of and NYC Rubber Room Reporter, NYCourts-New York Court Corruption, NYC Public Voice and National Public Voice:

When I first started looking into the "NYC Rubber Rooms" and the teacher trials for tenured teachers, (3020-a) in 2003 after speaking with and working with David Pakter, Polo Colon, and Teddy Smith, (all worked with me to get their stories out into the internet as they wanted it told), I was stunned to see what was going on.

In my opinion, Mayor Bloomberg had made a business out of framing people.

Children and their parents were, and still are, bribed to lie about what a teacher has said or done, and the rewards are diverse, such as a higher score on a test, graduation from school, promotion to another grade level, etc, all done in secret with the administrators of the school and the Superintendents and even higher ups, Deputy Chancellors and the Chancellor himself - or herself, as in the case of Cathie Black. Putting all of this together is not difficult, as few people believe that a public servant is actually out to "get" him or her until it is too late. If a teacher knew that the child(ren) were lying, all they had to do was contact the parent(s) or tell a superior what was going on, and sooner than a blink of the eye, the teacher is shot down with charges either about some corporal punishment that he/she didnt do, or the ever-ready charge of "actual" tampering with an investigation, which was slipped into Chancellor's Regulations A-420 in June 2009 is charged against him/her. Anyone can interpret what the term "actual tampering" means. My point here is, once the train has left the station, there is no stopping them. At least, that's what Mayor Bloomberg, the UFT, NYSUT and private Attorneys want teachers subjected to the rubberization process to believe. It just is not legally sound.

"Actual" tampering, according to Federal law, specifically 18 U.S.C. §1503: "unlawful to "influence, obstruct, or impede the due administration of justice" and §1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding". Under 1503, a government agent must prove that a defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See United States v Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990).

Acting "corruptly": some courts have defined this term as acting with "evil and wicked purposes" see United States v Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v Moon, 718 F2d 1219, 1236 (2d Cir. 1983): United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v Anderson, 798 F.2d 919, 928 (7th Cir, 1986; ) United States v Rasheed, 663 F.2 843, 847 (9th Cir. 1981). Thus it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

Section 1512 specifically applies to "witness tampering": a defendant was proven to have knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. The defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not;
§1512 does not apply to defendants' innocent remarks or other acts unintended to affect the proceeding. See United States v Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). None of this applies to most of the specifications currently charged teachers in NYC, but the DOE Gotcha Squad spends hundreds or thousands of dollars trying to prove "actual" tampering, anyway. As I mentioned above, this is a business and everyone profits (except the Respondent).

From 2003 to 2008 there was little, if any, opposition to the false claims business run by the NYC DOE and the Office of General Counsel, headed by Theresa Europe ("the Gotcha Squad"). See also my article on the misinformation of the Bloomberg/klein/education mafia, Steven Brill for more on exactly how the Gotcha Squad works at 3020-a. Many people gave up, settled out of the 3020-a, resigned or retired. The effect of getting out early, before an arbitrator determined a punishment for your supposedly horrific misconduct or incompetency at 3020-a, was to put you in a precarious position as an ATR ("Absent Teacher Reserve") without rights or without any job at all.

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes:
“Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship...We hold "just cause" is a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.”

The NYC panel of Arbitrators are told by the Gotcha Squad to disregard these well known rules. Alan Berg, an Arbitrator on the panel, exonerated a teacher brought to 3020-a before him, and told me that he was punished by Theresa Europe for making the decision that he did; following his determination, he was moved from the Administrative Trials Unit (ATU) to the dreaded Teacher Performance Unit or TPU. I have heard Gotcha Squad member Dennis Da Costa screaming at Arbitrator Anne Powers that she "better do what he says, "or else".

Additionally, Theresa Europe places everyone who has been charged on a blacklist which will hamper any employer from hiring you in the future. This blacklist is the notorious "Ineligible/Inquiry" List from which attorney Ed Wolf was able to remove Philomena Breenan. Ms. Europe can take people off if she wants, and she puts people on there also whenever she wants to, it seems to me. NYS Supreme Court Judge Alice Schlesinger ordered Ms. Europe to tell her how she, Europe, put people on the list and took the names off, in the case of Philomena Brennan v NYC DOE (Index no. 112977/09)

The rubberization process is arbitrary, malicious, and discretionary.

First of all, the Rubber Room Gotcha Squad is a group comprised mostly of attorneys who are given the authority by Mayor Michael Bloomberg and his allies in NYC to remove tenured teachers - or non-tenured, depending on the circumstances - from their classroom duties because someone in the chain of command at the NYC Department of Education wants them to be out of the school. It's very simple, really.

