Randi Says Yes to Mayoral Control in the Post While a High School Teacher says No in the Daily News

by James Eterno, Chapter Leader, Jamaica High School

UFT President Randi Weingarten and Francis Lewis High School Teacher Arthur Goldstein have written contrasting pieces in the last few days on mayoral control of the schools.

Weingarten's op-ed was in last Thursday's NY Post. MAYORAL CONTROL 2.0

Not surprisingly, Weingarten has already backed off of her moderate proposal to slightly alter the school governance structure .

The original proposal was in a Governance Task Force report issued by the UFT earlier in the year and would have denied the Mayor a majority of the appointments on the Board of education but still allowed him to pick the Chancellor and keep operational control of the schools.

Randi's new vision has only four minor modifications to the current dictatorial system we now live under. As we see it, not much would change for teachers, parents and students under Randi's new proposal. These are Randi's ideas:

1. Appointees on the PEP (Board of Education) would serve for fixed terms instead of at the pleasure of the Mayor.
2. The panel would be required to hold hearings on the school system's expense and capital budgets.
3. Policy proposals would be made in public in advance of panel meetings, complete with a list of pros and cons about the issues being voted on.
4. Meetings would be structured to allow for more public discussion and they would be broadcast and archived online.

That's all folks. Some new hearings and fixed terms for people that can easily be worked around when it comes to the day-to-day operations of the schools. Fundamentally, Randi is now supporting a continued mayoral dictatorship over us.

Her strategy in staking out the UFT's position with the state legislature on school governance is similar to her Contract negotiating strategy. Back in 2003 she asked for a few gains while the City and Chancellor demanded to obliterate our Contract. The city, by making unreasonable demands, totally changed the center of gravity to suit their needs so when the compromises took place in 2005, it came from their positions. See the major givebacks from 2005 for proof.

Contrast Randi's view on mayoral control to Arthur Goldstein, a teacher at Francis Lewis High School in Queens. Goldstein wrote a piece in Sunday's Daily News.

He tells the public that mayoral dictatorship has been a disaster for the schools. He describes teaching "in a crumbling trailer, with no technology and often no heat in winter."

That's the reality in most schools as far as we can tell. Goldstein ends his piece with this statement: "Four more years of this system guarantees the privatization and destruction of public education in New York City. That's a prospect we should all oppose."

We agree that four more years of the mayor running the schools should be opposed. What will it take to convince our Union's leadership and the State Legislature that we need to do more than tweak the current system?

All are welcome to look at the ICE Minority Report on school governance for some excellent ideas on how the school system could work with democracy and real checks and balances.

If the UFT followed our model, we would ask for what we think is an ideal system rather than a compromise proposal right from the start. Then, we could work from a totally different center of gravity and maybe actually make some gains.

GRIEVANCE DIRECTOR PAINTS ROSY PICTURE ON LETTERS TO THE FILE COMPARED TO THE PAST; DA REPORT PART III

Howard Solomon is the Director of the UFT Grievance Department. He is an intelligent person whose work I generally respect. For this reason, I cannot understand why he presented a Power Point piece at the May 13 Delegate Assembly that basically said teachers never had it so good when it comes to combating letters to our files.

Let’s take apart the Power Point slides he showed us piece by piece. First, Solomon displayed a totally deceptive comparison of grievances on letters in the file from before and after the 2005 giveback laden Contract. Solomon claimed that before the 2005 Contract, the UFT lost 95-98% of letter in the file grievances in arbitration. This is called selective, misleading use of data.

The base year that Solomon used to prove his point was 2004-05. What he neglected to mention was that it was in the 2002 Contract that the UFT started their “Givebacks R Us” strategy when they initially modified the letters in the file provision. Let’s look at Contractual Article 21A5 before 2002 and then compare it with the 2002 version.

1995-2000 Contract Article 21A5
Material will be removed from the files when a teacher’s claim that it is inaccurate or unfair is sustained.

2000-2003 Contract Article 21A5 approved in 2002
Material will be removed from the files when a teacher’s claim that it is inaccurate or unfair is sustained. However, effective September, 2002, material that a teacher claims is inaccurate or unfair may be rewritten so as to be accurate and/or fair only by agreement of the parties or upon the order of the arbitrator mutually agreed upon to hear grievances arising under this provision, pursuant to Article 22C.

