Fraud Will Get You Terminated at 3020-a

Evan Mirenberg

Evan Mirenberg, considered an excellent teacher and winner of the 2013 PASCO STEM Awards,  was charged with 16 absences for the  2013-2014 school year:

SPECIFICATION 1: On or about and between September 9, 2013 and June 27, 2014, Respondent,  while
assigned to The Michael E. Berdy School for The Arts, was excessively absent from work
approximately sixteen (16) times on the following dates:

DAY DATE

 1) Monday September 23, 2013*
2) Tuesday October 22, 2013
3) Tuesday November 12, 2013
4) Wednesday November 13, 2013
5) Tuesday January 21, 2014*
6) Wednesday January 22, 2014*
7) Monday February 3, 2014*
8) Monday February 10, 2014
9) Monday March 3, 2014*
10) Friday March 21, 2014*
11) Monday April 7, 2014*
12) Monday April 28, 2014*
13) Monday May 12, 2014*
14) Tuesday May 13, 2014*
15) Wednesday May 21, 2014

SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, Respondent, while assigned to The Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:

  DAY DATE

1. Tuesday November 1, 2011
2. Wednesday November 2, 2011
3. Monday December 19, 2011*
4. Monday March 12, 2012*
5. Thursday May 10, 2012
6. Friday May 11, 2012
7. Monday December 10, 2012*
8. Monday March 4, 2013*
9. Tuesday November 12, 2013*
10. Wednesday November 13, 2013*
11. Tuesday January 21, 2014*
12. Wednesday January 22, 2014*
13. Friday March 21, 2014*
14. Monday April 7, 2014*
15. Monday April 28, 2014*
16. Monday May 12, 2014*
17. Tuesday May 13, 2014
18. Wednesday May 21, 2014
19. Thursday June 19, 2014

SPECIFICATION 3: Approximately on or about and between November 1, 2011 and September 2, 2014, Respondent, while assigned to the Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick, knowing he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work, in the amount of approximately $3556.90.

SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, Respondent did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.

 SPECIFICATION 5: Dismissed

Mr. Mirenberg made a mistake. In order to cover his excessive absences, he handed in altered doctor's notes. He claimed he was in panic mode. Arbitrator Michael Lazan terminated him after looking at all the prior decisions of arbitrators handed in by the Department with similar complaints about the teacher charged with fraudulently handing in doctor's notes and violating the 'honor code' for teachers who take absences for supposedly some kind of illness.
 
The NYC Department of Education cited Penal Law Sect. 170.00(4):
A person "falsely makes" a written instrument when:he makes or draws a complete written instrument in its entirety, or an incomplete written
instrument, which purports to be an authentic creation of its ostensible maker or drawer, but
which is not such either because the ostensible maker or drawer is fictitious or because, if real,
he did not authorize the making or drawing thereof.

Arbitrator Michael Lazan in his 3020-a decision in this case:

"It is regrettable that a teacher capable of good performance put himself in this situation, and it is certainly sad that the students in New York City will have lost a teacher with special expertise. Still, in a case like this, I must conclude that Respondent's actions constitute "conduct unbecoming a teacher," and that there is just cause for terminating Respondent from his position as a teacher for the New York City Department of Education."
Supreme Court Judge Lucy Billings originally had this case on Appeal (Article 75) and denied the DOE's Motion To Dismiss for insufficient supporting evidence. The case was transferred to the Part of Judge Carmen Victoria St. George, who granted the DOE's Motion To Dismiss and denied Mr. Mirenberg's Petition to vacate his termination.

The lesson here is that no DOE employee should create fake documents because he/she, if charged with 3020-a, will be terminated.

Below is the decision:

MATTER OF MIRENBERG v. NEW YORK CITY DEPT. OF EDUC.
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653846/2015.

Cited Cases

2018 NY Slip Op 50670(U)

IN THE MATTER OF THE APPLICATION OF EVAN MIRENBERG, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

Supreme Court, New York County.

Decided May 9, 2018.

---

Attorney(s) appearing for the Case

The Charrington Firm, P.C., Karen H. Charrington , One Cross Island Plaza, Suite 212, Rosedale, NY 11422, for Petitioner.

Corporation Counsel, Shirley W. Bi , 100 Church Street, New York, NY 10007-2601, for Respondent.

---

CARMEN VICTORIA ST. GEORGE, J.

In this proceeding, petitioner seeks an order which reverses Arbitrator Michael Lazan's November 11, 2015 decision sustaining certain specifications and charges against him. Petitioner further seeks a declaration that the penalty, the termination of his employment as a special needs teacher, was disproportionate and shocking to the conscience; a modification of the award to include a lesser penalty; reinstatement with back pay and full credit for the period of his allegedly wrongful termination for the purposes of retirement benefits; and removal of petitioner from the ineligible list.

Initially, respondent the New York City Department of Education (DOE) filed a pre-answer cross-motion to dismiss the petition, and petitioner moved for a preliminary injunction in lieu of notice of petition. On May 17, 2017, Justice Lucy Billings, who previously presided over the case, issued the order which denied the cross-motion and the request for injunctive relief. As to the cross-motion, Justice Billings ruled that without the full record of the administrative proceedings respondent did not sustain its burden. As to the request for preliminary relief, the judge concluded that although petitioner had set forth cognizable legal claims he had not shown a likelihood of success on the merits. Following the issuance of Justice Billings' order, respondent answered the petition and the parties filed additional papers. The matter subsequently was transferred to this Part, and this Court heard oral argument. At the end of the argument, this Court requested letter briefs on recent Court of Appeals cases and on the pertinent concurring opinions. The Court has considered all the material before it, including the subsequent letter briefs, and incorporated its conclusions into this decision. After careful consideration, this Court dismisses the petition.

Petitioner became a certified special education teacher in 2004 and he worked for respondent until his termination in 2015. Throughout his employment with the DOE respondent, he received positive performance evaluations, received awards and praise as a Science, Technology, Engineering, and Math (STEM) educator, including a STEM Educator Award in 2012 and a Brooklyn Borough President's Proclamation regarding his work involving LEGO education. LEGO named him "teacher of the month" in June 2013, and Scholastic Educator Magazine featured him in its article, "Super Cool Teacher" in March 2014.

According to petitioner, he has suffered from an anxiety disorder as well as attention deficit syndrome since high school. Petitioner alleges that for a period of eight years he was treated for this disorder by Dr. Dean F. Giannone without success. He states that now he is treated by Dr. Judy Scher, and under her care he successfully manages these disabilities. Currently, petitioner teaches at a private school. Before his disorder was under control, and while he was an employee of respondent, he missed several days of work annually due to his disability. Like all teachers, petitioner was entitled to take a maximum of ten sick days per year from his cumulative absence reserve (CAR). A doctor's note is not required for these absences, although employees are encouraged to submit such notes whenever possible. Furthermore, a teacher can take "self-treatment" days when he or she does not treat with a doctor; this must relate to a teacher's illness or disability for a condition for which self-care is approved. Finally, more than ten additional absences — other than days for jury duty, funerals, and other exceptions — is considered excessive.