Secondly, the initial targeting is followed by a strategy of threats, humiliation, fear and retaliation supported the Gotcha Squad as the group denies rights to anyone who opposes their false claims and conspiracy of harm. All anyone has to do to be a target is to ask, "Why?", or "Where's the money?" (See the story of how Francesco Portelos ended up reassigned and on his way to 3020-a).

Thirdly, the agents or messengers of harm must be protected, and given special status, so that those people who are fearless and refuse to be squashed by the Gotcha Squad's lawless lies and then the retaliation, threats and verbal abuse used to punish anyone who remains standing after #1 and #2 above, can be denied a resolution to the "problem", which is basically that these fearless souls wont go away never to be heard from again. Thus the Gotcha Squad's subgroups such as the Office of Equal Opportunity (OEO), Special Commissioner of Investigation (SCI) and Office of Special Investigation (OSI) are given authority similar to the SS in World War II (but not military; mostly civilian attorneys or people willing to follow the orders of the Mayor, the Chancellor, and the New York Law Department).

The UFT and NYSUT, the legal arm of the teacher's union, can and do act in the interest of the Unity caucus, and not in support of individual members. Very few members believe me when I tell them this before they are brought to 3020-a, but many believe this is true after the 3020-a is over, and the Hearing Officer has made a decision that often does not rest on any fact or law. NYSUT attorneys often do not do a good job defending the member at 3020-a because, I was told, everyone charged is presumed "guilty". In fact, the Unity brass told me over and over again that all people housed in the infamous "rubber rooms" - which today are smaller rooms with a few re-assigned DOE employees in each room in an office or school - are not supposed to talk to each other, cannot dispute an investigator, and are guilty of whatever he or she is accused of, so dont try too hard to find a way to save his or her career. I worked for the UFT from 2007 to 2010, and I was hired by Randi Weingarten. I did not agree that everyone was automatically guilty of the specifications they were given, and I looked into each case.

The DOE and UFT, in order to stop any employee targeted for termination from getting a vacatur or dismissal of the decision of an arbitrator, changed the rules for appealing a determination made at 3020-a in 1994 and several times afterwards. The New york State Education Department Commissioner no longer was the office of jurisdiction where decisions were made to sustain or vacate the decisions made at 3020-a. After 1994 people dissatified at 3020-a had to file an Article 75 to the New York State Supreme Court instead of NYSED. To many non-Attorneys, filing anything in court is frightening. That was, I am sure, a main reason for the change.

To further hamper anyone from appealing, the statute giving a petitioner 30 days to file an Article 75 was shortened to 10 days, with another 15 to amend. NYSUT attorneys never take on a case that was lost at 3020-a, this is another problem. After a 3020-a is closed and decided, NYSUT attorneys always write the client and say, in general, sorry you did not win at 3020-a, however, we are not going to help you appeal. Goodbye.

Starting in about 2008 more and more unhappy people post-3020-a appealed, either with an attorney or pro se. The New York State Supreme Court is a mangled mess right now, desperately in need of a total overhaul. The judges are arrogant with their immunity from prosecution, and some judges, like Cynthia Kern now on the 6th floor at 60 Center Street, could not care less about the facts in a case. She grants dismissal of any and all petitions filed by a teacher or any other DOE employee. Her loyalty is very much in the interests of the New York Law Department and the DOE.

Sometimes good decisions do come out of the supreme court, however. The case of Christopher Asch is a case that won a vacatur of the decision of arbitrator David Hyland. Asch signed his petition as "pro se". NYS Supreme Court Judge Manuel Mendez overturned the 6-month suspension, gave Chris his backpay, and ordered the reimbursement of the money spent on a psychiatrist.

Recently David Hyland was again overturned, this time by NYS Supreme Court Judge Lucy Billings in the case of Nicole Moreno-Lieberman. Arbitrator Hyland ruled in February 2011 that a NYC Dean, Moreno-Lieberman, had to "learn her lesson" and pay $7,000 for after she left her office for several minutes and the father of the student who was being discussed as threatening to commit suicide took home a note his son had written on a napkin. Hyland punished Dean Nicole Moreno-Lieberman for not preserving a copy of the note and for her "serious negligence...impeded the investigation". NYS Supreme Court Judge Luck Billings says this fine is "shocking to the conscience...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."

Kudos to Judge Billings, who seems to see that the 3020-a arbitrators in New York City need a reality check, and not just a check from the Gotcha Squad for throwing a case.

Now the easiest way to terminate a teacher brought to a 3020-a hearing is for an Arbitrator to decide the case based upon Education Law 3012-c or 3012-d. In 3012-c or (d), the Respondent, not the Department of Education, has the burden of proof and must prove the charges false. Almost impossible.

© 2003 The E-Accountability Foundation