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Thursday, June 10, 2021

The End of the Absent Teacher Reserve Pool - For "Excessed" Employees


rubber room at 333 7th Avenue, Manhattan

rubber room, Ozone Park, Queens N.Y.

Who can define an "excessed employee" in real terms?

The Absent Teacher Reserve pool is a unique group of educators who are given jobs as nomad temporary substitute teachers/assistant principals/staff and are used by principals to cover absences or illness of permanent staff as if they were per diem employees, but they get their regular salary and stay in one school for longer than a day. ATRs have no chapter and do not elect a chapter leader. The UFT contract does not give them any rights, and the NYCDOE takes full advantage of this to place ATR educators out of license and even out of their district. This never made any sense. 

Educators Linger in the Misunderstood ‘Teacher Reserve,’ a Byproduct of School Reforms

Absent Teacher's Reserve Agreement Reached

Absent Teacher Reserves (ATRs) Become a NYC Budget Battle Issue

When this title was created in 2005, there was, as usual, a total lack of thinking by anyone at the UFT, CSA, or NYCDOE. The articles being posted by media about how the ATR pool is supposedly ending are very muddled because reporters seldom understand the depth of deceit and outright lies that the NYCDOE comes out with on a daily basis. This is deliberate, by the way. 

The ATR pool is not the rubber room.

I studied international secrecy strategies and whistleblower laws while doing graduate studies at Johns Hopkins' SAIS. Government deceit and keeping secrets are strategies used by governments all the time. (See TRAC). I love this description of the coverups of the Julian Assange whistleblower case:

"It remains illegal to classify information “to conceal inefficiency, violations of law, or administrative error; to prevent embarrassment to a person, organization, or agency.” Presumably that includes war crimes. Yet the secretive among us are classifying fifty million items a year, a perpetual fog machine."

That's the DOE, UFT, and CSA: "perpetual fog machines".

The Teacher Hiring Support Center got it right:

Teachers in the Absent Teacher Reserve (ATR)

"Teachers are often confused about the difference between being a teacher in excess and being part of the ATR.  ATRs are excessed teachers who do not find a permanent position at a school by the time the next school year begins.  Teachers in excess do not have to become ATRs. In fact, becoming an ATR is risky.  For example:

- If you do not obtain a fully appointed teaching position by the beginning of the school year, you will be placed into a rotation assignment as a member of the ATR pool.  The placement will be made under the collective bargaining agreement, but the assignment will be done centrally and you will have no control over the schools into which you are placed. 

- If you are in fact teaching in a full-time teaching program at a school while you are still in fact a member of the ATR pool, the central NYCDOE policy can still assign you to another school at any time.  Because you are not on the school's budget, the principal cannot guarantee your security. [Top of Page]"

I need to add that since 2012, whenever a teacher won his/her 3020-a with a reprimand or suspension (but no termination), this person was automatically made an ATR.

There are so many ways that this dumping procedure is not fair to anyone: an ATR teacher certified to teach math can be placed into a vacancy for a month as a teacher for a high school social studies class; or, a Guidance Counselor can be placed into a vacancy to teach math for a week. If the ATR educator was actually not an ATR but a per diem, then they could have the students review a report or look at a video during the class to take up the time, because they do not know how to teach a class and don't have to worry about being rated and fired. 

But an ATR who is a tenured person can be evaluated while in the class teaching a content area that they know nothing about. ATRs are rated "S/U" (satisfactory/unsatisfactory)under the rating system described in Teaching For the 20th Century,  This is good, in my opinion, because the NYSED rating system ("HEDI" - highly effective, effective, developing, and ineffective ) is a fog machine at work, clearly, or at least the way the NYCDOE uses it. I've heard that Charlotte Danielson herself doesn't like what the NYC DOE is doing. 

You cannot understand this nonsense unless you understand that this waste of human capital and public money both fit into the bigger policy of the removal of highly paid tenured educators from their regular teaching/admin. position whenever a principal wanted the person gone for any number of reasons, often having nothing to do with the actual pedagogy or skills of the person reassigned or "excessed".  Tenured and non-tenured educators who are 'excessed' became part of the muddle in the planned displacement of employees, as if people were things.

Then in 2012 I was doing a 3020-a, and a DOE Attorney told me that a new policy was set up where anyone who was not terminated would be automatically placed into the ATR pool. I asked where this was written down, and heard it was not in writing, it was "just the way it is."

