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Sunday, August 3, 2014

The UFT and NYC Department of Education Deny Due Process Rights To ATRs

In my opinion (I can have one, this is my blog), both the United Federation of Teachers and the New York City Department of Education are liable for damages for the tortious interference with business and contract of tenured teachers.

This is especially true for teachers pushed into ATR status. ATR means "absent teacher reserve", where licensed, certified employees suddenly become substitute teachers who go from school to school weekly, do not know who the students are, or the curriculum in the classes they are put into, teach out of license, never see any Individualized Education Plans (IEPs) or SOHO (suspension/discipline histories) reports, and can provide no witness testimony except their own when charged with misconduct. I have been hired to defend teachers who have fired their NYSUT attorneys after they hear that they cannot have any witnesses testify at 3020-a.:

See an email from NYSUT Attorney Paul Brown, to a client who fired him when she received this:

"From: Paul Brown <>
Sent: Wed,  2013
Subject: Re: - WITNESSES

I have an ethical obligation not to put on witnesses that I believe will be damaging to your case.  I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....
Please call me should you have any further questions.

Paul K. Brown
New York State United Teachers
NO WITNESSES????? That will get you fired and forever guilty of the charges filed against you. 

Also, when I asked UFT Rep. Barbara Mylite ( 718-275-4400) to appear at the 3020-a arbitration of a member who had worked with her on a U-rating appeal, Barbara told me to have the attorney on the case call Adam Ross at the UFT main office and speak with him. Adam said that he would not permit any Rep. to appear at a 3020-a, even if subpoenaed, because this was a conflict of interest.

This is what ATRs are told by their NYSUT attorneys when they - the UFT member turned into an ATR -  are brought to 3020-a. The NYSUT Attorney says, "who are you going to bring in? WHO are the parents? What are the names of the students in your class? How do you expect me to contact them? Did they know your name?"

You, an ATR, don't know the answers to these questions, because you were charged after you were with the children 1-5 days!!!! You are a sitting duck for some kind of penalty from an arbitrator who hears from the children under your supervision for a couple of hours.

The DOE "convinces" these children that they "should" complain, and the parents get upset, and boom. You are re-assigned, charged, and the children are given a pizza for lunch or their parents are promised a higher grade if they testify.

You get a quickie "trial" of 2-3 days, where the DOE Attorney brings in the students who supposedly saw you allegedly rape, maim, throw a fellow student, etc.  The arbitrator has no witnesses from your defense who could verify your testimony, does not believe you, and you are fined and/or terminated. What a farce. Everyone benefits financially except you. The lawyers get paid, the arbitrator gets paid, and you pay a fine. Where does the fine go? I filed a freedom of information request to find out both at the state and city levels. No one "knows", or no one is telling. This is outrageous.

By the way, if you are not terminated at 3020-a - and my clients are usually not terminated - you automatically become an ATR and on the no hire list of the Office of Personnel Investigations (OPI). Your file is tagged with a problem code. Gina Martinez is the Deputy  Director (from LinkedIn).:

Deputy Director at NYC Department of Education
  1. NYC Department of Education
  1. NYC Department of Education,
  2. Bronx County District Attorney Office,
  3. Weitz & Luxenberg
When a UFT member is charged with 3020-a, NYSUT does not defend, but simply goes to the least amount of effort to look like they are. In 1958 Willard Wirtz wrote a paper titled "Due Process of Arbitration" for the National Academy of Arbitrators and in it he argued that arbitrators had an obligation to exercise their authority "with a 'due' regard to the balancing of the two kinds of interests, individual and group interests. In NYC, the UFT and NYSUT control access to arbitration at the grievance level and leave members without an effective remedy for an employer's contract breach. (ADR in the Workplace, Cooper, Nolan and Bales, p. 218).

NYSUT defends the UFT, not individuals or individual rights.

