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:

Teachers in NYC Rubber Rooms Are Now Scattered So That The NYC Board of Education Can Hide The Harm and Retaliation

In 2014 I wrote about the new rubber rooms' and the rules:

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

betsy.combier@gmail.com

Editor, ADVOCATZ.com

Editor, ADVOCATZ Blog

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 

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

By Susan Edelman, NY POST, August 15, 2020

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.”

Why The NYC DOE and UFT/NYSUT Cannot Say They Protect Tenure Rights

On December 8, 2016, I wrote and posted on this blog my comments on the Thomas Fordham Institute's article called

"Undue Process: Why Bad Teachers in 
Twenty-Five Diverse Districts Rarely Get Fired"

I thought it was time to update my thoughts, considering the number of fake facts inside the Department of Education about everything (i.e., two teachers in every ICT classroom, extensive accommodations for all children who have special needs, a nurse in every school, District 79 + vocational education is not racist, etc.).

The lie which I will continue to comment on is the statement that it is very hard to terminate a teacher. This is bulloney, at least in NYC 3020-a arbitration under the current so-called "rules" and procedures and determination of probable cause. The NYC DOE and the UFT/NYSUT have spent many years making roads around the law, rules, and regulations at both the State and Federal level so that anyone can be accused and found guilty of anything, very easily.

What I do and have done for all these years, is look at the charging process before a hearing or arbitration begins - as well as after. Education Law 3020-a has a specific process with details in Section (2)(a) for determining probable cause. The NY State legislature voted on this vote in Executive Session by the Panel For Educational Policy to determine probable cause in order to protect educators from easily being terminated simply because a principal or Superintendent wanted to get rid of this person. This is the tenure law protection. Mayor Mike Bloomberg and others in power at the start of his reign in 2002 didn't like this public policy. But rather than make a visible attempt to scrub this due process clause, which could backfire against them, Mike and his colleagues - including the Department of Education and the UFT - silently and in total secrecy (they thought) wrote the Department of Justice that they were taking the vote away from the PEP because Black and Brown parents and voters never voted in school board elections, anyway. I called Mr. Rich at the DOJ and wrote about my objections. I don't know how many other people did this.

I continue to object in the 3020-a hearings at the pre-hearing which by law must occur before any testimony is heard by witnesses. I say that if the process of charging an educator/employee does not have a valid, lawful determination of probable cause, then no arbitrator has subject matter jurisdiction to hear a case.

If a person is charged with a false event made up by someone with malice and then a hearing officer who does not have subject matter jurisdiction is able to make any ruling or decisions and can be "influenced" to overlook 'relevant' and material facts, witness testimony and evidence, in order to reach a pre-determined result.

In NYC the arbitrators are hired by the Department of Education and NYSUT, New York State United Teachers (lawyers who are on contract to provide free legal services to UFT members). Once hired for either an incompetency or a misconduct panel, an arbitrator is supposed to hear a case 5 days a month and is paid $1400/day. This is a lucrative deal, and the fix is in.

I argue for a change to the charging process, from allegation to pre-hearing conference, including permitting the UFT member to participate in the hiring of the arbitrator for his/her case.

Betsy Combier

betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
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

My post on this blog in 2016:

FAKE NEWS: Undue Process

The Thomas Fordham Institute likes fake news, commonly known for years as yellow journalism. I believe that reports like Undue Process are dangerous because the writing reflects anti-tenure political thinking that is based upon numbers. Its always about money. If an employee has tenure, then he/she has, most often than not, spent more years in the public school system than someone who has probationary status. This means that the tenured employee has a higher salary and a higher pension. That's what the anti-tenure policies are hoping to stop.

People are not numbers!!

I have to admit that I laughed when I saw the title and subtitle,
"Why Bad Teachers in Twenty-Five Diverse Districts Rarely Get Fired".

So whose "undue process" are the authors talking about? Are they saying that teachers do not have due process if twenty-five diverse districts can't fire those who are "bad"? Whose defining the word "bad", and what evidence do they have? If a principal doesn't like a teacher for some random - or, in too many cases, for a discriminatory reason that they are Black, women, Jewish or disabled - reason, this principal can observe this teacher and conclude out of thin air that he/she is "bad" or "ineffective" and put them in a 3020-a hearing for so-called "incompetency". This is a word defined solely on the subjective opinions of an administrator focused on terminating the targeted teacher, and the process almost always is successful. I would say that 95% of teachers or staff charged with "incompetency" are terminated, and I can say this because I have been participating in 3020-a arbitration as an advocate for an accused tenured employee for than 17 years.

