Commentary about that April 15th agreement can be found on the ICE blog, in separate posts by Jeff Kaufman and James Eterno.
Philip Nobile says in a subsequent post on the same subject:
"[The rubber rooms] were never the real issue.
Rather they are the rear end product of the DOE’s discipline system that can reassign a ham sandwich."
To Teachers, Counselors, Other Affected UFT Personnel:
Many thanks to the TAGNYC member who composed the following directives for any UFT member forced to go through the shameful, bogus process called "Settlement." This member underwent the process and can state from experience that negotiation savvy, and not fear, is your only, repeat ONLY, ally. Again, thank you. Feedback welcomed.
So your number’s up and it’s Mediation Day! It’s been a long road, waiting for a 3020-a hearing, and now you’ve got to jump through this new hoop of trying to reach an agreement with the Department of Education before finalizing the decision to be heard in administrative court. For some of you, the mediation appointment is just something to do until you have your hearing. Perhaps you think you have to go straight to the 3020-a hearing because of all of the injustice you’ve endured. That is understandable, too.
Having experienced part of the mandated mediation process and thinking about how it could have gone even better is the reason for this short guidebook. Hopefully, it will be useful to you in some way and the experience will have not been for naught.
PRE-MEDIATION: To Mediate or Not to Mediate
After taking an informal survey of folks who went through the 3020-a hearing process, the finding is that those who did not have the support of their principals were found guilty of something -- no matter how minor. Those findings resulted in fines, mandatory classes, and or other conditions. Findings against teachers occurred even when DOE witnesses were found to have lied.
In some cases where the principal fully supported the teacher and/or did not give testimony related to the charges, the teachers were exonerated. So, administrative acquittal can happen. Just ask yourself if there is anyone willing to testify truthfully on your behalf -- and in your favor -- to disprove all of the allegations against you. If not, then settling may be a better option for you. If you are unsure, ask around and take your own informal survey. Just ask yourself which path would lead to a better night’s sleep at the end of the day.
GOING THE MEDIATION ROUTE
Attitude is everything. When your NYSUT lawyer informs you of your mediation date, smile and say that you have an open mind and would love to hear what the DOE has to say. You can seethe inside, knowing you will go on to have your 3020-a hearing. However, going in with an open mind is crucial to getting closer to bearable terms of an agreement.
If you really are crazy, now is not the time to show your true colors. And, if you know deep down you are guilty of the allegations, exhibiting a positive and professional demeanor will persuade the DOE arbitrator and your NYSUT attorney to really work with you and try to get you closer to your own stipulations. If you are difficult or belligerent in any way, you will be less likely to receive any assistance or anything close to an agreeable offer.
Remember to dress professionally. This means to wear a suit and good accessories. You have one opportunity to make a positive impression on the people working on your case: the NYSUT attorney, the arbitrator, and the DOE lawyer.
If you can, make sure to bring your spouse to all meetings, including your mediation conference. And of course bring your spouse to your 3020-a hearing if you choose to go that route. Such support is not only comforting, subconsciously it helps temper any potential underhandedness the DOE, the arbitrator, or your NYSUT lawyer might otherwise pursue. Your NYSUT lawyer may balk at the idea, so just show up with your spouse and insist that your conferences will always include your spouse. There is some legal clause that allows spouses to hear all the lawyer-client privileged conversations. Be sure to take advantage of this little-known fact. It helps to have someone on your side in the room with you!
MEDIATION PROCESS: PART I
SEQUENCE OF EVENTS
You and your attorney meet to discuss the allegations against you during a separate meeting or phone conversation. During this time, you reiterate how and why the allegations are false. If they are not, explain as objectively as possible what happened. Remember to dress professionally and credibly if you meet your lawyer. A personal visit may be best as this is the time to make a positive impression.
A few days or a couple of weeks later you will find yourself on the sixth floor of the DOE Administrative Trials Unit at 49-51 Chambers St, where there are many, many conference rooms. You will be asked to sign in. If you need to use the bathroom, you will have to ask for the code. Bring snacks and water as you will have to wait throughout the day.
Once the official mediation meeting begins, you and your attorney will go into a conference room with the DOE lawyer and the arbitrator. Before this year, the arbitrator in the mediation process was the same arbitrator who heard a teacher’s case during the 3020-a hearing. Now, the arbitrator who mediates at this meeting is not the one who will hear your case should it become a 3020-a trial.
