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Extortion At 3020-a Arbitration in New York City
From Betsy Combier: The 'NYC Rubber Rooms' refer to the eight locations scattered throughout New York City where targeted tenured individuals were held for 2 - 7 years while The Gotcha Squad created charges against them without their knowledge or consent. The United Federation of Teachers, the New York State United Teachers legal group and the New York City Board of Education all conspired together to deny thousands of people their constitutional due process rights by denying them a full and fair hearing on the charges brought against them, forcing these professional employees to make a deal to pay thousands of dollars for being charged fairly or not and/or “irrevocably” resign . Many did not go away willingly, so NYSUT attorneys and the New York City Department of Education forced them to go. This is one story.
   Mike Mulgrew, UFT President   
Extortion at 3020-a
Black’s dictionary, 6th edition, defines “extortion” as: “The obtaining of property from another induced by wrongful use of actual or threatened force, violence or fear, or under color of official right.”

If you are a tenured teacher, social worker, guidance counselor, school psychologist or other senior-level employee of the New York City public school system, watch out. New York City has, it appears, no interest in protecting your tenure rights and has made you an “employee-at-will” without your consent or, for that matter, your knowledge.

Employees-at-will have no legal right to due process and may be fired at any time, almost for any reason. This is a major part of Mayor Michael Bloomberg’s strategy to reform the New York City public schools with an overhaul of the people who work inside as teachers, counselors, psychologists, etc. He wants young, white, business school graduates who will keep the “company” profits high and guarantee results that comply with the business model where productivity is more important than learning. Bloomberg ran his first-term campaign for Mayor as “The Education Mayor” and vowed to change what he called dismal results on state tests, graduation, and other state and federal data by removing “bad” or “incompetent” teachers from the system.

This was, some people said in 2002, good news, as all parents want “good” teachers in their children’s classrooms. However, how was incompetency to be determined? The bad news is that Bloomberg, along with his colleague Joel Klein, neither of whom are licensed educators, gave principals total power within their schools to judge the people who worked for them according to what is now known as the business model standard. The manner in which the business model was implemented led to removal of anyone whom the principal didn’t like, anyone who spoke out too much about the school budget, about feeling harassed, about teaching outside of license, or about anything at all. Tenure rights? No one paid attention to them (and no one made them pay attention).Terror set in as teachers realized that they could be thrown out of their classrooms because the principal may not “like” them, may have someone younger in mind, or may have a political reason – or no reason at all – to remove them to await a 3020-a arbitration hearing, charged with being late two minutes, or other such nonsense.

By 2005 budgetary constraints led to more and more senior, high salary teachers and other DOE personnel being removed from their positions so that younger, less experienced teachers could take their place. This “get two for the price of one” led to a stream of people, almost all senior tenured teachers, being re-assigned to what became known as the “rubber room”, where they were told to sit and wait for their trial, or 3020-a arbitration. Sometimes the wait was a year, sometimes seven years. Sometimes the charges had some factual basis, yet more often than not were a mixture of circumstances and hearsay. Incompetency had been criminalized.

But facts don’t matter in this new education model. Getting rid of “dead wood” does, to the new CEOs who head the New York City school system and who are empowered to say “you’re out” for any or no reason. As I wrote above, if you are tenured, if you have worked successfully with kids for 20 years or more and have a high salary, watch out. You may be put on trial for your satisfactory performance any day.

Lately it seems that every tenured employee of the NYC Board of Education brought to 3020-a arbitration is being terminated. The arbitrators currently serving on the UFT-BOE New York City panel seem to be unwilling or unable to find a lesser penalty for any level of misconduct or incompetence.

We all must defend our right to know who is saying what to whom. In New York City today, however, I believe that the NYC BOE's secret disciplinary process is unfair and I have posted this story to hopefully find another, more just way to deal with alleged "incompetent" teachers, whatever that term means. (See "Strategic Management of Human Capital")

When I started examining the procedures used by the newly instituted Department of Education, I saw that my knowledge of education law and arbitration, which I got by reading my own books (I am not an attorney) did not give me any clue as to the random and arbitrary nature of the 3020-a hearings I was asked to attend in NYC. So, I studied the lawyers and the arbitrators to try to find out how the law could be ignored.

Over time (8 years donated to doing research on this, 2003-2011) teachers and other employees who are charged with 3020-a started calling me to ask what the heck is going on. I tell them my opinion. I am now hired to work as a paralegal on administrative hearings. I wrote an essay on the violation of law and denial of rights in NYC 3020-a:

Betsy's Motion on Probable Cause in Teacher Tenure Arbitration

Tenured teachers brought to 3020-a need to submit a motion to dismiss the disciplinary action because of procedural violations of law which impair their tenure rights to due process as cited in Education Law 3020-a. No Respondent ever waived his/her rights to a hearing on §3020-a charges, which must be presented to the Panel For Educational Policy (PEP) for a vote in Executive Session in compliance with Education Law 3020-a (2)(a).