When U-ratings and misconduct reach the 3020-a level, the same applies, customarily, and the contractual violations are ignored so that the member is left without a defense. What contractual rights are we talking about? The right to have gainful employment, life, liberty and the pursuit of happiness.

I'll give you an example.

Currently, ATRs have no right to representation. They do not have a chapter or a chapter leader. If a UFT member wins his/her 3020-a and is not terminated (termination after 3020-a  is only common if you have a NYSUT Attorney and you are African-American), then this person never goes back to their licensed position, but "automatically" becomes an ATR. Who dreamed this up???? Why does the UFT allow this????.

This is what the current status of teachers pushed into being ATRs is all about, and should not be happening, but, as a respected Attorney/Arbitrator told me, "the UFT and DOE have not been challenged ".

Well, now they are. My organization is gathering names for a lawsuit to be filed in the fall to help ATRs regain their rights. So, all people charged should, within 90 days, file a Notice of Claim.

A notice of claim is required as a condition precedent to commencing an action against an employee of the New York City Department of Education (Education Law § 3813[2]; General Municipal Law § 50–i), when the conduct complained of was engaged in as part of defendant's employment or in the scope of his/her employment (Radvany v. Jones, 184 A.D.2d 349 [1992]; see also Hale v. Scopac, 74 AD3d 1906 [2010]; DeRise v. Kreinik, 10 AD3d 381, 382 [2004] ).

I'm not an attorney, so this is not "legal" advice, but I have read hundreds of law books, I go to a law library often, and I read cases filed in State and Federal Courts. Constantly. And, I speak about all that is going on to anyone who contacts me. There should be no secrecy.

The UFT representatives are not supporting the members. I provide assistance to UFT members who are charged with 3020-a, and I am part of the wheeling and dealing that goes on behind the scene. When trying to settle a case, I always throw in that my client does not want to be an ATR. The DOE response: "sorry, all Respondents who are not terminated automatically become ATRs".

Really? Who says?

The UFT and the DOE, that's who.

Betsy Combier
President, ADVOCATZ

August 3, 2014

City tries to cut down teachers without permanent jobs

The city is trying to reduce a stockpile of 1,131 outcast teachers on the payroll without permanent jobs — first by offering buyouts, then assigning them to school vacancies.
But the efforts will barely make a dent in the Absent Teacher Reserve, which costs taxpayers $100 million a year, critics say.
Educators in the reserve pool, known as ATRs, mainly rotate from school to school as substitutes. They have until Monday to accept severance offers, with the maximum buyout — for a teacher with at least 20 years experience and the current top salary of $100,049 — of 10 weeks pay, or $19,240.
Many ATRs call the offer “insulting,” and experts predict few will bite.
Starting Oct. 15, ATRs also “will be given a temporary provisional assignment” in schools with vacancies in their license ­areas, the Department of Education agreed in the new teachers contract.
But despite the contract’s strong wording, DOE officials say principals have “no obligation to use them in a vacancy,” and can always toss them back into the ATR pool.
“There is no forced placement of these teachers,” said DOE spokesman Harry Hartfield.
ATRs and critics doubt the city’s plans will break the costly logjam.
“There’s nothing in there that’s going to get rid of the ATR pool. The only way to do that is simple — place us,” said James Eterno, a 28-year social-studies teacher who became an ATR in June when Jamaica HS closed.
“It’s frustrating looking for work like I just got out of college,” he said.
Before 2005, principals had to hire excess teachers before recruiting new ones. Under then-Mayor Bloomberg, principals gained sole discretion in hiring, thus causing the ­excess pool to balloon.
Higher-paid ATRs say principals have snubbed them in favor of rookies at starting pay because teacher salaries come out of a school’s budget.
While many ATRs lost their jobs in school downsizings or closures, a growing number are branded with a “problem code” after the DOE tried unsuccessfully to fire them. In the past two years, hearing officers have slapped at least 221 teachers with fines and suspensions for misconduct or incompetence — and most were sent into the ATR pool.

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