The DOE lawyer will make some brief opening statement about your specifications and which allegations are serious and how the DOE might be willing to settle. Then, the arbitrator will ask you and your lawyer to go into another room. The arbitrator will speak separately with the DOE lawyer about what the DOE wants in the settlement.
Then, the arbitrator will go to your room and speak with you and your attorney. This is the time to answer the arbitrator’s questions and bring up your concerns and desired terms. At this time, you may hear a lot of, “This is the best thing for you to do,” or “If you settle, you’ll be able to move on with your life.” Maintain your focus if you know that the DOE’s terms are unacceptable and you want to continue with the 3020-a hearing. Remember, their goal is to push through as many settlements as possible to meet the December deadline of closing all cases. Congeniality will go a long way during this one-on-one with the arbitrator because he is the one who usually acts as the go-between your lawyer and the DOE lawyer. If you are difficult or belligerent, the arbitrator may not be so willing to offer suggestions for more favorable terms on your behalf.
Depending on the time of your appointment, it is possible that your mediation meeting may be extended on another day. This is advantageous for you to be able to think about the terms offered and what you are willing to accept. In addition, it may give you time to think outside the box and come up with viable counter-offers. If the end of the day is not near, just ask for a day or two to think about it. What’s the worst that can happen? They say no? Take care of yourself and refuse to let yourself to be rattled because of some artificial deadline to get everything signed.
MEDIATION PROCESS: PART II
When discussing your case with your NYSUT lawyer, be sure to mention your ideal outcome. For example, most settlements include a fine, some type of remediation course at your expense, and some sort of stipulations. Some are negotiable in terms of the severity, but not in complete removal. Find out which apply to your case.
Some DOE stipulations could be as follows:
Respondent (that’s you) agrees he is guilty of (insert any one of your specifications here).
Respondent agrees that if she is late any more this year, he will be terminated effective immediately.
Respondent agrees that he will not disclose any of the terms of this agreement to settle this case.
There are many other terms that could apply. It just depends on the allegations and the people working on your case.
Your deal-breakers may not coincide with the DOE’s desired provisions, so it’s good to be creative and to think outside the box for the following possible terms.
The DOE loves to start high and then lower the amount of the fine. If you have incurred certain expenses, you should make your lawyer aware of this amount. For example, if you had to rent a storage unit to contain your teaching materials, this should be mentioned. Ask your NYSUT lawyer to get the DOE to state how it arrived at the offered fine amount. Question it, but do so politely.
Issue of Guilt
This is a really important clause to have your NYSUT lawyer insist upon including in the agreement. Ideally, it should be listed underneath the stipulation about the fine you agree to pay.
It should be stated as follows:
“Both parties entering this contract agree that the payment of the fine of $__ does not constitute guilt on the part of the Respondent.”
Your lawyer may tell you that this is not done or that if the DOE doesn’t bring up the issue of guilt you should not, either. It is your decision. Just remember that the inclusion of this statement may have more of an impact later on in your life and career, and that such forethought now could be beneficial in the future.
By now you have probably heard of colleagues whose settlements included taking courses on the topic of their allegations. In one case, someone had to find a course on using cell phones in the classroom. It’s absurd, but that’s what that teacher agreed to do. These classes are taught by the same teachers who conduct professional development workshops. They charge anywhere from $100 to $300 per hour, depending on the seniority of the teacher. It’s a racket, and expensive since most agreed-upon courses are at least three hours long. This course fee comes out of your wallet. So, have your lawyer really question the necessity of this stipulation in the agreement.
Removal of Specifications
At the beginning of the mediation process, your lawyer – if she’s good – will avoid disclosing your defense strategy in front of the DOE lawyer. Your attorney should ask the DOE lawyer how much evidence he has for each specification. If the DOE lawyer has little to no evidence, have your lawyer push for the removal of those specifications and include that in the settlement agreement. Just make sure the specifications are stated only as “Specification One” versus “Specification One: Teacher is accused of hitting a student in the hallway before class.” The settlement agreement goes permanently into your file.
Letter of Reprimand
If your allegations are minor, your NYSUT lawyer should ask for a letter of reprimand. This should be the first thing you ask for in lieu of a fine. It is the lowest form of punishment the DOE can administer. Some teachers get this as a result of a 3020-a hearing.