Yet in the papers served on Respondent, the date of the Executive Session is missing and there is no information on a vote by the employing board on probable cause. An Executive Session is mandated by law and cannot be omitted by fiat of the Chancellor, or by any other law, rule or agreement. There was no Executive Session and the Complainant, the NYC Department of Education, did not comply with Education Law 3020-a.

Therefore, the Arbitrator has no subject matter jurisdiction to proceed with tany case and should immediately withdraw all charges. Alternatively, the Arbitrator should adjourn the hearing of this case until there has been a vote in an Executive Session by the school board and a proper determination of probable cause.

Tenured teachers have a property and liberty right to their jobs, and therefore when there is any penalty that reduces the benefits of these rights, there must be Just Cause.

Judge Desmond Green in the Richmond County Supreme Court ruled in the case of Rosalie Cardinale that:
“New York State created the public school tenure system guaranteeing continued employment to tenured teachers by statute and therefore created a property right in a tenured teacher's continued employment. (See Education Law§§§ 3012, 3012- a, 3020, Holt v. Board of Educ. Of Webutuck Cent. School Dist., 52 NY2d 625 [1981], Matter of Abromvich v. Board of Educ. of Cent. School Dist. No. I of Towns of Brookhaven & Smithtown, 46 NY2d 450 [1979]). Where a property right in continued employment exists, such as New York's tenure system, the recipient of such a right may not be deprived without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).

New York State guarantees a tenured teacher's due process rights to continued employment by statute requiring that "no (tenured teacher) ... shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement ... " Education Law § 3020.

The statutory procedural process afforded to teachers with tenure under Education Law §3020-a requires:
The filing of charges "in writing and filed with the clerk or secretary for the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Education Law§ 3020-a(l)
"Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against the employee pursuant to this section." Education Law § 3020-a(2).

Where an employing board determines probable cause exists for discipline the tenured teacher shall receive: "a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee " Id.
Green summarized his conclusion that there was a procedural error of law:

“Hearing Officer Lendino conducted the Education Law § 3020-a hearing based on unproven assumptions that the delegations of duties and responsibilities from the office of the Chancellor to subordinate administrators occurred in compliance with the relevant statutory authority.”

It is clear that a decision of an Arbitrator who proceeds without getting a signed waiver of a Respondent shows bias against the Respondent and an excess of authority that is not sanctioned by any statutory authority.

The requirements of NYS Education Law §3020-a, under which tenured personnel may be disciplined for "just cause" are absolute and require that before charges can be brought against a tenured educator, the school board [PEP] must:
a. Determine that there is "probable cause" for the proceeding with charges by a majority vote by the Board.

b. Make this determination within 5 days of the charges being filed with the Board.

c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.

No one is really listening to the facts of any case (and I don’t mean ‘hearing’ the facts, I mean listening), and, in my opinion as well as in my experience with the UFT Representatives, the UFT Reps. and NYSUT Attorneys really believe that anyone receiving charges is actually guilty of those charges. Oh, the UFT Rep. will help you file for your arbitration hearing – either 3020-a or “U”rating appeal - but then you will not hear from the rep. again, no matter what you do. They don’t want to get involved and put themselves into a chance encounter with SCI (Special Commission of Investigation) or an agent (notice I don’t call them “investigators”) from the Office of Special Investigations (OSI) or Office of Equal Opportunity (OEO). People from these sub-agencies of the NYC BOE have the right of way.

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room by Betsy Combier

The teachers who have had the sentence “you are terminated” handed to them since January 2011 don’t understand what happened. Of all the cases told to me by the teachers themselves, and after reviewing many pages of transcripts from many different cases, my opinion is that very few of the fired teachers deserved this fate. The rest were brought up on absurd charges that should have been written into a counseling memo (if at all) or given to the employee with, at most, a couple of weeks’ suspension. All were targets of a vindictive principal and/or “legal” (the NYC Office of General Counsel) who, under orders of “legal” and Mayor Bloomberg, go for termination in every case. There have been many success stories, too, but I’m here to tell you about a person who could have been successful in her case if her NYSUT attorney and the arbitrator had not used extortion and harassment to get her to resign.