The charges which led to petitioner's termination relate to petitioner's work at two schools. Petitioner spent seven years as a special education classroom teacher at the first of these schools, P.S. 188. During his eighth year, the 2013-2014 school year, he piloted the school's STEM and robotics program. Around June 5, 2014, Principal Frederick Tudda, discussed petitioner's high number of absences for the 2013-2014 school year. Petitioner informed the principal that he had kidney problems. The principal wrote a letter to petitioner's file about this conversation, including the comment that his absences were excessive. Furthermore, although petitioner provided lesson plans for the days he was absent from P.S.188, only one other teacher at the school knew how to teach robotics and it would not have been feasible to have that teacher cover petitioner's classes during all his absences.¹

Petitioner resigned from P.S. 188 in 2014 and in September 2014 he commenced a new job, as a magnet resource specialist at P.S. 307K. He obtained this position pursuant to a $1.8 million grant which enabled the school to develop into a STEM magnet school. The school hired one other magnet resource specialist at petitioner's level as well as a senior magnet resource specialist. The job required him to instruct third, fourth, and fifth grade students regarding STEM and to train the other teachers at the school so that they also could teach STEM. Petitioner was absent twice in mid-September, his first month at P.S. 307K, and he provided a medical note to the principal. Principal Roberta Davenport's secretary pointed out that the note looked suspicious, and the principal contacted Dr. Giannone, who purportedly authored the note. The doctor stated that he did not write the note.

After she received the doctor's response, Principal Davenport met with petitioner. Petitioner, who was accompanied by his union representative, reiterated the statement he made to Principal Tudda at P.S. 188, that he had kidney problems. He added that he had undergone an MRI on one of the dates in question. On October 13, 2014, Principal Davenport notified the Office of the Special Commissioner of Investigation for the New York City School District (SCI) of the incident. SCI undertook an investigation, determined petitioner had committed fraud, recommended that petitioner be terminated from his position, and referred the matter to the Kings County District Attorney's (DA) office for review. In addition, SCI made similar findings and made a subsequent referral to the DA when, after further investigation, Principal Davenport discovered fifteen similar notes in petitioner's personnel file.

Respondent commenced two cases seeking petitioner's termination. The cases include the following specifications, which relate to petitioner's work at The Michael E. Berdy School for The Arts (P.S. 188) and at Daniel Hale William, The Magnet School for Science, Technology, Engineering and Mathematical Studies (P.S. 307K):

CASE No. 26,748
SPECIFICATION 1: On or about and between September 9, 2013 and June 27, 2014, [petitioner], while assigned to The Michael E. Berdy School for The Arts, was excessively absent from work approximately sixteen (16) times on the following dates:DAY DATE 1) Monday September 23, 2013*² 2) Tuesday October 22, 2013 3) Tuesday November 12, 2013 4) Wednesday November 13, 2013 5) Tuesday January 21, 2014* 6) Wednesday January 22, 2014* 7) Monday February 3, 2014* 8) Monday February 10, 2014 9) Monday March 3, 2014* 10) Friday March 21, 2014* 11) Monday April 7, 2014* 12) Monday April 28, 2014* 13) Monday May 12, 2014* 14) Tuesday May 13, 2014* 15) Wednesday May 21, 2014 16) Thursday June 19, 2014

SPECIFICATION 2: On or about September 16 and/or September 17, 2014, [while] assigned to [P.S. 307k] [petitioner] submitted and/or caused to be submitted a false and/or fraudulent doctor's note to the Department stating that he had seen a doctor in order to excuse his absences from work.

SPECIFICATION 3: On or about September 16 and/or September 17, 2014, while assigned to [P.S. 307K], [petitioner] was paid for the day he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work.CASE # 27,238

SPECIFICATION 1: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], submitted and/or caused to be submitted a false and/or fraudulent doctor's notes to the Department stating that he had seen a doctor in order to excuse his absences from work approximately (19) times on the following dates:DAY DATE 1. Tuesday November 1, 2011 2. Wednesday November 2, 2011 3. Monday December 19, 2011* 4. Monday March 12, 2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7. Monday December 10, 2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013* 10. Wednesday November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday January 22, 2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15. Monday April 28, 2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18. Wednesday May 21, 2014 19. Thursday June 9, 2014

SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:DAY DATE 1. Tuesday November 1, 2011 2. Wednesday November 2, 2011 3. Monday December 19, 2011* 4. Monday March 12, 2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7. Monday December 10, 2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013* 10. Wednesday November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday January 22, 2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15. Monday April 28, 2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18. Wednesday May 21, 2014 19. Thursday June 9, 2014

SPECIFICATION 3: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work, in the amount of approximately $3556.90.SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, [petitioner] did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will [be] filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.

SPECIFICATION 5: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to P.S. 307K . . ., was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nine (9) times on the following dates:DAY DATE 1. Tuesday September 16, 2014 2. Wednesday September 17, 2014 3. Monday September 29, 2014 4. Friday November 14, 2014 5. Monday November 17, 2014 6. Monday January 12, 2015 7. Tuesday January 13, 2015 8. Monday March 2, 2015 9. Tuesday April 21, 2015

The Foregoing Constitutes:

Just cause for disciplinary actions under Education Law Sect. 3020-a;Conduct unbecoming [petitioner's] position, and conduct prejudicial to the good order, efficiency, or discipline of the service;Fraud;Conduct that could Constitute a Crime;Substantial cause rendering [petitioner] unfit to perform his obligations properly to the service;Violation of Chancellor's Regulations;Violation of the by-laws, rules and regulations of the Chancellor, Department School or District;Neglect of duty; andJust cause for termination*Denotes a day before or after a weekend and/or holiday

(In re New York City Department of Education v Mirenberg, SED File Nos. 26,748/27, 238, Exh. A [NYSCEF doc No. 5] [DOE v Mirenberg], at pp 3-7).

Petitioner and respondent appeared before Arbitrator Michael S. Lazan, Esq. to determine what, if any, penalty was appropriate for the charges above (see Education Law § 3020-a). Arbitrator Lazan held numerous prehearing conferences between April 9, 2015 and July 9, 2015. The hearing began on July 9, 2015 after the prehearing conference, and it continued on July 22, July 23, August 12, August 13, September 17, September 25, and September 30. During the hearings, the arbitrator listened to the testimony of several witnesses including petitioner, the principals of the two schools, Dr. Giannone, and petitioner's father.

