The tentative UFT contract's "problematic" clause seems legally dubious

As writers at the ICEUFT blog have emphasized the standard for discipline of ATRs is tricky: "The “Problematic” Language is Not the Only Part of the Agreement that is Problematic". It is based on a label of behavior as "problematic;" but this is troublesome, as the term is not precisely defined in the tentative DOE-UFT 2014 contract.

The beginning of the article describes the fast-track expedited dealing with targeted ATRs:

Principal removal of ATR after assignment. Under the proposed contract a principal (not the teacher) has the complete discretion to return a teacher to the ATR pool. If the return is based on “problematic behavior,” defined as “behavior that is inconsistent with the expectations established for professionals working in school.” An ATR accused in two writings within two years of this “problematic behavior” may be accused of a “pattern of problematic behavior” which can become the basis of an “expedited 3020-a hearing” in which a hearing must be completed in one day (half day to each side) within 20 days that the teacher requests a hearing. The decision must be made within 15 days of the hearing date.

The article closes with this conclusion which sums up how this sets a bad precedent for teachers in general, going into the future.
The acceptance of this procedure as a perceived benefit signals our union’s position in future contracts where it appears all teachers will “enjoy” the benefit of expedited and ill-defined termination proceedings.
This proposal is anathema to the good order of the teaching profession and must be completely understood before it is blindly accepted.

Another ICEUFT blogpost addresses how Mulgrew is conceding the ability for the "problematic" to be determined by others in the future. (May 13: "Mulgrew Admits He'll Leave Critical Issues to Others in Proposed Contract.")

This contract rests on disciplining teachers by terms that will be figured out at sometime down the line. Essentially, this has the potential of handing to arbitrators a blank slate on which to write discipline law. This overrides the state's 3020-a law, taking away some of the protections that law has offered. How could the UFT lawyers on the negotiating team agree to this provision?

The UFT has not explained to its members these precedents in discipline and rule setting.

Quick responses to hokey arguments for the UFT contract's "protections" for ATRs

Once upon a time there was a rep that promoted the UFT's 2014 contract, and said:

On ATR’s:   Double the protection a regular classroom has.  Yes, now it takes TWO principals documenting problematic behavior to bring someone on 3020a charges.  Yes, they will get a hearing in front of a neutral arbitrator.  Yes,  the DOE will have to prove their case.   Yes, the UFT will provide them with an attorney free of charge.   

Yes, they will now be sent to schools in their district and borough, where there are vacancies in their license area. Yes, the open market transfer period has been extended.  Yes,  they will have the option of taking a severance package if they resign.  Yes, there is NO AUTOMATIC DISMISSAL. 

The UFT said the ATRs would be protected.  They have been protected.  

To which an ATR responded:

I'm sorry you have bought into this.  We will have a ONE day hearing.  That is not protection.  Are you kidding?  What about calling witnesses?  What is unprofessional conduct?  Have you seen a list?  No, no one has?  
This has created a 2nd class of teacher?   Why?  ATRs are not worse teachers, they are not ATRs due to something on their part.  Their school was closed because of Bloomberg.  Why are they being hunted down like dogs?    Being sent to schools in their borough???   Do you know how large Queens is?  And I have no choice if I want to accept a job?  I can't get to schools in Astoria or L.I.C.  There is no parking, but I may have to take the job.  The only jobs left will be the jobs that no one else wants.   
PLEASE DON'T SUGAR COAT THIS CRAP FOR US.  ATRs ARE NOT STUPID. 

This petition to Mulgrew is something that would be good for people to support. It encompasses all excessed staff in all content areas. Shouldn't we be granted a meeting? Staff could have an opportunity to ask a question about their situations or obtain information about the 2014 NYC DOE - UFT contract that they otherwise would not have had.
The union should announce the meeting to every member by their personal email and through the UFT website.

Petition statement to be delivered to Michael Mulgrew, UFT president:

Petition the UFT for a mass meeting to explain the contract's impact on ATRs

We ask you for a mass meeting at UFT headquarters, in the delegate assembly hall, to accommodate all members of the Absent Counselor Reserve (ACRs), the Absent Teacher Reserve (ATRs), other excessed staff or other concerned UFT members, for the purpose of fully airing how the tentative UFT contract will affect excessed staff. 

