The NYC Department of Education Will End Placement of Excessed Teachers Into the Absent Teacher Reserve (ATR) Pool

We say: who do you believe? Why would you believe anything the NYC DOE says?

re-posted from NYC Rubber Room Reporter June 10, 2021:

Who can define an “excessed employee” in real terms?

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

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

The ATR pool is not the rubber room.

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

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

That’s the DOE, UFT, and CSA: “perpetual fog machines”.

The Teacher Hiring Support Center got it right:

TEACHERS IN THE ABSENT TEACHER RESERVE (ATR)

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

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

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

Let me add something to this mix: an ATR teacher certified to teach math, is placed into a vacancy for a month as a teacher for a high school social studies class; or, a Guidance Counselor is placed into a vacancy to teach math for a week. If the ATR educator was actually not an ATR but a per diem, then they could have the students review a report or look at a video during the class to take up the time, because they do not know how to teach a class and don’t have to worry about being rated and fired. But an ATR can be evaluated while in the class that they know nothing about. ATRs are rated “S/U” (satisfactory/unsatisfactory)under the rating system described in Teaching For the 20th Century,  This is good, in my opinion, because the NYSED rating system (“HEDI” – highly effective, effective, developing, and ineffective ) is a fog machine at work, clearly, or at least the way the NYCDOE uses it. I’ve heard that Charlotte Danielson herself doesn’t like what the NYC DOE is doing.

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

The temporary reassignment centers, or ‘rubber rooms‘ (“TRC”s I called them when I worked at the UFT) are another part of the same so-called ‘solution’ to the main issue Mayor Mike Bloomberg hoped to resolve (with the inexplicable help of Randi Weingarten at the UFT and David Grandwetter, General Counsel of the CSA) when he took over control of the NYCDOE:

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

Whether you are tenured or not, there are certain rights that a person has which can be used to get your job back, or at least off of the problem code.

Any way you want to look at it, the ATR pool and rubber rooms deny lawfully given rights to Department employees. No one at the Department of Education investigates the complete set of facts behind an allegation. The so-called “investigators” at the Office of Special Investigations (OSI), Special Commissioner of Investigation (SCI), or Office of Equal Opportunity (OEO) are hired to start at the point where a principal says someone is guilty of something, and they find evidence to prove this premise and/or sustain whatever the act of misconduct was that allegedly occurred.

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

Now we are hearing that after years of outrage for placing tenured teachers in rubber rooms after being excessed or punished for crimes brought to 3020-a – but not terminated – have been recorded for history, the other terrible outcome of the unlawful 3020-a hearings – the demeaning title of “Absent Teacher Reserve” or “ATR” – will be retired, gone, done. But only for excessed employees.

Oh, wait. What are you doing? Going along with what the NYC Department of Education is saying? The capital of the State of deceit? Be mindful that the NYCDOE is saying that most of the ATR pool are  “excessed” employees, and all of the “excessed” employees who are in the ATR pool will be permanently placed in September. But this does not apply to teachers who are charged with something, and are waiting in a rubber room to have the 3020-a arbitration or discontinuance appeal hearing.

How do you prove if you are being excessed for a valid reason, i.e. elimination of your position due to financial necessity, or not a valid reason, i.e. the whim of a principal?

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

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

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

This was extremely misleading. What the NYCDOE did, was close the large rooms and replace them with small rooms, hidden in schools, basements, and closets. The NYC Department of Education higher-ups are notorious for claiming they are NEVER wrong about anything, even when handing over $hundreds of thousands of dollars in settlement money, and unilaterally changing the titles of tenured employees simply to further harass an employee who was supposed to be terminated but was not.

I am asked all the time why a position is posted on the open market while the former employee at the school sits in a rubber room awaiting their 3020-a hearing on the served charges. Here is the answer: the Principal has already permanently removed you from the job, and has knowledge of, or has been told that you will never be back. When I get a decision from an Arbitrator in a case where the Respondent is completely exonerated, or we settle a case before starting a hearing by withdrawing all charges, the employee still does not get their position back but becomes an ATR, or stays in a reassignment situation.

Outside of NYC the employee can go back to their original school and position or can get a position in another district in their original license. One of the charged educators who was completely exonerated of all charges in Massapequa Long Island, including that she was ‘crazy’ (Education Law Section 913), went right back to her school and the school district removed the principal.

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

See Down The Rabbit Hole: The NYC Department of Education’s “Problem Code”

But if the person charging an educator with misconduct did not taint the person with a problem code before he/she was found guilty, then the NYC DOE may have to say that the charges were – or could be – false. Oh no!!! To admit this would mean the DOE personnel who charged this person could be determined to have been wrong about the allegations against this employee. The Department and school districts never want to admit they are WRONG about charging someone, so re-read the paragraph above.

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

Some of the changes in procedures are:

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

Another way arbitrator bias was embedded in the charging procedures can be seen in the denial of the right for teachers to choose the arbitrator for their 3020-a. In about 2007, panels of arbitrators were started, where the UFT and the DOE chose arbitrators who stay on the panel hearing cases for 1 year on contract. The UFT agreed with the DOE that tenured individuals who were members of the UFT would not be allowed to choose the arbitrator. CSA members, Assistant Principals and Principals may, after receiving 3020-a charges, choose the arbitrator from a list sent out by the New York State Education Department. This list usually has the names of 15 approved arbitrators. I have picked many arbitrators over the past 18 years, and my choice is always the individual who I believe is most fair – I have met most who work the 3020-a circuit and if I have not met someone on the list I research the background and prior case decisions. I doubt my standard of “fairness” is anything close to the standard used by the UFT or DOE when they pick arbitrators for their panels (there are two, one for misconduct and the other for incompetence). Remember, the goal is to terminate.

Outside of NYC, all tenured educators, no matter if they are members of the UFT, the School District, or whatever, choose the arbitrator for the compulsory arbitration known as Education Law 3020-a. The arbitrators chosen in NYC by those people who represent CSA members, get a list of names of charged educators whose cases need to be heard, and are contracted to hear 5 cases/month at $1400/day. I have been told by several arbitrators formerly on the panel that they are not asked to stay on as an arbitrator or are not asked back after the end of the fiscal year (August) if they are too “lenient” – i.e. they do not have a high number of Respondents terminated from their employment.

Then there is the fraudulent manner in which probable cause is never voted on by anyone, leaving the arbitrator without subject matter jurisdiction to hear any case or decide on any penalty. I wrote the Article 75 Petition for Rosalie Cardinale that won in the Supreme Court Richmond County 2018. This decision remains good law. NYSUT will not permit any mention of the Cardinale case in any 3020-a that they do, (private attorneys can offer this case) and if the charged educator demands that they argue improper determination of probable cause, their representation will suddenly end. NYSUT will not represent anyone who wants the Cardinale case argued in a 3020-a hearing because the UFT is a collaborator with the NYCDOE in denying a proper determination of probable cause to all charged educators.

I was astonished – actually not, but at least not amused – when NYSUT Attorney Keith Gross told one of his teacher-clients that I was a liar after she asked about the probable cause issue. He then threatened to quit her case if she mentioned it again. She was terminated at the end of her 3020-a after using Keith as her rep. He is probably still angry that I wrote about what he did in the case of “Jane” (not her real name) from the 25 Chapel Street rubber room.

Really, Keith?

Betsy Combier

betsy.combier@gmail.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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