Saturday, June 3, 2017

Another Victory at GHNY Law - Teacher at CPE1 Exonerated

Unfortunately, the 3020-a hearing process is often used as a retaliatory tool against tenured teachers. Fortunately, GHNY Law's Jordan F. Harlow, Esq. has a very high success rate in representing teachers at these hearings. If you are ever in need of representation, please use our Glass Krakower contact form here at www.GHNYLaw.com.

The NYC Department of Education has seen a very turbulent environment erupt after Principal Monika Garg became principal at Central Park East 1. Investigations have been launched, staff was reassigned, and parents have been barred. Parents met with our firm and one staff member, who had frivolous charges launched against them, hired us to get him back to his students and school community. We are happy to announce that on May 15, 2017, Arbitrator Marc Winters dismissed all charges.

"The evidence in this case does not support the charges, filed by the DOE. After weighing the evidence presented by the parties and accessing the credibility of the witnesses, including a videotape this Hearing Officer finds the Respondent not guilty of the conduct charged in Specifications 1, 2, 3, 4, 5 & 6."

See the entire decision and award here.

Thursday, March 2, 2017

GHNY Law Wins Another Teacher Their Job Back

After 17 years, with an unblemished record, Superstorm Sandy hit and displaced a special education home instructor and her disabled student.

The Court writes:

"This is not, as respondents would have it, a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, but rather an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record. Had Superstorm Sandy not upended her life, there is no indication that petitioner's wrongdoing would have occurred."

"In the aftermath of this unique disaster, DOE provided teachers with no guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized."

http://law.justia.com/cases/new-york/appellate-division-first-department/2017/3043-652103-14.html

Thursday, January 5, 2017

ATTENTION: Discontinued Probationary Teachers Only Have 4 Months from Last Day of Employment to File an Article 78

We unfortunately see too many probationary teachers come in to see us too late. They have strong cases, but waited to take action after they lost their appeal. This has been decided in the courts to be untimely.

Unfortunately, they are not advised properly by their union. Please make to come to see us as soon as you can to make sure you do not miss your opportunity to start a case.

See also:

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

http://civilservice.sheerinlaw.com/2012/02/articles/civil-service/court-of-appeals-terminated-probationary-teachers-have-4-months-to-file-article-78/

By Kevin Sheerin on February 15, 2012Posted in Civil Service, Teacher Issues

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent’s move to dismiss my petition for "failing to exhaust my administrative remedies" or wait for the decision of an internal appeal and have Respondent’s move to dismiss their Petition as untimely having been filed more than 4 months after the termination date.

New York State’s highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination. The 4 months time limit runs from the final day of service.

Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations. Leslie Khan was terminated "… as of the close of business January 25, 2008" She filed a DOE appeal of her probationary termination on January 3, 2008. Despite the committee’s non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she "reaffirmed the previous action dated January 25, 2008. On September 9, 2008 Khan initiated an Article 78.

Doreen Nash started working for the DOE on September 3, 2002. In 2005 she received a "U" for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal. Nash’s employment was terminated July 15, 2005. The Chancellor’s Committee held a meeting on May 10, 2006 and recommended "non-concurrence". Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash’s discontinuance as of "close of business July 18, 2005" Nash filed an Article 78 on September 10, 2008.

The Court held that both Khan and Nash had 4 months to appeal their termination. Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.

The Court explained: " Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee’s service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date.

You can read the Probationary teacher Khan case here.

In addition, some teachers posted some advice here uftsolidarity.org/discontinued

Thursday, October 6, 2016

Teacher's Lawyer helps another teacher get their job back

Middle school gossip should not be permitted to ruin a 13 year stellar career. In a 3020-a hearing, an arbitrator terminated a 13 year physical education teacher, despite the DOE's poor evidence. The teacher retained our firm and we filed an Article 75 to vacate his termination. Justice was delayed, but finally served. Our firm was able to argue for the teacher and the Supreme Court of New York County reversed the arbitrator's decision. Bryan D. Glass, Esq. and Jordan F. Harlow. Esq.

The court's decision states:

"Based on all the circumstances of the case, including the lack of any prior allegations of misconduct against petitioner during 13 years of service and the fact that the misconduct does
not violate any specific rule or regulation, we find the penalty of termination sufficiently disproportionate to the offenses to shock the conscience (see Lackow v Department of Educ. [or “Board”] of City of N.Y., 51 AD3d 563, 569 [1st Dept 2008])."

If you, or someone you know, was terminated or fined, or is need of representation at a 3020-a hearing, please fill out the form on our website www.ghnylaw.com

Wednesday, October 5, 2016

A win against the DOE's growing incompetency cases

Despite continuous changes to the NYS evaluation law, the system is still heavily subjective. Many of our clients suddenly find themselves rated unsatisfactory, or ineffective, even though they have over 20 years of satisfactory experience.

A recent UFT arbitration victory can help build a defense against attacks for those still rated under the Satisfactory/Unsatisfactory method. See the article below and contact us via our intake form on GHNYLaw.com should you need legal representation.

UFT wins observation conferences grievance

Visit our new GHNY Law website -ghnylaw.com

See our new updated site.