The ATR part of the contract is a fundamental violation of due process and tenure. We are troubled that there is an expedited discipline and termination process that applies only to ATRs and not to non-excessed teachers. By agreeing to this expedited process you appear to be conceding to the myth that ATRs are all bad teachers instead of educators caught up in school closings and co-locations. 

Principal among our concerns, we wish to have a full enumeration of all actions that would constitute "problematic behavior". 

We are very troubled by your statement, reported in the May 12, 2014 “Wall Street Journal”, that some unnamed panel of hearing officers would solidify the definition of "problematic". How can we be considered as breaking the law if there is no written law or statute? You are trying to get people to agree to a contract whose terms are not yet really defined. 

PETITION BACKGROUND

How can one be considered as breaking the law if there is not yet a written law? Should the fate of teachers' careers rest on undefined legal concepts?

"First They Came" by an excessed teacher

This gem needs no introduction.

They came for the Ed Evaluators, but I was not an Ed Evaluator so I did not speak out.
Then they came for the Home Economics Teachers, but I was not a Home Economics Teacher so I did not speak out.
Then they came for the Shop Teachers, but I was not a Shop Teacher so I did not speak out.

Then they came for the Reading Teachers, but I was not a Reading Teacher so I did not speak out.

Then they came for the Literacy Coaches, but I was not a Literacy Coach so I did not speak out.

Then they came for the Librarians, but I was not a Librarian so I did not speak out.

Then they came for the Bi-Lingual Teachers, but I was not a Bi-Lingual Teacher so I did not speak out.

Then they came for the Business Teachers, but I was not a Business Teacher so I did not speak out.

Then they came for the Drama Teachers, but I was not a Drama Teacher so I did not speak out.

Then they came for the Art Teachers, but I was not an Art Teacher so I did not speak out.

Then they came for the Band Teachers, but I was not a Band Teacher so I did not speak out.

Then they came for the Phys Ed Teachers, but I was not a Phys Ed Teacher so I did not speak out.

Then they came for the Computer Teachers, but I was not a Computer Teacher so I did not speak out.

Then they came for the Physics Teachers, but I was not a Physics Teacher so I did not speak out.
Then they came for the Chemistry Teachers, but I was not a Chemistry Teacher so I did not speak out.
Then they came for the Foreign Language Teachers, but I was not a Foreign Language Teacher so I did not speak out.

Then they came for the Dance Teachers, but I was not a Dance Teacher so I did not speak out.

Then they came for the Music Teachers, but I was not a Music Teacher so I did not speak out.

Then they came for the Common Branch Teachers teaching in middle school, but I was not a Common Branch Teacher teaching in middle school so I did not speak out.

Then they came for the Guidance Counselors, but I was not a Guidance Counselor so I did not speak out.

Then they came for the Social Workers, but I was not a Social Worker so I did not speak out.

Then they came for the Older Teachers, but I was not an Older Teacher so I did not speak out.

Then they came for the Minority Teachers, but I was not a Minority Teacher so I did not speak out.

Then they came for me, the regularly assigned teacher --and THERE WAS NO ONE LEFT TO SPEAK FOR ME AND IT WAS TOO LATE.

Just Vote No on the UFT Contract that makes ATRs Harijans!

MORE's new flyer on Voting No on the Contract

ATRs: Leaflet the delegates @ Wed's DA: Vote No on the UFT contract

ACRs/ATRs, other excesseed UFT members:
Leaflet the special UFT Delegate Assembly (special location) at the NY Hilton in Midtown:
1335 Ave of the Americas (west side of 6th Ave between 53rd St & 54th St, near E, F, M, N, Q, R line stations)
Wednesday, 5/7, 4 to 6 pm
(The MORE Caucus, which is supporting the ATR cause, is leafletting there as well with their leaflet.)