While observing the hearings as a volunteer journalist, I was asked by Randi Weingarten to work as staff at the United Federation of Teachers and help members, including the members in temporary reassignment centers or “rubber rooms”. When I started at the UFT in August 2007 there were seven locations where tenured (and some non-tenured) employees sat every day, from about 8:30AM to 3-3:30 PM, depending on their school hours. In the 2007-2008 school year I went to all of the TRCs, then in 2008-2009 and 2009-2010 I visited each of my locations (25 Chapel Street, 355 Park Place in Brooklyn and 501 Courtlandt Ave, Bronx) every week and stayed all day because the people in these locations wanted to talk to me, or anybody (and I was the only person who visited every week). As I wrote above, I attended the 3020-a hearings – and still do – as a volunteer. My agreement with the UFT allowed me to pursue my own advocacy outside of the 14 hours.

The 'NYC Rubber Rooms' refer to the eight locations open until July 1 2010 scattered throughout New York City where targeted tenured employees of the NYC public schools were told to sit until charged, often for 2 - 7 years. While these people sat and awaited their “fate,” which was unknown and some were never charged at all, The Gotcha Squad created charges against them without their knowledge or consent. The United Federation of Teachers (UFT) the New York State United Teachers legal group (NYSUT) and the New York City Board of Education (NYC BOE) all conspired together to deny thousands of people their constitutional due process rights. Many did not go away willingly or quietly after receiving unfair decisions through mediation/arbitration, so the 3020-a process was and currently is used to force employees out of the system. The NYC BOE Gotcha Squad could be held accountable if the charges are proven completely false and/or the employee brought to 3020-a is exonerated, so arbitrators on the UFT/BOE must prove something in order to get the NYC BOE paid back for the time and money spent on trying to get charges to stick (doesn’t matter if the charges are true or not).

The Mayor of New York City, Michael Bloomberg, started the campaign to close the Temporary Re-Assignment Centers (“TRCs”) in 2007, after the New York City newspapers began a series of articles on the “Rubber Rooms”, popularizing the nickname as well as the fact that hundreds of teachers, school counselors and other tenured personnel were being warehoused at their full salaries while they sat for months, and years in the so-called rubber rooms.

My sources say Bloomberg realized that the setting up of warehouses for teachers and NYC BOE personnel was one of the biggest errors of his administration. The stories ripped into the minds of New Yorkers, who pay the highest taxes in the country. There was an uproar of disgust at the stories of so many highly paid public servants who would sit around and do nothing on the public dime. Actually the truth of the matter is that no one was in charge, so no data existed about why all these employees were placed in the warehouses, and no one wanted to admit that many were placed there unfairly.

I decided in 2003 that someone ought to investigate what was going on, and it might as well be me. By the way, Mike Bloomberg’s second biggest mistake was hiring Joel Klein, whose style of verbal abuse of anyone who refused to do what he wanted was the opposite of what Bloomberg wanted.

In 2008 Bloomberg, ordered Joel Klein and the UFT to expedite all the 'teacher trials' (3020-a arbitration hearings). As this arbitration is compulsory, teachers who are charged and who request a hearing have only this venue to defend their position pursuant to Education Law 3020-a. The first agreement, in June 2008 actually was never implemented. Everyone ignored the clause in there that principals should be held accountable for making false claims against any of their employees. Also, the signing of a document giving everyone a “speedy” hearing outraged almost everyone sitting in the temporary re-assignment centers or TRCs. None of the rubber roomers accused of wrong-doing or incompetency wanted an ‘expedited’ hearing that denied him or her a full and fair hearing, but no one at the helm of the UFT or BOE were listening. I and several of the temporary re-assignment centers’ liaisons were protesting all the time on our blogs and in person to the leaders of this fraud, to no avail.

In fact, I was told on countless occasions to stop writing anything on my blog NYC Rubber Room Reporter because I started it after I started working at the UFT, therefore it was “theirs”. I didn’t see their point, so I ignored the “suggestions” to end the blog.

The lawyers who are assigned to handle the 3020-a arbitration seem to be unwilling or unable to be bothered to spend large amounts of time on any single case. Many members complained to me and anyone else who would listen about how they, after sitting in a rubber room for two+ years, were given 1 hour to talk about the case and describe why the charges were filed when the NYSUT lawyer calls for an intake, a few days before the 3020-a begins. From 2007 to 2010 there were simply too many UFT members charged with incompetency and/or misconduct to spend any amount speaking to and/or defending any one client. Some NYSUT attorneys made this very clear to their client, especially if the person spoke slowly, didn’t have all the papers necessary, whose language was not English, or who simply didn’t get The Plan, which was to quickly run through the evidence and get you fined, resigned, or terminated, by force if nothing else worked. I often asked the lawyers – as did their clients – to subpoena witnesses, so that the proper testimony could be recorded, but NYSUT will not subpoena witnesses. This is a lethal error, in my opinion.