If I believed that 3020-a arbitration is always a lost cause, I would not have spent all these years doing my best to win my clients the right to continue their employment. There is a formula for winning these hearings after charges of incompetency are served on the tenured educator. This formula involves investigating the backstory of all witnesses testifying for the Department, and finding whatever facts can be used to uncredibilize (my word - means "make not credible") his/her testimony.

Anyway, the title at least started me reading further, so I guess it made the point.

The danger is their writing spurs on policymakers who know that bad news travels far and sells widely. The public likes to hear what we as a society are doing, and how terrible tenured teachers are. Alarmingly, most of the time the people they are describing as "bad" are not bad at all.

What the heck is the best definition of "bad"? It's an adjective and a subjective opinion of something or someone. I might believe that someone is "bad" if I see this person with my own eyes harm another person, animal, bird, or any living creature, for no reason. Otherwise, an investigation is called for that satisfies my standard of proof. We all have our own standard which we do not always acknowledge (see implicit bias), and sometimes this leads to prejudice when we have a lower standard of proof for someone or some group based upon general characteristics such as race, religion, gender, disability, nationality, etc. We must all watch for that. All individuals are unique and should be treated as such.

But getting to know someone who is charged with something is hard to do because, by the time the person is charged, there is little time to figure out what the real facts are. But you gotta do the research. Truly listening to someone tell you his/her life story, what happened in their career, who the bad guys are, etc., all involve first: interest; and second: time. Then you put a whole lot of caring into the mix.

Many are terminated at 3020-a simply because they are not defended adequately by their NYSUT or private lawyer or team (I am not a lawyer, but work on 3020-as as a paralegal, which is permitted in arbitration. Working with attorneys for most cases, I have won about 60 3020-a arbitrations, and 45 Article 75 appeals). I might as well say that I think the team I have assembled for doing 3020-a cases is the best, and my background information and closing arguments are untouchable by any private lawyer. This is my opinion and this is my blog, so live with it. We care.

Also, if you are disabled and/or do not speak English well, you can be terminated, unless you have proper defenses. Of course, the charges against your language and disability are covered up by other allegations, but you can dig up the real reason for being charged, and must do so, in my opinion. The whole scenario of one arbitrator judging you by seeing you in a small room for 1 - 10 days, or the length of the hearing, is absurd. The arbitrators are chosen by the UFT and the DOE but are not neutral. Some are more able to hear facts than others, but there is always an implicit bias.

Nonetheless, 3020-a is winnable if the defense is strong. And, the defenders must know what to do. Unfortunately, not many people are interested in spending 20-30 hours listening and researching a person's life in order to find solutions to problems that are disrupting that life. We do that.

There is a national goal right now to take away job protections for teachers, because if they continue to get tenure, supposedly, our children in public schools will continue to suffer.

Not.

In New York State, tenure is public policy.

Why? Because our state legislators know that children need stability. When a teacher is in a classroom, the first thing that must be established is some kind of trust. The children need to know that they are safe, and the person keeping them safe is their teacher. Children, especially in elementary grades, need to know that their teacher will be there when they arrive at school.

As noted by New York's Court of Appeals in Ricca v. Board of Ed. of the City Sch. Dist, 47 N.Y.2d 385, 418 N.Y.S.2d 345 (1979):

"The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles. ... Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure."

Public policy is also to give immunity to all judges in the Courts. Same as teacher tenure, except that for judges, there really is no way to get them removed for being "bad" unless some high-powered politician or prosecutor decides to do it.

When I write the closing argument for a 3020-a I always strenuously argue for public policy and tenure protections because each and every case is a mix of truth and lies created to end the career of a tenured person - an individual with a family, a house, a career. Bills. Mortgages. Medical needs.

That is why every case is unique and deserves to be studied and every memo, letter, email, piece of information should be integrated into the record. 3020-a arbitration is, in my 17-year experience, a war against the destruction of tenure rights. Despite my being involved in about 60 cases since 2003, every case is different and must be looked at as if all the parts are new. Every Respondent, or charged DOE employee, is different. No two people bring to the 3020-a the same case, because no two people are alike.

