Former Superintendent Marty Weinstein - New Evidence Proves He Was Defamed Without Just Cause

The Story of Martin Weinstein: Superintendent Defamed By The NYC DOE Without Just Cause – New Evidence Exonerates Him

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Martin Weinstein

From Betsy Combier: One of the thousands of people who have been targeted, defamed, and discarded from his/her employment is my friend of many years, Martin "Marty" Weinstein, a good person and loving father. He questioned the actions of a CEC Member and District family advocate and then resigned from his position as District 19 Superintendent. - a job he loved and was good at. Just one month ago he was able to obtain the emails below. A NEWSDAY Profile said this:

"A product of the N.Y.C. School system, Mr. Weinstein began his career in education as a teacher of Language Arts and Legal Studies at Shell Bank Intermediate School. An actor for the Broadhollow Players of Long Island, Mr. Weinstein brought his love of the theatre to the students of Shell Bank, by directing several successful studentproductions. His directorial skills were also evident at Baldwin Senior High School where he served as the school’s drama coach. As Assistant Principal of P.S. 140 (District 28) Mr. Weinstein was an instrumental member of the team that removed the school from “Corrective Action”.

Summer months were an opportunity for  Weinstein to work with students in a recreational environment. As the director of summer camps for underprivileged students, (a program created by the late Chancellor Green) Marty honed his leadership skills. 

The summer of 2003 brought Marty to I.S. 302 (Region 5, District 19) as its’ Principal. I.S. 302 was a SURR school in jeopardy of closure. Working collaboratively with Dr. Kathleen Cashin and the Region 5 team, many successful strategies, activities and programs were implemented. As a result, student achievement scores improved dramatically and I.S. 302 was removed from the SURR list. Marty shared this success with the staff of I.S. 302 and stated in a memo that this success “is a testament to your dedication and commitment to our students.” 

Brooklyn Borough President Marty Markowitz honored Principal Weinstein’s dedication by a proclamation making January 23, 2006 “Martin Weinstein Day in Brooklyn, USA”. On March 11, 2007, he was named Intermediate School Principal of the Year by The Association of Orthodox Jewish Teachers (AOJT).

Realizing that physical activity can be linked to learning, Mr. Weinstein, an accomplished marathon runner, introduced his running passion to I.S. 302. The I.S. 302 Striders is a students’ running club that has received media attention. Students and staff coaches such as Mr. Weinstein have committed themselves to a regimen of early morning and afternoon workouts as well as weekend races. Once again, another method to mold and motivate youngsters to always do their best. 

Passing along to the next generation of teachers and administrators his strategies and ideas, Principal Weinstein is an adjunct professor at both Brooklyn and Touro College Graduate Schools of Education, Special Education and Psychology

 Martin attributes his success as a public school principal to his roots as a classroom teacher. “By being sensitive and empathetic to the individual and unique needs of the students in my classes, I was able to gain a better sense of how to provide them with their requisite skills for success. With this said, I believe that my strongest attribute as a principal is to empower those around me to fulfill their potential.”

From  August 2007 to June 30, 2010 Martin Weinstein was a well-respected Superintendent of District 19 in King's County, N.Y.  In a fact, he was one of the highest rated Senior Achievement Facilitators in the city during the years Superintendents performed this function.

In January of 2010, he filed a complaint with the Special Commissioner of Investigation (SCI) against a Community Education Council member, A. Knox,  who was pressuring parents and co-workers to buy the book she published. Special Investigator Mr. Michael Humphries took on the case and questioned Mr. David Best, District 19 CEC member as well as individuals working in Marty's office.  Martin received a death threat on January 8, 2010, while the investigation was proceeding. In late January Weinstein learned that the CEC member he had reported confessed to making the threatening call to him, and that she resigned her position. She also had to pay a "heavy fine" to the Conflicts of Interest Board.

In the weeks which followed, Marty's office staff began behaving in an uncivil and discourteous manner towards him, as well as towards, Mr. David Best, District 19 CEC Member (Mr. Best acted as a witness against Ms. Knox).  In addition, the attendance of Ms. Roman, District Family Advocate became rather problematic.  She was absent, late or left work early at least once week and in several instances, she failed to call or email Marty regarding said absences.  Although Marty did not discipline her in writing (letters for file), he retained emails where he discussed that her failure to report her absences constituted the abandonment of her position.