*Click this link for Web access to the print-ready landscape-formatted leaflet:
https://docs.google.com/document/d/1b2HI9Rs04WdNWrkKtCRea1VRYGJ0XfAXwDSYU-GDI8o/pub
*Version addressed to UFT delegates:
https://docs.google.com/document/d/1AwfHzIEKyVHY30kJ3IGihWbed6hrMiN_SA1YmtseosY/pub
*UFT's Pay Raise Schedule drawn out to 2020, plus issue of disparate treatment of ATRs:
https://docs.google.com/document/d/1qHdwRJF1hAyQgmbKiSlaw3bzrI41UmwBvh1MrmnbOKc/pub
*Drawn-out raise schedule Illustrated in a graphical form:
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjKR4GtrQKRf5Qtcn-DKS0TaR5Y0Hygbvw1jtbofAuiD97kDHS0nFS4m00w0Ur8H4KVs2mlvaE-HM-hJJMSTc9Qwxag35ry6e7Djn8yXpSdI6XZAH158UMCHVTTTX1yReu9CbmN5CSTrW2A/s1600/AContract4PuttingOffRetro.gif

Fellow UFT members, ask your delegates,

“DELEGATES, CAN YOU AFFORD TO SUPPORT THIS CONTRACT?”

In the new expedited process an ATR's career can be cut short promptly:

The charge from just two principals that he or she is “unprofessional” (which is not spelled out) will end their tenure, without due process.

–--Can we really trust that principals will not create frivolous trumped up charges?

How safe are you from becoming an ATR?

--Is your license the next to be eliminated?

--Is your school losing enrollment?

--Is your school getting a co-location?

--Do you think your principal likes you –now?

And why are we agreeing with merit pay and with putting 200 schools outside of union protection?

Why does 75% of retro pay does not come until October 2018?

"These [ATRs] are good teachers, mostly from closing schools. But rather than create a win-win situation, the system - despite repeated requests - refused to deal with these issues."              --UFT then president Randi Weingarten, April 10, 2008 – How far have we come from then?

Vote NO on the UFT contract! ATR Chapter Committee atrnyc.blogspot.com

THE DOE'S TEACHER RETENTION PLAN: HOLD OFF 3/4 OF RETRO PAYMENT FOR 4-6 YEARS

Here are the true details about the proposed contract as reported by UFT Leadership on May 1, 2014 to the negotiating committee:

Our Pay Raises

Money

These are the raises that we will get on paper (what the press is reporting):

'09 --4%

'10 --4%

'11 --0% ($1,000 signing

bonus credited to 2011)

'12 --0%

'13 --1%

'14 -1%

'15 -1%

'16 --1.5%

'17 --2.5%

'18 --3%

However, the money that is owed to us from previous years will ONLY arrive beginning in the

year 2015. It will work like this:

• 9/1/14- 2% (which includes the raise due 5/1/13 and 5/1/14 at 1% each):

• 5/1/15 - 3% (2% from our leftover raises in '09-'10 plus the 1% in the contract)

• 5/1/16 - 3.5% (2% from our leftover raises in '09-'10 plus the 1.5% in the contract)

• 5/1/17 - 4.5% (2% from our leftover raises in '09-'10 plus the 2.5% in the contract)

• 5/1/18 - 5% (2% from our leftover raises in '09-'10 plus the 3% in the contract)

• We would receive the $1,000 signing bonus sometime early next Fall

Our Retropay

That comes over 5 years and doesn't begin until 2015. We will receive a percentage of what

we are owed in one payment per year:

• 10/1 2015- 12.5% (lump sum)

• 10/1 2016 - Nothing

• 10/1 2017 - 12.5% lump sum

• 10/1 2018 - 25% lump sum

• 10/1 2019 - 25% lump sum

• 10/1 2020 - 25% lump sum

ATRs

Whoever accepts a position at a school, will go right back into the pool if a principal *says* they acted in an unprofessional manner. If an ATR is sent back into the reserve pool twice, then he/she will be fired in a 50 day time frame via a 3020-a hearing that will last no more than 1 day.