Order of Stipulations
Take time to read the draft of the settlement. If the first stipulation is about the imposed fine, request that it be listed somewhere on the second page. The reason for this is simple: whoever reads it will see the fine that you agreed to pay and it will be the first impression of you – on paper. If other, less serious terms are stated first, then the paragraph about the fine seems less important. And, most people gloss over such documents. So by the second page, perhaps most people will have stopped reading the agreement.
Status of District
If you prefer to stay in the district of your current school, make sure to bring up this point. There has been lots of talk on blogs about how teachers’ status regarding districts can change or be challenged. If it is included in your settlement agreement that you can only interview and be offered positions in your current district, then you will have fewer headaches later.
Ineligible list removal
Make sure that included in the agreement is a statement that says your name will be removed from the ineligible list immediately after the agreement goes into effect. The DOE must be held accountable if this does not occur immediately. Continue to follow up with your NYSUT lawyer until this is resolved. Furthermore, many teachers whose cases have been settled for a while find that their status is still “Suspended with pay” instead of “ATR.” If this should happen to you, call the man in charge of the Children First Network human resources department which handles such teachers: Anthony Vellon, 718-828-5771 or 646-465-2795.
MEDIATION PROCESS: PART III
FINALIZING THE SETTLEMENT AGREEMENT
After all of that, the arbitrator will take some time to review all the information from both sides. There may be some back-and-forth between your lawyer and the DOE lawyer. Each time, a draft of the settlement may be submitted for your review. Once you and the DOE agree on the terms, the DOE lawyer will type up a final draft of the contract. It is binding, so read it thoroughly BEFORE you sign it.
Reading the contract right moments before signing it is really important because what generally happens is that you and your lawyer approve the final draft, and then the DOE lawyer goes off to type it up and print it out. The DOE lawyer may then revise the document -- without telling you—and then fold over all of the pages of the contract so that the only page showing of each of the four or five copies you are to sign at once is the signature page. Take your time to read each agreement carefully. Remember, this is your life, not theirs. The DOE lawyer, the arbitrator, and your NYSUT attorney do this for a living, so it’s just another day and just another teacher to them. So, if they need to wait while you calmly make sure everything is as agreed, then so be it.
There are at least four copies to be signed all at once. You get one, the NYSUT office gets one, your principal gets one, and the DOE office gets one. After the DOE's legal unit supervisor and your principal sign it, you will receive a copy of your settlement in the mail.
Once the DOE lawyer and you are ready to finalize the contract, the entire process will be recorded. In the room with you all is an additional person: the official recorder. You will be asked to state your name and verbally agree that you are entering this binding agreement of your own free will. Everyone watches you sign the contracts, and then it's all over.
Now, all you have to do is wait for the mail to arrive. Once you receive your copy of the agreement, take note of how you feel and use that for future reference. Then, it's time to move forward and to put the Rubber Room behind you
Having said all of that, the steps after mediation are fuzzy at best. As stated above, many teachers whose cases have been settled for a while find that their status is still "Suspended with Pay" instead of "ATR" or "Restored to Service." If this should happen to you, call your NYSUT lawyer as well as the man in charge of the Children First Network human resources department which handles such teachers. At the time of the publication of this guidebook, that man is Mr. Anthony Vellon. His phone number is 718-828-5771. Some teachers who were not given clear instructions on where to report this fall were able to find out their new assignment just by talking to Mr. Vellon.
In addition, pay attention to your paychecks because some teachers have noticed funny numbers in their take-home pay. One such example is of a teacher whose W-2 form shows more money than was actually paid. Another teacher saw an increase in salary but no explanation of why. What the DOE giveth, the DOE can taketh away -- if you have direct deposit.
Furthermore, after you are removed from the ineligible list, and even after you find yourself at a new school as an ATR, you many one day receive an e-mail in your Inbox or a letter via postal service from a school or some other DOE office telling you about immediate openings at schools or mandatory job fairs. The interview dates for immediate openings offered directly by a school could possibly be mandatory. This is where the whole issue of your status of district comes into play. Make sure to contact the DOE entity and let your status be known. Take notes and write down names. Consider showing up in person.The important thing is to be able to counter whatever argument the DOE makes for terminating you for not showing enough effort to get hired or for not appearing at mandated interviews. It could happen!
Life after mediation should not be scary, but it is because of the internal administrative changes, our nebulous status, and the DOE’s goal of terminating ATRs. Just make sure you always write down the names and contact information from everyone you encounter so you can stay on top of your status and next teaching assignment until you are hired and appointed once again.
©2010. Please let TAGNYC know how Settling 101 has helped you.