The temporary reassignment centers, or 'rubber rooms' ("TRC"s I called them when I worked at the UFT) are another part of the same so-called 'solution' to the main issue Bloomberg hoped to resolve (with the inexplicable help of Randi Weingarten at the UFT and David Grandwetter, General Counsel of the CSA) which was and is today as follows:

Terminate educators with tenure without giving them a due process hearing. (Education Law 3020-a(2)(a)) or, if the unwanted employee is not tenured, deny them their jobs without considering any protected rights (age, gender, race, religion discrimination) and arbitration.

The policy stems from a pattern and practice of allowing a back-room charges writer (I made the term up) to put as many charges as possible into the served papers in order to make something stick. Whether you are tenured or not, there are certain rights that a person has which can be used to get your job back, or at least off of the problem code.

Any way you want to look at it, the ATR pool and rubber rooms deny lawfully given rights to Department employees.

Therefore both the rubber rooms and the ATR pool are symptoms of the same employment policy but are not the same in practice. 

In the post below we read that after years of outrage for placing tenured teachers in rubber rooms, excessed or punished for crimes brought to 3020-a - but not terminated - have been recorded for history, and now the other terrible outcome of the unlawful 3020-a hearings - the demeaning title of "Absent Teacher Reserve" or "ATR" - will be retired, gone, done. But only for excessed employees. The author is confusing ATRs with the rubber room. 

Oh, wait. Are we to believe what the NYC Department of Education is saying? In the City that is the capital of the State of deceit? Be mindful that the NYCDOE is claiming that most of the ATR pool are "excessed" employees, and all of the "excessed" employees who are in the ATR pool will be permanently placed in September. But this does not apply to teachers who are charged with something, and are waiting in a rubber room to have the 3020-a arbitration or discontinuance appeal hearing. 

How do you prove if you are being excessed for a valid reason, i.e. elimination of your position, due to financial necessity, or a whim of a principal?

Answer from the DOE: we only reassign/excess for valid reasons ("fog machine" at work);

Answer from the UFT: "there is nothing we can do" or, ""your arbitration has been put on hold for a year (so you lose the ability to go to PERB or court on an Article 78 but we are not going to tell you about your options" (fog machine again) 

When I worked as Special Representative for the UFT, there were 8 rooms scattered in all the Boroughs, and I visited all of them, one at a time, almost every day. In 2010 the public uproar over the huge amount of money spent on paying the tenured educators to sit in the rubber rooms became a cause celebre and a PR nightmare for Bloomberg, so a deal was made with the UFT to "close" the rubber rooms. 

This was extremely misleading. What the NYCDOE did was close the large rooms and replace them with small rooms, hidden in schools, basements, and closets. See the two pictures at the top of this post?  The first picture above is the rubber room in Manhattan in about 2007, when principals re-assigned anyone for any reason who they wanted out of their school. It was full. 

The second picture above is a rubber room for one teacher who dared to report student-to-student violence in his classroom. The storage room he was told to sit in was badly ventilated and there was no heat. He complained, but his complaint went nowhere. He was there for a year, then terminated recently at his 3020-a. He did not appeal.

The NYC Department of Education higher-ups are notorious for claiming they are NEVER wrong about anything, even when handing over $hundreds of thousands of dollars in settlement money, and unilaterally changing the titles of tenured employees simply to further harass an employee who was supposed to be terminated but was not. 

The Department higher-ups also believe that when an educator is charged with anything by anyone, the charged educator is guilty of the charges. Thus, all charged employees' fingerprints are placed onto the "Problem code" the minute 3020-a charges get placed into the printer. I always thought that a person was innocent until proven guilty. 

See Down The Rabbit Hole: The NYC Department of Education's "Problem Code"

But if the person charging an educator with misconduct did not taint the person with a problem code before he/she was found guilty in the due process hearing, then the Arbitrator could be convinced that the person charged was innocent, and the NYC DOE may have to say that the charges were - or could be - false. Oh no!!! To admit this would mean the DOE personnel who charged this person could be determined to have been wrong about the allegations against this employee. Truth is, the DOE prosecuting Attorneys in 3020-a hearing believe to their core that the charged employee is guilty of the charged conduct. These attorneys fight to keep out any witnesses or evidence from the Respondent employee that differs from their belief. In a recent case we did, our client was accused of slapping a young child across the face. But a thorough look into what really happened showed that the accuser was lying, and we won complete exoneration from the Arbitrator. The Department and school districts never want to admit they are WRONG about charging someone, so re-read the paragraph above.