Some ATRs are being evaluated under dual evaluation systems

Some bad practices from Bloomberg's time are intensifying under de Blasio's Farina. One is the NYC DOE's having ATR Field Supervisors with over-reaching power observe ATR teachers with students that they have just met, that day, that period. A worsening nightmare, is that an untold number of ATRs are actually falling under dual evaluation system, under the flakey ATR evaluation system (here, here, and here) AND under the new Danielson-based Advance evaluation system. Is this all to protect Field Supervisors' jobs, to sustain the viability of their jobs, all in order to terminate ATRs out of their jobs?
The following description is just one instance of the rampant contract evaluations in practice under chancellor Farina's "new, improved" DOE. Unsurprisingly, interpretation of ATR observation conditions for temporarily placed ATRs is an area where the DOE and the UFT do not see eye to eye.

Rotating ATRs are covered by the 2007 to 2009 NYCDOE-UFT contract conditions, as there is no replacement DOE-UFT contract yet. ATRs are subject to the S and U observation system. Since they are not in a regular school they are allowed to request in writing to have pre-observation and post-observation conferences, as required under Articles 8J and 20 of the contract, as regularly assigned teachers were allowed to do, pre-Advance. Some Field Supervisors are accepting these written requests. Others are not. Also, as in the following case, some are not agreeing to submitting post-observation written requests, in person; and some are insisting that post-observation conferences can double as pre-evaluation conferences. All of this, of course, is in violation of Articles 8J and 20 of the contract. On the issue of observation reports, pre-Advance, read further here.

I am currently in a long-term assignment that started in mid-November until the end of the school year. I was evaluated in mid-January by a field supervisor. I thought it was strange that I was assigned to a school until the end of the year and yet was still going to be evaluated by a field supervisor, and not by the principal of the school. There was a pre- and post-observation and I received an S rating.  However, in early April I was told I would be evaluated by the principal using the Danielson and not the ATR S/U system. So far, the two informal observations at my assigned school have gone well with no rating below an effective, but still it seems being thrown into the Danielson system at this late date is ridiculous. Also, I am told my original S rated observation by the field supervisor won’t count which also seems unfair.

It gets better … In addition; I am told that the field supervisor still wants to observe ATRs (there are a few of us assigned long-term to this school). How can we be singled out like this for dual evaluation systems?

Also, I recently received a copy of my evaluation via email (yes, it took 3 months!) and at the end of it the last sentence reads; “It is understood that the post-observation conference for this lesson will serve as the pre-observation conference for any future observations.” It should be noted that I gave my field supervisor the request for a pre- and post-observation when she first contacted me. They want me to sign this and fax a copy back to them!

"Be happy you have a job" -- The true national trends in teacher displacement and placement

The main phrase that we're told over and over is "Be happy that you have a job. Everywhere else, teachers in your position lose their job in a few months." Not true. Actually, cities such as Chicago and Washington, D.C., are more the exception to the rule, as we see in a very informative webpage. The percentage that dismiss displaced teachers, "ATRs" in the New York City Department of Education, is quite low. And it is also revealing that in most places seniority protects displaced teachers. In New York City it works against displaced staff, as the group of ACRs and ATRs is blatantly lopsided against older, longer tenured staff.

The article is from a site which is targeted towards administrators, the National Council on Teacher Quality, nctq.org. The article, "Tr3 Trends: Teacher Excessing and Placement", from the site, surveys 114 districts, including Chicago, Denver, Los Angeles, New York City, Washington D.C., and smaller districts such as Little Rock. It doesn't address the issue of evaluation of teachers while out of the classroom in an excessed status. Notice that in other cities seniority protects senior teachers in other cities, yet New York City is one place where seniority works as a penalty against teachers.

The contrast of better situations for excessed teachers in other cities suggests that we should be armed with this knowledge as the NYC DOE and the UFT move forward with contract negotiations as well as negotiations over ATR status.