GHNYLAW.COM

Tuesday, June 17, 2014

Dangerous tenure decision-Vergara v. State of California (2014)

http://studentsmatter.org/wp-content/uploads/2014/06/Tenative-Decision.pdf

Hat tip: Adjunct Professor Law blog

Polayes v City of New York 2014 NY Slip Op 03958 Decided on June 3, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2014 Tom, J.P., Renwick, Andrias, Freedman, Clark, JJ. 12649 156710/12 [*1] In re Jonathan Polayes, Petitioner-Appellant, v City of New York, at al., Respondents-Respondents. Glass Krakower LLC, New York (John Hogrogian of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents. Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 18, 2013, which denied the petition to vacate an arbitration award imposed pursuant to Education Law § 3020-a, finding petitioner guilty of teacher misconduct and terminating his employment with respondent New York City Department of Education, and granted respondents' cross motion to dismiss the proceeding and confirm the award, unanimously reversed, on the law, without costs, the petition granted, the cross motion denied, and the arbitration award vacated. The evidence presented at the arbitration hearing established that petitioner, while acting as a substitute teacher covering a double-period class for high school senior students, participated in conversation with a group of the students concerning their college choices and post-graduation internship plans. The class took place during the height of the college application process, and right before the winter break. During the conversation, petitioner offered to serve as a contact point for a potential internship at a media company for a female student who had expressed an interest in film and media. The student testified that she appreciated this and was not offended by the offer. When a male student then indicated that he did not want to do an internship or work during the summer after graduation, petitioner whispered to the female student something to the effect of "watch how they react to this," and proceeded to tell the students about a valuable internship experience he had before he went to college. The female student also was not offended by this. When another male student expressed his interest in attending a college that was widely reported to be a "party school," petitioner asked him something to the effect of, "so you're the type to party with," or "you want to go to school to party." The student testified that he was "not offended in any way" by the comment. Rather, the several students who testified generally indicated that they enjoyed the class and found it to have been more interesting than expected from a substitute. Respondent has not identified any rule or statute that classifies such statements and action as teacher misconduct. Under all the circumstances, the finding that petitioner's actions constituted teacher misconduct is not supported by adequate evidence, and is arbitrary and capricious (see Lackow v Department of Educ. [or "Board"]; of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). We note that petitioner had a disciplinary history including findings of non-sexual touching of students, and that two prior disciplinary awards expressly warned him not to touch his students again. However, it is undisputed that petitioner did not touch any of his students in the case at bar. Thus, contrary to the arbitrator's finding, the evidence did not indicate that petitioner failed to heed prior warnings (cf. Matter of Forte v Mills, 250 AD2d 882. 884 [3d Dept 1998]; Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 50 AD2d 149, 157 [4th Dept 1975], appeal dismissed 39 NY2d 1057 [1976]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 3, 2014 CLERK

Guzman v. NYCDOE et al., App. Div. 1st Dept Decided on April 4, 2013 Tom, J.P., Andrias, Saxe, Abdus-Salaam, Gische, JJ. 9727 106140/11 [*1]In re Minerva Guzman, Petitioner-Appellant, v City of New York, et al., Respondents-Respondents. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents. Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 5, 2012, confirming an arbitration award, dated May 4, 2011, which terminated petitioner's employment as a public school teacher upon a finding that she engaged in a fraudulent scheme to enroll her granddaughter in public school using a false address, and dismissing the proceeding brought pursuant to Education Law § 3020-a and CPLR article 75, unanimously modified, on the law, to vacate the finding of guilt as to Specification 1-A-1 (that petitioner engaged in the scheme to avoid payment of non-resident tuition) and vacate the penalty of termination, and to remand the matter for the imposition of an appropriate penalty, and otherwise affirmed, without costs. Respondent Department of Education conceded at the hearing that petitioner's granddaughter was entitled to a tuition-free education in New York City public schools, and the hearing officer made no finding that the child was not a City resident. Nor does the record establish that the child was not a City resident. Thus, there is no rational basis upon which to conclude that petitioner engaged in a scheme with the purpose of defrauding respondent out of non-resident tuition (see Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [1990]; Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). However, as petitioner concedes, substantial evidence supports the charge that she acted in concert to file a false instrument (Specification 1-B), to wit, engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she [*2]improperly obtained the school's services (Specification 1-A-2), since the child should not have been enrolled there. In light of the foregoing, we remand for the imposition of an appropriate lesser penalty. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 4, 2013 CLERK

FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT SECTION 3020-A

Are hearings held before a hearing officer or a panel?

Disciplinary charges brought by an employing board against a tenured employee are heard by a single hearing officer except when the charges concern pedagogical incompetence or issues involving pedagogical judgement. In these cases only, the employee may choose to have the charges heard by either a single hearing officer or a three-member panel.

What types of changes are considered pedagogical?

While the term "pedagogical" is not defined in either the statute or the Commissioner's Regulations, charges that fall into that category include inability to control a class, failure to prepare required lesson plans, failure to maintain certification, and other matters that directly pertain to teaching techniques and issues of this nature.

Who provides the list of Hearing Officers?

The American Arbitration Association (AAA) maintains the panel of potential hearing officers for Section 3020-a proceedings. This association also provides a list for each individual proceeding.

Is there a fee associated with requesting a hearing?

The AAA is a non profit organization which relies on administrative fees to continue providing services. Commissioner's Regulations as amended by the Board of Regents in September 1994 stipulate that the fee for providing the list of potential hearing officers for Section 3020-a proceedings is to be paid by the School District preferring the charges. This fee is $150.00. If the parties are unable to mutually select a hearing officer and request that the AAA make the selection, an additional fee of $50.00 will be required.

When is a hearing commenced?

Under the law, a hearing is commenced when the State Education Department submits a request to AAA for a list of potential hearing officers.

As a taxpayer, don't I have the right to know if a teacher in our school has been brought up on charges?

Section 3020-a provides an avenue for resolving disciplinary issues between an employer and an employing board. Until an individual has been found guilty by a hearing officer or hearing panel, all aspects of the disciplinary proceeding are strictly confidential. If the employee is found to be guilty of one or more of the charges, the record is then available pursuant to the Freedom of Information Law.

THE TEACHER'S LAWYER