Saturday, May 27, 2006

Without Adequate Representation You Will Lose Your U-Rating Appeal


To paraphrase Dostoevsky’s famous quote you can measure the effectiveness of a Union by how it treats its most troubled members. The U-rating is management’s most effective weapon, short of a full 3020-a hearing, in its arsenal against our members. A “U-rating” for non-tenured teachers is a career ending act. For tenured teachers it means the inability to move forward in salary and can become the basis of a 3020-a hearing and ultimately dismissal.

You would expect that as the number of U-ratings increase the Union would be providing competent and caring advocates to members given the severity of its implications. Not so.

At a U-rating hearing I recently attended at 65 Court Street the main issue was the teacher’s lateness and attendance record. The advocate advised the teacher that there was nothing that could be done as 30 absences and 15 latenesses were “clearly excessive.”

After I called the advocate he admitted that there was no specific standard for excessive absences or latenesses but that “teachers had been fired for less.”

I suggested that he obtain the records of the attendance and lateness records of the school and that when he did he would find that the U-rated teacher had a better record than many S-rated teachers in the school.

I advised the teacher to file Freedom of Information Law requests for these records. She instead wrote directly to the Chancellor.

Virginia Caputo, the head of the hearing officers wrote back stating that the records were considered confidential and would not be made available to the teacher thus confirming the advocate’s statement that there was no way to defend this appeal.

Rather than take Caputo’s letter as clear evidence of lack of due process in the hearing the advocate is content to sit there and collect whatever small sum our dues pay him for showing up.

We need aggressive advocates who don’t wait until the night before the hearing to contact our members.  We need aggressive advocates who don’t accept the DOE line that these hearings are indefensible and instead use their imagination to make records for appeal to Court or the State Commissioner.

Insist on fair representation. It is your right!

60 comments:

Anonymous said...

Caputo's answer is revealing. When I was the subject of a completely bogus OSI case, a total stranger was able to get a complete documentation, start to finish, just for asking.

northbrooklyn said...

Jeff-
Good article...but that is just the tip of the iceberg. Our union doesn't agressively represent anyone in this union. The result is the situation you describe as well as the typcal bullying behavior of our doe managers.
We are a rich, lazy, toothless old organization. Our members suffer, our chapter leaders are left to work alone w/out union muscle. The UFT needs to be re-organized with dedicated reps who take no prisoners.

Anonymous said...

I was a U-rating advocate a few years back. Unfortunately, the member never told me the whole truth when I interviewed her, and I wasn't given her whole file until the actual day of the hearing. It was then I found out the principal had her up on abuse charges that were later unfounded.
Unfortunately, I had to ask for a break to reveiw these new papers. However, the principal and judge remained in the room alone which was not kosher. If someone does get a U-rating, they better be unfront with their advocate about everything the principal ever had on them.

One thing we were taught was that we could get the record of attendance of the school--so why didn't this advocate know that???

Anonymous said...

While I agree with northbrooklyn about our union, I also know that the U-rating appeal is almost always doomed to fail.

I received a U-rating for an ncident with a student in which I received a letter to the file for improper handling of the incident. I had the letter removed by the arbitrator who stated that the incident was handled properly by me based upon the evidence presented by both sides. The arbitrator further stated that OSI failed to interview the witnesses who were in the hallway at the time of the incident. These witnesses confirmed my side of the story and the student admitted to one of the other students that he was encouraged to lie about what happened. However, when I went to have the "U" rating removed, the judge said that the incident was serious and despite the arbitrators ruling and the witness statements he upheld the "U" rating.

Let's see I received a "U" rating for an incident that the arbitrator found I handled properly. Go figure.

John Elfrank-Dana said...

Jeff,

Very informative. Can you list or send me the steps one would go about for a FOIA request under such circumstances?

John

john@elfrank.net

Anonymous said...

Norm, how is that tyou know who is writing anonymously? Are you saying that this blog doesn't really have an "anonomous"?

northbrooklyn said...

True that, anon I and anon II.
But...
Anon I: how it happened that you didn't rec. the file in a timely manner, I don't get...aggressive behavior seems to be in order, but, I would love more info. As for members not giving you all of the info upfront, yeh, BIG problem with that. I have some ideas about how to handle it...but stressing to the member the importance of laying out the whole thing, the seriousness of the situation, etc. is paramount. However, the member is not going to give it up easily and it requires time with the member. Lots of time. Not happening in this man's union.
Anon II: U-rating appeals fail because we allow them to fail.
Last note to both of you-try being creative. Use a nom de plume. You don't honestly think the kids call me Mr. NorthBrooklyn, do you?