When Mayor Mike Bloomberg began his first term as Mayor in 2002, the tenure law and tenure employment protections were inconvenient truths that he would rather not comply with. But rather than look bad for trying to repeal Education Law 3020-a giving all tenured educators the right to a hearing after being charged with misconduct, he went around the law and altered the procedures before the hearing began which would assure the Department's attorneys that the arbitrators had a bias which would favor them (the NYCDOE) in any decision. 

Some of the changes in procedures are:

Bloomberg, the UFT and CSA all agreed to quickly dispose of educators by renting large warehouses so that these miscreants could be removed from their schools, kept on salary, but not allowed contact with any children until they were terminated or given the punishment they "deserved" at a 3020-a Arbitration. All removed educators were warned not to talk about where they were assigned ("rubber room"), nor why. No one knew what the charges were, sometimes for many years. Public funds are paying for this.

Another way arbitrator bias was embedded in the charging procedures can be seen in the denial of the right for teachers to choose the arbitrator for their 3020-a. In about 2007, panels of arbitrators were started, where the UFT and the DOE chose arbitrators who stay on the panel hearing cases for 1 year on contract. The UFT agreed with the DOE that tenured individuals who were members of the UFT would not be allowed to choose the arbitrator. CSA members, Assistant Principals and Principals may, after receiving 3020-a charges, choose the arbitrator from a list sent out by the New York State Education Department. The arbitrators are contracted to hear 5 cases/month at $1400/day. I have been told by several arbitrators formerly on the panel that they are not asked to stay on as an arbitrator or are not asked back after the end of the fiscal year (August) if they are too "lenient" - i.e. they do not have a high number of Respondents terminated from their employment. Arbitrators are forbidden to agree to a dismissal of a 3020-a case because of improper procedures such as the unlawful determination of probable cause by the Chancellor.

This list of arbitrators handed out to choose a name for a 3020-a usually has the names of 15 arbitrators approved by NYSED according to standards set by the American Arbitration Association. I have picked many arbitrators over the past 18 years, and my choice is always the individual who I believe is most fair - I have met most who work the 3020-a circuit and if I have not met someone on the list I research the background and prior case decisions. I doubt my standard of "fairness" is anything close to the standard used by the UFT or DOE when they pick arbitrators for their panels (there are two, one for misconduct and the other for incompetence). Remember, the goal is to terminate. 

Outside of NYC, all tenured educators, no matter if they are members of the UFT, the School District, or whatever, choose the arbitrator for the 3020-a from the approved list.  Last June I chose an arbitrator for a 3020-a in Long Island and was able to settle the case the first day with all charges withdrawn, and the school District paying my client $250,000+.My point is that the panels in NYC encourage bias because the charged employee, the Respondent does not have any say in who the arbitrator will be who hears their case. Yes, the UFT says that as they are part of the hiring team with the DOE that they represent all members charged. This is baloney, in my opinion. It's like taxation without representation, and a war was fought to undo that. 

Then there is the fraudulent manner in which probable cause is never voted on by anyone, leaving the arbitrator without subject matter jurisdiction to hear any case or decide on any penalty. NYSUT will not permit any mention of the Cardinale case in any 3020-a that they do, (private attorneys can offer this case) and if the charged educator demands that they argue improper determination of probable cause, their representation will suddenly end. NYSUT will not represent anyone that wants the Cardinale case argued in a 3020-a hearing because the UFT is a collaborator with the NYCDOE in denying a proper determination of probable cause to all charged educators.

I was astonished - actually not, but at least not amused - when NYSUT Attorney Keith Gross told one of his teacher-clients that I was a liar after she asked about the probable cause issue. He then threatened to quit her case if she mentioned it again. He is probably still angry that I wrote about what he did in the case of "Jane" (not her real name) from the 25 Chapel Street rubber room.

Really, Keith?

 Betsy Combier

Editor, ADVOCATZ blog
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

NYC will end controversial absent teacher pool, placing hundreds of sidelined teachers in permanent positions
NY DAILY NEWS, June 8, 2021
The city’s controversial Absent Teacher Reserve pool — a holding ground for hundreds of city educators without permanent teaching assignments — is winding down for good.
City Education Department officials announced Tuesday that they will place the roughly 800 teachers in the pool in permanent teaching positions starting next year — with the department’s central offices picking up the tab.