The general public loves hearing about how and when corrupt politicians get arrested for hurting the very same community members who put them into office. Public corruption is everywhere.

How does corruption and fraud in public office get to be so pervasive? One reason, of course, is that sheep people, or sheeple, believe the fake news that the politician spews out in order to win votes. My mom watched ABC News, and that was The Truth of the matter. I tried to convince her that truth may not be what she was seeing, but my efforts were in vain. Strange, because my dad was a fact person, he was Assistant Attorney General for the State of New York under Louis Lefkowitz, 20+ years.

Why people believe certain things and not others, or certain individuals and not others, is way beyond my pay grade. All I'm saying is that I do not believe anything until is see the facts first hand. I love the internet, but I sift facts out and it is time-consuming. This must be done, or find a source that you trust, and stay with it.

For all these reasons, Undue Process is fake news, but even the authors gave a crumb of truth, as seen in a NY POST article:
"It’s basically impossible to fire a New York City school teacher""While decrying needless bureaucratic delays that allow inept instructors to remain in front of students, Griffith stressed that the overwhelming number of city teachers are diligent and effective.

“We’re not talking about,” he said. “We’re not saying most teachers are ineffective. They very hard and are doing a good job on the whole. We’re talking about 2 to 4 percent who are demonstrably ineffective.”

Betsy Combier
betsy.combier@gmail.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

UFT Members Demand That UFT President Michael Mulgrew Represent Them Properly and Not Promote Secret Changes To The Contract

The coronavirus has added another historical moment to UFT activism. 


NYC teachers are seeing the disaster that collective bargaining by President Michael Mulgrew and other top people at the teachers' union has brought to effective representation and members' rights. The UFT is, it seems from their actions in the past decade, too politicized to follow their own principles. New lawsuits are popping up in Federal Court citing the collaboration of the Department of Education AND the UFT in pursuing harm to members - or at least playing along to get along.

UFT members are not blind to the lack of support the rank and file get when a problem arises such as workplace injury, discrimination, false charges of incompetency, or misconduct. At least most who have had, or continue to have, a problem in his or her workplace have been frustrated by the lack of fair representation at hearings or getting relief.

UFT Secretary and Staff Director Leroy Barr

Two recent cases show what I mean. In one case: a probationary paraprofessional who worked without any disciplinary actions for 18 years, suddenly was accused of swinging a small boy - whose para left him for a moment - in the air and yelling at him. He has autism. One person described this alleged "event" to the principal, and the paraprofessional was discontinued. She filed for arbitration with ADCOM and was shocked when she received the decision, written by Staff Director Leroy Barr who was not at the hearing yet cited her "confession" as stated in the principal's testimony, not the paraprofessional's own testimony, to dismiss her case and deny her the arbitration she requested. 

Tenured members also get shoddy treatment. Tenure is created to protect the rights of teachers to due process and to fight the whims of false claims, and this is something that the UFT is denying members. I know many UFT members who are assaulted by violent students in their classrooms and are denied LODI (line of duty injury) relief by their principals or are told to not go back to their schools and then charged for not stopping the violence, and sent to a 3020-a hearing to be terminated. 

Where is the UFT in this absurdity? 

JANUS V AFCME also made a dent in the all-powerful pocketbook of the UFT as well as other Unions, albeit minor, so far.

Over the last couple of months, members have been demanding the UFT make the Department provide guaranteed safety measures in the fall so that they can go back to in-person teaching without worrying they are going to die. What does the UFT leadership do, but alter the contract without the rank and file voting on the changes! This is what UFT member Michael Flanagan, Ed.D., UFT Chapter Leader, District 10 the Bronx writes, re-posted below.

We hear you, loud and clear.

Betsy Combier

betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
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 

Dear UFT President, Represent Your Members by Dr. Michael Flanagan

                                                              August 6, 2020

Dear UFT President Michael Mulgrew, 

I am a 34-year member of the United Federation of Teachers. This morning I received an email from you informing me—and the other 77,000 or so UFT members—that you unilaterally agreed to drastic changes of our working conditions. Those working conditions were voted on by the rank and file members of the union that you were elected to represent. They cannot be changed by you or by the city without another rank and file vote by the members. That has not occurred.

