Sunday, April 26, 2009


Every teacher in New York City has felt at least some of the pain that Francisco Garabitos exhibited last Friday when he allegedly barred himself in at MS 328 in Marble Hill and tried desperately to contact Randi Weingarten while rumors about a bomb and endangered children caused the police to evacuate the building. As the shocking nature of Garabitos actions settle down we now start to learn about some of the background to this incident. According to published reports Garabitos, the school’s Chapter Leader, was embroiled in a major battle with the school’s principal who appeared to disregard his Chapter’s concerns.

What has become more common since principals have been given more authority has led to increased teacher turnover, 60% in Garabitos’ school in the last two years, and the Union doing nothing about it, leaving Garabitos and his Chapter to write a twenty teacher signed letter to the DOE to get some relief.

Why did Garabitos place a call with Weingarten? Did he recognize that contractually and practically the Union has left us out to dry and Weingarten’s access to the news media might be the only way to get the message across?

We don’t know what will happen with Garabitos other than he will probably stay in the rubber room for months and have no proper investigation done about any of the allegations that may be brought against him. Perhaps he knew that the removal will leave the Chapter in further disarray and send a message to all of the teachers left that they had better do as the principal orders…or else.

Judging by past experience it is clear that no matter how desperate the call there are very few at Tweed or 52 Broadway who will follow-up.

We feel your pain.

Thursday, April 23, 2009


The Delegate Assembly featured a lengthy Contract speak out highlighted by a spirited debate between UFT President Randi Weingarten and Truman High School Delegate and ICE member Julie Woodward. The debate centered on the inadequacy of the grievance process for our members mainly because of us surrendering the right to grieve letters in the file in 2005. Many of the delegates spoke of our need to win back what we gave away in 2005.

Randi in March called for a Contract negotiations discussion at this DA and the opposition caucuses that represent rank and file educators were prepared. Both Teachers for a Just Contract and ICE had leaflets prepared relating to the Contract and our demands. The majority Unity Caucus had literature that led with a piece on how the UFT supports charter schools that was followed by an article on school governance and concluded with one on the budget. There was not one Contract idea in the Unity leaflet.

Overall, the Contract discussion lasted over an hour. There was very little discussion of money although Randi did mention that the police and sergeant’s unions had agreed to lengthy Contracts where the final two years had two 4% raises. Randi also briefly talked about the difficulty negotiating in this severe recession but we believe that these agreements plus the DC 37 settlement of 4% and 4% over two years are pattern setting for other unions so they would impact on us. Interestingly, most of the speakers at the DA focused not on salary but on professional gains that teachers, and other UFT members, believe are essential.

The best part of the meeting came when a delegate brought up the issue of winning back the right to grieve to remove inaccurate/unfair letters from our personnel files. She talked about how the threat of multiple grievances often forced principals to back off of our members. Randi said that in the current system principals don’t care about the threat of grievances. She then added that we gained all of the substantive rights on letters in the file back through the courts and through grievances on other Contractual provisions where the remedy was to have letters removed from files. She said we won the Todd Friedman arbitration on attendance and five or six other cases so it was clear that a letter could be grieved as long as another article of the Contract was violated.

Randi then asked for someone to find any substantive right on this issue that we have lost since 2005. She went on to talk about how after three years, letters are removed from files if we haven't been charged and we could bring up the issue if there were a spike in letters.

Julie Woodward rose from her chair and answered Randi specifically. She said that we could no longer stop Principals from lying about us in letters written for our files with a grievance. She stated that principals could write anything about us and we were basically powerless to do anything in response. In the course of this debate,the standard from the old Contract, inaccurate or unfair, that allowed us to fight grievances successfully was raised. Randi responded that we almost never won and letters were just altered and now they are removed after three years.

Randi neglected to mention that after three years, the letters are basically useless to the DOE because unless it is a criminal matter, the DOE cannot use material that is over three years old against us in 3020A disciplinary hearings. What does the DOE need to keep the letters for if they are inadmissible? Having them challenged before they are three years old gave us a chance to have a letter expunged before it could be used against us and for untenured personnel, it gave them a chance to have some kind of hearing before a neutral person.

Julie then stood her ground against Randi. She blasted the grievance process. She stated that there are very few cases that the UFT takes to arbitration and she went on to say that she had a very strong personal grievance that was delayed for a long time and then it was stopped by the UFT and only through her strong advocacy for herself did the UFT decide to go through and win. She then argued that many members are not so persistent and they suffer in silence when the Principal writes lies about them. She added that when these members see someone grieve and have to wait for years while the harassment from administration continues unabated, this silent majority is not about to exercise their union rights.

