Education Eminent Domain: Bloomberg's School Land Grab

Eminent domain, according to Wikipedia:
"Eminent domain (United States), compulsory purchase (United Kingdom, New Zealand, Ireland), resumption/compulsory acquisition (Australia) or expropriation (South Africa and Canada) is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. The most common uses of property taken by eminent domain are for public utilities, highways, and railroads[citation needed], however it may also be taken for reasons of public safety, such as in the case of Centralia, Pennsylvania. Some jurisdictions require that the government body offer to purchase the property before resorting to the use of eminent domain."

It seems to me that all the rallies, the begging and protests for an end to the co-location of charter and public schools are having no effect on the Bloomberg-political-complex. Mike Bloomberg and his Assistant Dennis Wolcott aren't listening because they dont have to, no matter how "nice" Mr. Wolcott is to the general public..... kind of  "I cant hear you" because "you dont/cant understand our policy" deafness. Their approach to the closing of schools reminds me of my studies in planned obsolescence. Let's not forget that FIFO and LIFO, popularized in Mayor Bloomberg's PR campaign to get tenured teachers out of their jobs, was, you may know, always defined as moving old products off of a shelf for tax advantages. People are not products, Sir!

I have posted many articles about the land grab in New York and other states on my website Parentadvocates.org:
FATAL $UBTRACTION: How State-Mandated Property Tax Exemptions Subsidize New York City Private Education at the Expense of Public Schools and CUNY

Eminent Domain: KELO et al. v. CITY OF NEW LONDON et al.

Does the Federal Government Have a "Property Right" in Our Public School Children?  

The last article by John Wenders raises many interesting possibilities about how Bloomberg may view the public school children in NYC that he cheerfully put into the hands of Cathie Black for, thankfully, a short time. But the article that I would like to turn your attention to is:
 
Michael Cardozo: In Defense of Eminent Domain or Taking Private Property For Public Use
 
Let's suppose for a minute that Mike Bloomberg designed the closing of schools in 2002, then left the undesirable schools with no teachers, supplies and a Principal from the Leadership Academy who was there ONLY to close the school, all for the take-over of property, albeit with a school already placed on it. If the school was in a location that he wanted, he made sure that it failed, so that he could take over the property in kind of a new version of eminent domain. Giuliani played around with getting a new Stadium in a sweetheart deal that was not really covered in the press, and Norman Siegel lost his case against Columbia University.
 
I still remember vividly the day that Courtney Ross, owner of the Ross Global Charter Academy, walked into my daughter's school, NEST+M, in 2005 with her entourage - including Garth Harries - and a tape measure. She walked down the hallways telling her people which rooms suited her students, and she sent the person with a tape measure to find out exactly how big the rooms she liked were, for the 'take-over'. We parents sued the New York City Board of Education as well as the Regents, and won. We had Assembly Speaker Sheldon Silver on our side.
 
Anyway, years from now when the Bloomberg Administration is studied as a period of outrage and chaos in New York City, students will understand there is only one way to do something under the Bloomberg unwatchful eye (remember CityTime?) - his way, without strategy or planning. 

July 3, 2011

A Failing School? Not to These Students

By MICHAEL WINERIP
New York Times

Everyone knows Jamaica High is a bad school. The past two years, it has received D’s on its report card from the city and been labeled persistently dangerous by the state.

In February, the Bloomberg administration placed Jamaica on a list of 22 failing schools it planned to close. The mayor and his schools chancellors have sent letters encouraging students to enroll elsewhere, and the shrinking of the student body has led to a decline in financing, squeezing the juice out of Jamaica High.

There was no money for lab lessons in advanced biology, which upset Doreen Mohammed and Tonmoy Kabiraj, who hope to be doctors. Courtney Perkins’s advanced math class did not have graphing calculators until eight months into the school year. The last music teacher was sent to another school, which really frustrated Mills Duodu, who plays violin, trumpet, drums and piano.

City officials have vigorously fought a lawsuit brought by the teachers’ union seeking to save the 22 schools, 15 of them high schools. In May, the schools chancellor, Dennis M. Walcott, called the union’s position “unacceptable” and vowed to “defend the honor of our students.”

This surprised Afsan Quayyum and Doreen, who graduated from Jamaica High, in Queens, last week. They did not realize their honor needed defending. Afsan, the valedictorian, plans to start an engineering program this fall that will give him a bachelor’s degree from Queens College in three years, and another from Columbia University after two more. Doreen, the salutatorian, has a full scholarship to Columbia.

Their classmate Gerard Henry is struck by all the people he meets who have never stepped inside Jamaica High yet are sure it is a living hell. “If I say, ‘My name is Gerard Henry and I just graduated Jamaica High School,’ they say, ‘Oh my God, you’re one of them?’ If I say, ‘My name is Gerard Henry and I’m going to Columbia next fall,’ they say, ‘Oh my God, you’re one of them?’ ”

It is puzzling how a school can be labeled failing and yet produce Afsan, Doreen and Gerard, not to mention Mills (who is heading to Denison University in Ohio), Kevin Gonzalez (Stony Brook University), Courtney (Howard University), Nujhat Choudhury (University of Alberta) and two top math students who are best friends: Muhammad Ahmad (Clarkson University) and Mohammad Khan (City University’s Grove School of Engineering), known throughout the school as “the Mohammads squared.”

Of course, it is possible that such seniors are the exceptions. As James S. Liebman, the Columbia law professor who developed the city report card, wrote in an e-mail: “Good high schools aren’t satisfied when just a few kids get into strong colleges. They aim for all kids to do so.” Education Department officials point out that the graduation rate at Jamaica has stayed at about 50 percent for years.

But it is also possible that the deck has been stacked against Jamaica High, that the 15 “worst” high schools have been packed with the students with the worst problems. According to an analysis by the city’s Independent Budget Office, these schools have more poor children (63 percent versus 52 percent citywide), more homeless students (6 percent versus 4 percent), more special-education students (18 versus 12). For 24 percent of Jamaica High students, English is a foreign language, compared with 11 percent citywide.

The “worst” high schools are sent the eighth graders who are the furthest behind: their average proficiency score on state tests is 2.6 out of 4, compared with 2.9 citywide, and more of these students (9 percent versus 4 percent) are over age, suggesting they have had to repeat grades.

It is no big mystery to Doreen why Stuyvesant High gets A’s on the city progress reports while Jamaica gets D’s: “Only the smartest kids are accepted,” she said.

Jamaica High’s enrollment has fallen to about 1,000, a quarter of what it was in the mid-1970s. No new pupils will be accepted this fall. In three years, when the last of its current students graduate, the school will close. Four new small schools will take over its storied building.

Each administration wants to be remembered for pioneering something or other, and Mayor Michael R. Bloomberg long ago chose small schools and charters.

James Eterno, Jamaica’s representative to the teachers’ union, has been portrayed in the news media as a man who cares more about preserving jobs than — as the mayor never tires of saying — “putting children first.”

That is not how Kevin Gonzalez sees it. For Kevin, Mr. Eterno is the United States history teacher who stayed late to tutor his students, helping Kevin earn a top score of 5 on the Advanced Placement test.

Doreen and Gerard definitely feel put first. Jamaica had no college adviser this year — until October, when Mr. Eterno stepped in. “Before Christmas break he stayed late to make sure everything was perfect to send to the colleges,” Gerard said. “Mr. Eterno went way beyond.”

After Doreen was accepted to Columbia, she spoke with people at the admissions office. “They told me how Mr. Eterno kept calling them about me and faxing them stuff,” she said.

Last Tuesday, students did not have to be at the graduation ceremony until 9 a.m., but Doreen was up at 4:30 getting ready. To ensure she was out of bed by 6, Nujhat set two alarms, “my cellphone and my mother.” When Afsan was asked if he was nervous about delivering a speech, he said: “A little, but I’m fine now. I’m fine. I got my confidence back.”

No Jamaica High band is left to play “Pomp and Circumstance.” But Clayton Ezell, a senior, belted out “The Star-Spangled Banner” as if he were Robert Merrill standing at home plate in Yankee Stadium.

The third-ranked student in the senior class, Tonmoy, whose father was a professor in Bangladesh but drives a taxi in New York, gave a speech about the need to see the glass as half full.

After the ceremony, the parents lingered: it was hard to tell that their children had attended a failing school. Muhammad Ahmad’s father, also named Muhammad, said his son’s full scholarship to Clarkson was a sign that the family plan was working. The father had been an accountant in Pakistan, but he, too, drives a cab here. “My job here is not a recognition of my dignity,” he said, “but I am supporting my kids to a great future.”

Of course, it is still possible that Jamaica High is a failing school. The two D’s may be deserved. But it did not fail Afsan, Doreen, Courtney, Nujhat, Gerard, Mills, Tonmoy, Kevin or the Mohammads squared.

E-mail: oneducation@nytimes.com

The Latest News On The "N" Rating

UFT members who were re-assigned any part of the 2010-2011 school year have received end-of-year rating sheets with "N" at the bottom, despite the fact that the rest of the ratings may be all "S".
I have received calls from many teachers who were given this type of rating, and I and others have tried to figure it out.

