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Sunday, August 16, 2020

The Hidden Rubber Rooms of New York City Create a Fiscal Nightmare

Betsy Combier
by Betsy Combier

In 2010, the eight warehouses that had the nickname "rubber rooms" were closed due to news reports of hundreds of education personnel sitting in remote places getting paid their full salary to do nothing. When I started working at the UFT in 2007, I simultaneously started talking and writing about the rubber rooms in order for the plight of the enclosed tenured teachers to become visible to the paying public. 

This idea, that millions of public dollars were being spent to keep people out of their classrooms doing non-teaching activities was a political nightmare for Mayor Bloomberg and the NYC Department of Education.

Since 2003 I have been listening to the stories and working as an advocate at the due process hearings of reassigned educators. For three of those years 2007-2010, I was a UFT Special Representative. I agreed to leave the UFT because I could not help members as I thought they needed.

I found everything about the NYC rubber rooms to be fascinating. Each location was unique because of the number and character of the people placed there while they waited for their hearing, a 3020-a arbitration mandated by Education Law and their tenured status. Tenured educators cannot be fired for any reason without a due process hearing on the allegations of incompetency or misconduct. All employees in these rooms stayed at the location for the regular school day with 30-45 minutes for lunch. These times were monitored by the principal placed in each room. I know one teacher in a rubber room in the Bronx who studied for the LSAT while sitting in her reassignment, and now is a practicing attorney. To pass the time, classes in everything from cooking to the law were given every day, depending on the license or interest of the people in each location.

However, placing about 1500 education personnel in rooms away from students for 1 to 15 years simply could not be sustained. In my opinion, must not remain. Holding a public employee on a full salary in a room without justification is more than bad public policy. It's also demeaning and malicious.

An important fact is that people in the rubber rooms were organizing. Demands were made by the displaced employees, starting in 2008, to form chapters for “rubber roomers”, and to elect unofficial chapter leaders in each location. Neither the Department nor the UFT wanted to legitimize the rubber rooms in this way.

Under pressure from an angry public, the UFT and the DOE signed an agreement on April 15, 2010, to clear these now very visible examples of fiscal absurdity by speeding up the resolution of charges at hearings known as 3020-a arbitration. No one has paid any attention to either letter agreement, then or now.

NYC hired a roster of arbitrators to hear the cases quickly, but many of the accused fought termination rather than settle, retire or resign, and most wanted witnesses to testify on their behalf. Some hearings are lengthy -- one recent case took 32 days and nine months of hearing dates, not including the decision). The time limits are not enforced.

Then there is the shocking case of Alan Herz. he was charged with two so-called "inappropriate" comments to his students, neither of which, in my opinion, warranted anything more than maybe a slap on the wrist. However, some DOE employee somewhere wanted Alan fired, and he was served 3020-a charges, thus highlighting what I believe is the main problem with the entire disciplinary procedure: the charging, pre-3020-a hearing process. His Attorney informed the arbitrator that the school investigator did not file his report until two years after a student accused the teacher of  'insulting' her. This is a blatant violation of procedure, which requires that any report written by an investigator must be completed within six to 12 months. The arbitrator did the correct thing, as all arbitrators should, and dismissed the case at the pre-hearing, citing the procedural error. Within 10 days the NYC DOE sued the arbitrator in the NY State Supreme Court for dismissing the case so quickly. The Judge dismissed the City’s lawsuit.

I think you can see my point, which is that all decisions made before a 3020-a case begins are random and arbitrary. The NYC DOE honors no rules, regulations, or law when an employee does something that a 'higher up' is embarrassed by, or doesn't like for any reason. The procedures for disciplinary action against tenured employees beg for accountability and mediation of the proposed charges before an arbitrator is appointed and paid to hear the case to decide the penalty. Under these conditions, false charges are justified and unlawfully validated. All an arbitrator has to do is find the DOE witnesses 'credible' and the witnesses and charged employee, or "Respondent", 'not credible'. The penalty of termination is then the 'only' outcome.

The political ‘solution’ was, and still is, to spread out the accused or allegedly guilty employees here and there -- in school offices, basements, storage or copy rooms -- anywhere hidden from view. The rubber rooms have gone underground.  No one knows who these new rubber roomers are, because school and central budgets do not have a category for “reassigned” or “suspended” personnel.

The hiding of the reassignment rooms and process is very clear in the 3020-a hearings. Here is one example: in a 2019 case, whenever a witness or the NYSUT attorney mentioned anything about the accused teacher being "reassigned", the Department attorney Seyi Collins-Jemmott prosecuting the case told the transcriber/reporter,

"MS. JEMMOTT: [Interposing] I am--the
Department is going to ask that the reference
made by opposing counsel to respondent being
reassigned be stricken from the record."

Ms. Collins-Jemmott interjected this whenever anyone mentioned "rubber room" or "reassignment", to hide the fact that the charged educator had spent almost a year as a reassigned teacher.