I represent 110 staff members in a school, and I need to protect those members’ rights, from a disease, from a Mayor who is willing to send us back into harm’s way and now, apparently, from my own union. And I will do so.

I am linking our current, legally enforceable UFT contract, for your review. I am also including the email you sent this morning entitled “Your Work Day If School Buildings Reopen”

It is interesting to note, that these very same revisions that you agreed to, were sent out to principals by the Chancellor’s office a week ago, I am linking the video of the Chancellor’s Presentation to the principals, dated July 30th. I was presented with these revisions by my own principal two days ago.

Why is it we, your union members, only hear from you today?

When did these negotiations take place? Who was on those committees? Why were none of these new conditions brought to your members for a vote? Why did the principals know about this a week before your members?

As UFT President you do not have the right to change our contract without a vote by your members. If we are forced to work under these conditions, we will be forced to resist.

With or without you.

Many will claim that teachers in New York City cannot strike, because of the Taylor Law. Well under the Tri-Borough Amendment of the Taylor Law, if our contract expires, we continue to work under the conditions of that expired contract until a new one is approved by the union’s membership. The City of New York will be violating our contract’s working conditions if these “agreed” upon changes go into effect. UFT members will have no choice but to engage in job actions. They may include any and all of the following:

1. Working to the letter of our CURRENT CONTRACT

2. ALL of the UFT members working remotely, and none of us showing up in the physical buildings

3. Mass sickouts

4. A strike

5. Class action lawsuits against the NYCDOE and The UFT for contract violations

If we strike under the Taylor law, we will lose two days' pay for every one day we are out of work. Our union will be fined one million dollars a day, and the union leaders will be arrested.

Due to the health risk of the Coronavirus pandemic, many union members are prepared for that. More will be, the closer we get to the reopening of school.

There is also the unfortunate option, of union members defunding the union, until we get real representation during this crisis. Under the Janus decision, we are all VOLUNTARILY paying union dues. If we are not represented by our leadership, then we have no leadership.

I would urge you to reconsider your email today and this “agreement” you entered without the voice or consent of your union members.

Put these proposed changes TO A VOTE. Now.

Represent your members.

Sincerely,

Michael Flanagan, Ed.D.
UFT Chapter Leader, District 10 the Bronx.

Arizona Superintendent Jeff Gregorich Speaks Out on His Angst Concerning Safely Reopening Schools

Arizona Superintendent Jeff Gregorich

‘I’m sorry, but it’s a fantasy’
Washington Post, August 1, 2020

“This is my choice, but I’m starting to wish that it wasn’t. I don’t feel qualified. I’ve been a superintendent for 20 years, so I guess I should be used to making decisions, but I keep getting lost in my head. I’ll be in my office looking at a blank computer screen, and then all of a sudden I realize a whole hour’s gone by. I’m worried. I’m worried about everything. Each possibility I come up with is a bad one.

The governor has told us we have to open our schools to students on August 17th, or else we miss out on five percent of our funding. I run a high-needs district in the middle-of-nowhere Arizona. We’re 90 percent Hispanic and more than 90 percent free-and-reduced lunch. These kids need every dollar we can get. But COVID is spreading all over this area and hitting my staff, and now it feels like there’s a gun to my head. I already lost one teacher to this virus. Do I risk opening back up even if it’s going to cost us more lives? Or do we run school remotely and end up depriving these kids?

Jeff Gregorich, superintendent of schools at Hayden Winkelman Unified School 
District in Arizona, shows results of a district survey.
(Photos by Caitlin O’Hara for The Washington Post)

This is your classic one-horse town. Picture John Wayne riding through cactuses and all that. I’m superintendent, high school principal, and sometimes the basketball referee during recess. This is a skeleton staff, and we pay an average salary of about 40,000 a year. I’ve got nothing to cut. We’re buying new programs for virtual learning and trying to get hotspots and iPads for all our kids. Five percent of our budget is hundreds of thousands of dollars. Where’s that going to come from? I might lose teaching positions or basic curriculum unless we somehow get up and running.