You see ladies and gentlemen the UFT began modifying our Contract to our detriment earlier than is widely believed. That is why Solomon’s Power Point presentation last week used the 2004-05 school year to make the case that before 2005 we lost most of the arbitrations on letters in the file. We lost them because the Unity negotiating team weakened Article 21A5 back in 2002. In 2005 and 2006 they merely finished us off and left us almost totally at the mercy of administration.

The current Contract Article 21A5
Members may not grieve material in file, except that if accusations of corporal punishment or verbal abuse against a UFT-represented employee are found to be unsubstantiated, all references to the allegations will be removed from the employee’s personnel file.

However, the teacher shall have the right to append a response to any letter. If disciplinary charges do not follow, the letter and response shall be removed from the file three years from the date the original material is placed in the file.

This provision is totally useless. Teachers don’t get a letter for the file if corporal punishment charges are unsubstantiated. In addition, who cares if someone can remove a letter after three years if there are no disciplinary charges? After three years, material is not normally admissible in 3020A hearings (the process to terminate a tenured pedagogue) unless something is criminal. For untenured teachers, after three years, someone can already be terminated in a million different ways. Why do you think so few teachers are clearing out older material from their files? It’s a waste of time basically.

The new 21A5 leaves us almost completely vulnerable as we must fight letters based on other Contractual articles which means we can only battle file letters in a much more limited procedural way.

To elucidate the argument that before 2002 Article 21A5 carried some weight, we must return to 1997-98, the second year I was Chapter Leader at Jamaica High School. That was the year Circular 6 was implemented for the first time.

At the time the principal of Jamaica High School decided that she was going to show how tough she was by making the new C6 professional assignments rigorous. She had the assistant principals call in every teacher to go over the expectations for their professional activity period and then she had the AP’s put letters in every teacher’s file based on their C6 expectations. We immediately cried foul. This is not what the self directed professional period or teacher files were for.

21 teachers filed grievances and the District Representative at the time, Danny Foceri, said that we should handle each grievance separately as they were distinct letters. I’ll never forget scheduling 21 Step I conferences. We lost each grievance at Step I but before they went to Step II, UFT Special Representative Howard Solomon, yes the same Howard Solomon who now runs the Grievance Department, was called and intervened on our behalf.

We won all 21 cases soon thereafter. In addition, the principal was ordered to remove the letters from the files of the other 68 teachers who did not grieve. Why did we win? The established standards of fairness said that teacher files were not to be used to set someone up on expectations for anything including a self directed professional assignment. Grievance precedent said that files were to criticize or commend a teacher.

Under the 2002 rules, the arbitrator could rewrite the letters. Under current rules, that principal could have easily filled up the files with anything she wanted as there is no rule in another Contractual article that forbids the principal from filling teacher files with expectations about professional activities. To put it another way, all of those arbitration precedents on what the standard for unfairness meant are now gone from the grievance process.

In 1999, a year after the C6 letter grievances, the same Howard Solomon was assigned to Jamaica High School as part of a settlement between the Board of Ed and the UFT, worked out when we took the principal to the Public Employees Relations Board for anti union activities. Howard did a good job back in 1999 by coming to Jamaica on a regular basis to help us reach settlements of some labor-management issues.

One of the issues was that a coordinator was writing observation reports without the principal also observing. This was obviously unfair. Howard worked out an agreement where all of the letters this coordinator wrote were removed from the files because they were unfair. Without the unfair or inaccurate standard, there might not be a way to remove those observations now and if it were untenured teachers, they would be in jeopardy of being terminated.

In those days, at least there was a chance to get something before an independent arbitrator when we could grieve letters and observations. The only changes that could be made in letters were parts could be stricken or the whole letter was removed. If we were successful in clearing out some of the file through the grievance process, then the person had a chance in their review.

Many of us knew of occasions where administrators would back off after going through the grievance process and being worn out or losing. Now untenured people are called “at will employees” by a Board administrator in one of those web-casts for principals on how to attack teachers. “At will” is the term for employees who can be fired for almost anything by management. What is the purpose of having a union and paying dues if our untenured colleagues can be terminated at will?

To further make this point, look at the evidence on how many teachers are now being denied tenure or compelled to extend their probation. DOE figures show huge increases in the number of teachers being denied tenure since the 2005 Contract was implemented. We’ve made it so easy for them to get us.