The UFT contract states as follows (Article 21F):

"F. Rating “Not Applicable”
A rating of “Not Applicable (NA)” is to be used only in situations where a pedagogical employee is reassigned out of his/her regular assignment for disciplinary reasons. The “NA” rating will apply only for the period of reassignment, cannot be used in any proceeding as evidence of wrongdoing and will not otherwise affect any other rights afforded in the Agreement where ratings are an issue."

A former rubber roomer from Brooklyn (who was completely exonerated by the 3020-a arbitrator) called me several times over the past week with information about how she spoke with her principal about her rating sheet, which listed all "S"s and at the very bottom was an "N". Her principal told her that she would have received an "S" but the DOE would not let an "S" appear at the bottom. Sorry. Another former rubber roomer told me that his principal told him that he really should have received an "S", so he has called HR - the NYC DOE Human Resources office where supposedly the "N" forms were generated (and then sent to the CFNs, and on to the school), but no one returns his calls. The DOE personnel are probably already on the cruise to the Bahamas paid for by the "found" budget surplus money that was missing for the duration of the layoffs discussion.

Another UFT member called the UFT in Brooklyn and told them that she would grieve the "N" and the Rep. told her to wait until September. Yet another teacher/UFT member was told she should grieve immediately, or go to see her principal and ask for the second rating sheet for the time she worked in the school after she left her re-assignment room. In Queens, a teacher with all "S"s and an "N" at the bottom of her year-end rating sheet was told  "You can't grieve it, you only have the right to Appeal it. Speak to your Special Rep. who gets back at the end of July." This is simply wrong information. My head is spinning.

For all who are not aware of the seriousness of this matter, when a teacher gets an "N", he/she is 'red-flagged' as having been re-assigned during the school year. The letter "N" or letters "N/A" are for re-assigned teachers only, not for tenured personnel working in a school. Chaz told me tonight, "The N is like a scarlet letter".

Queens UFT Rep. Rose Walker-Yates told me this afternoon that the UFT has received many calls about this issue, and that all principals were supposed to give formerly re-assigned members TWO rating sheets, one for the time spent re-assigned, and the other for the time as a teacher back in a school. She did not know if anyone had received two rating sheets, but Queens UFT rep. Sandra Dunn-Yules sent an internal memo about th "N" rating to the UFT leadership on June 24, 2011.

Sandra Dunn-Yules

June 24, 2011???

The thunder of UFT Special Representatives' feet as they all run to help UFT members is deafening.

My point is this: if you received one rating sheet with an "N" and you are in a school teaching, even as an ATR, OBJECT IN WRITING. If you speak with a UFT Rep. and this person tells you to Appeal or grieve, do it, and write down the person's name and telephone number. You may need this information down the road.

BTW, if you are a teacher who received two rating sheets in the past week, please email me at betsy.combier@gmail.com.

Chris Asch , Former Librarian At Stuyvesant High School, Wins His Article 7511 Petition To Vacate The Decision of Arbitrator David Hyland

Chris, Petitioner Pro Se, is an openly gay man who was victimized by the homophopic comments of Stuyvesant High School's Isamu Fukui, a very troubled student, then sent to the famous "rubber room" to learn to regret actions that he never did, or performed just like the heterosexual librarians (asking students to be quiet while in the library). On June 28, 2011 NYS Supreme Court Judge Manuel Mendez vacated the decision of Arbitrator David Hyland to suspend Chris for six months without pay and to see a psychologist to help him "establish boundaries".. Judge Mendez set a precedent and deserves acclaim for this decision.
From Betsy Combier:

I attended Chris Asch's arbitration hearing, heard all witnesses, and disagreed with the decision of the arbitrator, who was, in my opinion, ordered by the New York City Board of Education's Administrative Trials Unit (which I call "The Gotcha Squad") to find Chris guilty of something in order to validate the time and money spent on the prosecution of Chris to the extent that occurred in this matter.
Full disclosure: two of my four children attended Stuyvesant High School, and I know Stuyvesant Principal Stanley Teitel because not only did I write the newsletter for the Parent's Association, but I also was a member of the Executive Board and involved in the Robotics Club, I helped teachers stay after Stan tried to remove them, and I investigated the theft of PA money. Time for Principal Stanley Teitel to retire/resign/be fired.
A short backstory:

Chris Asch was one of three librarians at one of America's premier high schools, Stuyvesant High School in New York City, when he was suddenly arrested and called a "pervert", removed from his job, and told to go to the rubber room in Washington Heights to sit and await charges. One of the students at Stuy was a person who resented any kind of adult chastisement and focused his hatred of the 'system' on one man, Chris. Isamu Fukui had few friends, and wanted popular Chris to suffer for telling him to be quiet in the library. Stuyvesant Principal Stan Teitel didnt want Chris around either, seemingly because he - Chris - would block Sten's attempt to reduce the size of the Stuy library, as well as make other changes to the schedule. Stan made up that Quiz Bowl, an organized group at Stuyvesant but not a school-funded Club, mentored by Chris, necessitated paperwork for overnight trips that was, indeed, not required at all, then charged Chris with not filling the paperwork out when the Quiz Bowl students were invited to Harvard for a competition.

The decision below is significant, because the Judge refused to go along with different rules for different people, and disparate treatment and discrimination of a gay man. The larger picture is that a petitioner pro se told a court that the arbitration process in NYC is broken, and the decision to suspend for six months under the circumstances was shocking to the Court's conscience. Judge Mendez agreed.

Matter of Asch v New York City Board/ Dept. of Educ.
2011 NY Slip Op 21224
Decided on June 28, 2011
Supreme Court, New York County

Mendez, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 28, 2011
Supreme Court, New York County

In the Matter of Christopher Asch, Petitioner,

against

The New York City Board/ Department of Education, Respondents,

108528/10
Christopher Asch
Petitioner, Pro Se

Michael A. Cardozo
Corporation Counsel of the City of New York
Attorneys for the Respondent
100 Church Street, Room 2-108
New York, NY 10007
James Hallman, of counsel
Manuel J. Mendez, J.

Upon a reading of the foregoing cited papers, it is ordered and adjudged that the petition, seeking to vacate, and set aside the arbitrator's decision pursuant to CPLR §7511, and Education Law §3020-a (5), is granted. The cross-motion made in lieu of an answer, seeking to dismiss the petition pursuant to CPLR §404(a), CPLR §3211(a)(5), CPLR §3211(a)(7), and CPLR §7511, is denied.

Petitioner an openly gay man, is a tenured school librarian/media specialist, with over twenty (20) years of service. He had an unblemished record throughout his career until charges were filed against him in 2008 for the events that were alleged to have taken place between school years 2005/2006, 2006/2007 and 2007/2008. The Department of Education (DOE) brought charges against him after two separate investigations by the Office of the Special Commissioner of Investigations, hereinafter referred to as "SCI." The first investigation involved claims of his failure to obtain proper school or parental permission before taking students on a field trip to Boston. The second investigation (*2)involved claims of inappropriate touching of several students, and it was based on a two page "cut and paste" copy of e-mail printouts submitted by a student to the Assistant Principal Eric Grossman. The SCI investigation did not attempt to obtain the full text of the e-mails but relied on interviews of the students that made the accusations, and two students that did not make any accusations and did not think there was inappropriate touching (Cross-Mot. Exh. 3, vol.1 of 2, pps. 340-342, and 355-357). The findings of the SCI investigation resulted in the respondent seeking to have petitioner terminated from employment.

Respondent charged petitioner with engaging in inappropriate conduct with several students, misconduct and neglect of duty. The particulars of the charges were set out in nine specifications brought against him. Seven of the specifications were for inappropriately touching several male students by touching their back, shoulders and spine and whispering into one student's ear. There were specifications alleging that he struck two male students on the buttocks with a rolled up newspaper; ran his fingers through a student's hair; grabbed and squeezed another male student's stomach after being told words to the affect of "Don't touch me," and lifted and rubbed the leg of a male student while saying words to the effect of, "Insert foot. Open mouth." The two remaining specifications against petitioner were for taking seven students on a trip to Boston without proper school or parental permission. He was accused of taking one student on the trip in spite of being explicitly advised by the parents that the student could not attend. (Cross-Mot. Exh. 1)

Petitioner was employed at Stuyvesant High School and on February 12, 2008 was reassigned to the NYC Board of Education "Rubber Room" until June of 2009 at which time criminal charges were brought against him. He was criminally charged with endangering the welfare of a child, two counts of third degree sexual abuse and two counts of second degree harassment, stemming from the investigations at the school. Information concerning the arrest and criminal case was published in the New York Times, New York Daily News, New York Post and broadcast on the NBC evening news (Cross-Mot. Exh. 5, vol. 2 of 2). The criminal charges were dismissed in October of 2009 after an investigation by the District Attorney's office. (Cross-Mot. Exh. 3, vol. 2 of 2, pps. 1662-1663).