In 2009 I wrote:

The "Gotcha Squad" and the New York City Rubber Rooms

In 2010 I wrote about the scattering of rubber roomers throughout NYC:

The NYC DOE Re-Assignment Policy Issued in 2010

Then, in 2017 we heard the exact same lie about teachers in the Absent Teacher Reserve or ATR pool:

City Will Move Sidelined Teachers From Limbo to Classrooms

The Department benefits from hiding the rubber rooms by not being subjected to public outrage for the waste of public funds. The UFT benefits from hiding the rubber rooms because they are saved from public ridicule for keeping "bad" teachers on salary while they are reassigned to do nothing. Everyone wins but the general public and the parents and children in the schools.

When a teacher is reassigned, who takes his/her place? Anyone who is available - a substitute teacher, uncertified para, no one is watching. Kids often have their entire school record jeopardized because their teacher is suddenly absent. The reassigned teacher is not permitted any contact with students.

The saying "throw the largest amount of mud at the wall hoping something will stick" is right on the mark. However, the most outrageous part of this whole public hoax is the fact that none of the charges need to be true, but the public has to pay for it. And, there is no accountability and no consequences for false charges.

 The take-away is that this entire boondoggle is random, subject to whims and fancy, dislike and discrimination, rather than planning and human capital management.  

The psychology of lack of ownership for wasting public funds is well-documented. Every elected official has had to deal with "If it's not coming out of my own pocket, who cares?", "Who is going to find out? I'm protected from prosecution", "it's my job to get bad teachers out of the building", etc. 

NYC needs to refine the charging process so that public money is used effectively to root out the truly bad while supporting the wrongly charged and consequences for those who pursued false charges. 

We also must end the hidden rubber rooms and make these places visible so that public money can be allocated appropriately, and publicly. Give all educators relevant work to do in accordance with their license while they sit in the "rubber room" for a short amount of time, no more than needed to get an arbitrator and hearing date. Give the public a say in where their money goes.

Our educators deserve better.

By the way, the picture below used by the POST is a great hero of mine, for resilience and his fighting spirit. His name is David Suker. He was charged with putting a false home address for himself when he registered his daughter for a school on the Upper West Side. He did not do what he was accused of, but in addition, by the time he was charged 10 years had passed. I know that any investigation into a student's real address must be completed within 30 days, and no one can be charged 10 years later. But in the random and arbitrary procedures used in NYC to discipline and/or terminate tenured educators, the laws of NY State have no relevance.

David Suker's NYSUT Attorney Steve Friedman did not know or care to know that the residence requirement charge was bogus, and David was terminated. David called me up after receiving his penalty of termination and asked for my help in his Article 75 Appeal, which I agreed to do with Attorney Maria Chickedanz. We won $250,000.00 for him as well as his job back. Love this guy.

Betsy Combier
Editor, ADVOCATZ Blog

A teacher sleeps at the city Department of Education's North Borough Support Center
rubber room in 2016. New York was supposed to have done away with these tax-dollar wasters,
but the practice has merely been hidden from view.
NYC promised to ban teacher ‘rubber rooms’ — they went underground instead
by Betsy Combier, NYPOST, August 15, 2020

The eight-city warehouses called “rubber rooms” were spaces of various sizes where up to 1,500 Department of Education employees at a time got paid their full salaries to sit around — free to read the newspaper, surf the internet, knit, chat or just doze off.
Some got creative. One notorious rubber-room fixture managed his real-estate and rental properties. Another teacher in a Bronx rubber room studied for the LSAT and is now a practicing attorney.
All the “reassigned” employees stayed in these rooms for the entire school day, free to leave only 30 to 45 minutes for lunch.
The fact that millions of public dollars were being spent on holding pens to keep teachers out of classrooms for months or years on end — many even without charges filed against them — became a political nightmare for then-Mayor Michael Bloomberg.
The charging process under mayoral control allows anyone, including parents, other employees, and principals, to make accusations against an educator. But no tenured educator can be fired without a hearing, called 3020-a arbitration in state law.
Since 2003 I have worked as an advocate for individuals stuck in rubber rooms while under investigation or awaiting administrative trials and I currently help defend them in hearings.
To outsiders, being paid to do nothing might seem an easy gig, but people languishing in the rubber rooms got fed up. They began organizing, demanding to form their own union chapters.