South Carnarsie said...

How about the advocate contacting the chapter leader or maybe the district rep? When you lose they give no advice toward appeal? What's with that?

Anonymous said...

I first had a phone conversation and then met with my teacher at the borough headquarters. I asked her to bring all letters and observations she had received so I could ask questions and review them with her. The principal had the same file, except his included a letter of abuse which she did not share with me. So, the judge had to make me a copy of that letter as well as the findings, and I got extra time to meet with my teacher to discuss that situation. Of course, I wanted to scream at her for not being upfront. I was told in training that not all teachers tell the truth or give all the data needed, and I specifically asked for everything and was told I had everything.

So, if anyone with a U-rating does want adequate representation, don't hold back any information.

Signed,

Happily remaining anonymous

northbrooklyn said...

Dear HRA-o.k. I get it now. So, how should we proceed? I would suggest that a union meeting should be held in every building with ten important teacher survival tips...one of them should be don't 'neglect' to tell your rep about anything in your file.

Anonymous said...

Does anyone notice that in Jeff Kaufman's posting he says "At a U-rating hearing I recently attended " how did he attend this? I didn't think these were public meetings. How did you "attend" this U-rating hearing?

Anonymous said...

northbrooklyn:

I could have had the best union representative at my "U" rating appeal and it would not have mattered. The judge is a DOE employee and after my representative presented my case, including the arbitrator's findings, the witness statements, the statement that the student was encouraged to lie, and that my "U" rating was entirely based upon the incident as stated by the principal.

Despite all this evidence, the DOE judge asked the DOE representative "did you believe that the incident was serious"? The DOE representative responded by saying while the evidence presented did convince the arbitrator that the teacher responded appropriately, we believe that the teacher should have handled the incident differently and hence did not follow the recommended school proceedure. Therefore, the "U" rating, while unsupported, should be retained.

Not surprisingly, the DOE judge agreed.


While I'm no unity supporter, you can't get a fair shake at the DOE kangaroo court.

Anonymous said...

Why don't you appeal to the state or to court?

northbrooklyn said...

Dear HRA-hmmm...interesting. So how do we proceed? As to the following anon. appealing to state, etc. is far more difficult than you can imagine.

Anonymous said...

I did investigate an article 78 appeal to the State but found it would require a lawyer and a 10,000 dollar retainer. Since the "U" rating appeal happened three years after the actual "U" and I have never had a "U" rating before and after, I just let it go.

I still shake my head in disbelief that a "U" rating can be upheld when the basis of the "U" rating was found to be false.

UFT-DR said...

South Carnarsie -

I'm a District Rep and I can tell you that every UFT Advocate who defends a member from my district in a U-rating appeal contacts me in advance to discuss the case. Sometimes they request help in obtaining paperwork they need from the school. Other times, they want to discuss a particular strategy. I know for a fact that they meet with the client in advance and work diligently to prepare a credible defense. It's shameful for people on this board to criticize UFT Advocates who work very hard to try to help our members under the very difficult circumstances of dealing with the DOE.

Norm said...

To UFT-Dr
I tried to attend the U-rating hearing of Ed Farrel from John Adams who was eventually forced into retirement and is one of the age discrimination people. The hearing officer let me in after to talk and the UFT advocate had no defense because she said she did not have Ed's file with the letters and lies from his supervisor.

The advocate was "trained" to deal with the letters only and not the bigger picture like the letters were a result of a decision to get rid of Ed and others, partly becasue of age discrimination. What defense could she give if procedures in the letters were followed? They can say almost anything and get away with it. That there are no contractual protections is exactly whose fault?

But the fact that he was only observed at the worst times like the 58th period (joke) with the worst classes and had requests to have his lessons taped refused, etc were not put on the table.

How come taping as evidence if the teacher wants it is not used so we have an objective view? How come the UFT doesn't ask for independent observers of the DOE to evaluate teachers if they so request?

The hearing officer asked me why I thought I could represent Ed since I wasn't in his school. I said the advocate had not visited his school either (why don't they?) and in fact I had been there a few times and talked to some ICE contacts in his department who backed Ed.

In the session after the hearing I raised all these issues with the hearing officer and age discrimination too. That perked her up. I even brought up Deric Perl as an example since she had met him. I asked her if she actually felt after meeting Deric if she thought he could in any way not be a competent and caring teacher and she smiled and shook her head "No."

I got so pissed at the lack of defense I called the Queens UFT office and complained loudly to Al Samuels. He hung up on me. That night (Oct. '04 I believe) I went to the Exec bd meeting and raised a ruckus about how older teachers were under attack. UFT leaders acted like they were surprised but raised it at the DA 2 days later.