When charges are filed against a tenured person, Education Law §3020-a (3) requires that a disciplinary hearing be conducted by a hearing officer selected from the American Arbitration Association. The disciplinary hearing is a compulsory arbitration. This hearing took place over a period of approximately twelve days, from November of 2009 through January of 2010, and was concluded by post-hearing submissions on April 28, 2010. At the hearing petitioner was represented by an attorney provided by his union; he produced and cross-examined witnesses, and produced additional evidence. The respondent produced and cross-examined witnesses, introduced evidence from SCI (*3)investigators, school administrators and other documentary evidence.

The hearing officer, David Hyland, found that petitioner was not involved with sexual misconduct, dismissed the specifications that alleged he struck two male students on the buttocks with a rolled up newspaper; and that he grabbed and squeezed another male student's stomach after being told words to the affect of "Don't touch me." The other specifications were sustained except for one specification involving the rubbing of a student's back. The hearing officer determined that although the touching involved was not sexual in nature, some of it was inappropriate. Hearing Officer Hyland found that although the trip to Boston did not involve a school sanctioned club activity the petitioner was a last minute substitution for a parent chaperone, he was still responsible for obtaining proper permission. The hearing officer did not find substantial cause rendering petitioner unfit to perform his obligations of service, but found he had neglected his duty and that some of the charged conduct was unbecoming to his position or was, "...prejudicial to the good order, efficiency or discipline of the service." The determination provided that petitioner was to be suspended without pay for six (6) months, and required to "attend counseling and/or training to understand appropriate professional and physical boundaries between himself and the students, whether in management of student behavior in the library or otherwise." (Cross Mot. Exh. 6)

Petitioner seeks to vacate, and set aside the arbitrator's decision claiming that it was not warranted in the record, excessive, arbitrary and capricious and based on partiality and prejudice. He claims that pursuant to Education Law §3020-a and §2590-j, the decision cannot stand as just and fair, because it violates his constitutional and statutory rights under state law and New York State Executive Law Article 15 (the Human Rights Law). Petitioner, as an openly gay man, claims that the hearing officer's determination, that his manner of touching and addressing the students was inappropriate, in light of testimony that established it was the same as a heterosexual female librarian, is arbitrary and capricious; and the penalty imposed is shocking to one's conscience. Petitioner also claims that allowing the award to stand would have a chilling effect on gay, lesbian and transgender individuals employed in the education system because they would be subject to actions by students based on their sexual preferences and not their actual conduct.

Respondent's cross-motion seeks to dismiss the petition on the grounds that the petition is time-barred, fails to state a cause of action, is prohibited based on the arbitration and decision; and to confirm the arbitration award. Respondent claims that the petitioner fails to allege facts sufficient to vacate or modify the hearing officer's determinations.

The hearing officer's opinion is dated June 8, 2010 and the petitioner claims he received it on June 17, 2010. Respondent claims that this petition is time-barred because the proceeding was commenced on June 28, 2010. Respondent claims that pursuant to Education Law §3020-a(5) the petition was filed one day beyond the ten day (*4)period to appeal the arbitrator's decision.

Pursuant to General Construction Law §25-a (1), "When any period of time, computed from a certain day...which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day." The provisions of General Construction Law §25-a (1) have been found to apply to statute of limitations and the provisions of CPLR Article 75 (Rodriguez v. Saal, 43 AD3d 272, 841 N.Y.S. 2d 232 (N.Y.A.D. 1st Dept. 2007); American Casualty Company v. McCoy, 138 AD2d 485, 525 N.Y.S. 2d 884 (N.Y.A.D. 2nd Dept. 1988) and Matter of Scuderi v. Board of Educ., 49 AD2d 942, 374 N.Y.S. 2d 130, appeal dismissed 38 NY. 2d 848, 382 N.Y.S. 2d 55, 345 N.E. 2d 598).

Petitioner claims that the ten day statute of limitations expired on Sunday, June 27, 2010, and this proceeding was commenced on Monday, June 28, 2010. This Court takes judicial notice of the fact that June 27, 2010 was a Sunday. This proceeding commenced on Monday, June 28, 2010, is timely.

Pursuant to Education Law §3020-a (5), a petition to vacate the determination of a hearing officer, requires that the Court apply the standard set forth in CPLR §7511. The standard for granting a petition pursuant to CPLR §7511 is to, "show misconduct, bias, excess of power, or procedural defects." An arbitrator's award can be set aside if it violates strong public policy or is totally irrational (Austin v. Board of Education of the City School Dist. Of City of New York, 280 AD2d 365, 720 N.Y.S. 2d 344 (N.Y.A.D. 1st Dept., 2001); Hegarty v. Board of Education of the City of New York, 5 AD3d 771, 773 N.Y.S. 2d 611 (N.Y.A.D. 1st Dept., 2004), Matter of Pell v. Board of Education, 34 NY2d 222, 356 N.Y.S. 2d 833, 313 N.E. 2d 321 (1974), In re Gregg v. The Dept. of Educ. of the City of New York, 22 AD3d 254, 801 N.Y.S. 2d 529 (N.Y.A.D. 1st Dept., 2005), In re Stephanie Cherry v. The New York State Insurance Fund, 83 AD3d 446, 920 N.Y.S. 2d 342 (N.Y.A.D. 1st Dept., 2011), and Matter of Sprinzen (Nomberg), 46 NY2d 623, 389 N.E. 2d 456, 415 N.Y.S. 2d 974 (1979)). There is an additional standard applied and judicial scrutiny is stricter when the parties have submitted to compulsory arbitration rather than a determination rendered after voluntary arbitration. After compulsory arbitration the determination, "must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" ( Lackow v. Dept. of Education (or "Board") of City of New York, 51 AD3d 563, 859 N.Y.S. 2d 52 (N.Y.A.D. 1st Dept., 2008); City School Dist. of the City of New York v. McGraham, 75 AD3d 445, 905 N.Y.S. 2d 86 [N.Y.A.D. 1st Dept., 2010]). The burden of proof is on the party challenging the determination to show that it is invalid. A hearing officer's finding that the testimony was inconsistent or lacked credibility is not a basis to vacate the determination (Lackow v. Dept. of Educ. (or "Board") of City of New York, 51 AD3d 563, supra; Austin v. Board of Educ. of the City School Dist. of City of New York, 280 AD2d 365, supra). A claim of actual bias or misconduct by a hearing officer requires clear and convincing evidence, inference of partiality is not enough to vacate the award (Zrake v. New York City Dept. of Educ., 41 AD3d 118, 838 N.Y.S. 2d 31 (N.Y.A.D. 1st Dept., 2007) and Rose v. J.J. Lowrey & Co., 181 (*5)AD2d 418, 580 N.Y.S. 2d 745 (N.Y.A.D. 1st Dept., 1992)).

Petitioner claims that the hearing officer allowed respondent to validate homophobic statements made by three students as directed by a fourth and found inappropriate conduct where there was none. He claims that there was testimony provided at the hearing by SCI investigator Ravello, that whispering and touching students on the shoulder was generally acceptable to get their attention in the library (Cross-Mot. Exh. 3, vol. 1 of 2, SCI Ravelo pps. 350-351). There was also testimony that another librarian, a heterosexual female, approached the students physically in the same manner as petitioner did, including touching arms, whispering and standing silently next to the students. Delisa Brown-Guc testified that touching was used to calm down an individual that was agitated and that the petitioner was the least confrontational with the students of the three librarians at Stuyvesant (Cross-Mot. Exh. 3, vol. 2 of 2, pps. 1467-1476).

Petitioner claims the hearing officer did not sufficiently take into account testimony that false rumors were being spread amongst the students in 2007, prior to the investigation, that he was a member of NAMBLA (North American Man Boy Love Association). One of the students that accused him of inappropriate touching spoke to him in a menacing manner in the Fall of 2007, that "...some people are feeling pretty creepy about the way you touch people..." petitioner was considering reporting the statement but then decided to let it go because the student was "a jerk" (Cross-Mot. Exh. 3, vol. 2 of 2, Asch at pps. 1653-1654,1664 and Brown-Guc, Exh. 3 vol. 1 of 2 pp. 1487-1488). There was testimony that the same student that spoke to him in a menacing manner, said in a loud manner "get away from me faggot" when petitioner passed his table in the library (Cross-Mot. Exh. 3, vol. 1 of 2, Brown-Guc pp. 1496-1499). The same menacing student, organized, cut and pasted the e-mails which were provided to Assistant Principal Grossman, and used by the SCI to formulate the charges and specifications. The hearing officer rejected one of two specifications related to the menacing student concerning inappropriate touching because the testimony was not credible. Hearing Officer Hyland found the menacing student's testimony that his back was rubbed credible, but only as to touching and determined that this was a failure to respect boundaries because petitioner should have known that this student did not like to be touched (Cross-Mot. Exh. 6).

Petitioner claims that the hearing officer failed to credit testimony concerning permissible touching. He states that by refusing to allow testimony concerning a student conspiracy or the mental health and behavioral concerns regarding one of the accusing students, and relying on testimony by students that were only witnesses to one of the specifications, the hearing officer applied a different standard to him as an openly gay man. He claims that the resulting determination was biased, discriminatory and violated his constitutional and statutory rights under state law and New York State Executive Law Article 15 (the Human Rights Law).

