Is an allegation that the PIP+ program always leads to teacher termination sufficient for a judge to hear an appeal on the merits of a 3020-a hearing?

No. The PIP+ program, a creature of the UFT last collective bargaining agreement, provides allegedly incompetent teachers with a way to deal with these allegations. While designed to help teachers the program, as charged by Christopher Lobo, a twenty year tenured Earth Science teacher from Forest Hills High School, was a sham resulting in an almost certain termination recommendation.

PIP+, purportedly patterned after the union’s peer intervention program, provides for non-DOE evaluators to give assistance to allegedly incompetent teachers. A major difference between the union peer intervention program and PIP+ is that the PIP+ lacks confidentiality. All aspects of the allegedly incompetent teacher’s participation or lack thereof is admissible in a subsequent 3020-a hearing.

Lobo went through the PIP+ program but claimed it was rigged against him and asserted that no one had successfully completed the program. He also claimed that the DOE offered him no help and the observations that supported his U-ratings were flawed because they were completed by supervisors who were not familiar with his subject area.

Arbitrator Lawrence Henderson, in a 103 page decision, found that the observations were proper and he was provided support during the PIP+ period when “in addition [to] having access to staff development days, petitioner was provided with assistance before and after each of Principal Gootnick’s and A.P. Hoffman’s observations, and peer review by RMC Research Corporation, “a private vendor selected by the Department and the UFT” from April 2, 2009 to June 2, 2009. “

Upon appeal to State Supreme Court Justice Joan B. Lobis granted the City’s motion to dismiss finding that Lobo’s claims were insufficient to reverse Henderson’s termination finding.

Lobis wrote, “In light of Hearing Officer Henderson’s findings that petitioner was underperforming as an educator for two straight years, even after being offered resources to improve, petitioner cannot argue that the penalty of termination was unwarranted.”

CHRISTOPHER LOBO, Petitioner, -against- CITY OF NEW YORK; and NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, Index No. 116548/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31902U; 2011 N.Y. Misc. LEXIS 3426, July 7, 2011, Decided

Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided

Will the Court sustain a 3020-a award in which a teacher was terminated for maintaining an Albany address to avoid paying NYC income taxes?

Terri Patterson, a 10 veteran teacher at P.S. 8 in Brooklyn with an otherwise unblemished disciplinary record was found to have used an Albany address on DOE records and failed to file income taxes for three years as a New York City Resident. She immediately amended her taxes and paid the $1100 City income tax.

She was then served with charges in which the DOE sought her termination. Arbitrator Stuart Bauchner heard her explanation as to how she had an Albany address on file with the DOE. She claimed that after her “layoff” in 2003 (not clear how and why she was laid off) her address was inadvertently changed to Albany and she did not realize it until she was notified about it. The arbitrator did not buy Patterson’s explanation and terminated her. He found that she was not remorseful and used the DOE to defraud the government.

On appeal Supreme Court Justice Gische found that the standard to apply in 3020-a penalties was whether the penalty shocked the conscience. Justice Gische found that it did. Given Patterson’s ten year unblemished record, the lack of impact on her students and that remorse doesn’t make sense when you refile and correct an error the termination was vacated and sent back to the DOE for a determination not inconsistent with the Court’s decision.

Utilizing the shocks the conscience test might be beyond the power of the court since 3020-a determinations are reviewable only under those provisions of CPLR 7511 and not Article 78. No record of appeal could be found.
In the Matter of the Application of TERRI PATTERSON, Petitioner, For a judgment pursuant to Article 75 of the C.P.L.R. -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, Index No. 111175/2010, 2011 NY Slip Op 30870U; 2011 N.Y. Misc. LEXIS 1520; 245 N.Y.L.J. 80, April 8, 2011