In the meantime I was notified about an age discrimination suit filed by teachers in Bay Ridge against Supt Grippo. And the UFT knew about it and even refused to cooperate with the teachers' lawyers. So I was being bull-shitted at the Exec bd when they acted surprised.

Do you think the "trained" advocate or I made a better defense? In fact it all may not matter because as you say "under the very difficult circumstances of dealing with the DOE."

Whose fault is this? Support for mayoral control by the UFT? A leaky grievance procedure that really didn't do much to protect people before but is being exploited to the hilt by these people. Since the mid-70s' I and others have been calling for closing the loopholes and Unity Caucus ignored it all. Now everyone is paying.

One more point: One of your former advocates told me they were ashamed to be representing people based on the training given that stresses make a deal even if the teacher really loses - like it is a victory for the UFT if they can get some paragraph changed in a letter even if it remains in the file.

Anonymous said...

The only way to stop the abuse of the "U" rating is to demand an independent arbitrator. The use of a highly partial DOE judge allows for 99%+ "U" rating in being upheld.

This should be in the next contract negotiations.

Happily Remaining Anonymous said...

When I was trained we were never told to visit the school, however I did contact the school's rep who also never told me about the abuse charges against the teacher.

U-rating advocates are not given the day off to visit schools. I met with the teacher after school at the UFT office and had many phone conversations with her.
The only paid day off you get is the day of the hearing.

How do we proceed?

Most of the judges are ex principals, and the DOE wants more U-ratings.

Of course, it would help to have all the facts before going in.

Maybe the hearing process needs to be modified so that the person or persons hearing the case is/are not one-sided.

I know of a case of a new teacher who was supposed to attend regional meetings and instead went home. When discovered, the principal gave him the option of leaving or getting a U-rating. He left.

I would have hated to defend that guy. So, there is a percentage of teachers who do deserve the U. But I also know that principals can make good teachers sound bad just because they are pro-union.


HRA

northbrooklyn said...

uft-dr-south canarsie-
watch your tone with me on this subject.
the union is not protecting it's members, although it sounds like you are protecting the members in your district.
hra brings up some important points that I think should be implememnted.
norm's summary of a hearing sounds closer to the kind of experience a teacher has when going through a hearing.
I suggest you get the 'win' records of the other DR's of the past four years. You will be less willing to jump to the defense of advocates, etc. and more willing to protect the members of this union.

Anonymous said...

Once again and Norm insinuates this in his comment: Does anyone notice that in Jeff Kaufman's posting says "At a U-rating hearing I recently attended " how did he attend this? I didn't think these were public meetings. How did you "attend" this U-rating hearing?

Anonymous said...

In another thread, Norm said:

"why don't you just id yourself or email me privately, not that I really don't know who you are."

Thursday, May 25, 2006 8:03:29 AM

And someone responded:

"Norm, how is that to you know who is writing anonymously? Are you saying that this blog doesn't really have an "anonymous"? "

Monday, May 29, 2006 4:46:46 PM

Is this true there is no anonymous on this blog?

Jeff Kaufman said...

Yes, as Chapter Leader I do represent my members at U rating hearings. Under the Chancellor's Regs anyone can represent a member at a U rating hearing. The hearing I wrote about I was actually a subpoenaed witness. Why is anonymous so concerned that I attend U ratings? I make certain my members are provided the respresentation they deserve.

Anonymous said...

Hey why is the last update of DA's on your webpage 10-11-05? and the last Ex. Bd. 12-11-05? You mean this blog is the only place you can report anything for 8 months?

Obviously you guys are just grasping at straws with this blog.

Anonymous said...

So Jeff, did you "represent" this member or did you "attend" it as the posting says?

Anonymous said...

More trolls. Oy vey. Begone! Go troll over at the PSP forums, you'll fit in with the other amateur trolls.

Happily Remaining Anonymous said...

I have not been a advocate for years--my choice--but I did have to attend a very intense weekend training. Also, we were told to contact the District rep in charge of U-ratings in the borough office for help and advice which I did.

I did not know that chapter leaders could also be advocates. In fact, we never took a case from our district. Have the rules changed?

HRA

Jeff Kaufman said...