Petitioner claims that the hearing officer did not take into account the school's policy concerning weekend trips involving unofficial clubs where parents were (*6)chaperones. Permission was not sought from the school for the Quiz Bowl activities that occurred on prior weekends because the parents chaperoned the activities and the petitioner was a last minute replacement for a parent chaperone.

Respondent claims that the petitioner has not met his burden of proof to vacate the determination because the hearing officer is permitted to weigh credibility and rely on hearsay. Respondent states that it would be improper for this Court to credit petitioner's evidence to the exclusion of others. The cross-motion seeks to dismiss for failure of petitioner to state a cause of action and meet his burden of proof concerning the claims of corruption, bias, fraud and misconduct by the hearing officer. Respondent claims that petitioner has not produced the required clear and convincing evidence and relies on inferences which are not in the record. Respondent also claims that petitioner's due process rights were protected because he was represented by an attorney that was permitted to produce evidence and cross-examine all the witnesses that appeared at the hearing. Respondent seeks to dismiss petitioner's claims that Education Law §2590-j was violated because the charges of engaging in inappropriate conduct with several students, misconduct, neglect of duty, and violating the by-laws rules and regulations of the Chancellor were confirmed and accepted by the arbitrator. Respondent claims that any objections to its compliance with the Education Law § 3020-a process must be denied because it was waived by proceeding with the arbitration without objection. Respondent claims that hearing officer Hyland was lenient in the decision, given the seriousness of the charges, since there could have been a determination that petitioner be terminated from employment.

The authority to overturn an arbitration award based on a violation of public policy requires that the Court find, "without engaging in any extended fact finding or legal analysis" that public policy considerations, "embodied in either statute or decisional law, prohibit (1) arbitration of the particular matters to be decided or (2) the relief granted." An arbitrator cannot issue an award that violates a well defined "constitutional, statutory or the common law of this state" (United Federation of Teachers, Local 2, AFT, AFL-CIO v. Board of Educ. of City School Dist. Of City of New York, 1 NY3d 72, 801 N.E. 2d 827, 769 N.Y.S. 2d 451 (2003) citing to Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 780 N.E. 2d 490, 750 N.Y.S. 2d 805 (2002), The Board of Education of the City of New York v. Hershkowitz, 308 AD2d 334, 764 N.Y.S. 2d 254(N.Y.A.D. 1st Dept. 2003)). Whatever the applicable standard of review in a compulsory arbitration, an award may be vacated if there is no rational basis for the determination based on the evidence adduced at the hearing (Weinstein v. Department of Education of the City of New York, 19 AD3d 165, 798 N.Y.S. 2d 383 (N.Y.A.D. 1st Dept. 2005)).

Pursuant to Executive Law Article 15, §296(1), it is unlawful to discriminate against an individual based on, "age, race, creed, color, national origin, sexual orientation...to bar or to discharge from employment or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. " (*7)

Hearing Officer Hyland stated in the concluding paragraphs of his opinion:

"I note that these are Respondent's first charged offenses. I am persuaded that Mr. Asch now understands that library management, even under the most difficult circumstances, cannot and will not include inappropriate touching of students or whispering in a manner that a reasonable student would consider a violation of his/her space. I am also persuaded that in the future, if he has any questions about school policies related to trips, he will make appropriate inquiries to his superiors. Having reviewed all of the eviden ce and based on the proven misconduct, Respondent's long service with the Department and principles of progressive discipline, I believe that the appropriate penalty in the instant case is a suspension without pay for six ( 6) months. Additionally, Respondent Asch shall be required to attend counseling and/or training in understanding appropriate and professional boundaries between himself and students whether in the management of student behavior in the library or otherwise."(Cross-Mot. Exh. 6, p. 53)

The public policy considerations embodied in Executive Law Article 15 were violated by the finding that petitioner, an openly gay man, engaged in inappropriate touching when his actions, i.e. touching, whispering and standing silently next to the students, were the same as the heterosexual female librarian. Petitioner was suspended for six months without pay and reassigned to another school. He was also required to, "attend counseling and/or training to understand appropriate professional and physical boundaries between himself and the students, whether in management of student behavior in the library or otherwise." No charges were brought against the female librarian, and she was not required to attend counseling or training. Hearing Officer Hyland may not have intended to discriminate against the petitioner, but the opinion and award has that effect. Petitioner has the right not to be discriminated against or abused by students based on his sexual orientation. SCI investigator Ravello testified that whispering and touching students on the shoulder was generally acceptable to get their attention in the library. Touching students and whispering in their ear are acceptable practices to maintain order in the library and there is no rational basis for a finding that his touching of students, which was done in the same manner as a heterosexual librarian, constitutes an inappropriate touching; especially given his history of 20 years of exemplary service.

Judicial review of administratively imposed sanctions is limited. An administrative sanction may only be revised in those circumstances where it is, "so disproportionate to the offense as to shock the conscience of the court." The Court would have to find that the determination is "shocking to one's sense of fairness." A result is, "shocking to one's sense of fairness," if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or (*8)turpitude of the individual, or to the harm or risk of harm to the public generally visited or threatened by the derelictions of the individual." Additional factors would include deterrence or the reasonable prospect of recurrence, and "the standards of society to be applied to the offense involved" (Matter of Pell v. Board of Education, 34 NY2d 222, supra ; Harris v. Mechanicville Central School District, 45 NY2d 279, 380 N.E. 2d 213, 408 N.Y.S. 2d 384 (1978)).

The nonexistence of a prior disciplinary record in twenty years and the financial impact of the six month suspension without his salary, is clearly disproportionate to petitioner's conduct. He was forced to defend himself against criminal charges and was exposed to the stigma of being described as a "pervert" in the press. It is shocking to one's sense of fairness that petitioner is required to attend counseling or training to understand appropriate professional or physical boundaries, when touching and whispering is acceptable practice, and was done in the same manner that was permissible if performed by the heterosexual female librarian.

Upon review of all the papers submitted this Court finds that petitioner has met his burden of proof as to the determination based on public policy considerations. The sanctions imposed, while lesser than termination, are shocking to this Court's sense of fairness. A legally recognizable cause of action can be identified even if it is not skillfully prepared, therefore respondent's cross-motion to dismiss the petition is denied.

Accordingly, it is ORDERED AND ADJUDGED that the petition seeking to vacate, and set aside the arbitrator's decision pursuant to CPLR § 7511, and Education Law §3020-a (5), is granted, and it is further

ORDERED AND ADJUDGED that the hearing officer's opinion and award dated June 8, 2010, is vacated, and it is further

ORDERED AND ADJUDGED that petitioner is restored to employment status with back pay and without any need for counseling or training, and it is further

ORDERED and ADJUDGED, that the cross-motion to dismiss the petition pursuant to CPLR §404(a), CPLR §3211(a)(5), CPLR §3211(a)(7), and CPLR §7511, is denied.

This constitutes the decision and judgment of this court.

June 28, 2011

Dennis Walcott's "Gentler" Chancellorship Doesn't Fool Anyone

OMG, this article is sooo annoying. What I read in Ms. Otterman's article below is that Mr. Dennis Walcott, NYC's new "not" chancellor (no contract, does not have any meaningful evaluations or performance reviews by anyone, etc), simply by being the anti-Cathie Black brings people around to support him.

 “He is doing the job that Black was meant to serve, which is putting a kinder, gentler face on the administration’s point of view,” said David C. Bloomfield.

Oh, really David?

A kinder, gentler way of putting the most cruel, legally invalid and harmful education policies in the history of public education in America -  once again looking at the general public as fooled by deception and evil intent. We in NYC have, I think, the largest number of parents and teachers in the country who now see the results of Mike Bloomberg's privitization of education.

And we are not fooled by Dennis Walcott. Not for one minute.

Oh, by the way, someone made an error in naming the seniority policy that Bloomberg wanted - "LIFO" - so that tenured teachers would be forced out rather than newbies. Didnt anyone do some thinking/research about this term? LIFO and FIFO ("first in, first out") refer to inventory left on a shelf that companies want moved for tax advantages.

No matter how nice you are, people are not products, Mr. Mayor. And I say this on the show "Lawline" that was taped last week and will be shown July 17, 2011. Check your channel guides. I was on a panel with lawyers Michael Mazzariello and Brian Glass.

Betsy Combier

June 28, 2011

For New Schools Chief, a Policy Statement in Tones of Harmony
By SHARON OTTERMAN, NY TIMES

Dennis M. Walcott, New York City’s schools chancellor, hates prepared texts for speeches and wears a pedometer to count his daily steps. So it stands to reason that during a 14-stop marathon of graduations over the past week, he frequently abandoned his seat and improvised.

As hundreds of seniors from his alma mater, Francis Lewis High School in Fresh Meadows, Queens, crossed a stage at Hofstra University to collect diplomas on Tuesday morning, Mr. Walcott stood up, found a roll of brown tape and knelt to secure a wire that had come loose in their path. At a ceremony for disabled students last Tuesday, he leapt off the stage to hand out awards. And at the cavernous New Jerusalem Baptist Church in Queens on Sunday, he nodded and swayed to the choir and the clashing of tambourines.