In its opening statement on July 9, 2015, respondent³ stated that there were two reasons petitioner should be terminated from his job: 1) he had been excessively absent from school, and 2) he had submitted fraudulent sick notes over the course of several years to justify some of those absences. Petitioner's counsel presented her opening statement on July 22, 2015. Counsel stated that petitioner suffered from a kidney condition and from anxiety. She noted that under the Americans With Disabilities Act (ADA), petitioner's anxiety disorder qualifies as a protected condition. She pointed out that despite his allegedly excessive absences, he received positive or satisfactory ratings during the periods in question; and that, while Principal Tudda discussed petitioner's absences he did not discipline him. Thus, petitioner's absences had not interfered with his job as a teacher.

In his November 2015 determination, Arbitrator Lazan considered the parties' positions. The decision noted that petitioner admitted to altering sixteen medical notes but claimed he did not receive extra pay for the dates in question because he was entitled to ten self-treated days for which no note was required. He stated that he was not excessively absent during the 2014-2015 school year. He finally argued that he altered the medical notes under the influence of his panic attacks and his anxiety disorder. Petitioner claimed that his disorder had prevented him from teaching on the dates he was absent, and his embarrassment about his condition had caused him to lie. He stressed that now, with proper care, he no longer is hampered by his disability.

In response, respondent argued that petitioner defrauded the school system, and that he additionally lied to two school principals about his fabricated kidney condition.⁴ His misconduct was compounded by the fact that petitioner has never taken responsibility for submitting the notes but instead has attempted to excuse them. They stressed that many of the absences were on Mondays and Fridays, thus extending his weekends, that he repeated this pattern on a regular basis — all of which undercut petitioner's argument that these actions were impulsive and caused by his panic attacks. They noted that Dr. Giannone's progress notes did not support petitioner's position that his anxiety was disabling. They argued that the affidavit of petitioner's current treating therapist, Dr. Scher, is of no probative value as petitioner did not produce her as a witness.

The arbitrator first evaluated petitioner's claim that he is insulated from any adverse employment action under the Americans with Disabilities Act of 1990 (the ADA) (42 U.S.C. §§ 12101 et seq), which prevents employers from discriminating against individuals with disabilities that do not interfere with their work performance. He determined that, even if petitioner showed the existence of an anxiety disorder,⁵ he did not show that it had a major limiting impact on his life or his ability to perform his job. Dr. Giannone, the arbitrator noted, testified at the hearing that petitioner could perform normal activities despite his anxiety disorder. The arbitrator further noted that Dr. Scher's affidavit, the sole evidence on which petitioner relied to support this claim, merely stated that petitioner has an anxiety disorder which, during stressful times, impaired his decision-making ability. Relying on federal case law such as Cody v County of Nassau (577 F.Supp.2d 623, 639 [EDNY 2008]), Arbitrator Lazan stated that Dr. Scher's affidavit was insufficient to establish discrimination.

Next, the arbitrator noted that teachers are given the benefit of an honor system as to their self-treated days. Medical documentation is not required for the first ten days of such absences, and — with notice — three of those days may be used for personal business. Arbitrator Lazan concluded that, "[b]y altering the sick notes from Dr. Giannone, [petitioner] effectively sidestepped the Department's policy on `allowing' ten `self-treated' days. Even aside from the fact that [petitioner] committed fraud on [respondent], [petitioner] gave himself permission to take an extra six days of absence without having to provide any medical backup" (DOE v Mirenberg, at p 16). Arbitrator Lazan rejected petitioner's argument that sixteen days of absence is not excessive, relying on Principal Tudda's statement that after ten days, a teacher's absences might be considered excessive and on P.S.188's faculty conference notes, in evidence, which stated as much. The arbitrator further agreed with respondent that because of petitioner's fraud, all of the challenged absences were improper. He stated that, contrary to petitioner's argument, his absences had an impact on the school in 2013-2014. Thus, he sustained the first specification, which related to petitioner's work at P.S.188.

Arbitrator Lazan next sustained the second specification which related to petitioner's actions while he was at P.S.307K. He determined that petitioner falsified the doctor's notes he submitted for September 16 and 17, 2014. As for specification three, the arbitrator found that petitioner improperly accepted payment for these days as he had not submitted any evidence establishing that he was ill, and his then-treating physician credibly testified his anxiety was not disabling and provided progress notes which refute petitioner's statements about his mental health during specified periods. Arbitrator Lazan found that petitioner was not credible, pointing out that he changed his testimony on several occasions when confronted with evidence contradicting his contentions. He further found that petitioner was not credible based on the record, which established that he lied about his purported kidney problems.

The arbitrator also considered the claims in the second case. He sustained specification one, relating to his nineteen falsified doctor's notes at P.S.188. Although, as petitioner argued, an arbitrator generally cannot rule on claims relating to conduct over three years before the filing of the specifications, he had the power to do so here because fraud (a crime) was involved (Educ. Law § 3020-a [1]). He rejected petitioner's arguments that he did not mean to defraud respondent and he found petitioner's contention that he had intended to reveal that he was ill without specifying his condition was of no avail. He stated that, under Aronsky v Department of Education (75 N.Y.2d 997, 1000 [1990]), respondent had satisfied the fraud by the applicable substantial evidence standard.

In addition, the arbitrator sustained specification two in the second case. The specification also relates to the nineteen days for which petitioner submitted fraudulent doctor's notes. As with a similar charge in the first case, Arbitrator Lazan found that petitioner improperly accepted payment for the nineteen days in question. The arbitrator reiterated that "[petitioner's] testimony was inconsistent and at times hard to believe" (DOE v Mirenberg, at p 25) — using, as an example, petitioner's statement that Dr. Giannone knew petitioner was writing altered doctor's notes. Arbitrator Lazan again reviewed Dr. Scher's affidavit and viewed it unpersuasive, noting that she stated petitioner suffered panic attacks in 2007, when he missed very few days of class, and that she did not indicate petitioner's condition prevented him from working. Because he sustained specification two, he sustained specification three, which stated that petitioner improperly accepted money for the days in question. He sustained specification four, which required him to consider whether petitioner violated the penal law. He rejected petitioner's argument that he lacked authority to rule on this issue, concluding that he only considered it only because it was necessary to determine whether he could rule on claims that were over three years old (see Educ. Law § 3020-a [1]).

Finally, the arbitrator dismissed specification five in the second case. This charge alleged that petitioner was excessively absent during his year at P.S.307K. He noted that "the pattern and practice [of respondent] appears to be that more than ten absences in the school year are required for a teacher's absences to be deemed `excessive'" (DOE v Mirenberg, at p 29), and pointed to testimony and evidence supporting his conclusion. He rejected respondent's position that the two fraudulent notes from September transformed his absences from excusable to excessive.

