A review by Schools Chancellor Dennis Walcott of previous complaints found 16 cases in which the city tried to remove teachers for inappropriate remarks or actions, but all of those teachers were allowed to return to the classroom after arbitration. Two have since been removed pending new investigations.
Though Mayor Michael Bloomberg has complained about the current arbitration process, the union says the system has improved tremendously.
What Happens When a Teacher is Accused
Teachers accused of criminal acts are arrested by police and prosecuted by the courts. But state law gives tenured teachers accused of misconduct or incompetence the right to an impartial hearing before an arbitrator.
These 3020a hearings, named after a section of state education law, are held in city offices in the old Emigrant Bank Building on Chambers Street. There are currently 24 professional arbitrators who hear these cases.
But because they hear all kinds of other cases, too, they are limited to working five days a month on DOE misconduct cases and seven days a month on incompetence cases.
The arbitrators are appointed jointly each year by the city and the teachers union. On his weekly WOR radio show last Friday, Bloomberg suggested this process might taint them.
"Sometimes they rule with the city, sometimes they don't. Some of their rulings don't make any sense,” the mayor said. “But the theory is that they don't want to be too tough on union members 'cause then the union will never allow them to be selected."
Arthur Riegel is one of the 24 arbitrators hearing cases involving teachers. He’s been on the panel since 1997.
“The very core of bilateral selection is to avoid an arbitrator being prejudiced one way or the other,” Riegel said, adding that in the mayor's scenario "you would get a situation in which you would probably see a pattern of ‘You win once, you win once,’ going back and forth that way.”
He said there's an ethical requirement, referring to the National Academy of Arbitrators, which credentials members of the profession.
”I personally have had instances in which particular attorneys or parties may have lost 10 in a row. And they still give me more work,” he said.
Walcott told Albany lawmakers last year that teachers should be disciplined like other city employees, whose cases go before the
Office of Administrative Trials and Hearings rather than to arbitrators.
But that would require a change in state law and there's been no appetite by politicians to take it up. The teachers union also notes that educators have tenure, unlike other employees, and that the bar to remove them should be higher.
Once a teacher is charged, he or she has 10 days in which to request a hearing by an arbitrator. A pre-hearing conference must be scheduled in 10 to 15 days. The actual hearing must take place within 60 days, and once it's concluded, the arbitrator has 30 days to write a decision.
This process became synonymous with the term "rubber rooms" when the city sent teachers who had been suspended, pending the outcome of disciplinary hearings, into offices where they would languish for years doing nothing, while collecting their full salaries.
The union and the city agreed to expedite the process two years ago by hiring more arbitrators and clearing up a backlog of cases. In addition, teachers now do paperwork or other non-classroom tasks, instead of sitting in rooms doing nothing.
Both the union and Walcott agree that this settlement improved the 3020a hearing process. But Walcott's also complained that the process is still set up to take three and a half months, and that it results in "inexplicable or irregular" outcomes.
When he went to Albany last year, he noted how two teachers were each accused of verbal abuse and found guilty by arbitrators. But the outcomes of their cases were entirely different, with one teacher being terminated while the other paid a $5,000 fine.
Likelihood of Termination
The Department of Education almost always requests to terminate a teacher during the hearing process, but very few teachers actually lose their jobs.
There were 176 misconduct cases were heard and 23 of those employees lost their jobs in the 2009-2010 school year. The following school year, there were 223 misconduct cases and 37 of those resulted in employee terminations.
Another 38 paid settlements last year and left the system, according to the teachers union. Others may have been disciplined in other ways.
Nicholas Penkovsky, an attorney who represents teachers accused of misconduct, agrees with the union's assessment that the DOE often charges teachers with multiple counts at once, similar to the way a prosecutor will throw everything at a suspect in an attempt to persuade a jury.
"While you have one charge that might lead to discipline, if you have seven charges, each of which could lead to discipline, then the hearing officer raises the penalty," he said.
The department maintains that its charges reflect whatever offenses it believes its employees have committed.
"If the Department of Education believes that the hearing officer has made an egregious error in a specific case, it can appeal that decision" to a state Supreme Court judge, said teachers union president Michael Mulgrew.
The DOE says it has no data on how many appeals were filed in the 2010-2011 school year. But overturning an arbitrator's decision is widely considered extremely difficult.