Marty sent an email to Rosemary Roman in April, 2010, which evidently spurred her to file a false claim against him:

From: Weinstein Martin 
Sent: Monday, April 19, 2010 1:54 PM
To: Roman Rosemary
Subject: I need to make myself clear

Dear Rosemary:

I truly respect and care about you.  However, as of late, I have several concerns.

To begin with, for any employee not to contact his/her supervisor (in essence being M.I.A.) is unacceptable and can be automatic grounds for dismissal.  Today, I was quite short-handed without Tyshauna and I did not have any idea regarding your whereabouts.  Quite frankly, the obtaining of a check should not entail and entire morning being devoted to this process.  I don't want to have to require your adherence to a 9 to 5 schedule.  However, I need to know how I can locate you at any given point in time.  I am aware that you are without the use of a cell phone.  Notwithstanding, you can always email me in advance your daily schedule plans etc.

Thank you,

Martin Weinstein

In late April of 2010, Weinstein received an email from Ms. Gina N. Martinez, Equal Opportunity Compliance Officer for the DOE’s Office of Equal Opportunity who indicated that one of his employees had made an allegation that he had engaged in sexual harassment. Martinez stated that the CEC member's friend had accused Marty of suggesting that he participate in a menage a trois with three parents;  he told Martinez that this allegation was completely false. The offender’s friend had herself engaged in a course of conduct in which she always made incredibly inappropriate lewd comments with sexual connotations.

Weinstein agreed to meet with her on May 11, 2010 in her office. He told Martinez that he had more information about his accuser, namely that she was not reporting her absences:

From: Weinstein Martin 
Sent: Tuesday, May 11, 2010 5:24 PM
To: Martinez Gina
Subject: Document Submission

Dear Ms. Martinez:

Would it be helpful to furnish your office with emails which I sent to the complainant relating to my concerns involving her failure to report her absences etc.?

Yours truly,

Martin Weinstein

Community Superintendent

Community School District 19

574 Dumont Avenue

Room 212

Brooklyn, New York 11207

Office Phone: (718) 342-3625 ext. 2121

Office Fax: (718) 342-7562

Blackberry: (718) 249-6614

E-mail: mweinst1@schools.nyc.gov

Ms. Martinez emailed back:

From: Martinez Gina
Sent: Tue 5/11/2010 5:34 PM
To: Weinstein Martin
Subject: RE: Document Submission

Sure, Mr. Weinstein.  I will add them to the file.

 Gina N. Martinez, Esq.

Compliance Officer

Office of Equal Opportunity

New York City Department of Education

65 Court Street - Suite 923

Brooklyn, New York 11201

(T) (718) 935-2135

(F) (718) 935-2531

(E) GMartinez17@schools.nyc.gov

(W) http://schools.nyc.gov/OEO

Marty replied,

From: Weinstein Martin
Sent: Tue 5/11/2010 6:17 PM
To: Martinez Gina
Subject: RE: Document Submission

Dear Ms. Martinez:

I hereby authorize for your department to request from the Special Commissioner of Investigation, deleted emails from my Outlook account. My login is:mweinst1 and my password is: Yankeeman12.  I have just searched for the past hour on my computer and both sent and received emails exchanged with the complainant regarding her unreported absences/lateness have been permanently deleted.  Please be further advised that my Administrative Assistant has full access to the aforementioned account.  I assure you that not only have emails been exchanged with the complainant over the course of the 2009-2010 SY germane to her unreported absences, face-to-face and phone conversations have transpired as well.  In all instances, she has been apologetic.  Since she has been very responsible and highly effective when in the office , I have  never pursued progressive discipline in writing with her.  However, in retrospect, this would have been a prudent action to memorialize what is clearly dereliction of duty and accounts for her outrageous claim. 

On a further note, I would appreciate if you would consider re-interviewing my administrative assistant regarding my emails and conversations with the complainant relating to her failure to report her attendance.  Hopefully, under oath she will be forthright.  Additionally, the complainant would be "hard pressed" to defend her failure to report her absences and lateness since she logs into work via CyberShift.

Thanking you in advance for your consideration of these requests.