I’ve been in the building every day, sanitizing doors and measuring out space in classrooms. We still haven’t received our order of Plexiglas barriers, so we’re cutting up shower curtains and trying to make do with that. It’s one obstacle after the next. Just last week I found out we had another staff member who tested positive, so I went through the guidance from OSHA and the CDC and tried to figure out the protocols. I’m not an expert at any of this, but I did my best with the contact tracing. I called 10 people on staff and told them they’d had a possible exposure. I arranged separate cars and got us all to the testing site. Some of my staff members were crying. They’ve seen what can happen, and they’re coming to me with questions I can’t always answer. “Does my whole family need to get tested?” “How long do I have to quarantine?” “What if this virus hits me like it did Mrs. Byrd?”

We got back two of those tests already — both positive. We’re still waiting on eight more. That makes 11 percent of my staff that’s gotten COVID, and we haven’t had a single student in our buildings since March. Part of our facility is closed down for decontamination, but we don’t have anyone left to decontaminate it unless I want to put on my hazmat suit and go in there. We’ve seen the impacts of this virus on our maintenance department, on transportation, on foodservice, on faculty. It’s like this district is shutting down case by case. I don’t understand how anyone could expect us to reopen the building this month in a way that feels safe. It’s like they’re telling us: “Okay. Summer’s over. It’s been long enough. Time to get back to normal.” But since when has this virus operated on our schedule?

I dream about going back to normal. I’d love to be open. These kids are hurting right now. I don’t need a politician to tell me that. We only have 300 students in this district, and they’re like family. My wife is a teacher here, and we had four kids go through these schools. I know whose parents are laid off from the copper mine and who doesn’t have enough to eat. We delivered breakfast and lunches this summer, and we gave out more meals each day than we have students. I get phone calls from families dealing with poverty issues, depression, loneliness, boredom. Some of these kids are out in the wilderness right now, and school is the best place for them. We all agree on that. But every time I start to play out what that looks like on August 17th, I get sick to my stomach. More than a quarter of our students live with grandparents. These kids could very easily catch this virus, spread it, and bring it back home. It’s not safe. There’s no way it can be safe.

If you think anything else, I’m sorry, but it’s a fantasy. Kids will get sick, or worse. Family members will die. Teachers will die.

Mrs. Byrd did everything right. She followed all the protocols. If there’s such a thing as a safe, controlled environment inside a classroom during a pandemic, that was it. We had three teachers sharing a room so they could teach a virtual summer school. They were so careful. This was back in June when cases here were starting to spike. The kids were at home, but the teachers wanted to be together in the classroom so they could team up on the new technology. I thought that was a good idea. It’s a big room. They could watch and learn from each other. Mrs. Byrd was a master teacher. She’d been here since 1982, and she was always coming up with creative ideas. They delivered care packages to the elementary students so they could sprout beans for something hands-on at home, and then the teachers all took turns in front of the camera. All three of them wore masks. They checked their temperatures. They taught on their own devices and didn’t share anything, not even a pencil.

At first, she thought it was a sinus infection. That’s what the doctor told her, but it kept getting worse. I got a call that she’d been rushed to the hospital. Her oxygen was low, and they put her on a ventilator pretty much right away. The other two teachers started feeling sick the same weekend, so they went to get tested. They both had it bad for the next month. Mrs. Byrd’s husband got it and was hospitalized. Her brother got it and passed away. Mrs. Byrd fought for a few weeks until she couldn’t anymore.

I’ve gone over it in my head a thousand times. What precautions did we miss? What more could I have done? I don’t have an answer. These were three responsible adults in an otherwise empty classroom, and they worked hard to protect each other. We still couldn’t control it. That’s what scares me.

We got the whole staff together for grief counseling. We did it virtually, over Zoom. There’s sadness, and it’s also so much fear. My wife is one of our teachers in the primary grade, and she has asthma. She was explaining to me how every kid who sees her automatically gives her a hug. They arrive in the morning — hug. Leave for recess — hug. Lunch — hug. Locker — hug. That’s all day. Even if we do everything perfectly, germs are going to spread inside a school. We share the same space. We share the same air.

A bunch of our teachers have told me they will put in for retirement if we open up this month. They’re saying: “Please don’t make us go back. This is crazy. We’re putting the whole community at risk.”

They’re right. I agree with them 100 percent. Teachers don’t feel safe. Most parents said in a survey that they’re “very concerned” about sending their kids back to school. So why are we getting bullied into opening? This district isn’t ready to open. I can’t have more people getting sick. Why are they threatening our funding? I keep waiting for someone higher up to take this decision out of my hands and come to their senses. I’m waiting for real leadership, but maybe it’s not going to happen.