Sidebar: My opinion doesn’t matter, anyway, according to NYSUT Assistant General Counsel Claude Hersh, the new General Counsel Richard Cassagrande, and Richard Iannuzzi, President of NYSUT, because I am not an Attorney, right guys? NYSUT’s current thoughts on my speaking out about what I have seen and what conclusions I have made as a volunteer observer of 3020-a for 8 years are that I am a criminal, I have sued all the arbitrators and thus all of them hate me, and that I don’t know what I am talking about, etc., etc. I have never sued an arbitrator, I dont have standing to do that. Their comments are insulting and wrong, and I will address them in another forum, never fear.

For some reason the NYSUT Attorneys think that their clients come to the offices at 52 Broadway without a small digital tape recorder in their pockets. The lack of understanding about the 21st Century technology is astonishing, particularly when many clients have taped the investigators, the principals, assistant principals, and all other personnel for years at their respective schools. Why the NYSUT attorneys wouldn’t think that their clients are taping them as well is beyond me. Anyway, in New York State the law protects anyone taping anybody else with whom he/she is in a conversation without telling the other person. NYSUT attorneys, and you know who you are, remember that whatever insults and comments you say will be repeated, and may haunt you in the future. Just a friendly reminder. (Oh yes – the partner of the lawyer that sent you the letter, Claude, that you sent me - and that you sent to all the attorneys who work for you - gave me a check to cover working with Tom as his paralegal on the case of MM because, he said, Tom was mentally unstable…I’ll be in touch soon).

Back to a short recent update on the Rubber Rooms. On April 15, 2010 the UFT President Michael Mulgrew, NYC BOE CEO Joel Klein, and Mayor Mike Bloomberg announced that there was a new agreement to end the rubber rooms forever. This agreement was negotiated, signed, sealed, and delivered in total secrecy. Not I or nor anyone else knew about it outside of a select few at the UFT headquarters and district offices. On the 15th I received a call at home from Luis Crespo, the Brooklyn TRC ‘Principal’ and he told me to get over there ASAP, as there was a major announcement in a few hours. It was 8AM.

The April 15, 2010 agreement mandated the closure of the eight locations that, altogether, held approximately 500 people awaiting their "trial", freedom and exoneration, or termination. The rubber room process – false charges substantiated at 3020-a followed by excessive penalties - didnt end, only the rooms. Teachers continue today to be thrown out of their classrooms often for little or no reason and without evidence of the allegations, but now, after April 15, 2010, the effort to get the people removed and tainted by charges has taken on a new urgency, fueled by Mike Bloomberg who dictates the rules. The UFT has continued the "hands off" strategy, and rules in the UFT contract are being ignored without any accountability. Employees charged with anything are removed from their classrooms and told to sit in the office, the suspension room, at 65 Court Street, or 131 Livingston, both in Brooklyn, and Long Island City, just to name a few locations.

By 2010 the order from Mike Mulgrew, Klein and Bloomberg was to get all 'rubber roomers' off the arbitration calendar and, hopefully off of the NYC BOE payroll. To show how this played out, I will now tell the story of "Jane" - not her real name. I have redacted all mention of her real name in the papers that she gave me that details what happened to her at the hands of NYSUT attorney Keith Gross and Arbitrator Bonnie Siber Weinstock on May 13, 2010.

Jane was in the oldest rubber room, located at 25 Chapel Street in Brooklyn, NY, not far from the Brooklyn Bridge. She took a seat at the far end of the long room where she made beautiful and colorful small paper planes. I still have mine. She was very very upset at the charges as she loved 'her' children and her job, and would never do anything that represented harm to a child. She believed that the NYC BOE targeted her wrongly and framed her with false charges. After reading her charges and listening carefully to her story, my opinion was that she should never have been removed from her classroom. She was one of the “innocent” members of the rubber room. (My assessment/opinion).

On May 13, 2010 I happened to be in the room when a little before 12 noon Jane received a call from her NYSUT lawyer whose name is Keith Gross. He had an urgent message, that Jane must come to the administrative trial office immediately, at 51 Chambers Street, because her arbitrator, Bonnie Siber Weinstock, was waiting. Jane had been up most of the night before, and she was very tired we all heard her say, and couldn't she come on monday instead? Mr. Gross told her absolutely not.