Yours truly,

At the appearance before Martinez, Weinstein was asked if he had engaged in any non-consensual physical contact with any employees in his office who were all female, and he responded he had not. This fact was uncontested. In fact, Weinstein had a witness (a principal from his District) who wanted to testify in his behalf; she was not allowed to do so. Weinstein informed Martinez that the offender’s friend’s complaint was an act of retaliation for his inquiries relating to her attendance as well as in retribution for the SCI investigation he caused to be initiated against her friend. Martinez stated that she would email him her decision in a timely manner.

The next day Marty sent Martinez some more information:

From: Weinstein Martin
Sent: Wed 5/12/2010 7:31 AM
To: Martinez Gina
Subject: Addendum

Dear Ms. Martinez:

In January of this year I worked with SCI in documenting the illegal activities of CEC member L. Knox.  In essence, I reported that she was using her position to advance the private sale of her published books.  As an outgrowth of this investigation, many office staff members were resentful due to the fact that they were subjected to extensive SCI interviews and ultimately, Ms. Knox tendered her resignation after many years of service.  Both SCI as well as school board executive member David Best can confirm the foregoing.

Yours truly,

Martin Weinstein 

On May 21, 2010 Marty was asked by Ms. Martinez to conduct a disciplinary conference for one of his principals who admitted to making an inappropriate remark regarding one of her teachers.  During the course of this hearing, Ms. Martinez emailed him and asked for the official write-up.  Immediately following this meeting, Marty called Ms. Martinez and asked how it was possible to write such a letter moments after a meeting's conclusion.  She remarked, "I thought you would have it written beforehand."  Marty's response, "I will have it completed this evening...however, please understand that my letters are very detailed oriented and I always demonstrate that due process has been rendered and I hope my fate was not pre-determined before I met with you."  

On May 22, 2010, Marty was summoned by Dr. Dorita Gibson to the Chancellor's Office.  During the course of this meeting, she stated that due to the fact that Marty was the subject of an OEO investigation there was a concern that he could possibly compromise this investigation by having contact with Ms. Roman.  Marty informed her that he never harassed her and her allegation was an act of retribution.  He also requested that a "true" investigative department such as SCI take over the case and presented her with his documentation supporting the veracity of his comments. Both Dr. Gibson and Dr. Feijoo said they believed him and there was no need for either one of them to review his documentation.  Dr. Gibson said that they needed for him to work out of another location until the case was resolved and they had no intention to relieve him of his duties.  

On June 16, 2010, Weinstein received an email from Martinez that her office had substantiated the allegation made against him, and informing him that Dr. Gibson was asked to determine appropriate disciplinary action. The charge which was substantiated against him was that he had made the comment to the offender’s friend that she should have a menage a trois with three parents. This charge was substantiated despite the only information allegedly supporting the allegations was not corroborated, and was supplied by a person who had subsequently been discredited and who had a reason to seek retribution against him.

In late June of 2010, Weinstein submitted a letter of resignation despite having committed no wrongful act. 

In late August, 2010, Weinstein received word that Mr. David Best, District 19 CEC Member, had stepped forth to corroborate his claims that the allegation made against him was an act of retribution. I spoke with Mr. Best and he validated the fact that the women had set Weinstein up after he reported the buying of books under pressure from the CEC member. Despite the fact that the finding against the him was based solely on false information provided by a badly impeached witness, the NYC DOE has remained adamant that the OEO report is "evidence" of Marty's misconduct and has been disseminating the defamatory finding. 

Parent Alvin Muniz also emailed Marty:

From: alvin muniz [m         @hotmail.com]
To: Martin Weinstein
Subject:

Dear Mr. Weinstein,

     I hope that you don't mind my writing to you. I felt the need to
contact you because it was stated that you were fired. I hope that you
don't mind that I got your email address from Mr. Best. Many people are
saying that you were set up. I believe that the person responsible for
this is Rosemary Roman and others. Ms. Roman is the person that set me
up as well. She stated some outrageous lies about me that resulted in my
being issued an order of limited access, to my son's school (P.S. 345),
for the 2009-2010 school year. Rosemary Roman took my words out of
context and twisted them around into lies, to suit her own personal
agenda. She even alleged that I said a very racial remark about blacks
and hispanics. These remarks are all out lies. I even had a witness in
the room with me when I made the phone call to the district office that
day.
     Mr. Weinstein, I always felt you were a man of integrity that
always treated me with respect. I think that it was a real loss for
District 19 parents, as well as the children, when you were fired for
lies. If there is anything that I can do, please feel free to contact
me.

