Petition to vacate arbitration award

Index No. 21557/98
Reply Affidavit in Support
of Petition


Application of DAVID ROEMER,





For a Judgment under Article 75 of the Civil
Practice Law and Rules Vacating the Findings and
Recommendations of the Panel Selected to Hear
and Determine Proceedings Pursuant to
Section 3020-a of the Education Law.



DAVID ROEMER, being duly sworn, deposes and says:

1) I am the petitioner in the action at bar. I am appearing pro se because I requested my attorney to withdraw from the case. I submit this affidavit in reply to New York City Board of Education's ("Respondent") motion to dismiss my petition to vacate the findings and recommendations of the panel selected to hear and determine the disciplinary proceedings Respondent instituted against me under Section 3020-a of the Education Law (Exhibit A of the petition). I was, until terminated by the Respondent in June 1998, as a result of the recommendations of the panel, a tenured high school physics teacher who began teaching in September 1984. Until the differences that arose between myself and my supervisors I was considered a more than satisfactory teacher.

2) My prior Counsel has advised me that Section 3020a disciplinary proceedings are statutorily mandated and that, for this reason, they are viewed as compulsory arbitration and not voluntary arbitration. Therefore, a Court in reviewing such proceedings must consider whether the result reached was arbitrary, capricious, or otherwise unreasonable. I submit that under all the facts the findings and recommendations of the panel leading to the termination of my services was arbitrary and unreasonable and must therefore be set aside.

3) Before discussing the findings and recommendations, it is important to discuss the issue of timeliness which the respondent has raised. As I said in paragraph 16 of my petition, I received the papers that were left in my mail box as regular mail on June 15. Although the papers were sent by certified mail they were mailed to 119 Andover Road, Rockville Center, New York, which is the hearing officer's address and were not mailed to my address in Brooklyn. The papers are dated June 5, 1998 and were mailed to the wrong address which delayed my receiving them until June 15, 1998. My petition was filed in a timely manner.

4) I have not been terminated because of incompetent teaching, although I was charged with incompetence, or a lack of discipline in the classroom, or because I did not carry out my teaching responsibilities. I have been terminated because I employed an innovative method of teaching that I believe will better help New York City students learn science.

5)The disciplinary proceedings were an outgrowth of a disagreement between myself and the Principal and Assistant Principal of Science at Edward R. Murrow High School over teaching methodology. In voting to terminate me the panel ignored the provision in the Collective Bargaining Agreement for resolving differences in professional judgment that can arise when teachers carry out their obligation to make decisions about instructional methodology and techniques. Moreover, the panel, as well as my supervisors, totally disregarded the fact that the Chancellor through Joseph Lo Shiavo, Director of Related Staff Services, accepted conciliation as the method for resolving the differences I had with the Principal and Assistant Principal ( Exhibit B and Exhibit C). Although charges were filed against me, it appears that conciliation has not been concluded. Joseph Lo Shiavo, in fact, never responded to a letter asking if the conciliation process had concluded. His silence can fairly suggest that it did not (Exhibit D).

6) It is significant that I was charged with incompetence which, if true, means that I was not providing my students with a valid educational experience. Though charged with incompetence, the panel never even suggests that my students were not receiving a valid educational experience. The findings of the panel emphasized the conflict between myself and the Principal and Assistant Principal of Science over teaching methodology. The panel majority recommended that I be terminated. The dissenting panelist recommended that my penalty consist of transferring to another school. Alternatively, the dissenting panelist said I could stay at Edward R. Murrow High School under a period of probation.

7)The panel's findings were based on their unwarranted assumption that I ought to teach the way the Principal and Assistant Principal want me to teach. No one has perfect and complete knowledge of how children learn. This is why I believe that professional disagreements about teaching methodology should be resolved in a professional manner, and not through disciplinary procedures. More significantly, the panel overlooked the fact that the pedagogic differences between me and my administrators was not supposed to be resolved by my adopting their method of teaching but rather by an avenue existing under the Collective Bargaining Agreement and agreed to by the Respondent ( Exhibit B and Exhibit C).

8) My method of teaching was not developed overnight. I began teaching at Midwood High School in 1984 and used a highly structured method of teaching which relies on oral questioning of students to get students to participate in the lessons. In 1990 I transferred to Erasmus Hall High School where I learned from many workshops and seminars provided by the Board of Education, the Sate Education Department, and other organizations, various techniques for getting students more actively involved in the lessons.

9) My method of teaching science is to provide students every day with a "student lesson plan". This hand-out contains a section which explains the science concepts the students are expected to learn that day and another section which poses questions, activities, and problems for the students. An example of a student lesson plan can be found on page 34 of the findings and recommendations of the panel (Exhibit A of my petition). At the beginning of the period I explain and demonstrate the science concepts in the day's lesson. When I finish this part of the lesson, students work on the problems, questions and activities in groups or individually. I provide one-on-one assistance to students who most require it.

10) This method of teaching increases student's responsibility for their own learning, provides students with multiple avenues for learning the concepts, allows for a greater variety of student activities, and enables students to learn at different rates.

11) Shortly after arriving at Edward R. Murrow High School in September 1994 it became apparent that the Principal and Assistant Principal were not ready to support my teaching methods. The Chapter Leader of the United Federation of Teachers and I met with the Principal and the Principal agreed to conciliate our differences about teaching under Article 24 of the Collective Bargaining Agreement. The title of this provision in the contract is appropriately called, "Professional Conciliation". There was an attempt at conciliation, however, it was not completed. I was given an unsatisfactory professional evaluation at the end of the year in June 1995.

12) Although I did not change my teaching methods, at the end of June 1995 I was given a full Physics program to teach for the school year beginning in September 1995. I was given a full Physics program, I believe, because it was recognized that the conciliation process was not completed and that my students were receiving a valid educational experience. Indeed, the school's pass rate on the Physics Regents examination in June 1995 increased a significant amount over the pass rate in June 1994.

13) I submit, in short, that I have been terminated because of my innovative teaching methods and that this case can be resolved through the conciliation process which has not been completed. My termination has sidestepped the conciliation process and should be set aside.

14) Under Education Law the panel should have made the Respondent pay for the legal expenses I incurred from the 3020-a hearing because the charges were frivolous. I should not lose money because the panel misunderstood the case or its obligations. Therefore, I am asking the court to order the Respondent to pay all of my legal expenses.

15) It is respectfully prayed that the findings and recommendations of the panel be vacated forthwith and that the Respondent be directed to reinstate me in my position as a high school tenured teacher forthwith.


David Roemer

Sworn to before me this

2nd Day of December 1998
Glen Kaufman