This view was also put forward by Peter Lamphere from Bronx High School of Science and TJC. Peter talked about a harassment case that was filed a year ago by 20 teachers in the Math Department that has not gone to arbitration yet, even though there are strict timelines in the Contract. He also told us that the principal is denying the UFT the right to put material in mailboxes with inpunity; a right the UFT won decades back.

ICE in its leaflet is calling for an expedited grievance process. Without a strong grievance procedure that every member can take advantage of, the Contract is basically rendered useless. Lamphere also called for penalties if the DOE violates grievance timelines. He also stated that we need to fight as the teachers in Los Angeles battled with their sit-in at the school board meeting and now they are threatening a one day strike. Randi responded that we have to know what we are getting into with militant actions and arguments were made in favor of using the status quo part of the Taylor law to our benefit. This provision keeps an expired contract in effect for NYS public employees until we have a new one unless we go on strike.

Other proposals included winning back some of the other givebacks from 2005 including eliminating the two school days before Labor Day from the calendar, ending school-wide merit pay, or individual merit pay and bringing back the Seniority/SBO transfer plans to put a check on principal power.

People also discussed paid child care and parenting leaves, reducing paperwork, eliminating data entry work for teachers, no further extended time, reworking how the current extended time provision is used, stopping attacks on senior teachers, stopping outside consultants from judging us, having a fixed number of days in the school calendar, limiting the number of periods in a row that elementary school teachers can work, getting more per session for secretaries, allowing people to transfer their sick days to others without a penalty and more. A lively discussion indeed that won't mean much unless we are willing to fight for whatever goals we want to push for.

Randi's Report

The remainder of this lengthy meeting was basically just the Presidents' Report and the Staff Directors' Report.

Randi said she wears the front page assaults against her from the NY Post as a badge of honor. She said that Rupert Murdoch is going after her personally to try to get us to capitulate. She said the vengeance of the attacks on her shows just how powerful UFT advocacy is. She also talked about how the unions identified healthcare savings that were ignored but the battle against us would heat up with the issue of mayoral control being taken up by the legislature after the transit fare is resolved.

She said that as part of the Working Families Party, we were pushing for a solution for the subway fare issue that would be paid for by everyone. She then said that in terms of mayoral control of the schools, with the Post, the Daily News, the Times, the business community in favor of the current system, we might need our members to be on call for mass faxes, emails or a big rally to show that it is 200,000 UFTers and not just Randi Weingarten that want to see the system changed.

Randi and grievance director Howard Solomon reported on a victory on hardship transfers at arbitration. If someone has a hardship transfer for medical or safety reasons and is found qualified, the DOE must assign the member to another school to relieve the hardship within 15 days; that person is not an ATR; he/she is a "hardship transferee."

For the next two years, they will get to teach in their license area or at least be given appropriate work within their license area. However, they cannot grieve their program preferences. After two years, they can be transferred back to their original school if the hardship has abated. The member can appeal and go through medical arbitration or if the issue isn't medical, they can grieve through the regular grievance procedure.

Hardship transferees are required to try to go through the open market hiring system during the two year period to try to find a regular position. After two years, if the person can't get a job on the open market and hasn't been transferred back to their old school, they get full rights and should be placed on the table of organization of the school they have been transferred to. However if they have not made a good faith effort to find a regular transfer through the open market, they can be placed in ATR status at the end of two years.

After reading through this decision thoroughly, I would not consider it a major victory but it is better than no hardship transfers at all and transferee status is a step up from being an ATR.

In other news, there was a moment of silence for a teacher, Lem Martinez Carroll, who recently passed away. Also Councilmen Mitchell, who won a close race, thanked the delegates and Leroy Barr promoted the upcoming Spring Conference where Ted Kennedy will win the John Dewey Award. Finally, Leroy told us that Chapter Leader and Delegate elections are coming. ICE urges everyone to become active and run for Chapter positions.