These patterns can be overlapping and include:
1. districts that use performance and other factors in deciding whether to retain teachers
2. districts that lay off teachers
3. districts that hire without consideration of seniority (27% of the survey), includes Chicago, Dallas, Fort Worth, Los Angeles, Minneapolis, New York.
4. apparently, LA & NYC are two of seven districts that place teachers in sub work pools until they are placed in a school.
5. 34 districts (29.8% of the survey, and including Jacksonville, Pittsburgh, St. Paul and St. Louis) have the district assign the teachers back into schools.
6. four districts (including Cleveland, Las Vegas, Little Rock and Spokane) allow teachers to choose positions based on seniority.
7. only six districts are in the worst category: five districts lay-off teachers or place them on un-paid leave (this includes Chicago teachers after 10 months); another, Washington, D.C. gives options of resignation, buy-out or eventual termination after a year if the teacher is unable to find a job.
8. about half the surveyed districts (65 of 114) do not address the issue of what to do with teachers that cannot find jobs.

Here's the article, Tr3 Trends: Teacher Excessing and Placement. Go to the original page link, for the charts on the teacher displacement and assignment trends.

PDQ: Pretty Darn Quick Blog
Tr3 Trends: Teacher Excessing and Placement

03/28/2013

In this month's Tr3 Trends, we take a look at teacher excessing: what factors determine which teachers to excess, how excessed teachers are assigned to schools, and what happens to excessed teachers who cannot find new assignments. 

But first, what is excessing and how is excessing different from a layoff? 

Excessing is the shifting of teachers from one school to another that results from a school reducing the size of its faculty due to a drop in student enrollment, a change in budget, programmatic changes, or because the school is being closed, redesigned or phased out.  Unlike being laid off, teachers who are excessed are still employees of the district and, in most cases, are still entitled to a teaching position at a school, but just not the same school that they left.

We've analyzed scores of excessing policies in districts' contracts and board policies.  Here are the trends that stand out:

In over half of Tr3 districts, seniority is the primary factor considered in excessing decisions.  

Only five districts--Denver, Douglas County (CO), Cypress-Fairbanks (TX), New Orleans, and Louisiana Recovery District--use performance to select teachers to excess without considering seniority.  Three districts--Wake County (NC), Baltimore County, and St. Louis--only consider the best interests and needs of the school or district.  Many districts look at a variety of factors when making excessing decisions. Washington, D.C., for example, uses a rubric with four different factors, of which seniority can only account for up to 10%. 

The "other factors" districts use to make excessing decisions run the gamut from diversity factors to extracurricular responsibilities.

We also looked at how excessed teachers were matched with new placements.

In about a third of the districts, principals or other site-based administrators choose which excessed teachers to hire, as opposed to being placed on the basis of seniority status or assigned by the district's HR office.

Thirty-one out of the 114 districts in our database use "mutual consent" to hire excessed teachers, which allows principals to interview and hire teachers of their choosing without regard to seniority. Los Angeles, New York, Miami-Dade, Chicago, Dallas, Fort Worth, and Minneapolis all use this approach.

Duval County (FL), St. Paul, Sacramento, St. Louis, and Pittsburgh are a few of the districts in which Human Resources places excessed teachers in schools without seeking input from the principal--at least according to the teachers' contract.
 
In Cleveland, Clark County (NV), Spokane, and Little Rock, teachers are allowed to choose placements based on their seniority.
 
In only six districts in our database, teachers are exited out of the school system--via layoffs, unpaid leave, early retirement, or buyouts--if they are excessed and then unable to secure a new assignment.  In most districts, excessing does not lead to layoffs. 

The six districts include Clark County (NV) and Manchester (NH), which lay off teachers unable to find positions after they are excessed.  These districts' contracts do not specify how long teachers have before they are laid off.

Little Rock, Chicago, and Douglas County (CO) give teachers temporary assignments (in Little Rock they serve as substitutes) and then if they are still unable to find permanent positions, they are laid off or placed on unpaid leave.  In Chicago, teachers have 10 months to find a position and in Douglas they have 12 months.  Little Rock's contract does not specify how long teachers have to find a position.

In Washington, D.C. excessed teachers unable to find placements are given three options:

• They can immediately receive a $25,000 buyout,
• They can elect early retirement, or
• They can accept a year-long temporary assignment and continue looking for a position.  If they cannot find another position within that year they will be laid off.