Randi Weingarten claimed a big victory last year because the State Legislature passed a law saying we can’t be denied tenure based on student test scores. If ever there was a hollow win, this was it. The DOE does not need to judge us on student test scores; they can fire non tenured teachers now based on one lousy observation report according to their web-cast. The UFT has made our members easy targets with the givebacks in recent Contracts. If you want even more evidence, look at how the rubber rooms have filled up in the last few years.

At last week’s presentation, Howard Solomon also told us about how we can no longer be disciplined for bulletin boards, classroom furniture and the exact duration of lesson units. Principals can easily work around this provision and the Office of Labor Relations tells them how to do it in their 2007 Q&A.

Another Power Point slide told us to use Contract Article 1 to ask to speak to a principal with our concerns. This is another exercise in futility because there is no leverage behind a teacher meeting with the principal. In the past, the threat of multiple grievances was one way to keep a principal from getting out of control.

The counterargument the Unity faithful will give is that the incidents at Jamaica that I referred to happened back in the nineties when we had a friendly Chancellor, Rudy Crew, and we wouldn’t win them now under Joel Klein. We knew what Klein’s agenda was by 2005. That is why Randi should have listened to ICE back then and not given an inch in Contract negotiations. Selling off our rights was a mistake. Telling us now how wonderful things are is just as foolish as it provides members with a completely false sense of security.

You’ve heard my evidence. What about your schools? We really would like to know what is going on everywhere. Is Howard Solomon’s rosy scenario reality?

To see the entire power point presentation go to Under Assault.

DA REPORT PART II: RANDI'S REPORT

UFT President Randi started last Wednesday's May DA by bringing up the staff and Chapter Leader from MS 8 in Jamaica Queens where they got rid of a tyranical principal, John Murphy. Randi mentioned that 65% of the staff were untenured but the school community including parents and teachers were joined by clergy and other members of the community and they stuck together to protest on a daily basis and call for Murphy's ouster. The Chapter Leader then spoke and thanked the UFT leadership. Randi ended this by talking about how schools should stick together in solidarity.

She then said the Union must support Chapter Leaders which led to the resolution that she took from ICE, modified and made her own that was presented to the Delegates and carried easily (see story from May 16 on this blog).

Randi then talked about how the recession doesn't feel like what it is: the worst recession since the Great Depression. She said the city and the Department of Education are not aligned on the budget. The city doesn't think there needs to be cuts in the schools but the DOE is talking about cutting school budgets. She added that she expects to see over $400 million in cuts which would be a roughly 5% reduction. She then said that the city reversed itself and now is no longer talking about teacher layoffs. She then stated that the hiring freeze, while helpful for Absent Teacher Reserves, could lead to higher class sizes.

Randi then told us that she wrote a letter saying that the city should reconsider a retirement incentive. She then said that the hiring freeze should be for new schools as well as existing schools and that those who went to college to be teachers and graduated with teaching certification should not have to take a back seat in hiring while Teaching Fellows or Teach for America candidates are hired first.

On school governance, Randi talked about the NY Post fight against us and their goal to scare anyone who wants any kind of changes to the law that sunsets next month that gives the mayor complete control of the schools . Randi then gave us the bad news that there seems to be a consensus emerging to keep mayoral control but in the next few weeks many proposals on parental voice and checks and balances would be discussed. In summary, she stated that we have much work to do as the city budget will be coming soon while at the state level, modifying the Mayoral control law is also on our immedate agenda.

Randi then told the Delegates that another evaluation of Chancellor Joel Klein would be coming to the schools in the next month.

She then reported on a settlement of a lawsuit where the UFT won a lump sum payment for Tier I and II members because of an actuarial error of $160 million.

She followed this up by talking about swine flu and the UFT's reaction. Randi then mentioned her Spring Conference speech where she urged the DOE to stop closing schools and instead have services available in the schools that are needed but poor students don't normally receive them. Randi closed by talking about Harlem parents coming out and supporting public schools. She concluded by saying that when the entire community is involved, we win.

Questions concerned teacher center cuts that the UFT is fighting, seniority transfers which Randi doesn't want to push for because it would mean forced transfers and fair student funding which Randi said should be studied, as it is a difficult system to understand.