With the highest regards,

Alvin Muniz Sr.

Marty emailed the NYC DOE General Counsel, Michael Best, for help in September 2010:

From: Martin Weinstein [mailto:Martin.Weinstein@touro.edu] 
Sent: Wednesday, September 01, 2010 9:20 PM
To: Best Michael (Legal Services)
Cc: Europe Theresa
Subject: Special Commissioner Condon has personally assigned a team to investigate

Dear Mr. Best:

Early this morning, I was afforded the opportunity to testify at the Office of the Special Commissioner of Investigation.  During the course of my testimony, I presented documentation in support of my claim that all accusations made against me were an act of retribution for reporting the wrongdoing earlier this year of a District 19 CEC member.  As previously indicated to you, this testimony and supporting documentation was never reviewed or recorded by OEO.  At any rate,  by late morning today, I received word from Mr. Michael S. Bisogna, Supervising Investigator, that Mr. Richard Condon had personally reviewed the notes and supporting documentation from this morning's meeting as well as the testimony provided by Mr. David Best, District 19 CEC Member.  Mr. Condon has determined that a full investigating team will be assigned shortly to investigate the foregoing matter. 

I want to take this opportunity to assure you that I have remained loyal to the Office of the Chancellor.  It is not my goal or intent for my actions to be a source of embarrassment or concern.  I simply desire to be provided with some semblance of due process.  I am confident that SCI's investigation will fully vindicate me.

Yours truly,

Martin Weinstein

A few days later  Marty asked OEO Director Mecca Santana how and why the report substantiating the charge could be valid:

From: Martin Weinstein <Martin.Weinstein@touro.edu> 
To: Santana Mecca E 
Cc: Best Michael (Legal Services) 
Sent: Wed Sep 15 23:43:13 2010
Subject: Due Process and Fact Finding Diligence - A Must For All Legal Departments 

Dear Ms. Santana: 

It is my hope that your office will offer all individuals appropriate due process and the reporting procedures of the attorneys under your charge are more carefully monitored.  Moreover, several of your decision letters raise serious concerns regarding accurate and fair reporting.  More specifically:

 On June 16, 2010 you wrote to Dr. Dorita Gibson the following, "...(OE0) has substantiated that Ms. _____ violated Chancellor's Regulation A-830..."  Can you explain why you would refer to a principal in a case unrelated to the matter involving my alleged violation?  Most alarmingly, a copy of the disciplinary letter I wrote to _____ was stapled to the Confidential OEO decision report pertaining to me.  

On Page 4 of Ms. Martinez's Confidential Report to you dated May 21, 2010, she writes, "This investigation substantiated that, by asking Ms. Roman to have a  Ménage à trois  with three District 19 parents, Superintendent Weinstein violated Chancellor's Regulation A-830..."  On page 3 of this report a similar reference was noted as well. 

As witnessed by Principal Melessa Avery during the course of my questioning by Ms. Martinez on May 11, 2010, Ms. Martinez failed to record the following:

·  Ms. Roman, Ms. Fisher and Ms. Leary were all friends of a CEC member which I reported to SCI for illegal activity in January, 2010.

·  Evidence of reported death threats from the aforementioned CEC member

·  Evidence of disciplinary action against Ms. Leary and Ms. Fisher for unprofessional conduct during the course of the past two years.

·  Ms. Roman frequently engaged in making inappropriate comments in public such as, "Mr. Weinstein, I need to leave early tomorrow to see my doctor for a mammography, I must make sure my boobies are o.k."

·  I did not deny ending letters to employees with, "Love Ya" (although, Ms. Martinez wrote the complete antithesis)

·   I handed my Blackberry over to Ms. Martinez and allowed her to scroll through emails to male employees containing the same paternalistic line, "Love Ya."

·  Evidence furnished from Metrotech that my computer files were purged by Ms. Leary and others (disciplinary letters to Ms. Roman).

·  Evidence that Ms. Roman did not leave work early on the day the alleged comment was made.