Sunday, April 05, 2009

Cautionary Story for UFT Members

Bronx Borough Office Admitted Blunder May Cost Teacher His Job

When Scott Weill, a tenured junior high school teacher, was served with charges and specifications on December 16, 2006 the nightmare had just begun. Mr. Weill was charged with, among other things, showing an inappropriate movie and making "despicable comments" to his students

Knowing that service of the charges required him to seek legal counsel, he met with UFT Special Representative Rodney Grubiak and Paul Eagan at their offices on December 19, 2006. During the meeting Mr. Weill advised the Bronx reps that he wanted a hearing on the charges. He completed the forms necessary to obtain a NYSUT lawyer and was assured that the request for a hearing would be duly and timely filed.

Education Law § 3020-a 2 (c) provides that a request of a hearing be made "[w]ithin ten days of the receipt of the statement of charges".

On January 13, 2007, Mr. Weill received a letter from Michael Best, General Counsel to the Chancellor, headed 'Notice of Inquest". The letter informed Mr. Weill that he failed to request a hearing. Mr. Best then wrote: "Since you have failed to request a hearing in a timely manner, your right to a hearing is deemed waived."

Mr. Weill was further advised that the charges against him were subject to disposition by the Panel at its next regularly scheduled meeting.

Under 3020-a2(d) all "unexcused" failures to request a hearing are deemed waived.

Mr. Weill submitted an excuse. The excuse was that "somehow" the Bronx office sent the request by certified mail but no receipt for the mailing could be found.

According to Jose Vargas, Bronx Borough Representative, this problem extended to another teacher as well. Vargas wrote, "Mr. Weill was one of two teachers who came to our office on December 19, 2006, after being served with charges and specifications. They came to the office to request a hearing and for representation. The other teacher was Sonia Ortiz. Both of their cases were processed in the normal way."

Vargas described the "normal procedure as "start[ing] with the teacher meeting with a representative. The representative reviews the package of papers served on the teacher and fills out the letter requesting a hearing. The letter is given to our office manager to send it certified mail, return receipt requested to both the Department of Education and the Commissioner of Education. In addition copies of the entire package, including the letter requesting a hearing, are forwarded to counsel for the New York State United Teachers; the law firm that would represent the teacher at the hearing."

"When I found out that the letters for both teachers were not received by either the Department of Education or the Commissioner of Education, I notified my supervisor at the UFT and counsel. In addition, my office manager and I tracked all of the paperwork. Based on our investigation, it appeared that the papers for each teacher were processed in accordance with our normal procedure. However, we could not find proof that the letters were mailed by certified mail, return receipt requested, as per our procedure. I can only speculate that the letters by the two teachers requesting hearings were not received by the Department of Education and the Commissioner of Education due to either a clerical error in our office or in the offices of the recipients."

Vargas continued, "When I learned of the date on which the Panel for Educational Policy would be acting on the charges and specifications against both teachers, I arranged to attend the public meeting with the intention of addressing the Panel regarding Mr. Weill's and Ms. Ortiz's failure to request a hearing.

Vargas claims he appeared before the Panel on January 22, 2007, and read a statement which he had prepared. He added that "Following my presentation, Chancellor Klein stated that Theresa Europe (an attorney in the Chancellor's Office of Legal Services) was waiting for an affidavit from the lawyer for the two teachers [involved in] the matter."

Incredibly, Vargas claims that he "did not understand what the Chancellor meant by an affidavit and I did not pursue." He subsequently learned that the "Panel granted Ms. Ortiz's request for a hearing but denied Mr. Weill's request despite the fact that their situations were exactly the same."

Weill was terminated on February 28, 2007.

He obtained counsel and brought a proceeding against the DOE.

On April 18, 2008 Justice Leland DeGrasse denied Weill's application for a hearing since he "merely surmises that persons responsible for filing the request failed to do so."

Weill appealed and on April 2, 2009 the Appellate Division found that the Panel never indicated whether it had considered Weill's excuse in its decision to go forward without a hearing. The matter was sent back to the Panel to offer its statement of reasons.

The moral of this cautionary tale is that the UFT, like the Department of Education, is a giant bureaucratic machine and sometimes materials will get lost. If you want to make sure your information has been processed correctly, get a copy for yourself of every piece of paper that the UFT is sending out on your behalf and send what you can on your own after you meet with UFT officials. Also, make follow-up calls and send emails to the UFT. According to their duty to represent us fairly, they must answer member requests for information. In the end, however, the UFT loses nothing from their errors; the member is the person who is terminated.

Finally, while it doesn't appear that Vargas did anything in bad faith as he did stand up for Weill by speaking on his behalf at the PEP meeting. However, it must be asked how anyone can rise to be a UFT Borough Representative and not know what an affidavit is? Don't they teach some basic law terms to representatives?