“A lot of you came up to me and said, ‘My prayers are with you,’ ” he said, warming up into a preacher’s cadence. “And you shook your head this way,” he said (side to side as if in despair), “instead of this way” (nodding enthusiastically).

“But you can shake your head this way,” he continued, responding to the building laughter, “because I love this job.”

Three months after his surprise ascension to head the nation’s largest school system amid its worst leadership crisis in recent memory, Mr. Walcott, 59, has worked hard to improve the administration’s relationships with key constituencies through frequent, sometimes unannounced, school visits and constant contact with the teachers’ union. But even after a tumultuous year in which parents, educators and advocates were shocked by Mayor Michael R. Bloomberg’s appointment of a publishing executive with no education experience — and her subsequent implosion and ouster — Mr. Walcott still sees his role as building support for, and tweaking — not changing — policies.

His biggest achievement, he said in an interview Tuesday, was helping to avert teacher layoffs in a deal with the United Federation of Teachers. The deal came Friday after he personally went to union headquarters, the city school system’s equivalent of the Hatfields’ visiting the McCoys.

But principals are still smarting from the third year in a row of significant budget cuts. Heated opposition continues over the rapid expansion of charter schools, many of them fighting for space with traditional schools — the subject of a divisive lawsuit. And recent data from the state show fewer than a quarter of the city’s graduates are ready for college work.

Yet, after eight years of Joel I. Klein, who as schools chancellor had a confrontational style and favored rapid, radical change, and four months of Cathleen P. Black, the publisher whose learning curve and frequent gaffes made her untenable, many see Mr. Walcott’s style of smoothing feathers, nurturing relationships and promoting stability as its own kind of policy statement.

A month after a Quinnipiac poll found the public’s opinion of the mayor’s handling of education profoundly negative, the warm applause that Mr. Walcott, who attended city schools and sent his children to them, received at graduation ceremonies in all five boroughs signaled that a more approachable messenger might be nearly as important as the content of the message. The question, observers said, is whether he will be satisfied in the coming years with being a competent caretaker or use the growing good will to further a controversial agenda of school closings and high-stakes standardized testing.

“That’s a debate that is taking place all over the country,” said Joe Williams, the executive director of Democrats for Education Reform. “Can you make real change without offending people? We are about to see.”

In an interview en route to the Francis Lewis graduation on Tuesday, Mr. Walcott said the shift to actually running the school system and its 143,000 workers after nearly a decade of overseeing it as deputy mayor felt profound, even though his new office is a three-minute walk from the old one and he has the same boss. He laughingly calls himself “the wandering chancellor,” and noted that the morning after Osama bin Laden was reported killed, he “popped by” three downtown schools just to get a feel for what was going on.

“The difference is that I am directly on the line; the issue is directly with me now,” he said. “If people are complaining about something, I can get a firsthand view rather than what people are telling me. That way, people can show me, rather than sugarcoating it.”

Following on the heels of a bitter relationship between the teachers’ union and Mr. Klein, Mr. Walcott is on the phone with Michael Mulgrew, the president of the union, “a minimum of once a day,” Mr. Mulgrew said, adding that the chancellor “was instrumental” in cementing the budget deal.

“Dennis is actually concerned about the schools and how the schools run,” he said.

Howard Wolfson, the deputy mayor who spent significant time this winter trying to block Ms. Black from embarrassing their boss, said that Mr. Walcott still attended the daily morning meeting of top mayoral aides — the only person outside City Hall to do so — and that Mr. Bloomberg “is thrilled with his performance.”

Mr. Wolfson said that Mr. Walcott had been an important voice in the budget negotiations “in favor of doing everything we could do to save teachers,” and that his relationship with Mr. Mulgrew, strengthened several years ago when the two collaborated to start four high schools, “was helpful in encouraging the union to come to the table with concessions.”

“When I walk with him on the street,” Mr. Wolfson added, “he is stopped by an enormous number of people, more than anyone but the mayor, and all of it positive.”

But while Mr. Klein ran the schools under a powerful mayor at the height of his popularity, Mr. Walcott is working for a third-term lame duck with low poll numbers. There are continuing concerns about the role of test preparation in the curriculum, the failure of the enrollment system to match all kindergartners to a local school, overcrowding, swelling class sizes and ever-shrinking budgets forcing hard choices.

“In the last three years we have lost $750,000, and we have nothing left to give,” said Frank A. Cimino, the principal of Public School 193 in Midwood, Brooklyn. “And yet they keep saying do more with less. It’s a very demoralizing message.”

Given the climate, “they need to give him a certain amount of independence to move things in a way that allows him to develop some support among constituents,” Joseph P. Viteritti, a professor of public policy at Hunter College and a longtime expert on the schools, said of Mr. Walcott. “And I don’t mean a charm offensive. You really need to listen to people and take their concerns into account and work with them. And that’s his strength.”

Mr. Walcott has already made some small changes around the edges. He has delayed by several months an education vision statement each principal has to hand in. He postponed the start of school in September by one day to let schools prepare for the Common Core, a new curriculum being adopted by most states.

But there is still no deal with the union on how to conduct newly mandated teacher evaluations, holding up millions of dollars in federal grants for struggling schools, though Mr. Walcott is hopeful one will be reached. The union and the N.A.A.C.P. are suing to stop school closings and charter schools from moving into district school buildings. There is still a feeling among opponents, particularly parent groups, that though Mr. Walcott listens more, he might not be hearing.

Their fear is that his presence at school plays and parent meetings, along with his ability to speak without notes to fence-sitters and friends alike, is more style than substance and will not translate into a more responsive leader, particularly for those who have chafed at the Bloomberg administration’s top-down approach.

“He is doing the job that Black was meant to serve, which is putting a kinder, gentler face on the administration’s point of view,” said David C. Bloomfield, a professor of education at the College of Staten Island, who disagrees with much of the mayor’s program. “From the initial announcement until today, everything he has done has been choreographed, and unlike Cathie Black, it has gone according to plan.”

Jessica Bell and Jessica Campbell contributed reporting.

The "N" Rating

The latest in the re-assignment-rubber-room-fantasy is that Bloomberg and Walcott can give teachers who were forced into substitute positions after being charged with 3020-a, an "N" rating at the end of the year.

This is crazy.

A UFT leader said something to the effect that 'this is the latest c--p that Principals are throwing at ATRs'.

Dont let an "N" sit on your rating sheet!!! Get your chapter leader to help you get a valid rating. I'm collecting information on this, so anyone can email me if he/she received an "N" at: betsy.combier@gmail.com.

This is from Chaz's blog:

"Teacher Reassignment Center" after their cases were settled or completed and sent to a school this year, the geniuses at Tweed have incorrectly labeled them as still being "reassigned" and given a "N" rating (Not rated). It appears the incompetents in the Human Resources Department of Tweed failed, or didn't bother to update their teacher data files to eliminate the "reassignment" designation. How much is Tweed spending on Technology that is supposed to eliminate such simple and stupid errors? Yes, the DOE is spending $900 million dollars and they can't even get the most simple change right.

I know there may be some people who believe that the DOE did this purposefully and to let other principals know that the ATR was a "reassigned teacher". The proverbial "Scarlet Letter"when they apply for the vacant positions in the schools. However, I am not one of them. I believe that the uncaring and incompetent people who work at the DOE didn't bother to update their teacher files, despite spending hundreds of millions of dollars on Technology and have left it up to the teacher and the union to try to correct the problem that should never had to be one in the first place.

If you are an ATR at a school and received a rating sheet of "N" (not rated}, you must meet with the Principal ( I suggest take your Chapter Leader with you). The Principal will need to contact Human Resources for them to remove the automatically generated "N" rating so that the Principal can give the proper rating of "S" (satisfactory). If the Principal fails to follow through, call your District Representative, Borough President, and email Michael Mulgrew at mmulgrew@uft.org to advise him of the lack of resolution on the "N" rating issue.

Things like this should never happen. However, we are talking about the DOE, where Administrative bloat, staff incompetence, and the wasting of hundreds of thousands if not millions of dollars to consultants who don't even have approved or legal contracts are a common practice. Remember, it is Tweed first, and everybody else last.

Posted by Chaz at 3:41 PM

MS 344, the Academy of Collaborative Education in Harlem, is a hellhole

The school from hell

By SUSAN EDELMAN

Last Updated: 2:31 PM, June 26, 2011

Kids hoot and yammer so loudly that their ruckus drowns out the teacher. A trash can is overturned in class and dumped. Grimy floors are littered with sunflower-seed shells, spit out by the hundreds.
Books and supplies fly out the windows. Mouse droppings are everywhere, even on the computers.
MS 344, the Academy of Collaborative Education in Harlem, is a hellhole where teachers should get combat pay -- they are cursed, assaulted and sometimes groped.

See video

"It was literally war," said a teacher who once found a sticky used condom in her purse. "I was pushed, shoved, scratched, thrown against the wall, spit on and pickpocketed. I just wanted peace."
The Department of Education has tried twice since last year to shut MS 344, the city's worst-performing middle school. MS 344 has made the state's list of "persistently dangerous" schools, and just two of 88 eighth-graders last year passed the state math or reading exams.