A resolution on the Homeowners Bank Protection Act was defeated. At this point, Leroy Barr gave the Staff Directors' Report. He said that we have to hold Chapter Leader and Delegate elections in May or June. He also pushed the rally for Stella D' Oro workers who have been on strike for many months. The UFT supports their rally which will be held on May 30 at 12:30 p.m. There were also a couple of political endorsements that nobody really objected to.

Finally, Howard Solomon gave a Power Point Presentation on letters in the file. You don't know how good we have it according to Howard, the Director of the UFT Grievance Department.

Dissecting the presentation on file letters will require a little bit of research and analysis so keep coming back for Part 3 of our Delegate Assembly Report which will be released soon.

DA REPORT PART I: RANDI/UNITY TAKES ICE RESOLUTION ON PROTECTING CHAPTER LEADERS & MAKES IT THEIR OWN

You first read our resolution calling for the UFT to protect its Chapter Leaders on this blog this past Tuesday (Chapter Leaders and Rubber Rooms) and so did President Randi Weingarten who admitted at Wednesday's Delegate Assembly meeting that she saw the resolution on the blogs. She did not want to leave an ICE resolution as it was so the UFT adjusted it but basically the Unity resolution is similar to the resolution to protect Chapter Leaders that Norm Scott authored. Below is the original ICE text and then the UFT modified version.

ICE Resolution:

Resolution on Teacher Reassignment Centers (Rubber Rooms)
Whereas:
Chapter Leaders and others have been sent to a TRC after asserting members' union rights, questioning and challenging principals on illegal mandates and practices;
In addition to Chapter Leaders, Leadership Academy Principals have also targeted teachers who show independence or otherwise are perceived as threats to authority;
Sending teachers to the rubber room can be a career breaker for teachers, regardless of the merits of the charges;
Threats of rubber room undermine UFT chapters and have a chilling effect on the professionalism and independence of all teachers;
The number of teachers sent to rubber rooms has escalated since the beginning of mayoral control which has led to an increased level of autocratic rule in many schools;
OSI has investigated in a biased manner;

Resolved:
The UFT will set up hotline for Chapter Leaders sent to rubber room and there will be an immediate response, including a demand immediate information about charges against the teacher, immediate legal assistance, a letter to principals putting them on notice that without a substantive emergency reason for rubber room placement there will be counter charges of harassment based on union/age/freedom of speech issues.
After an initial rapid investigation of the circumstances, where there is a determination of harassment, the union will organize a daily picketing of the school until the harassed Chapter Leader is reinstated.
The UFT will come up with a means to monitor OSI investigations.

Now the UFT version distributed to Delegates on Wednesday:

Resolution on Teacher Reassignment Centers
Whereas, chapter leaders and others have been sent to a TRC after asserting members’ union rights, or questioning and challenging principals on illegal mandates and practices; and

Whereas, in addition to chapter leaders, principals have also targeted members who show independence or otherwise are perceived as threats to authority; and

Whereas, sending teachers to a TRC can be a career breaker for members, regardless of the merits of the charges; and

Whereas, threats of the TRC undermine UFT chapters and have a chilling effect on the professionalism and independence of all members; and

Whereas, OSI has often investigated in a biased manner; therefore be it

Resolved, the UFT will continue the current practice of assigning a lawyer to a chapter leader in this circumstance as well as a swat team to the school and of monitoring the OSI investigation; and be it further

Resolved, after an initial rapid investigation of the circumstances, where there is a determination of anti-union animus, the union will organize actions at the school in concert with the chapter leader and the chapter until the harassed chapter leader is reinstated; and be it further

Resolved, that the UFT insist that the DOE notify the union in advance of the removal of a chapter leader from a school.

Having read both closely, it seems to me like the UFT looked at the original and removed some of its teeth but the substance is not all that different.

UFT President Randi Weingarten probably wanted to make sure that one of us was not seen by the Delegates presenting a resolution to protect Chapter Leaders where ICE would have to get the credit or Randi would have to come out against it and the Unity faithful would then have to oppose extra protections for Chapter Leaders.

Her answer was to have one of her people write a modified resolution, quickly distribute it so only the people who closely read the literature ICE distributed at the door would notice the “old switcheroo,” while other Delegates would think that this came from Randi’s group. Obfuscation at its finest.