Neither the DOE nor the United Federation of Teachers, their union, wanted to legitimize the rubber roomers in that way. But on April 15, 2010, the UFT and the DOE finally signed an agreement to clear out the visible examples of fiscal absurdity by closing the original rooms and by speeding up the disciplinary hearings.
No one has paid any attention to that agreement, then or now.
New York City hired a roster of arbitrators to hear the cases quickly, but many of the accused fought termination rather than settle, retire or resign, and most wanted witnesses to testify on their behalf. Some hearings are lengthy — one recent case stretched over nine months. The time limits are not enforced.
In one case, a school investigator did not file his report until two years after a student accused the teacher of insulting her. Despite the blatant violation of procedure, which requires a report in six to 12 months, the teacher was nonetheless served charges. The arbitrator dismissed the case before the hearing even started, but the city sued him for doing so. It lost.
The political “solution” was, and still is, to spread out the “held” employees here and there — in district or school offices, basements, storage or copy rooms — anywhere hidden from view. The rubber rooms simply went underground.
The DOE keeps the number of these new rubber roomers a secret. The department benefits from hiding them. The embarrassing news coverage largely stopped — with occasional exceptions — as did public outrage over the waste of public funds. The union benefits because it is spared public ridicule for keeping exiled or “bad” teachers on salary.

But the public, parents, and students still lose. When a teacher is yanked from the classroom, who takes his or her place? Typically, a substitute or anyone who is available — and perhaps someone unqualified. Kids are thrown into turmoil and confusion.
The most outrageous part of this hoax is that there is no accountability and no consequences for making false accusations or abusing the process.
New York City needs to refine the charging process so that public money is spent effectively to fire the truly unfit while supporting the wrongly charged and penalizing administrators who pursue false charges.
We must stop hiding the rubber rooms, now even further underground due to the pandemic, when all educators are at home. The hearings came to a halt in March when the city shut down schools amid the COVID-19 outbreak. A restart date has not been decided.
Give all reassigned teachers relevant work to do in accordance with their licenses while they await their due-process hearings. Better yet, streamline the charging process so that only valid charges substantiated by independent investigators can be heard, and penalties issued expeditiously and fairly.
Betsy Combier is a paralegal who defends educators in disciplinary cases and writes the blog NYC Rubber Room Reporter.
Add caption
Suspended teachers serve time in DOE ‘rubber rooms’ — at home

Home is the new rubber room.
Since the COVID-19 shutdown, scores of city educators removed from classrooms pending administrative trials have spent four months on the city payroll in the comfort of their own homes — often with no work assigned.
“It seems like a good deal,” said Betsy Combier, a paralegal who defends teachers in discipline cases and writes the blog NYC Rubber Room Reporter.
“You’re getting a full salary, you’re home with your family, and the DOE is not giving you anything to do. But it’s very emotionally distressing.”
Combier estimates that some 300 teachers and other staffers are currently idle while under investigation or pending trials that could result in their termination. “Paying that many people to do nothing makes no sense,” she said.
Tenured teachers, who typically make $80,000 to $100,000 a year, are entitled by law to hearings by an arbitrator before they can be fired for misconduct or incompetence — but some wait months or even years before their cases are heard.
Amid a barrage of embarrassing publicity, the city agreed to close its notorious rubber rooms in April 2010, when at least 600 teachers sat in massive “reassignment centers” getting paid to do nothing but nap, read, and chit-chat.
Since then, smaller rubber rooms have persisted, but most suspended staffers have been hidden — tucked away in schools and offices citywide.
Since the school shut down in mid-March, the pedagogical purgatory has been prolonged because hearings came to a halt.
The Department of Education refused repeated requests by The Post for the number of “reassigned” staffers and pending trials.
The DOE is working on a “brand new system to hold trials remotely,” said spokeswoman Danielle Filson. “Meanwhile, employees with pending charges who have work that can be done remotely are doing so.”
But exiled educators say the menial tasks they are asked to perform are few, if any.
“No work,” said Walter Rendon, a teacher at PS 24 in Riverdale who made $100,727 last year.
He was removed from his class last November after openly accusing Principal Steven Schwartz of  “bribing” teachers to praise him in public and previously for gambling on horse races during school hours. The DOE reprimanded Schwartz.
Since the COVID shutdown, Rendon has spent the past four months at home. As a former tech teacher, he wanted to help PS 24 with the switch to remote instruction but was ignored.
“They even sent a survey: ‘Would you be willing to do something online? I said,. ‘Of course.’ I was not asked to do anything.”
While rubber rooming at home is preferable to sitting in a closet-like office in the school, as was the case before the coronavirus outbreak, “It’s not a vacation,” Rendon said. “It’s so demeaning and insulting.”
Guidance counselor Ebony Valentine was removed from Parkside Preparatory Academy last November after accusing her principal of test fraud.
Asked what work she was assigned, she said, “Nothing.”
“I checked in every morning and clocked out every afternoon.”
Valentine, who made $105,505 last year, spent the days caring for her 75-year-old mother, who has cancer, and a 95-year-old grandmother, she said.
Valentine told investigators that principal Adrienne Spencer was giving teachers embargoed state exams so they could coach kids before they took the tests.
Spencer has since retired, but Valentine faces charges she undermined the principal and overstepped her authority, records show. She is fighting back, claiming it was retaliation.
“Not one allegation is about my work or the kids. They took away a good counselor who really helped the kids.”