But the United Federation of Teachers and the NAACP went to court to block the closure and 21 others, arguing the DOE did nothing to fix the ailing schools. A Manhattan judge heard arguments last week and is expected to rule soon.

Meanwhile, MS 344 has festered.

Letters from its staff to ex-Chancellor Joel Klein begged for Principal Rashaunda Shaw's removal. They complain she's a tyrant who does nothing to impose discipline and respect. They charge she's always late, barely leaves her office "except for the bathroom," and hired a sister-in-law and her boyfriend's ex-wife, among other cronies.

Shaw, 35, also hired former Staten Island Assistant Principal Odufuyi Jackson, a friend who was busted in 2009 on felony charges that he conspired to steal more than $100,000 in Social Security benefits.

He pleaded guilty last year to attempted fabrication of business records. The DOE demoted Jackson to teacher, but Shaw has him doubling as a dean.

Shaw referred questions to the DOE press office. A spokeswoman said only, "A number of allegations are being investigated."

"It needs to be closed, closed, closed, because it's an unsafe place for children," a teacher said of the school. "It's heartbreaking that the small percentage who want to learn don't get the education they deserve."

Insiders gave The Post a sampling of the crime and lack of punishment.

* A teacher was transferred after a student threatened to rape his wife.
* A math teacher who tried to stop a student from hitting him was accused by Shaw of using "corporal punishment."
* A scrawny boy pulled out his wallet while surrounded by tough kids in the hall. A teacher learned the kid was robbed by the same gang every day for a month. Shaw reprimanded the teacher for phoning the victim's mom.

A UFT spokesman said the union has met with MS 344 staff in the past year on their safety, health
and classroom woes, including "the lack of administrative support" and alleged harassment by Shaw. But the union could cite no results from its effort.

    

Read more: http://www.nypost.com/p/news/local/manhattan/the_school_from_hell_nVS0ubg9F7uzULCHOrNh2H#ixzz1QXq3FTra

PRINCIPAL RICHARD BOST WILL NOT BE BACK IN SEPTEMBER

Richard Bost

I and the rest of the known world have reported on the sexual abuse, harassment,and terrorizing tactics of Fordham Leadership Academy Principal Richard Bost.

This morning he told staff that he was "tired" of the complaints of the teachers and he would not be back in September.

PARTY!!!! I'll bring the brownies.

Betsy Combier

The Mayor and UFT Agree To Avert Teacher Layoffs

The deal made to avert layoffs seems to me (as well as everyone else not currently working for Mulgrew or Bloomberg) to be another UFT "We're not going to fight Mike Bloomberg" concession that did not have to be made. Another give back was the UFT allowing Geoffrey Canada a green light to co-locate his charter school industry in public schools - I think  this undermines the UFT-NAACP lawsuit which opposes this, now for organizations OTHER that Canada's. This makes no sense. But politics often makes no sense unless you know the backstory.

Betsy Combier

June 24, 2011
Deal Will Avert Plan to Lay Off City Teachers
By FERNANDA SANTOS, NY TIMES

The threatened layoffs of 4,100 teachers in New York’s public schools were averted under a deal that the Bloomberg administration, the City Council and the teachers’ union reached on Friday night.

Details were still being worked out, but the agreement calls for concessions from the United Federation of Teachers and money from the Council.

Under the deal, the union would agree to suspend teacher sabbaticals for a year and permit teachers without a permanent assignment to be used more regularly as classroom substitutes. In addition, the Bloomberg administration would concede that 2,600 teachers would be lost to attrition, 600 more than estimated, saving additional jobs. On one hand, the resolution spares Mr. Bloomberg from becoming the first mayor in nearly 40 years to impose mass teacher layoffs. On the other hand, though, it threatens to undermine his credibility, given that he has declared for two consecutive years that layoffs were inevitable, only to see them averted in a budget deal.

The budget plan also allows the Council to keep open 20 fire companies that the mayor had ordered closed, and it may be able to restore at least some of the cuts he planned for day care services and librarians.

Still, it appeared that up to 1,000 city workers — many of them in health care jobs — would be laid off.

In a news conference at the Education Department headquarters in Lower Manhattan on Friday night, Mr. Bloomberg said he was disappointed he could not avoid all layoffs. Still, he said, “this is a budget that will keep our city strong, but it is also a budget that faces fiscal reality.”

Asked whether he thought his credibility had been hurt, the mayor defended his approach, saying the city faced extremely bleak and unpredictable economic circumstances.

The City Council speaker, Christine C. Quinn, standing by the mayor’s side, praised the deal. “New Yorkers can rest easy tonight knowing that our children will still have great teachers,” she said.

Mr. Bloomberg had taken an aggressive posture during the negotiations, emboldened over the past days by the victories scored in Albany and Trenton against public-sector unions and becoming more emphatic about his demands. But in the end, he and the teachers’ union, one of his most vociferous opponents, had to reach an agreement, helping to balance a $66 billion budget that had a $4.6 billion gap.

A different rescue proposal fell apart on Thursday, after the city rejected an offer from the Municipal Labor Committee, a group representing roughly 100 municipal unions, for $262 million to be taken from a health care reserve fund they jointly manage. By then, Ms. Quinn and the teachers’ union president, Michael Mulgrew, had been secretly meeting for days.

Once the other deal collapsed, talks between Ms. Quinn and Mr. Mulgrew moved into overdrive.

On Friday morning, officials of the city’s Education Department made their way to the union’s headquarters to determine what would and would not be on the table. By late afternoon, the two sides had come to an agreement.

Ms. Quinn, meanwhile, worked to sell the plan to Mr. Bloomberg, emerging as the crucial figure in the process.

The budget must be approved by the full Council by Thursday.

Javier C. Hernandez contributed reporting.

Saturday, June 25, 2011

The Deal To Avert Layoffs
LINK

I wanted to wait a few hours before writing my take on this because as soon as I saw the headline on the Times story last night around 10:45 PM ("Teachers Union Agrees To Concessions To Avoid Layoffs"), I just about wanted to head down to 52 Broadway and break windows.

I had visions of the UFT handing Bloomberg hundreds of millions of dollars from the health care fund, agreeing to salary step freezes and other payroll concessions or opening up the Pandora's Box of health care costs and agreeing to some kind of containment clause.

Those were the kinds of things the mayor wanted in this fight once it became clear that Sheldon Silver and the Assembly were not going to change LIFO for him and allow him to mass lay off the ATR's.

But as I dug into the story a little, I started to see that the "concessions" the mayor claims he got from the deal aren't exactly the kind of sweeping, money-saving concessions he claimed he needed in order to not lay teachers off.

According to Gotham Schools, the two concessions that the UFT granted Bloomberg are canceling sabbaticals for 2012-2013 (supposedly will save $17 million) and allowing ATR's to be used as day-to-day substitutes in their districts (supposedly will save $43 million.)

The total savings from the UFT concessions is $60 million.

The mayor was saying he needed somewhere between $240 million and $377 million in savings in order to avoid layoffs.

Instead he got (at least according to Gotham Schools), $60 million.

Now the city council supposedly agreed to pony up more money for schools too, though I have not seen a number figure on that, so perhaps the "savings" Bloomberg got out of last night's deal is closer to $100 million, but nonetheless it is nowhere near what he claimed he needed in order to avert layoffs.

On the mayor's side, he admits that he lowballed the number of teachers that will be lost to attrition, that schools WILL still take huge cuts to their budgets (while central office at Tweed and the technology consultants will NOT) and will STILL see higher class sizes and fewer teachers next year.

So there is no doubt that the UFT DID concede on issues here that they should have NEVER conceded on.

To review, there is a budget surplus.

Bloomberg was lying about the need to lay teachers off.

He was making a political gambit to get LIFO changed so he could lay off ATR's this year and then lay off senior teachers every year thereafter, dramatically remaking the teaching corps. of NYC into at-will employees.

But he lost that gambit when the Assembly didn't jump when he said "Cash!"

So he was left with a difficult choice - either back down and lose face (and once again be revealed as a lying sack of shit when it comes to layoffs) or continue with the farce and say he needed to do layoffs anyway, despite the surplus.

The UFT had the moral and the political high ground on this.

Public opinion polls show that people despise the mayor, despise his policies, and REALLY despise his education policies.

People KNOW that Bloomberg has been wasting hundreds of millions of dollars on crooked technology projects.

Consultants hired by Bloomberg are being arrested left and right for stealing hundreds of millions of dollars from the city.

And Bloomberg has budgeted $900 million in additional technology spending for the DOE next year even as he claimed he needed to save $377 million by laying teachers off.

So as I say, the UFT had almost all the cards in this game.

In my opinion, they should have conceded nothing.

They should have gone on the air in mass with CityTime scandal commercials, showing the parade of criminal consultants arrested for stealing hundreds of millions of dollars in city funds, played tapes of Bloomberg on his radio show claiming victory on CityTime and saying what a swell project it is and the stolen money just, you know, slipped through the cracks, and then noted that the mayor plans to hand out another $900 million in consultant funds and technology upgrades next year even as he refuses to conduct oversight over these projects, refuses to take responsibility for all the stolen cash so far and insists that he MUST lay teachers off to save the city money.