Based on all the aforementioned findings, Arbitrator Lazan concluded that petitioner's termination was justified. He noted that petitioner concededly altered doctor's notes, and that he only stopped doing so when "he was caught by a sharp-eyed secretary and an attentive principal" (id., at p 31). He rejected petitioner's statements that he repented of his wrongdoing, partially on the basis that he didn't acknowledge his wrongdoing and repent of it before he was caught — even after Principal Tudda reprimanded him for his excessive absences. He noted that, notwithstanding petitioner's claim of panic attacks, he was not under the influence of an attack when he turned in the falsified documents. He noted that petitioner's statement that he is now rehabilitated was self-serving and lacked evidentiary support, and that the only witness who supported petitioner's claims was one of his parents. The arbitrator noted that the record supports petitioner's claim that he is a good teacher, but concluded that "dishonesty on this scale cannot be tolerated in the workplace" (id., at p 33). He pointed out that petitioner

submit[ted] cases in support of his position, but not a single case where similar fraud by a teacher results in an arbitrator levying a penalty less than termination. The Department, on the contrary, presents case after case where where teachers submitted fraudulent medical notes and were terminated by arbitrators. See, e.g., New York City Dep't of Educ. v. S.B., Case #5,215 (2006) (Bauchner, Arb.).

Based on the above, Arbitrator Lazan found that respondent had shown — and petitioner had failed to refute — that termination was an appropriate penalty on the facts of the case.

DISCUSSION

Education Law § 3020-a sets forth the procedures and penalties for disciplinary actions against tenured teachers. Subsection five of that statute authorizes judicial review of aarbitrator's decision. That review is limited to grounds set forth in Section 7511(b) (1) of the Civil Practice Law and Rules: 1) corruption, fraud or misconduct in the award's procurement, 2) bias on the part of the arbitrator, 3) a decision which shows the arbitrator exceeded his power or failed to clearly resolve the case, and 4) failure to follow the procedural guidelines. Where parties have submitted to compulsory arbitration, this Court applies a stricter standard of review than it does in voluntary arbitrations (See, e.g., Lackow v. Dep't of Educ., 51 A.D.3d 563, 567 [1st Dept 2008]). The arbitrator's decision must accord with due process, be supported by adequate evidence, and be rational and satisfy the arbitrary and capricious standards under Article 78 of the Civil Practice Law and Rules (id.) An arbitrator's credibility determinations, however, are "largely unreviewable" (id. at 568). Petitioner bears the burden of proof in challenging the arbitrator's decision under these standards (id.). Moreover, as the Court of Appeals stressed recently in Matter of Bolt v New York City Department of Education (30 N.Y.3d 1065, 1068 [2018]), even if a court disagrees with the severity of the penalty imposed, this "does not provide a basis for vacating the arbitral award or refashioning the penalty."

The Court has set forth the underlying arguments in detail above. In brief, the petition states that the arbitrator was biased, committed legal errors, and reached an arbitrary, irrational conclusion. Petitioner challenges the arbitrator's credibility determinations. He notes the above-cited standard of review and cites to his protected status as a tenured teacher. He also states that in cases involving employees with prior good service, courts have deemed termination too harsh and suspended the teachers instead.

After careful consideration, the Court concludes that there is no merit to Petitioner's contentions in the instant application. The arbitrator's determination, as set forth herein, was rational (Matter of Grassel v Department of Education of the City of New York, 158 A.D.3d 501, 501 [1st Dept 2018]). As in Matter of Berkley v New York City Department of Education,there was ample evidence in the record that supported the arbitrator's decision (see ___ AD3d ___, ___, 2018 NY Slip Op 01669 [1st Dept 2018] [Berkley], at p 3). Petitioner cites to no specific examples of the arbitrator's alleged bias (see Grassel, 158 AD3d at 501), and does not indicate that the arbitrator committed any specific legal error.

Petitioner's argument that the arbitrator did not consider Dr. Scher's affidavit lacks merit. Contrary to petitioner's contention, Arbitrator Lazan considered and discussed the affidavit of Dr. Scher and provided a cogent analysis (see supra, at pp 9, 11), but did keep in mind that she did not appear and was not subject to cross-examination. The arbitrator did not ignore, but commented upon, petitioner's merit as a teacher. He simply concluded that the charges here were serious enough to overshadow petitioner's talent and warrant termination. The arbitrator's credibility findings are "largely unreviewable" (Matter of Board of Education of the City School District of the City of New York v Ostrin, 120 A.D.3d 1105 [1st Dept 2014]), and petitioner has not shown evidence sufficient to justify deviation from this deferential standard.

Moreover, the penalty of termination is not disproportionate, as fraud is a serious allegation and petitioner failed to correct his misconduct after his discussion with Principal Tudda (see Berkley, 2018 NY Slip Op 01669, at p 3). As the Court of Appeals found in Bolt, "the penalties imposed are not irrational and do not shock the conscience" (Bolt, 30 NY3d at 1068). The Article 78 proceedings to which petitioner cites in are distinguishable. Bovino v Scott (22 N.Y.2d 214 [1968]), for example, is a 1968 Court of Appeals case under Article 78, not Article 75, and it evaluates the penalty imposed by the Fire Commissioner on a firefighter. Mitthauer v Patterson (8 N.Y.2d 37 [1960]), is a 1960 Court of Appeals decision which also arose under Article 78. In that case, the court affirmed an appellate court decision which modified the penalty imposed on a petitioner, who had an unblemished twenty-year record and then was found to have taken three passengers' fares for herself.⁶ The First Department's 1958 decision, under Article 78, vacated the dismissal of a Public Works official with a long history of civil service who, during a period of serious illness and numerous surgical procedures, failed to timely complete an examination which the Commissioner of Investigation initiated under the Security Risk Law. The 1971 Court of Appeals case, Picconi v Lowery (28 N.Y.2d 962[1971]), also related to the termination of a firefighter. In addition, the arbitrator did not act irrationally in rejecting petitioner's argument that he submitted the fraudulent doctor's notes due to his disability. Rather, in that case, the arbitrator reasonably found that petitioner's actions were not caused by the disability, both based on petitioner's own testimony that he was not disabled when he submitted the doctor's notes and on the failure of petitioner to submit any supporting evidence.

The Court has considered the parties' other arguments, even if they are not discussed specifically in this order, and they do not alter this conclusion. Therefore, it is

ORDERED that the petition is dismissed.

FootNotes

1. Arbitrator Lazan states this based on the hearing he held and the documents before him. This Court discusses the arbitration supra at page 7.

2. This is a verbatim copy of the specifications. As stated at the end of the charges, the asterisk "Denotes a day before or after a weekend and/or holiday."

3. In the arbitration, respondent here was the "petitioner" and petitioner here was the "respondent." For the sake of clarity, however, the Court uses the titles they have in this proceeding.

4. At times, petitioner's attorney alludes to the fact that petitioner did have kidney issues. The arbitrator found no information tying his absences or his decision to submit fraudulent doctor's notes to his kidney problems.