As Jane told us later, she had no money that day for the subway to Chambers Street, so she ran across the Brooklyn Bridge to get to 51 Chambers Street ASAP, as Gross had ordered her to do. Jane went immediately into her hearing room with Gross, and Bonnie Siber Weinstock sat at the head of the table. The NYC BOE Attorney, Chrystal Barrows was there, Mr. Gross was there, and a transcriptionist from Ubiqus, the company hired by the NYC BOE to transcribe the record.

Jane told us Arbitrator Weinstock told her to sit down, and constantly mispronounced Jane’s last name. Jane has a simple last name, and thought that the mis-pronounciation by Weinstock was to upset her from the very start of the meeting. It did. She was. Weinstock mentioned that if Jane went to a full hearing she could be terminated, and she told Jane that this is what would probably happen if she did not agree to sign the settlement agreement that was on the table. Jane really did not want to resign. She wanted to make some sort of agreement, but she didn’t want to be terminated, and she felt harassed by Weinstock. Nonetheless, Jane was not ready to sign her resignation, so Keith Gross said to her, let me take you outside for a moment.

When Gross got outside, Jane said, he and she went into another room, where Gross said something to the effect of “What do you think this is, a circus? You better resign, or you will be terminated”.

Jane was very scared at this point, so she said ok, but felt that this wasn’t ok at all. Gross and Jane went back into the arbitration room, and Weinstock put on the record that Jane had agreed to the terms of the settlement, and the hearing was over. In Exhibit "A" you will read the name 'Martin Weinstein'. He was the former Superintendent and coincidentally I happen to know Marty. I called him up and asked him if he ever saw or heard of the specifications and/or settlement of "Jane" - I of course gave Jane's real name - and Marty told me that he had never seen or heard that name, and never saw or read any paper with Jane's real name on it.

See the transcript (which Jane says is not actually what was said, she told us at 25 Chapel Street that the roughest spots were omitted).

Jane did not return that day to Chapel Street, so a few days later I returned to Chapel Street and heard that she was still extremely upset, crying on and off. I sat down with her and she told me about what happened. I suggested that she call Mr. Gross up, which she did, and ask him to send her a copy of the transcript, which she received a few days later and gave to me.

I also asked her if she would write down her feelings of that day, which she did, and here is her statement:

"On May 13, 2010, my NYSUT Attorney, Keith Gross told me that I needed to immediately report to Chambers Street or the “deal” would be taken off the table – the deal – I could remain in the TRC until June 28 and not be sent to the ATR the minute I resigned – because there would be no need to be in the TRC once there was a “deal”.

Also, I’d get to receive my summer pay checks and receive my benefits through August – Benefits Id already earned. My Attorney said this was the best he could do for me and that if I didn’t take the deal that day it would be off the table and there would be a hearing beginning the following week . If I lost the case I would lose my pay from May through June.

We both felt there was no point in going through the hearing since I had other plans and new prospects for September.

I requested that I be allowed to meet with him to go over the paperwork on the following Monday – the 17th – because I was struggling to stay awake because I already started my course (?) transition and I was working nights and surviving on an average of 2 hours or less of sleep per night during the week.

I was told to stop making excuses, that even after I still wanted out that I did not have subway fare – no never until pay day. I was told that I’d have to come up with the money if I was going to attend hearings because I literally had less than 20 dollars in my checking account that day.

I received a text message from Keith Gross to report to Chambers Street ASAP. I texted him the details of my situation and that if I felt better by the PM I’d walk over the bridge to get there.

I did do this. My Attorney wen(t) over the paperwork with me and the stipulations of the “deal”. I was assured I would never have a problem getting a teaching job outside of the city because the only information sent out would be the recommendation letter included in this packet.

When the arbitrator asked me if I had been coerced into making the agreement, I tried to explain that this really was coercion sine there was few choices available to me and none that were very appealing.

She snapped at me and said that if I felt I was being coerced she would listen to the evidence at a three day hearing and render her decision in three days. That’s what I heard. What is written in the transcript is quite different.

My Attorney made me go to the room next door and told me “This isn’t a game. And you said that you were ready to sign and you agree with the terms.”

I knew then that the UFT and DOE and NYSUT lawyers really are mostly all the same.

I was crying when I signed the paperwork. The arbitrator had the nerve to congratulate me and wish me luck. She never even asked how I pronounced my name – it was like she was deliberately pronouncing it incorrectly. If half my dues go to her for pay I want my half back.

I felt like all anyone cared about that day was how many people they could get off the payroll.

I did not “take a deal”. I quit because I don’t need or want anything from the DOE. But honestly, I want the DOE erased completely from my work record."

Jane now works at cleaning doctor's offices at night. She sleeps a little during the day, and says that she is happy because she is out of the Department of Education.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, NYCourts - New York Court Corruption
Editor, NYC Public Voice

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