Saturday, April 04, 2009

What to do about LIFs….sue!

Ever since we lost the right to grieve letters in the file the UFT leadership has been quick to note that there are "so many ways" to fight a LIF "we haven't lost anything." As we know this is totally false. The fact is that most LIFs remain in our file adding to balance of workplace power being ceded to the administration.

Over the last two years, however, a little publicized method of removing some of these letters has been providing some teachers ways to fight LIFs. The types of LIFs involved are those that make findings against teachers that are disciplinary in nature. LIFs that comment on performance cannot be attacked in this way. What is disciplinary and what is mere comment is a line that has not been drawn, yet. The recent case of Rachel Cohn v. BOE, New York Supreme Court, Index No. 108965/2008 gives us a rare look into how this process works.

Justice Edmead, in her decision, found that Rachel Cohn "is currently employed by respondent DOE as a tenured Kindergarten teacher at P.S. 7Q in Queens, New York. On or about September 27, 2007, petitioner and Principal Sara Tucci ("Principal Tucci") engaged in a discussion concerning the duties and responsibilities of paraprofessionals, During the course of this discussion, Principal Tucci allegedly raised her voice at petitioner. Thereafter, petitioner allegedly uttered words to the effect that Principal Tucci should watch her "Latin temper.

"On or about November 16, 2007, Principal Tucci filed a complaint with DOE's Office of Equal Opportunity ("OEO"), alleging discrimination based on her ethnicity, Thereafter, the OEO conducted an investigation by interviewing petitioner, who was accompanied by her Union Representative Rosemary Parker, Principal Tucci, and two witnesses to the incident: the principal's secretary Angela Ehrefrnan and an assistant principal Maria Farazdel.

"On or about January 28, 2008, after completing its investigation, the OEO substantiated Principal Tucci's allegations, finding that petitioner's comment was inappropriate and may constitute harassment based on ethnicity in violation of Chancellor's Regulation A-830, By letter dated January 29, 2008, the OEO advised Principal Tucci that as principal, she was responsible for any corrective action to he taken as a result of the complaint.

Principal Tucci then met with petitioner and her UFT representative on February 27, 2008 to discuss the OEO's report and its decision to substantiate the allegations made in Principal Tucci's complaint of discrimination, Principal Tucci then prepared a letter, dated February 29, 2008 (the "letter"), documenting the February 27, 2008 meeting, the OEO findings, and Principal Tucci's conclusions, and placed the letter in petitioner's personnel file,"

Tucci's letter recited the chronology and found that Ms. Cohn "behaved in a discriminatory and unprofessional manner. You violated the Chancellor's regulations A-830."

Cohn argued that by placing a letter which was in essence the finding of wrongdoing without a due process hearing was violative of 3020-a since she had tenure.

The DOE argued that the UFT, by amending the contract to no longer permit grievance for LIFs had in effect, provided an alternate disciplinary procedure under 3020a and thus Ms. Cohn had no right to seek a due process hearing. This, they claim, was supported by the history of Article 21A of our contract which provided for over 40 years the right to grieve LIFs on the basis of whether the letter was inaccurate or unfair and remove the letters if such a finding was sustained.

Justice Edmead cited several cases going back to 1981 as the basis of her decision to remove the Ms. Cohn's letter. Under prior precedent the factors to determine whether letters will be considered disciplinary and thus subject to a due process hearing include "(1) whether the letter is from the teacher's immediate supervisor or from the board of education; (2) whether the letter is directed towards an improvement in performance or is a formal reprimand for prior misconduct; (3) whether the letter is in the nature of a performance evaluation or a castigation for misconduct; and (4) the severity of the misconduct and of the admonition or reprimand."

In ordering the removal of the letter Justice Edmead found "The letter herein does not offer constructive criticism, does not address a minor breach of conduct or protocol; and does not offer a suggestion for improvement. Instead, the letter conveys a finding and conclusion by the Principal Tucci that petitioner violated a Chancellor's Regulation by engaging in discriminatory acts. Thus, the letter herein cannot be categorized as an administrative evaluation. The letter rises to the level of a disciplinary reprimand. And, such a reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law § 3020-a."

She also found that the UFT had not waived 3020-a.

Our members must be informed of this remedy. This is least our Union must do since they gave away this valuable right.

Click here for a copy of Justice Edmead's decision. (The DOE has moved to reargue the decision on March 27th. We will keep you informed of further developments).