5. The arbitrator did not decide that petitioner was disabled, but assumed it for the sake of his analysis.

6. She collected the fees and told them not to go through the turnstile.

See also: 

Dep’t of Education v. Brust OATH Index No. 2280/07 (Sept. 29, 2008), adopted, Chancellor’s Decision (Oct. 22, 2008), appended

 Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

Former Hempstead Deputy Superintendent Sues For Wrongful Termination

 Dr. McDonald feels that he was wrongfully terminated under the Civil Service Law 75-B whistleblower statute. This will be interesting.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

Varleton McDonald, seen in November 2017, was deputy superintendent of the Hempstead school
district. Photo Credit: Daniel Goodrich

Ex-Hempstead deputy superintendent files wrongful termination suit

Varleton McDonald alleges the school board's majority targeted him because he disclosed information about "rampant and corrosive corruption, waste, and gross illegalities" in the district

By Keshia Clukey
keshia.clukey@newsday.com
Updated November 5, 2018 9:55 PM

Former Hempstead schools Deputy Superintendent Varleton McDonald is suing the district and several members of its board, alleging he was wrongfully terminated after blowing the whistle on corruption in the system.

The civil complaint, filed Oct. 10 in federal court in Central Islip, alleges members of the school board's majority “retaliated” against McDonald and terminated his employment after he disclosed information about “rampant and corrosive corruption, waste, and gross illegalities” in the district. According to the complaint, he spoke with the state Education Department and was questioned by the FBI about issues in the district.

McDonald, terminated Jan. 17, was brought to the district by embattled Superintendent Shimon Waronker, with whom he previously worked in New York City — an association that contributed to his firing, said Mark Goidell, the Garden City-based attorney for McDonald.

 RECOMMENDED READING

 Read the lawsuit

Waronker, on paid administrative leave since Jan. 9, also is suing the district regarding his removal.

McDonald's lawsuit names the district and board members David Gates, Randy Stith and LaMont Johnson, who made up the majority when the board voted in favor of terminating his employment.
The lawsuit “has no merit whatsoever," said Jonathan Scher, the Carle Place-based attorney for the district and board members.

“The complaint contained allegations that are wholly fictitious and warrant the board asserting a character claim for defamation,” Scher said. He said making “scandalous accusations in an attempt to try to manufacture a claim is not excusable and establishes the level of maliciousness that exposes a plaintiff to liability for defamation even where the claims are made against a public figure.”

The Scher Law Firm, where Scher is a partner, on Oct. 30 asked permission from the court to file a motion to dismiss. The court has not ruled.

Board members cannot comment on pending litigation, Scher said.

"Everyone likes to sue the Hempstead school district. It seems to be the thing to do," Stith said. "What if we, the district, started to sue those who have taken from the schools, who have taken from the students, and who have taken from the district? Everything will soon come to light."

Gates and Johnson could not be reached for comment.

The board, under a different majority, hired McDonald in a 3-1 vote on Sept. 28, 2017, to "provide instructional and operational support for the persistently struggling schools," with an annual salary of $180,000, according to meeting minutes.

McDonald’s appointment was part of Waronker’s efforts to turn around the district, which has been struggling for decades and criticized by state officials for its low test scores and graduation rates, as well as factionalism among board members. Hempstead is the largest K-12 system in Nassau County.

According to the complaint, McDonald was approached in December 2017 by FBI investigators, with whom he shared information about alleged wrongdoing in the district. McDonald in December also told state Education Department officials and school board members about the findings, according to the complaint.

The Education Department had no comment.

The FBI’s New York office did not immediately return a request for comment Monday.

"The disclosures related again to widespread corruption, significant financial improprieties," Goidell said. "It’s my understanding that while I'm not at liberty right now to discuss the specifics of those matters, it's my understanding that they very well may become the subject of public disclosure in the very near future."

Relations between Waronker, who started in the district on June 2, 2017, began to sour last fall. After a change in its majority, the board on Jan. 9 voted 3-2 to place Waronker on paid leave, appointing longtime Hempstead administrator Regina Armstrong as acting superintendent.

McDonald’s employment was terminated in a 3-2 vote during a Jan. 17 meeting, according to meeting notes. Then-board president Maribel Touré and vice president Gwendolyn Jackson, who made up a minority bloc on the panel, voted against his dismissal.

Touré said the board majority terminated the employment of other administrators brought in under Waronker, so they saw McDonald’s termination coming.

“He’s not the only one talking to the Department of Education,” she said, adding that she, too, has spoken to the department about alleged corruption in the district.

Jackson could not immediately be reached for comment. She and Touré both lost their re-election bids in May.

Scher said he could not comment on the reasoning for McDonald’s termination.

“Mr. McDonald has strayed far from the truth in a certain few of his allegations, and the board will need to decide whether to hold him liable for that with a defamation counterclaim,” Scher said about the accusations. “Certainly, they have a legal basis for pursuing that.”

McDonald’s lawsuit is seeking monetary damages for "wrongful" termination and effects on his reputation, Goidell said, noting that McDonald has not been able to obtain employment.

No dollar amount was specified and no further court appearances have been scheduled, according to court documents.

Fired NYC School Bus Chief Involved In Breakfast Cereal Scam Too

Eric Goldstein was fired for the bus scandal. But he was investigated also for fraudulently spending taxpayer money on....get this: the breakfast menu items, especially a certain cereal.

Hey - I could not make this up. No one would believe me.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice

Editor, NYC Public Voice

Editor, Inside 3020-a Teacher Trials

An Ousted DOE Official, an ex-White House chef, an NBA star and a Pricey Breakfast Cereal

By Jarrett Murphy  | October 1, 2018

Problems with the student transportation system appear to be why the chief operating officer of school support services for the New York City school system, Eric Goldstein, was fired last Monday.



The top official in charge of the Office of Pupil Transportation, Eric Goldstein, was axed.
(Bryan Pace for New York Daily News)

But Goldstein was also a player in a curious episode involving a pricey breakfast cereal, a former White House assistant chef, a one-time Knicks star and millions of dollars of taxpayer money.

Among his duties as schools CEO, Goldstein oversaw the school food system. He also served as president of the Urban School Food Alliance, a consortium of big-city school meals programs. (The alliance announced on Friday that Goldstein had been replaced.)

New York’s school system provides breakfast and lunch to hundreds of thousands of children every day and is believed to be the largest feeding program in the United States outside the military.

Given food’s importance to healthy growing and learning, New York’s system has expanded aggressively over the years to feed more kids more often at low or no cost to their families, and has also made efforts to offer a healthier mix of menu options.

The system is complicated and expensive, involving 1,700 schools and more than half a billion in annual spending, much of it subsidized by the federal government. Amid all the complexity and all that cash, the system has served up more than one scandal.

In the 1990s, executives from several companies that supplied school food went to federal prison after convictions for bid rigging. During the Bloomberg administration, a consultant-concocted change to the food distribution process led to shortages at schools and huge fines to providers. More recently, as City Limits was first to report, there were serious issues with moldy pizza and tainted chicken in the schools.

There were reports last fall that a top school-food executive had taken trips paid for by some of the companies that had lucrative contracts to supply food to city schools. That official has since resigned. City Limits has been waiting for more than two years for DOE to hand over documents related to communications between other school food officials and some of those companies.