Seriously, on the face of it, it was absurd for Bloomberg to claim he needed to lay off teachers to save $377 million in the same week that the U.S. attorney announced $600 million had been stolen by crooked consultants in Bloomberg's CityTime project.

So the UFT should not have conceded a thing when they had these kinds of cards.

In addition, the ATR concession is worrisome to me - it is just another sign that ATR's will eventually be sold out by Mulgrew and Company.

It is just a matter of time.

Next year when Bloomberg claims poverty again and starts handing out cash in Albany to get LIFO changed, you can bet that one of the concessions he will want in order to avoid layoffs will be on the ATR's.

And the UFT looks like they are ready to sell them out.

But all things considered, the concessions the UFT made could have been worse.

They could have conceded a couple of hundred million from the health care fund, money Bloomberg would have used to pay outside consultants for his crooked technology contracts.

They could have conceded health care or pension containment costs.

They could have conceded furlough days (or furlough weeks) or agreed to a salary step/longevity freeze.

They didn't do any of that (though on the health care fund front, Mulgrew certainly tried!)

I dunno if it's just that I have gotten cynical about the UFT in my middle age, but when I thought about last night's deal a little, my take was "Sure, the UFT snatched defeat from the jaws of victory, but it's not as bad a defeat as I thought it was going to be."

Not exactly a ringing endorsement of the union.

But given the serious defeats suffered by labor unions in Jersey and other states and given the concessions agreed to by CSEA in contract negotiations with New York's Tea Party Governor Cuomo, I guess it's not as bad as it could have been.

I know that's the official line from the Unity and New Actions parties at the UFT.

In a way they're right.

But it also doesn't bode well for the future that the official line of the UFT is "Sure, we had to give stuff up even though Bloomberg had a surplus and didn't need to do layoffs, but hey, it could have been worse!"

I suspect next year when we do this shit all over again (and make no mistake, unless Bloomberg is arrested, resigns in disgrace or dies suddenly of an ego attack, we will do this all over again next year), it will be worse.

And if you're an ATR next year, they will try and make your life a living hell, worse than they have already made it, in order to get you to quit.

That's the goal - get senior teachers and ATR's off the payroll.

The concessions the UFT agreed to last night will help the mayor do just that on the ATR front.

And there will still be fewer teachers next year, class sizes will still be higher than they were this year and Bloomberg still gets to spend hundreds of millions of dollars on crooked consultants.

Not the worst deal the UFT leadership could have made, but certainly not the good one they're claiming it to be either.

Posted by reality-based educator at 6:43 AM

9 comments:


Pogue said...

To me, they let him off the hook once again. As politicians, and parents, and students, and teachers are banding together more and more, the UFT provided him an out.

I would've preferred he sweat this summer, and all its political heat, out.

We have given so much over the years. I look forward to the day when the UFT says Stop, and then starts getting some things back.

That day was not yesterday.

June 25, 2011 7:55 AM

Anonymous said...

Well said folks!!

June 25, 2011 8:02 AM

ed notes online said...

Perfect analysis. I just shot from the hip last night the minute I heard of the deal. The UFT did have the high ground and let it slip away instead of hammering Bloomberg. But they are not our advocates but mediators.

June 25, 2011 8:31 AM

Anonymous said...

Hey...they gotta protect that double-tenure cushiness at 52 Broadway, no ?

UFT sucks and needs to be overthrown.

June 25, 2011 8:41 AM

Anonymous said...

Do you think sabtaiclas will EVER be reinstated...?

June 25, 2011 8:41 AM

Anonymous said...

I agree with most of your opinion however there are a few wrinkles that should be looked into. Currently per diem substitutes are for the most part are denied unemployment insurance for the summer months. In years prior to 2007 most claims for unemployment if denied were won at appeal. Then Joel Klein began the Sub-Central Registry and had the city claim that per diems were ASSURED of finding day to day work via the registry. The administrative law judges bought into this position and since then have interpreted the part of labor law that denied per diem teachers unemployment benefits. Now with the influx of more than 15oo absent teacher reserves to cover day to day substitute assignments it is the responsibility of the uft to inform the per diem members (dues paying members)of their right and urgency to file for July and August. Also the DOE has reorganized districts and schools within the geographic districts now are miles and boroughs apart. If an ATR lives in Brooklyn and is assigned to a coverage in Staten Island when will they be informed? By public transportaion the trip is a minimun of 2 hours. Will the DOE honor pre-2001 district lines or the current reorganized district area?Food for thought.

June 25, 2011 8:42 AM

Anonymous said...

Frankly, the UFT disgusts me. Whatever happened to ORGANIZED labor? It seem to me that the many unions across the country have to work together and support one another's causes. The UFT trying to claim that it did what it took to avoid massive layoffs is a sad, pathetic joke.

June 25, 2011 9:55 AM

Anonymous said...

Read Mulgrew's "victory" statements last night, praising that fat blowhard Quinn, and "Bloomberg-with-a-tan Walcott"...Mulgrew is just another political hack making his way in city politics for his own cushy self interests...what a hack.

There NEVER were going to be layoffs this year, and ANYWAY if there were layoffs, they would have been newbie Teach For Americas, and the like. So instead he dumps on the mostly veteran ATRs...? The hand writing is on the wall people...it's time to overthrow the UFT...they are double agents in this war.

June 25, 2011 10:24 AM

Anonymous said...

i think the deal makes it transparent to the broad public that bloomberg was lying about the need for layoffs.

the sabbatical concession is laughable as a substantial cost reduction--i can't imagine that at any given time there are more than 100 teachers out of 75,000 on sabbatical; please correct me if anyone knows better. while on sabbatical, teachers take a 30 % pay cut and i'm sure are not replaced by new hirings.

the atr deal seems to be more problematic, and as noted previously here, needs to closely monitored as to where it's leading.

here's what needs further watching for me : the fact that bloomberg would withdraw his claws so relatively easily, and look so bad in doing so, while future mayoral candidate quinn , who has promised to continue the crusade against seniority and tenure, emerges as a heroine of sorts. there's more here than meets the eye. to our uft leadership : what's the deal ?

June 25, 2011 11:52 AM

Warm and Fuzzy Story of The Week: Bronx UFT Office Gives Awards For Collaborating With School Administrators

Bronx UFT leader Jose Vargas

I felt all warm and fuzzy when I read about the Collaboration Awards celebration given by the Bronx UFT office. Now I dont have to try to answer all the questions I get every day from teachers in Bronx schools asking me why Jose Vargas, Jeff Huart and the rest of the team in the Bronx wont help them when a "principal from hell" goes on a rampage.

Take Principal Richard Bost of Fordham Leadership Academy, for instance, who was found guilty by SCI of sexually abusing his payroll secretary. I wrote an article about him in June 2010. Blogger jd2718 wrote a story about him and about the theft of the $7000 which was to go to the robotics club but was deposited in the personal bank account of Assistant Principal Francine Palmer-Mullings. Meredith Kolodner, Staff writer at the NY Daily News, wrote about him. Blogger friend Chaz wrote about Bost, highlighting the latest NY Teacher (May 26, 2011) article "Bully!" published while one of his teacher victims, Michael Mullen, attended his 3020-a arbitration hearing on charges brought by Bost. Mullen's girlfriend was the secretary that was sexually abused by Bost, so of course he - Mullen - had to go.

Principal Richard Bost has been the subject of several sexual harassment charges and is alleged to have a record of retaliating against critics. Also, DOE officials have pointed to “serious failures in leadership” as a root cause of the Fordham Leadership Academy for Business and Technology’s placement on the state’s list of Persistently Lowest Achieving schools.

I was asked to do the suspension hearing of a boy in the same building but at another school and his sister told me that when she came to the school with her mom for the parent-teacher conference Bost followed her
everywhere. She thought he was "creepy".

So, I guess the reason that Guidance Counselor Diane Gallagher, Math Teacher Mike Mullen, and all the other teachers are no longer working in FLA's classrooms is that the UFT awards Collaboration, not dissention.

Wait. Just ocurred to me that Gallagher, Mullen and the teachers terrorized by Bost are UFT members, deserving of help by their reps at the Bronx UFT office....what say you, Jose?

Betsy Combier

Second annual UFT Bronx borough office Collaboration Awards

District 8 Representative Carmen Quinones (left) with PS 69 Principal Sheila Durant and Chapter Leader Helen Efstathiou (right).

Recognizing teamwork
by Micah Landau, published June 23, 2011
LINK

As UFT members well know, teamwork between teachers and administrators is key to a school’s success. When principals refuse to work with teachers, schools — and students — suffer. That’s why the union’s Bronx borough office held its second annual Collaboration Awards on June 9 to recognize Bronx chapter leaders and principals who have forged successful partnerships to support their students.

“If there is not collaboration in a school between the principal, chapter leader, teachers and parents, then we would be working in isolation,” said Jose Vargas, the union’s Bronx borough representative and host for the evening. “And if there is not a good leader steering the ship, that ship is not going anywhere.”