The size of the pool — which mostly contains teachers who lost jobs when schools were closed or budgets slashed, but also includes some let go for poor performance or disciplinary issues — has shrunk significantly under Mayor de Blasio.

It was winnowed down even further last fall when city officials sent hundreds of ATR teachers to schools to help address a massive staffing crisis brought on by the labor-intensive “hybrid” schooling during the pandemic.

Now, all reserve pool teachers temporarily assigned to schools will stay in those roles for good, and any future excess Education Department teachers will be assigned to open positions in other schools, rather than placed in the holding pool.

“We have made commonsense reforms to the Absent Teacher Reserve since it was created by the prior administration, and now we are fully reimagining the process,” said Education Department spokeswoman Katie O’Hanlon.

The ATR pool has been a lightning rod since it was created in an agreement between former mayor Michael Bloomberg and the city teachers union in 2005.

Mayor de Blasio had already slashed the size of the pool from roughly 1,100 in 2014 to 553 by the end of last school year, according to the Education Department.

The “vast majority” of teachers in the reserve pool end up there for reasons outside their control, Education Department officials say, adding that teachers with pending disciplinary cases will stay out of classrooms.

The agency reported in 2017 that 68% of reserve teachers landed in the pool because of school closures or budget cuts, while three-quarters were rated “satisfactory” or higher, according to Chalkbeat. The Education Department didn’t provide more recent figures.

“There are stereotypes” about reserve teachers, said Priscilla Figueroa, the principal of Public School 676 in Red Hook, Brooklyn, “and sometimes you have to get past that.”

For Figueroa — who took on reserve pool teacher Shawn Mason in 2018 to fill a sudden pre-K teaching vacancy — the announcement reserve teachers will stay on permanently came as a relief.

“He [Mason] came right in and fit,” she said. “He was singing and dancing with them, using instruments.”

“It feels like this is an opportunity to keep Mr. Mason and not worry about using any additional funding,” she added.

But not all schools had such a rosy experience with their assigned reserve pool staffers.

One Manhattan principal, who spoke on the condition of anonymity, said the reserve teacher who arrived at her school last fall to help with staffing shortages struggled to navigate Zoom and remote learning.

“We tried to teach her and after investing countless hours, gave up,” the principal said.

Another principal who spoke on the condition of anonymity said that, while the stigma that often surrounds reserve pool staffers is harmful and misleading, the staffers do often require additional training and supervision — a challenge for already time-strapped administrators.

Critics of the decision say it will restrict principals’ hiring autonomy, and force underperforming teachers back into schools.

“It’s a terrible decision against the interest of children and families,” said Dan Weisberg, the CEO of the education reform group The New Teacher Project, and a former Education Department official who helped negotiate the original terms of the reserve pool under Mayor Michael Bloomberg.

“If they have a teacher who hasn’t taught in a classroom, who hasn’t taught in five years, are they going to disclose the fact that that teacher received an unsatisfactory rating and hasn’t taught in five years?” he continued.

Education Department officials say principals can apply to remove an assigned reserve teacher if there are serious problems including poor performance reviews or disciplinary complaints.

Principals union chief Mark Cannizzaro praised that provision of the new policy and the assurance that the Education Department central will pick up the tab for current reserve teachers. But he warned that the decision to end the pool permanently could complicate future school hiring decisions.

“The thing that I find concerning is going forward, after this year, when teachers are placed in excess, they will then be placed in vacancies ... and schools will have to fund the position,” he said. “Effectively, what’s happening is they are making hiring decisions in certain circumstances out of the hands of principals and mandating forced placements.”

But city teachers and union officials have long pointed to flaws in the reserve pool process — with some educators finding it difficult to overcome the stigma of the temporary placement and find new jobs.

“The [reserve] pool was always a waste of teacher talent and taxpayer money,” said Michael Mulgrew, president of the United Federation of Teachers.

Mason, the reserve teacher assigned to PS 676 in Red Hook, said his time in the pool was rife with instability and uncertainty.

“I had gone through about six months of traveling around to different schools,” said Mason. “That just began to be a real crazy experience of not knowing where you’re going to work on a daily basis.”

Mason said he breathed a huge sigh of relief when he learned he could stay at his new school permanently.

“It came to be a ‘woosah’ moment,” he said.