Now, City Limits has obtained though sources documents revealing what appears to be extraordinary efforts to promote a different company’s product to New York City schoolchildren.

The company is called Back to the Roots, and it makes organic breakfast cereals as well as classroom gardening kits aimed at connecting children with nature. Its founders Nikhil Arora and Alejandro Velez say they are on a mission to “undo food.” Their food features fewer ingredients and far less sugar than more familiar brands.

In the 2016-2017 school year, the DOE—which wanted to replace brands of Kashi breakfast cereals that had been discontinued—purchased 45,000 cases of the cereal at a cost of $977,000.

In the 2017-2018 school year, it bought more than twice as much and paid just over $2 million to the firm.

A ‘historic event’

Emails from the fall of 2016 among school food personnel indicated a reluctance by some staffers to give the item much prominence on the school menu because of its expense. An internal listing produced later in the school year indicated that Back to the Roots Cinnamon Clusters and Purple Corn Flakes cost twice as much per serving as other major items on the cereal menu.

Yet in early 2017, DOE SchoolFood leaders worked closely with Back to the Roots cereal as part of a marketing campaign involving an appearance by the company’s founders on the Today show and Telemundo, a glowing article in the New York Times and a promotional event at one school featuring then-Knicks forward Carmelo Anthony. Arora and Velez tell City Limits that Anthony—now with the Houston Rockets—is an investor in the company.

The promotion heavily incentivized students to eat Back to the Roots: If they collected 15 lids, they could get a poster of ‘Melo.

Ahead of the promotional appearance by Anthony—which a Back to the Roots representative referred to as “a historic event” in his emails to school officials—there was intense attention on getting plenty of the company’s product to the schools.

On February 21, 2017, one SchoolFood employee emailed to schools: “Ask your managers to increase the amount of cases of Back to the Roots cereal they currently have in the ordering system so they will have enough in stock.” A week later, another manager noted in an email that she was “not seeing orders” for the cereal coming from schools. “Can menu management please send an email to let managers know they need to order?” she wrote.

As the big day approached, in emails discussing the forthcoming Times article, Goldstein said that data about the cost and usage of Back to the Roots didn’t need to be shared with that reporter—and indeed, price information was not in the article, which merely reported that the city “pays a little more for Back to the Roots cereals, but Mr. Goldstein said that is more than offset by their popularity among students, their organic ingredients and their lower sugar content.”

What was included in the Times article, however, was the fact that Sam Kass—a former assistant chef in the Obama White House and a leading figure in the healthy eating movement—had introduced Goldstein, an old friend, to Back to the Roots. Kass in April 2016 had become a partner with Campbell Soup in an investment fund called Acre Venture Partners. Acre in June of that year led a $10 million investment in Back to the Roots.

Do kids actually like it?

There might have been another issue with Back to the Roots cereal besides its cost.

Although school and company officials say students had chosen it over other brands in a blind taste test, a draft survey of school-site food supervisors this year contained multiple comments about how students disliked Back to the Roots.

“Back to the Roots cereal is NOT popular. Take off the snack menu,” was one response. “Back to the Roots Cereals are not a hit, it has been described as disgusting and tasteless by the students. Why is it on the menu twice a week?” was another. Those comments were removed from the final version of the survey distributed within the department.

A school food staff member says when a supervisor pushed for Back to the Roots to be listed on the menu, she mentioned that kids didn’t like it. She recalls: “He said, ‘They’ll learn to like it. Menu it.’”

Velez tells City Limits that what he has heard anecdotally from students and from SchoolFood officials is that the cereal is popular. “The taste test there is a grueling process. It takes about two years. We just stuck it out,” he says. He had been told that the products score well under the city’s internal rating system. “We heard that [rating] was really good, too—especially the purple corn flakes.”

Whether the students liked it or not, Back to the Roots’ success in getting on to New York City school menus came ahead of bigger wins for the company.

Even before the big New York push, Back to the Roots was already in schools in Pasadena, San Jose and Phoenix and being offered via the Sodexo school-food network and in Whole Foods. But now the company has truly hit the big time.

This August, the founders signed a deal with Nature’s Path that will, according to Business Insider, “allow North America’s largest organic cereal brand to manufacture and distribute the startup’s organic cereal all around the U.S.” An industry news site, Sustainable Brands, said Nature’s Path would take over Back to the Roots’ “supply chain, manufacturing and distribution.”

Also this summer, the firm received a $4 million investment to expand its growing kits into Target and Costco stores as part of a partnership with Miracle-Gro.

In the coverage of all those moves, the cereals’ presence in New York City schools always gets prominent mention.

The Back to the Roots founders don’t characterize their debut in New York as a milestone in the tremendous progress they’ve seen. It was, Arora says, just “part of the journey.” He and Velez believe their cereal belongs on every school cafeteria table. “The opportunity to teach and kind of get kids palates to less sugar is a tremendous one and one that can have such ripple effects across the board,” Velez says.

Early indications are that, this school year, Back to the Roots will have a lower profile on New York school menus. According to information received by City Limits, the volume of orders placed in July and August of this year for the cereals was 65 percent lower than over the same period in 2017.

DOE refused to answer by press time questions about the Back to the Roots promotion or the cereal’s popularity.

Norm Scott on the UFT Contract 2018: Vote "No"

NYC Chancellor Richard Carranza, NYC Mayor Bill de Blasio, and UFT President Michael Mulgrew

Norm Scott's blog is a wealth of knowledge on UFT business, and his opinion on the new contract is below:

EVERYTHING BUT THE KITCHEN SINK ON WHY YOU SHOULD OPPOSE THE UFT CONTRACT (25 BULLETS)

I sent these 25 bullet points to Diane Ravitch as a response to Arthur Goldstein's pro contract piece.
Update: Arthur is a decent guy and an excellent chapter leader. We just disagree politically on the contract.
This is everything you could want and more on why the contract should be voted down.
My wife's ballot.

25 BULLET POINTS ON WHY UFT MEMBERS SHOULD VOTE NO ONTHE PROPOSED UFT CONTRACT

On October 11 the UFT and the City-Department of Education reached agreement on a new 43 month contract. The UFT’s Delegate Assembly sent it to the schools for ratification votes. Those of us in opposition have no way of countering the UFT’s huge spin machine but here are 25 reasons to oppose the proposed contract. If there is a fair debate, I am confident we would easily win and the contract would be voted down but don’t hold your breath waiting to see any of these criticisms in the union’s newspaper or the mainstream press.

Salary increases don’t keep pace with expected inflation.

2% on February 14, 2019,

0% on February 14, 2020

2.5% on May 14, 2020,

3% on May 14 2021,

0% on May 14, 2022.

Contract doesn’t end until September 13, 2022. That is 7.5% over 43 months. It is 7.7% compounded but if we look at the expected inflation rate for four years from the International Monetary Fund, U.S. Inflation is expected to increase at an average rate of 2.2% a year through 2022. Our raises are spread out so they won’t make 2.2% annually. If we agree to this contract, we are expected to take a de facto pay cut.