NYC Department of Education Bylaws provide:

5.3.4C Committee Reviews

Any person who appears before a committee for the purpose of appealing a rating or
concerning the discontinuance of probationary service or denial of certification shall
receive written notice of the time and place of the review, addressed either to the place
of employment or to the last known post office address, at least one week before the
date specified for said review. The notice shall inform the person that he or she is
entitled to appear in person, to be accompanied and advised by an employee of the
board of education or a representative of the union recognized by the board as the
collective bargaining representative for the employee, to be confronted by witnesses, to
call witnesses, to examine exhibits and to introduce any relevant evidence.
If a witness who was summoned or requested to appear is unavailable or unwilling to
appear despite the best efforts of the committee, this shall not prevent a review from
continuing but shall be one of the factors considered by the committee.
The advisor need not be an attorney. The attendance of such advisor and witnesses, if
employees of the board of education, shall not be deemed absence from official duty,
but such persons shall not absent themselves from school duty except pursuant to such
rules as the chancellor shall prescribe.
No employee of the board of education shall serve as an advisor or panel member in
more than two (2) matters in a school year nor request or accept directly or indirectly
any remuneration or other consideration for service as adviser or witness.
A sound recording shall be kept of the proceedings and the person who is appearing
before the committee for the purpose of appealing a rating or concerning the
discontinuance of probationary service or denial of certification shall be entitled to
receive a duplicate of the sound recording of the review, at cost. In the event that the
sound recording equipment is not available or breaks down during the review, minutes
shall be taken of the proceedings and such minutes shall be available to the person
summoned at cost and upon reasonable written notice.

Anonymous said...

If it were ever to happen to me, I'd want the attorney over my CC or advocate.

HRA

Chaz said...

To Everyone:

I think you need to reread what anon said about his/her "U" rating hearing. It would seem to me that no matter what type of representation you have a "U" rating will stand.

Therefore, an independent arbitrator is the only answer and needs to be part of the next contract.

Anonymous said...

Excuse me, but from now until the next contract there will be U-ratings. So people take Chaz' advice and accept it.

Anonymous said...

Thanks for the choice on "Chaz's advice" but I'm still confused.

If your "represented" the member Jeff then doesn't that mean you were his/her advocate? If not then what do you mean by "representing" him/her?

Anonymous said...

Hey Jeff, why doesn't Norm answer the "anononymous" question?

Chaz said...

People, lighten up! We are supposed to be on the same side on this issue. That is to make the "U" rating hearing system fair.

Does anybody know what percentage of teachers win their appeal?

Anonymous said...

Jeff was there. Read the rules.

Anonymous said...

The UFT wins a couple out of every hundred I've been told.

NYC Educator said...

The UFT has other ways to spend your dues money.

Anonymous said...

Thanks for the self-promotion NYC Educator but let's get back to the posting.

I still don't understand what was Jeff doing there. Was he the member's advocate or just a bystander?

Anonymous said...

Chaz, you're idea is not bad. Wheter we can get is another story. How willing do you think the DOE will be willing to "give" us that?

Anonymous said...

Is it true that there is no "anonymous" on this blog? Why can't someone answer this since Norm brought this up?

Anonymous said...

Here is our real threat:

City's Pension Cut Proposal May Set Negotiating Pattern

http://www.nytimes.com/2006/06/06/nyregion/06labor.html

and

http://www.unionfacts.org

Why aren't you talking about this?

UFT-DR said...

North Brooklyn-

In terms of my tone, I think it’s quite measured considering some of the comments on this blog. I work all day, every day, sometimes into the night, to protect my members against the injustices perpetrated against them by the DOE and their evil minions. I see other DR’s and UFT personnel doing the same. These are very difficult times for us both as educators and union members. We’re under attack all across the country. Instead of allowing yourself to be distracted into attacking your own union leadership, you should be joining with us to fight the real enemy: Bloomberg, Klein and the whole DOE bureaucracy.

Norm:

I’m shocked to hear that a hearing office discussed a U rating case with you. What was that about? It’s totally inappropriate for a hearing officer to violate confidentiality with an unauthorized person. Obviously, I cannot speak to the ‘case’ you describe as I know nothing about it. I do know, contrary to your ‘ashamed’, but quoted advocate, that no one is told, “to make a deal even if the teacher loses.” Surely, even you acknowledge that the UFT has every reason to fight as hard as it can for its members. There would be no good purpose to do otherwise.

Anonymous said...

Norm?

Anonymous said...

Hey that's true. Was Jeff the member's advocate or just a bystander?

Anonymous said...

You can see what they are after:

New York's Pension Peril

http://theutp.blogspot.com/

Anonymous said...

Our own beloved Princess Randi is supplying the evil empire (klein, bloomberg, doe) the materials to build their deathstar to wipe out classroom teachers. That is no distraction. The classroom teachers are fighting two battles.
Bloomberg is Randi's father. She has gone to the darkside! And she ain't comin' back!