Ms. Santana, like yourself, I have presided over a plethora of disciplinary hearings, grievances and fact finding testimony for both OSI and SCI proceedings.  During the course of presiding over the foregoing, I have been diligent and fair, yet always mindful of the letter of the law and never deviating from Standard Operating Procedures.  However, it seems abundantly clear that the "modus operandi" of your office is to handle cases in an expeditious manner.  Unfortunately, when this occurs, innocent individuals such as myself are victimized. 

Lastly, it also seems that many of your office's determinations & recommendations are "pre-determined" before anyone steps foot in 65 Court Street to testify.  For example, on May 21, 2010, I was charged by your office with the duty of disciplining _____.  Ms. Martinez was fully aware of the date and time of the above mentioned hearing.  Not more than two minutes after I met with the principal and her CSA representative, I received an email from Ms. Martinez asking for my disciplinary letter.  I immediately called Ms. Martinez and asked how I could possibly have such a letter written when the hearing just concluded - her response, "I thought you would have had it written beforehand."   Now, I ask you Ms. Santana, was the OEO decision on the fate of Martin Weinstein written beforehand?  

Yours truly,

 Martin Weinstein

From: Santana Mecca E [MESantana@schools.nyc.gov]
Sent: Thursday, September 16, 2010 6:27 AM
To: Martin Weinstein
Cc: Best Michael (Legal Services)
Subject: Re: Due Process and Fact Finding Diligence - A Must For All Legal Departments

Mr. Weinstein:

Your correspondence noting your objections will be added to the investigative case file.

Mecca E. Santana 
Mecca E. Santana, Esq. 
Executive Director 
Office of Equal Opportunity 

Sent via BlackBerry 

The President of District 19, Mr. David Best, sent a letter on December 4, 2012 to all education officials (Courtenaye Jackson-Chase, General Counsel; Dennis Walcott, Mayor Mike Bloomberg, Mecca Santana, OEO Director) as well as other NYC VIPs - Michael Cardozo, Corporation Counsel; Donna Lieberman at the ACLU; reporters at the NYPOST and NY Daily News - saying,

"During my tenure as the President of District 19's CEC, I voiced my concerns involving the inappropriate conduct and illegal activities of Ms. Rosemary Roman, District Family Advocate. Without any doubt in my mind her actions led to the false accusations of both parents as well as Martin Weinstein a highly respected Community Superintendent.

Although I am no longer serving on the CEC for District 19, I am extremely active in the community. Based on the growing outcry of complaints against Ms. Roman, I felt compelled to circulate the attached petition.

We hope that Ms. Roman will be appropriately dealt with. Ultimately, it is our goal that she is removed from her position and the individuals she has harmed exonerated.

Yours truly,

David Best"

The letters were attached to copies of a petition demanding the removal of Ms. Roman for acting in "a highly unprofessional, dishonest and deceitful manner" with more than 54 signatures of parents in D 19.

By that time, no one was listening.

The moral of this story? There are three:

1. Do not tender a letter of resignation or settlement with the DOE unless you are actually guilty of what you are being charged with, and you do not want to work in the NYC area again.

2. Do not go "on the radar" and file a complaint with the Special Commission of Investigation, OSI, or the Office of Equal Opportunity (OEO). These offices are wholly owned by the Department of Education, and will make you the target. This policy of "killing the messenger" is in full force in the Department of Education.

3. Obtain media coverage for any wrong-doing whenever you see or hear that misconduct is occurring.

Babies At The Bar (Education Law 3020-a is ignored in NYC)

Michael Bloomberg and Michael Cardozo

 From Betsy Combier:

First, I am not an attorney, just a writer/journalist. 

The New York City Department of Education as set up by Mayor Michael Bloomberg and his sidekick New York City Law Department Corporation Counsel Michael Cardozo, (see below for a 2009 rebuke from the NY Appellate Court Judges) are breaking the law. Specifically, New York State Education Law Section 3020-a. Lawyers who work for The Gotcha Squad and prosecute tenured teachers brought up on bogus charges of misconduct and/or incompetency know this, so do NYSUT Attorneys, and attack anyone who notices their lawless procedures in bringing "Just Cause for Termination" to all cases of 3020-a arbitration. 