  UFT Propaganda only counts inflation through 2021 when trying to sell the deal as if it were a three-year agreement but the contract extends through almost ¾ of 2022. Why doesn’t the UFT tell the truth about the salary increases most likely not beating inflation?

  The Cost of Living Adjustment for Social Security for 2019 is 2.8%?NYC is a very expensive city to live in. Can’t we even win a cost of living adjustment in our contract?

 The City of New York is swimming in cash. This year’s city surplus was $4.6 billion and there is an additional $4.4 billion squirreled away in the retiree health benefits trust. The NYC economy has never been stronger. Growth is at 2.7% in the latest quarter. City investments are beating expectations. The city says this contract is costing them only $570 million plus the minimal cost of what they put aside for this round of municipal labor settlements. The city can afford much more for raises for its employees. I understand pattern bargaining (one municipal union settles on a raise and it sets a pattern that other unions are stuck with) and DC 37 set a pattern for municipal unions in June for these paltry raises. However, pattern bargaining is a tradition and not the law. The state law from PERB (Public Employees Relations Board) considers as part of their calculations if a union can’t reach an agreement with a government employer:“ b. the interests and welfare of the public and the financial ability of the public employer to pay;” The city has the ability to pay much more. It is in the interest of the public to have the best teachers in NYC. Yonkers teachers should not make tens of thousands dollars more than NYC teachers.

Healthcare givebacks are for all of us in this contract, not just new teachers. The Municipal Labor Committee agreed to huge healthcare savings in June. This is from the City Hall Website article on the new UFT contract: “The agreement will provide total health care savings of $1.1 billion through Fiscal Year 2021 and $1.9 billion of annual savings thereafter.” Putting new teachers on HIP managed care for their first year, which is a major contractual concession as our contract says the city has to offer us a choice of free health plans, will not save the city $1.1 billion or $1.9 billion annually after 2021 as the city will still be paying their health insurance. Where are the new $1.1 billion in healthcare savings ($600 million must recur annually) going to come from? They will come from all city workers just like when we agreed to this kind of deal in 2014 to settle a contract and then in 2016 we received emails saying Emergency Room copays would rise from $50 to $150 and Urgent Care copays in GHI would go from $15 to $50.

 

More to come like possibly tiered hospitals where we would have to pay more to go to certain facilities. The UFT is not being completely up front about our out of pocket costs probably rising. Why not? The letter from the city Office of Labor Relations will become part of the UFT Memorandum of Agreement. Even though the MLC negotiates healthcare for city employees, UFT members have the final say with our vote on whether to accept this huge concession as part of the contract.

Class size limits are not reduced at all by this contract and haven’t been lowered in half a century. The state passed a law in 2007 to settle a lawsuit so average class sizes in NYC schools had to be reduced by law to 20 in grades k-3, 23 in grades 4-8 and 25 in high school core classes. Back in 2005, the UFT contract called for a labor-management committee in Article 8L to use money from the lawsuit settlement for “a program for the reduction of class sizes at all levels.” Money is there from the State. It’s called Contracts for Excellence. Why do principals have discretion on how to use that C4E money and all we get in the new contract on class size is new labor-management committees on oversize classes who will meet before oversize class grievances go to arbitration. The last thing we need is more committees where full-time appointed union representatives can talk to their DOE friends, but teachers still have classes of 34 in high schools and exceptions the DOE can drive a truck through to go above 34. There are several labor-management committees in this agreement. Does the UFT want to represent us or be co-managers of the school system? I think we can conclude the answer is the latter.

Labor-Management committees on paperwork, curriculum, professional development, adequate instructional supplies, workloads and space are free to set new standards, thus basically rewriting the contract after it is ratified. As Marian Swerdlow noted in her critique of the Tentative Agreement for the Movement of Rank and File Educators (MORE), the committees are not limited in what they can change in these areas. This is directly from the MOA: “Nothing precludes the parties from agreeing to the addition of new System Wide Standards with respect to operational issues.” To make matters worse, only chapter leaders, not individual UFT members, will be able to file official complaints about operational standards not being adhered to.

Safety: It says in the MOA we have further rights on school safety but School Safety Plans still go into effect if don’t sign off on them. In prior times, a lack of a Chapter Leader or Parent Teachers Association President’s signature meant the principal had to negotiate on the plan. According to this new contract, all we are acknowledging by our signature is that the Chapter Leader participated in making the plan and has received a copy. That has no teeth.

Speaking of no teeth, what happens to administrators who violate the new no retaliation against UFT members for whistleblowing contractual clause? We already have Article 2 in the contract that prevents retaliation against us for engaging in union activities. Some of us with perfect records for many years ended up as Absent Teacher Reserves (teachers who don’t have a regular class but must instead be a substitute) because we exercised our union rights. Best UFT could do was to parachute members out of schools via transfer in many cases. People left behind just put their heads down so they won’t be the next person targeted. Nothing changes because we will have a new provision against retaliation for whistleblowing. Where is the sanction for an administrator for retaliating? That certainly could be inserted into a strong Chancellor’s Regulation which would become part of our contract via Article 20 (Matters not Covered). It’s not part of this deal. Put something in or no deal.

This contract did not fall from the sky. It must be seen in the context of prior contracts. The givebacks from the infamous 2005 contract(the next five bullets) remain in 2019. *

On Absent Teacher Reserves, the UFT said this was a temporary position back when we gave up in 2005 the right for teachers to be placed in a school in a district if excessed because of budget cuts and the choice of six schools on a wish list- and we were placed in one of them- if a school closed. We gave that up to allow principal discretion for hiring which created the ATR pool. As reported by City Limits, “Now, most agree that the ATR has led to more problematic consequences, and many teachers in the pool assert many of these consequences were in fact the intention all along.” That temporary situation will go to 17 years through 2022 if this contract passes. That’s a lifetime for HS seniors and a career for many of us. Why can’t the UFT just say no deal until the ATRs all have a position in a school of their choice?

On transfers, the open market system created in 2005 is a joke. It’s not what you know, it’s who you know. Why doesn’t the UFT even attempt to win back Seniority Transfers or the progressive SBO Transfer and Staffing Plan where a committee that had a majority of teachers and included parents did all of the hiring so at least there was a check on principal power?

 

Hiring is now principal patronage and that does not change in this contract. The bias against senior teachers being able to transfer continues as nothing in the new contract changes Fair Student Funding which makes principals average the cost of their teachers on their budgets so they are charged more to have a veteran staff.

Circular 6R (Professional Activity Assignments). Why didn’t the UFT get teachers out of lunchroom and hall duty in 2019? Instead, we gave principals the right to create more deans and lunchroom coordinators without our approval. That could increase class sizes right there as those new deans won’t be teaching for part or most of their day. How about some extra funding for those new deans?