Anonymous said...

Norm?

Norm said...

Anon who keeps asking for me (Are you lonely tonight?):
How do I know who you are? We have a special tracking device attached to your computer so only you are not anonymous. I would advise you to be careful about posting here. It is time to let you know that Jeff Kaufman doesn't really exist and is just a figment of your imagination. We are sending you for a DOE psychiatric exam for paranoia. Report on July 4 at 12am or lose your pension.

To people concerned about whether I attended a U-rating hearing:
I said that I was not allowed in until right after the hearing. Ed Farrel had asked me to be there. There were 3 witnesses - Ed, the UFT rep and another person who was helping Ed. I spoke about what happened at that evening's Exec bd meeting.
As to how hard some UFT reps work - it just can't be compared to teaching even if you work 12 hour days. But I know that DR's do so much "political" work for the UFT and defending members often takes 2nd place to, say, informing people how horribly John Stossel treated Randi.

To HRA: Let the UFT use full-time people as U-rating advocates and truly investigate instead of using them as political advocates of Unity Caucus. When I was chapter leader the DR came to each month's meeting with a laundry list of things for us to do. We never had time to discuss what was going on in our schools and how to deal with them on a broad level. I hear that most DR meetings today are the same way with some exceptions.

By the way, in June 2002 I offered not to retire and take the Dist. 14 DR position to demonstrate how the job could be done to represent the interests of the teachers to the union hierarchy and not vice versa. For some reason I wasn't chosen (Randi had just cancelled DR elections.) So I started doing a citywide version of Ed Notes instead. I should say that there are a some DR's that do a good job. But I still think if they were elected they would all be more responsible to the members. But personal loyalty to the leadership is a higher priority.

James Eterno recently applied for the DR Queens HS position. He is clearly the most experienced and knowledgable candidate. Anyone want to bet on his chances?

Chaz said...

Mr. Eterno has about the same chance of being Queens DR as the average teacher has in winning a "U" rating appeal ---- Less than 2%

Anonymous said...

I think you meant this:

New York Post's

NEW YORK'S PENSION PERIL

http://www.nypost.com/postopinion/opedcolumnists/67144.htm

Anonymous said...

I think you meant this:

New York Post's

NEW YORK'S PENSION PERIL

www.nypost.com/postopinion/opedcolumnists/67144

Anonymous said...

Thanks Norm. Tracking device and all you know who we all are.

Anonymous said...

Norm, I don't think anyone was wondering about whether you "attended a U-rating hearing" because Jeff Kaufman wrote this post. Or was it you that wrote this Norm and Jeff posted it?

If it were really Jeff, it is still very unclear as to whether Jeff was just "there" like you were for the aftermath or as an advocate for the member as he insinuated on "Sunday, June 04, 2006 1:35:06 PM".

Anonymous said...

What's funny about Norm's exertions is that he is so self-sacrificing - postpone retirement to be DR to show "how the job should be done"- golly gee!(Now I certainly want your opinion about anything)!

He obviously also know who should be DR because he knows who "is clearly the most experienced and knowledgeable candidate". He is so well versed in the High Schools and in the all of the candidates that he knows exactly what is best for us.

Thanks, but no thanks.

harassed teacher said...

All this sounds very discouraging. I have just recieved a U rating which I believe to be unfounded. What can I be doing do improve the chances that my appeal passes? What concrete suggestions can you give me in preparing for an appeal?

Anonymous said...

Yeah, how is it you know who should be Queens HS DR. Although you clearly know "who the most experienced and knowledgeable candidate" is, if your in District 14 you were never in a HS! What do you know about Queens and High Schools other than James Eterno is probably your freind? It seems that your greatest interst is your political party's political interest, not that of the Queens HS members.

Anonymous said...

I have been following your blog for a while now and felt compelled to finally comment. I am a teacher, but not in NYC. It appears the biggest problem in the entire U rating and appeal process is that it does not adequately provide for due process under the law. I wonder if a case could be made for violation of due process based upon your descriptions of how the game is fixed? Of course this would take a person with standing to challenge and alot of money, maybe the ACLU would take it on?

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2006 federal holidays said...

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I have a 2006 federal holidays site.
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Anonymous said...

These DOE hearings are much like the Gitmo military tribunals, or the Catholic priest molestation "investigations;" they seem to operate in their own bubble, outside the law of the U.S. And the only advice you ever get from the UFT is that "You have no rights." I'm pretty sick of hearing that I have no rights. The union is part of the problem, not part of the solution. Where does my 80 bucks a month go? Into the pockets of the union fat cats.