It’s me. It’s the biggest decision of my career, and the one part I’m certain about is it’s going to hurt either way.”

NYS Association of School Attorneys Answers COVID-19 Questions Related To The Reopening of Schools

Outside of New York City, there are several large law firms that are hired by school districts to prosecute employee wrong-doing or defend employees of schools who are sued in their official capacity. Guercio & Guercio is one of those firms.

I am re-posting below the latest post on the NYS Association of School Attorneys on reopening schools written by Erin O’Grady-Parent and Stephanie Denzel of Guercio & Guercio, LLP.

They are not talking about NY City, but it seems that the NYC Mayor and Chancellor (Bill de Blasio and Richard Carranza, pictured above) are not willing or able to answer all questions parents and employees have about the post-COVID measures that all stakeholders want.

Betsy Combier

betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
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 

As we await state guidance, answers to questions on health screening and other reopening protocols

While the COVID-19 pandemic continues to make many aspects of the future uncertain, school leaders across the state are thinking about the fall. Assuming schools reopen, what kinds of health screening and health monitoring should be used for both students and employees? While school districts and BOCES await specific guidance from the governor and State Education Department (SED), there is a body of law that sets some basic parameters. As new guidance is frequently being issued by both state and federal authorities, you should consult with your school attorney before implementing any plans.

May schools routinely take the temperature of employees and/or ask employees if they are experiencing any symptoms associated with COVID-19?
Routine temperature checks and symptom screening appear permissible while COVID-19 is a threat in your community. Typically, employers are restricted under the Americans with Disabilities Act (ADA) from asking employees about medical conditions or taking temperatures unless the employer has objective evidence of a medical condition that may impair the employee’s performance of essential functions or poses a direct threat to the employee or others. However, guidance issued by the Equal Employment Opportunity Commission (EEOC) in May stated that the community spread of COVID-19 provides the objective evidence an employer needs to consider the potential for infection to be a direct threat to others.

Regular screening should be conducted consistently, for all like employees, on a non-discriminatory basis. Districts should determine the criteria for exclusion or further assessment of an employee prior to conducting screenings. Any screening practices, including reliance on a list of relevant symptoms, should align with current medical guidance from public health authorities. Districts should continually monitor public health guidance regarding the spread of COVID-19 and take the recommended precautionary measures to address what would be considered a “direct threat.”

Must districts keep records of employee screenings?
This is a local decision, provided that districts ensure compliance with any directives issued by state and local governmental agencies. Districts will need to decide whether they will keep records on employee screening or monitoring results, the nature of those records and how they will be stored. Records resulting from employee screening that are identifiable to the employee are confidential health and medical records, and employers must store such records separately from other personnel files. If a district wishes to create a single screening record for multiple employees, the district should ensure such record is maintained in a manner that prevents any individual employee from accessing anything other than their own information.

What information can an employer request from an employee who is displaying symptoms or has been out sick?
The EEOC has confirmed that employers may ask employees whether they are experiencing COVID-19 related symptoms. Districts are advised to consult the terms of any applicable collective bargaining agreement (CBA) which may limit the circumstances under which an employee can be required to produce a doctor’s note. In addition, the presence of a direct threat of COVID-19 would make it appropriate to require a medical exam for any employee displaying symptoms of COVID-19 to determine the employee’s fitness for work.

What accommodations must employers make for employees upon reopening?
The U.S. Centers for Disease Control and Prevention (CDC) has identified a number of medical conditions that may place individuals at higher risk for serious illness if they contract COVID-19. Some of those medical conditions also may be disabilities under the ADA and Section 504 of the Rehabilitation Act (Section 504). Employees may seek accommodations that may or may not involve modifications of established screening and precautionary measures. If an employee requests accommodations due to a high-risk condition or disability, the district should follow normal ADA procedures and engage in the interactive process to identify potential accommodations.

Under the ADA, an employer does not have to provide a reasonable accommodation if it poses an “undue hardship” which has been interpreted to mean significant difficulty or expense. The EEOC has acknowledged that, in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. Additionally, accommodations that may be feasible if the district provides some or all of its instruction remotely may not be feasible once a district returns to full or partial in-person instruction. Therefore, the interactive process for employees requiring accommodations, including those with accommodations pre-dating COVID-19, may need to be repeated as the district’s operating plans change. In instances involving accommodation requests due to the pandemic, it is recommended that districts consult their school attorneys.