Extended time: No changes on extended time which started in 2002, was lengthened in 2005 and was altered in 2014 to include 80 minutes of “Teacher Detention” on Mondays for endless professional development and 75 minutes on Tuesday for parent outreach and other professional work. Former UFT President Randi Weingarten pledged to get us “voice and choice” in how extended time was used. In too many schools that have difficult principals that choice has never come to pass.

Letters in the file. UFT members must wait three years to get an unfair/inaccurate letter removed from a personnel file. That is too long. Since there are these so called improvements in the grievance process in the new contract where the DOE is agreeing they will attempt to abide by the timelines that are already in the contract and are routinely ignored with no sanctions, why didn’t the UFT get an expedited process to have letters removed from our files quickly if they are inaccurate or unfair as we had before 2005? (Note that in 2002 the UFT gave arbitrators the authority to rewrite letters so the UFT had already weakened our rights on this subject.) What kind of union allows its members to be reprimanded and then tells them to go write a response and then wait three years? By then, a probationary teacher can easily have been terminated and never had recourse to a neutral person unless they go to court which can be quite expensive.

Paraprofessionals winning better due process is all well and good from their contract which is a totally separate contract from teachers. The UFT has many distinct bargaining units. What about paraprofessional pay? They too are receiving paltry salary increases so that the starting salary for paras will be $28,448 a year in 2021 in this contract. In NYC that is basically subsistence wages for paras. That is less than half of what a starting teacher makes. Another non-teacher chapter in the UFT isn’t catching up with teacher salaries either. Occupational-physical therapists are not anywhere near pay parity with teachers and these professionals have advanced degrees. That is an outrage that has not been addressed. In addition, guidance counselors, school secretaries and other non-teaching titles did not get an arbitration provision in their workload dispute complaint procedures so administrators are free to just pile on the work and the dispute is never heard by an outside neutral party. Most of the non-teacher UFT contracts are not any better than the teacher deal. Because the paras have better due process, it is no reason to say yes to the teacher or guidance counselor or any other of these UFT contracts.

A minimum of two observations for some teachers is a gain. It is better than this year’s minimum of four observations. However, it only impacts tenured people who are rated effective or highly effective the prior year or effective the past two years. The teachers who need relief are the people rated ineffective who will now have a minimum of one additional observation for a total of five and many of the probationary teachers who are drowning in work. Their observations remain unchanged at a minimum of four. How about a maximum number of observations like they have in Buffalo and many other districts in NYS? How about agreeing with the DOE to jointly go up to Albany to attempt to enact legislation to rid New York of the wholestupid evaluation system where teachers are rated based on scores on invalid-unreliable student assessments and classroom observations from the awful cookie cutter Danielson Framework?

The UFT now wants to continue mayoral control of the schools. This is a quote from Michael Mulgrew from the press conference announcing the deal: “Given the importance of the issues and the long-term initiatives that are part of this contract, the UFT is calling for the continuation of mayoral control as the governance structure for New York City public schools.” Mayoral control is linked to this contract. Here’s what contract supporter Arthur Goldstein said about mayoral control of NYC schools in 2015, “…mayoral control, in the long-run, it's a disaster for democracy, for New York City, and for 1.1 million schoolchildren.” He had that right. The closing schools, ignoring the voice of parents and communities, the constant reshuffling of the bureaucracy, the 300 DOE lawyers from the Bloomberg days who are still around to do everything to destroy teachers, etc. will continue.

Psychological testing for new teachers: Why would the UFT agree to invalid- unreliable psychological testing for new employees? It’s more money wasted that will not go to the classroom. Becoming state certified to teach is difficult enough.

A+ differentials: Why is the UFT saying new teachers must take courses the UFT and DOE design instead of college courses for much of the final pay differential (30 credits beyond the Masters)? Isn’t that just a way to make more money for both the UFT and DOE from our lowest paid teachers? We need to diminish, not increase the bureaucratic DOE-UFT patronage gravy train.

Where is paid family leave? We got 0% raises for an additional 2.5 months in the current contract. In exchange, all we obtain is unpaid DOE leave for new parents and the UFT Welfare Fund agrees to pay them their salary for up to six weeks but they cannot even guarantee it will be at 100% pay. What about paid time to take care of sick relatives? UUP (SUNY Teachers) won that benefit as part of their new contract earlier this year.

How is extra money for these titles not discredited merit pay?
-Teacher Development Facilitator
-Teacher Team Leader
-Master Teacher
-Model teacher
-Peer Collaborative Teacher

Put these 1,500 teachers in the classroom fulltime and we could actually lower class sizes a little.

How is it helpful at all for the UFT to set up a two-tiered pay structure? This seems antithetical to trade unionism. By agreeing to the Bronx Plan as well as the merit pay scheme described above, the UFT says it’s okay to pay more for certain schools and certain teachers. Here is how CUNY Professor David Bloomfield reacted on his Twitter page to the differentiation of teacher salaries.

David Bloomfield‏ @BloomfieldDavid Oct 11

 Historic teacher contract line is crossed by @UFT on differential pay, allowing higher salaries for some teachers over others. What further differentials might be engineered? More for STEM teachers than humanities teachers, etc.? Distance learning is another step in the wrong direction. Having teachers lead classes of students not in front of them is a bad idea. Let’s go to David Bloomfield again. This time from City Limits: “Increased distance learning poses an existential threat to teacher jobs and is of dubious instructional worth.”

Why settle the contract four months early? The only reason to have an early contract is if it is a great contract. Certainly, a contract that has raises that are not projected to keep up with inflation, has huge healthcare concessions for all of us and gets us back none of the huge givebacks from 2005 cannot be agreed to unless we have to settle for it after losing a fight. If a union asks for very little, that union will get very little; no guarantee but if you fight for more, you may win more. We’ll never know what we could obtain, however, unless the unlikely happens and a majority vote NO!

A majority voted no on a proposed new UFT contract in 1995. UFT leadership predicted layoffs and other dire consequences that never happened. Instead, a few months later the city and UFT negotiated a better deal where new teachers weren’t forced to withhold 5% of their pay until they survived four years in the system, longevities went from 25 years to 22 years and there was a generous retirement incentive thrown in that was not in the deal that we rejected.

PS Why is the UFT taking union dues when the city pays us back the huge interest free loan we gave to the city in the last contract that is being repaid in five installments in 2015, 2017, 2018, 2019 and 2020? Before the 2014 contract, the UFT never double dipped by taking dues twice. We paid dues on this money during the original pay periods.   

There is one exception on 2005 givebacks. The one concession that was taken out of the contract was having school for the final two weekdays before Labor Day for professional development. That has been changed. Getting those two days back in summer vacation cost us the guaranteed 8.25% interest on the fixed TDA that our supervisors and CUNY teachers still have. UFT members since 2009 get 7%. The city gained $2 billion from that deal so I would not exactly call it a takeback of the giveback.