At the DA, she allowed no debate on what was really a substitute motion after it was quickly distributed. There was just one speaker in favor. This was not exactly democracy at its finest or the kind of bipartisanship that Randi often talks about. Randi should have let us present the resolution or ask us to cosponsor this substitute resolution. Instead, she took the resolution from our blog, changed it somewhat and presented it as her own and didn’t even credit ICE directly, just some anonymous blogs.

Meanwhile, Unity distributed literature at the Delegate Assembly attacking opposition without meaning. It’s funny how Unity has no problem taking our work and making it theirs and then attacking us at the same time.

We will post a separate piece on the rest of the meeting.

Chapter Leaders and Rubber Rooms

As principal power has grown, the devastation of so many school chapters can be traced to intimidation of chapter leaders. When a chapter leader (CL) is sent to the rubber room, shockwaves run through the school. Unfortunately they do not run through the UFT hierarchy. Almost 10 years ago, Education Notes presented a resolution at the Delegate Assembly calling for protections for chapter leaders and an extraordinary response on the part of the union when CLs come under attack. The leadership opposed it, saying chapter leaders already had enough protections and it was overwhelmingly defeated. In June 2006, ICE's Jeff Kaufman at a UFT Exec Bd meeting called on the UFT to initiate its own investigations instead of allowing a biased OSI to do its hack jobs without monitoring. Randi Weingarten opposed it, saying it was too expensive. (Have you checked on how your dues are being spent?) It was turned down by a vote of 80-5.

A case study of a chapter leader recently sent to the rubber room

• Currently teaching pre-k.
  
• 35 years of teaching. Principal urging retirement since June 2008, and threatening if doesn't do so.
  
• Every time assisted a teacher, received negative letter(s) in file the next day.
  
• Resisted principal attempt to institute Lunch 'n Learn where teachers are forced to give up lunch hours.
  
• Sent to rubber room March 16, 2009. Three weeks later, principal instituted Lunch 'n Learn.
  
• Received charges from State Education Dept., School District Employer-Employee Relations Unit on March 19,2009. Charges include verbal abuse and corporal punishment dated from the 2007/8 school year, violating the 180day limit.
  
• Insubordination charges for refusing to sign letter on Feb 1, 2009 voluntarily resigning.
  
• UFT Response: Sit tight and do nothing. Not time to file an Art 2 (shouldn't tip your hand on type of defense).Also do not share info with fellow denizens in RR. Result: UFT cone of silence serves to keep teachers isolated.
  

  
  

  Resolution on Teacher Reassignment Centers (Rubber Rooms)
  

  Whereas:
  

• Chapter Leaders and others have been sent to a TRC after asserting members' union rights, questioning and challenging principals on illegal mandates and practices;
  
• In addition to Chapter Leaders, Leadership Academy Principals have also targeted teachers who show independence or otherwise are perceived as threats to authority;
  
• Sending teachers to the rubber room can be a career breaker for teachers, regardless of the merits of the charges;
  
• Threats of rubber room undermine UFT chapters and have a chilling effect on the professionalism and independence of all teachers;
  
• The number of teachers sent to rubber rooms has escalated since the beginning of mayoral control which has led to an increased level of autocratic rule in many schools;
  
• OSI has investigated in a biased manner;
  

  
  

  Resolved:
  

• The UFT will set up hotline for Chapter Leaders sent to rubber room and there will be an immediate response, including a demand immediate information about charges against the teacher, immediate legal assistance, a letter to principals putting them on notice that without a substantive emergency reason for rubber room placement there will be counter charges of harassment based on union/age/freedom of speech issues.
  
• After an initial rapid investigation of the circumstances, where there is a determination of harassment, the union will organize a daily picketing of the school until the harassed Chapter Leader is reinstated.
  
• The UFT will come up with a means to monitor OSI investigations.
  

  
  

  Ice supports the Grassroots Education Movement (GEM) march/rally from Battery Park to Tweed on May 14. Join this growing rank and file movement. Details at http://grassrootseducationmovement.blogspot.com/

THE DEVIL IS IN THE DETAILS IN JOEL KLEIN'S HIRING FREEZE

On the surface, Chancellor Joel Klein's email to principals calling for a hiring freeze on new teachers from outside the system looks like a fairly sane and logical response to our current budget plight. In most schools, Principals will not be allowed to hire teachers from outside the system until the current Absent Teacher Reserves (regular teachers who are substitutes instead of teaching their own program) find positions. However, when we dig beneath the surface, we find there is much to be unhappy with including threats of layoffs of non-teaching UFT members and no hiring freeze for assistant principals.