What if an employer is concerned about an employee at high risk from COVID-19, but that employee has not made a request for accommodations?
In planning for reopening, employers need to be mindful that they must adhere to the non-discrimination provisions of state and federal laws including the Age Discrimination in Employment Act (ADEA), ADA, and Section 504. While an employer may ask its employees if they anticipate requiring accommodations when schools reopen, employers may not ask about the existence of high-risk conditions or disabilities. Nor should an employer unilaterally impose differing rules for employees based on the employer’s concern about their high-risk status or work availability, such as by assigning all employees over a certain age or with medical conditions to work from home. If a district has concerns about the health and safety of an individual employee who has not requested accommodation, it is recommended that the district consult its school attorney to discuss its options.

What if an employee does not want to return because a household member is at higher risk or they are unable to find childcare?
An employee seeking accommodations because a member of their household is high risk or because of childcare concerns is not entitled to accommodations under the ADA or Section 504. However, the employee remains entitled to any applicable state and federal non-discrimination provisions related to caregiving or family status and association with a person with a disability. Further, such an employee may be entitled to leave under the Family Medical Leave Act (FMLA), the extended paid leave provisions of the Families First Coronavirus Response Act (FFCRA), or existing district policy or applicable CBA. At this time, the provisions of the FFCRA remain in effect until December 31, 2020.

May schools routinely take the temperatures of students and/or ask them if they are experiencing any symptoms associated with COVID-19?
SED guidance issued earlier this year suggested that districts would not be expected to screen students. As of the writing of this article, the state had not issued any updated recommendations for temperature-taking or health screening of students. However, there is no law or regulation specifically forbidding such action.

If screening takes place, the district will have to decide whether it will keep records and the content of those records. If records are created that (1) are identifiable to one or more individual students, and (2) become educational records of those students, they are protected by the Family Educational Rights and Privacy Act (FERPA). If records identifiable to one or more students are stored or transmitted electronically, they are subject to the data privacy protections of Education Law section 2-d.

Who can take students’ temperatures or perform health screenings for students?
January 2019 guidance issued by SED advised that trained, unlicensed personnel may monitor and record the vital signs of students, including a student’s temperature, if approved by the school nurse or medical director. Districts are advised to involve their medical directors or school nurses in the development of reopening plans to discuss any training or approval requirements for staff who will conduct screenings. Districts also need to remain mindful of potential labor issues, including potential out-of-title work, and/or the duty to bargain when contemplating the use of various staff to perform screenings. Districts are advised to consult their school attorneys with respect to these issues.

When can a district exclude a student and what can a district require from the student upon return?
Education Law section 906 permits districts to exclude students who show symptoms of communicable or infectious diseases. The evaluation and exclusion of a student must be done by the medical director, school nurse, or other health professional. Following any student absence, the school may require a student to present a note from a doctor or health professional. A medical director may examine any student not providing such a note. Districts should ensure that existing policies are consistent with any reopening plans. Districts should also plan for continuity of instruction for students who must be excluded due to symptoms of COVID-19 or mandatory or precautionary quarantine. As with plans for distance learning, specific attention may have to be given to students with additional needs, including students with disabilities or English language learners.

Must the district accommodate a student whose parents do not want the student to attend school in person?
To date, the state has not provided any guidance suggesting that parents will have the choice to reject in-person instruction, should it be available, and students remain subject to compulsory education laws. If a district reopens for full or partial instruction in person, students would be required to attend any scheduled in-person instruction unless:
The absence was excused.
The student required an accommodation or homebound instruction.
The district’s reopening plan allowed parents to make a choice between in-person or online instruction (assuming such an option is consistent with any forthcoming state guidance).

Parents who do not wish to send their children to school in person may elect to homeschool their children. If parents do so, and their child is eligible for special education services, districts should be aware that the June 1 deadline for requesting special education instruction under Education Law section 3602-c has passed. However, the governor could open a new window for requests for homeschooling by issuing an executive order that sets a new deadline; he has issued 43 executive orders since March 7.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Erin O’Grady-Parent and Stephanie Denzel of Guercio & Guercio, LLP