Karen Alford, the union’s vice president for elementary schools, echoed Vargas’ comments.

“We know that when adults work well together, it’s good for children,” she said. “It’s that simple.”

Veteran physical education teacher Manny Lopez, from the South Bronx’s IS 190, was among the many chapter leaders honored at the event.

UFT Bronx Special Representative Jeff Huart with PS 33 Chapter Leader Paulette Patterson (left) and Principal Lynette Santos.

“We collaborate so we can give something more to the students,” Lopez said of his partnership with Principal Dianajade Santiago, herself a former special education teacher who continues to substitute for absent faculty members.

Among their achievements, the pair, which meets every morning before classes begin and remains in communication throughout the day, has worked to introduce French into the school’s curriculum and to implement a school-based option to use the 37.5 minutes of extended time for lesson planning and professional development.

“You rarely hear of principals who protect teachers’ rights. This is one,” Lopez praised Santiago.

Another chapter leader-principal pair, Vicky Figueroa-Vidal and Kenneth Thomas, said they are working together to increase parent involvement at CS 134 in the Morrisania section of the Bronx.

“We want to make the community part of our school,” said Figueroa-Vidal, a 5th-grade teacher. “We want parent involvement, but it’s hard.”

She had only praise for Thomas, a former teacher and chapter leader at CS 61.

“He’s always willing to listen to the concerns of the teachers,” Figueroa-Vidal said. “When it’s possible, we find a solution that works for everyone.”

And the winners are ...

Chapter leaders and principals from the following Bronx schools received awards:

PS 18, PS 30, PS 65, MS 223, MS 203, PS 335, PS 69, PS 55, MS 327, PS 90, CES 126, PS/MS 218, PS 7, PS 33, PS 45, PS 118, PS 159, PS 306, PS 360, IS 390, PS 396, The Globe School for Environmental Studies, PS 169, MS 462, PS 153, PS 112, New Day Academy, CS 92, CS 134, IS 190, CS 196.

15 NYC Employees Are Busted For Unemployment Fraud

Who is watching the city bank?

15 NYC Employees Busted For Unemployment Fraud
Posted on Tuesday, 21 of June , 2011 at 9:20 pm
northcountrygazette.org/2011/06/21
NEW YORK—Fifteen current and former employees of the City of New York, most of whom were City “seasonal” employees, who fraudulently obtained a total of approximately $79,840 in unemployment insurance payments, have been arrested.

The Department of Investigation’s investigation found these defendants falsely claimed to the New York State Department of Labor they were unemployed, when in actuality they were working for a City agency and receiving City wages.

The individuals are charged with stealing amounts that range from $3,107 to $14,432. The City Department of Citywide Administrative Services (“DCAS”) reimburses DOL for unemployment insurance benefits paid to City employees and did so in these cases.

Since 1998, and including these arrests, DOI has arrested 121 City employees on charges of illegally collecting more than $430,000 in unemployment insurance benefits. The majority of those arrests have been of “seasonal” employees who work for City agencies for part of the year. They are entitled to collect unemployment insurance benefits when not working during the off-season but may not lawfully claim and collect unemployment benefits while actively employed and collecting City wages.

The arrests include individuals who worked for the City Department of Parks and Recreation (“DPR”), Human Resources Administration (“HRA”), Department of Information Technology and Telecommunications (“DOITT”), New York City Police Department (“NYPD”), Board of Election (“BOE”), Department of Health and Mental

Hygiene (“DOHMH”), Department of Sanitation (“DSNY”), and the Department of Transportation (“DOT”).

Nine of the individuals arrested currently work for the City and their cases will be referred to the appropriate agency for disciplinary action.

Each of the 15 individuals arrested is charged with third degree grand larceny, a class D felony. Upon conviction, a class D felony is punishable by up to seven years in prison.

Following are brief descriptions of the charges. In each case, the defendants falsely claimed to DOL they were unemployed, DOL paid unemployment benefits, and DCAS reimbursed DOL for each amount disbursed:

* • ORQUIDIA WADE, 30, of Brooklyn, is charged with falsely certifying she was unemployed between January and November 2009, when in fact she was working as a DOITT call center representative during that time period. As a result of those misrepresentations the defendant illegally collected approximately $14,432 in unemployment insurance benefits, according to the criminal complaint.

* • EARLEY WATFORD, 45, of Brooklyn, is charged with falsely certifying he was unemployed between May 2009 and July 2010 when in fact he was working as a DPR seasonal aide during that time period. As a result of those misrepresentations Watford allegedly illegally collected approximately $8,506 in unemployment insurance benefits, according to the criminal complaint. WATFORD has been working as a City seasonal aide since July 2007, currently works at DPR, and receives $14.98 an hour.

* • WILLIAM LENNON, 51, of Manhattan, is charged with falsely certifying he was unemployed between August 2009 and February 2010 when in fact he was working as a DOHMH Public Health Advisor during that period. As a result of those misrepresentations the defendant illegally collected approximately $6,974 in unemployment insurance benefits, according to the criminal complaint. LENNON began working for DOHMH as a Public Health Advisor in November 1993 and currently receives hourly wages of $20.68 in that position.

* • JOHN BLACK, 54, of Manhattan, is charged with certifying he was unemployed between November 2009 and May 2010 when in fact he was working as an HRA Job Training Participant and, then, as a DPR seasonal aide, during that time period. As a result of those misrepresentations the defendant illegally collected approximately $6,242 in unemployment insurance benefits, according to the criminal complaint.

* • CALVIN WARD, 39, of Queens, is charged with falsely certifying he was unemployed between March and December 2010 when in fact he was working as a DOT Assistant City Highway Representative during that time period. As a result of those misrepresentations the defendant illegally collected approximately $6,075 in unemployment insurance benefits, according to the criminal complaint. WARD began working DOT in March 2008 and is an Assistant City Highway Representative receiving an hourly wage of $22.03.

* • TONIA WALKER, 32, of Brooklyn, is charged with certifying she was unemployed between May and September 2010 when in fact she was working as an HRA eligibility specialist during that time period. As a result of those misrepresentations the defendant illegally collected approximately $5,950 in unemployment insurance benefits, according to the criminal complaint. WALKER began working at HRA in May 2010, currently is an eligibility specialist, and receives an annual salary of approximately $36,602.

* • BEVERLY ATKINS, 45, of Brooklyn, is charged with falsely certifying she was unemployed between November 2009 and February 2010 when in fact she was working as a DOITT call center representative during that time period. As a result of those misrepresentations the defendant illegally collected approximately $4,158 in unemployment insurance benefits, according to the criminal complaint. ATKINS began working at DOITT in November 2009, is currently a call center representative, and receives an annual salary of approximately $32,761.

* • MARGARET SCALISCE, 62, of Staten Island, is charged with falsely certifying she was unemployed between May and September 2009 when in fact she was working as a DPR seasonal aide during that time period. As a result of those misrepresentations the defendant illegally collected approximately $4,108 in unemployment insurance benefits, according to the criminal complaint. SCALISCE has been working as a City seasonal aide since June 2000, currently works at DPR, and receives $14.98 an hour.

* • ESTHER CAMACHO, 55, of Manhattan, is charged with falsely certifying she was unemployed between September 2009 and February 2010, when in fact she was working as a NYPD school crossing guard during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,798 in unemployment insurance benefits, according to the criminal complaint. CAMACHO began working as a school crossing guard in April 2000 and currently receives hourly wages of $12.90 in that position.

* • JOHN MCCLAIN, 53, of Brooklyn, is charged with falsely certifying he was unemployed between January and June 2010 when in fact he was working as a DSNY Job Training Participant during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,485 in unemployment insurance benefits, according to the criminal complaint.

* • ARTHUR WANNER III, 35, of Queens, is charged with falsely certifying he was unemployed between October 2009 and January 2010 when in fact he was working as a DPR seasonal aide during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,366 in
unemployment insurance benefits, according to the criminal complaint.

WANNER has been working as a City seasonal aide since August 2004, currently works at DPR, and receives $15.78 an hour.

* • DELORES GRAHAM, 55, of the Bronx, is charged with falsely certifying to DOL she was unemployed between May and September 2009 when in fact she was employed as a DPR Job Training Participant during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,266 in unemployment insurance benefits, according to the criminal complaint.

* • ANTHONY HALL, 25, of the Bronx, is charged with falsely certifying he was unemployed between May and July 2010 when in fact he was working as a BOE clerk during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,192 in unemployment insurance benefits, according to the criminal complaint.

* • JOYCE BENSON, 46, of the Bronx, is charged with falsely certifying she was unemployed between May and October 2009 when she was in fact working as a DPR Job Training Participant during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,179 in unemployment insurance benefits, according to the criminal complaint.

* • SANDRA DIAZ, 39, of the Bronx, is charged with falsely certifying she was unemployed between September 2008 and August 2010 when in fact she was working as a DPR seasonal aide during that time period. As a result of those misrepresentations the defendant illegally collected approximately $3,107 in unemployment insurance benefits, according to the criminal complaint. DIAZ has been working as a City seasonal aide since July 2007, currently works at DPR, and receives $14.98 an hour. 6-21-11