The Chancellor's email contains the following statement that most of us would concur with: "Most significantly, effective immediately, you may only hire existing DOE staff, as opposed to people from outside the system." Great! This could not have happened soon enough. Let's see if it gets implemented. Go on the open market now and see if you can transfer. ATR's might actually find positions for real now.

The Chancellor goes on to say that teacher layoffs are not in the cards. "Teachers: There will be no forced placements or layoffs of teachers. You may only hire existing DOE teachers, as opposed to people from outside the system." It should be noted that new schools are partially exempt from this outside hiring freeze and may hire half of their staff from outside the system and shortage area licenses might also be exempt.

Unfortunately, when we delve further into the Chancellor's statement, it contains other details that are quite scary. He states: "Guidance Counselors, Social Workers: At this time, there will be no forced placements or layoffs of these employees. They will be treated the same as teachers, so you can only hire individuals who are already working in the same titles in our system." "At this time" is lawyer talk meaning right now layoffs won't happen but look out in the near future. By putting out the possibility of future layoffs and bumping, it once again proves that the UFT sold us a false promise when they pushed the 2005 Contracts by saying that they contained no layoff agreements. There aren't any no layoff agreements in our current Contracts. The email gets worse with other titles.

Klein further writes, "School Secretaries, Paraprofessionals, School Aides, Family Workers: We will work to place excesses in vacancies and evaluate the situation to determine if layoffs are necessary." Our secretaries and paras along with school aides have been threatened with layoffs by the Chancellor. As paras learned in 2003, when the ironclad no layoff clause in their Contract expired, layoffs can really occur.

The layoff threat for our people is followed with a job security guarantee and open hiring for assistant principals. The hiring freeze does not extend to assistant principals. In fact, administrators are so important that they can no longer be placed in excess! I'm not kidding; no new Absent Assistant Principal Reserves.

Here are Chancellor Klein's actual words: "Assistant Principals: You may not excess APs. To avoid any increases in the excess pool overall, given the limited number of assistant principal vacancies that we can expect, assistant principals should not be excessed. Vacant positions may be eliminated, and you can fill vacancies under existing procedures with any qualified candidate."

It's what I've maintained for many of the years that I have been in the system: The Board of Ed, Department of Ed or whatever they want to call it is a system run by administrators for administrators. Children first? You must be joking.

SUPREME COURT JUSTICE SLAMS DOE FOR REFUSING TO REMOVE “DISCIPLINARY “LETTER TO FILE

In a strongly worded decision Justice Sheila Abdus-Salaam has criticized the DOE for its failure to remove a letter to the file and arguing, as it had before, the same legal argument that was rejected by the court last year. As we reported here before Justice Salaam was one of the Justices who forced the removal of disciplinary letters as no due process hearing was afforded the tenured teacher.

In the current case, PS 41’s physical education teacher, Helen Hickey brought an Article 78 proceeding to challenge her principal’s placement of a letter that led to a “U” rating. The letter concerned Hickey’s actions during a May 2008 Field Day. According the Court, “The thrust of the letter is that Hickey did not competently organize and set up the equipment and that as a result, the activities began 20 minutes late. The letter states, among other things, that Ms. Hickey’s conduct demonstrated her incompetence and her “unsatisfactory professional attitude’’ and advises that “. . this incident may lead to further disciplinary action including unsatisfactory rating and charges that can lead to your termination.” (June 3, 2008 letter, p. 2.) Petitioner has alleged, and respondent has admitted that this letter is a reprimand

“Given that the letter speaks of “further disciplinary action,’ the court concludes that the letter is at least, in part, a disciplinary reprimand and not simply a critical administrative evaluation.”

The Court ordered the removal of the letter but would not reject the “U” rating since Hickey’s administrative appeals were not exhausted.

Hickey v. NYC/BOE, Index No. 112353/2008, New York Supreme Court, 1/29/09 Click here for the full decision.

FRUSTRATION COMES IN MANY FORMS

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.

DELEGATE ASSEMBLY REPORT; CONTRACT GOALS DISCUSSION ON GRIEVANCE PROCESS SHOWS JUSTICE DELAYED IS JUSTICE DENIED

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.

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?

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).