Both NYSUT and the DOE Attorneys are contracted to "prosecute" teachers under the presumption that all individuals brought to 3020-a are guilty of the charges. Other presumptions that effect all cases are: the case must look at ONLY the specifications, and nothing else (i.e., the principal is breaking the law with special needs children, stole money, has skeletons in his/her closet, the person making the charge is not in the school, didnt see what happened, wasnt there...). Obviously, anyone who says that ALL facts must be brought in to the hearing to give motive and prove innocence is someone who must be tarred and feathered. That's me and the lawyers I work with, but  we do not care about this fluff and stuff, and all of that leads to a stronger case in court for any kind of appeal against the arbitrator.

For instance, on April 19, 2013, I walked by a hearing room with the door open, at 49-51 Chambers Street, and I heard NYSUT Attorney Maria Elena Gonzalez Lichten telling Arbitrator Stephen O'Beirne how "she" put my email on her blog, and...". You dont think that the Attorneys speak to arbitrators only about the cases they are doing before them, do you? Anyway, I am posting the stuff I have already placed on this blog about Maria Elena Gonzolez Lichten, wife of Stuart Lichten, to update Mr. O'Beirne on what I have written, see here, here, and here. Mr. O'Beirne is an excellent Arbitrator, in my opinion, and can see through this infantile approach to squashing opposition to the Plan ("terminate any DOE employee who has tenure and is brought to 3020-a") . By the way, Mrs. Lichten, when you said in your email that I lied, I am still waiting to hear about what, so that I may address whatever it is that I lied about? My email address is betsy.combier@gmail.com, as you know.

Then there are the screamers and naysayers from the DOE, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan, all Department Attorneys who would rather scream  at me and try to get me run over by a bus than address the fact that they are harming innocent people without just or probable cause.

Now to the charging process and determination of probable cause. If you are handed your specifications with a cover letter that says "...Principal __________ has found probable cause on the charges preferred against you" tell your attorney to ask, on the record and to the arbitrator, how the principal can find probable cause against you, considering the fact that Education Law 3020-a states that the school board must go into Executive Session and vote on whether there is probable cause, bring in Appendix A, usually served with the specifications - if you dont get this document, print out Education Law 3020-a and bring in those pages. (New York State Education Law 3020-a(2)(a)). New York City is part of New York State, and as far as I know, no agreement which conflicts with the law is valid.

The April 15, 2010 so-called 'agreement' signed by Joel Klein and Mike Mulgrew cannot be legally binding because Joel Klein signed the 'agreement' as chancellor, and he was never legally chancellor because he never had a contract, required by Education Law Section 2590-h. I wrote the "Who Are You Kidding Award Goes To Joel Klein" in 2007, but Mike Bloomberg never gave out any contracts to Klein, Black or Walcott. On January 7, 2013, Arbitrator Roy Watanabe asked DOE Attorney Lisa McFadden if Walcott had a contract. She said yes, and brought into the 3020-a hearing the waiver given to Walcott by New York State Commissioner David Steiner, giving Walcott permission to be chancellor:

Waiver from Steiner To Dennis Walcott

I am not a lawyer, but I believe that as Mr. Walcott did not sign this document, there is no term of office, and for many other reasons, this is not a contract, howevermuch the Gotcha Squad says it is. Compare with the contracts of Harold Levy and Rudy Crew in my 2007 article "The Who Are You Kidding Award Goes To Joel Klein"

I noticed what they were doing eight years ago. For 5 years I remained a silent observer, writing notes on everyone from a corner by the wall as a member of the public. Then someone at the DOE made up that I taped during a hearing, and this was completely false, but I became the omen of doom when the Attorneys realized that I knew what the fraud was. NYSUT Attorney Shawn T. Kelly, for example, on May 25, 2011 while everyone at 49-51 Chambers Street was on the sidewalk due to a firedrill, screamed "Dont talk with Betsy Combier, you will be terminated..." and other nonsense.

Then there are the screamers and naysayers from the DOE, Ian Nikol, Nancy Ryan, Dennis Da Costa, and Mallory Sullivan, all Department Attorneys who would rather scream  at me and try to get me run over by a bus than address the fact that they are harming innocent people without just or probable cause.

EDUCATION LAW §3020-A MANDATES A VOTE ON SPECIFICITY BY A SCHOOL BOARD

Education Law requires a vote by the school board precede a determination of “probable cause” upon which to bring charges against teachers removed from their schools. (Education Law §3020-a, Article 61) This provides all pedagogues protection from vindictive Principals who may want to remove senior teachers from their positions because they make salaries that could pay for two teachers instead of one.

NYS Education Law §2590-g does not address the issue of review and scrutiny of whether there is probable cause to proceed with the prosecution of disciplinary charges against tenured educational personnel. The requirements of NYS Education Law §3020-a and §3020-a (2)(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 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.

Without a school board to perform these functions – and, the New York City Panel For Educational Policy (“PEP”) never has taken on this function – there is no oversight by anyone other than the tenured teacher’s Principal to initiate the disciplinary process and Local Superintendent to endorse the Principal’s request to prefer file charges against any educator a Principal chooses to remove from the school the Principal administers.

The lack of independent review and lack of oversight by anyone other than the tenured teacher’s Principal to initiate discipline is not consistent with Education Law §3020-a. This constitutes a de facto denial of equal protection of the §3020-a law, as all arbitrators who sit on the panel to hear 3020-a charges are not permitted by law, collective bargaining agreement, or any other contractual arrangement to make a decision on charges unless they have been voted on by the New York City Board of Education before a tenured teacher is given these charges, pursuant to Education Law §§ 2590-j, 3020, and 3020-a.

The relevant parts are as follows:
“Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section one thousand one hundred two, and sections two thousand five hundred nine, two thousand five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of 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.”

Section 3020a(2)(a) of The NY Education Law states:

“Disposition of charges. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. 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 an employee pursuant to this section. If such determination is affirmative, a written statement specifying the charges in detail, 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 outlining the employee’s rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.”

Furthermore, Section 2590(j)(7)(b) of The NY Education Law specifically states:

“Charges may be initiated by the community superintendent against any such employee.” There is no mention of a principal finding probable cause. Certainly it is unreasonable to believe that due process exists when a principal charges a teacher without any accountability to anyone for that decision, and then finds probable cause for charging the teacher. Therefore the Just Cause Standard is not reached, and no hearing can proceed.

Before a tenured teacher can be brought up on disciplinary charges, the Education Law lays out a number of procedural hurdles that a Board of Education must comply with. These procedural hurdles are in place to protect the rights of the tenured teacher to fair process, and constitute jurisdictional pre-requisites to a §3020-a disciplinary hearing. Chief among these procedural hurdles is the requirement that probable cause to prefer charges must be voted on by the Board of Education (see, e.g., Education Law §3020-a(2)(a)).

Compliance with this provision is a jurisdictional condition precedent to a §3020-a disciplinary hearing. Without it, the hearing cannot go forward. Prohibition is the appropriate procedural remedy for the assertion of a claim where prohibition is available “to prevent a body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction.” See: Matter of Schumer v Holtzman, 60 N.Y. 2d 46, 51; Garzilli v Mills, 250 A.D.2d 131 (3d Dep’t 1998); Community School Board No. 29, SED No. 3562 (Howard Edelman, a member of the UFT-DOE arbitration panel in New York City -Dec. 14, 1998).

In New York City, §3020-a teacher disciplinary proceedings have become penal in nature and not arbitral in the same manner labor grievances are resolved. Matter of Clayton v Bd. of Educ., 49 A.D.2d 343 (3rd Dept 1975). Submission to these disciplinary hearings are compulsory and the jurisdiction of the hearing officer is derived from statute. Teachers are charged, similar to an indictment in the criminal world, upon determination of probable cause.

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. Then the Gotcha Squad realized that I was on to something, and took it upon themselves to attack me.

So now I can write about the lawyers who decided to attack, and will provide my website with the names of the Attorneys who threw aside the lives, careers, health benefits and tenured positions of teachers in order to make a profit.

NY Appellate Bench Rips Cardozo in Law Journal Letter

LINK
In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.
The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).
But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:

“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”

The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).
You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:

In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.

The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:

The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.

After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority. A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.
And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:

[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.

Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.
It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”
The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.

Posted by Betsy Combierat 5:44 AM1 comment: Links to this post