October 31, 2010

From TAG: Settling 101

The following document being circulated by TAG (Teacher Advocacy Group) speaks for itself. It is a response to the the procedures concocted by the DoE and UFT in an effort to close the rubber rooms and streamline the Teachers Reassigned process.

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.


Settling 101

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.



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!



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.



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.

Remediation Courses
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.



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.

October 23, 2010

Building things in stone

It's not that I'm slacking off, but once again in this sinister, pro-business, aggressively anti-teacher and decidedly anti-arts climate, I find myself teaching out of license.

Two years ago, they gave me a band program, though I do not teach under a band license. That's because to everyone in the DoE music is music, whether it's orchestra, band, or chorus. Any musician knows how really different the singing thing is from the instrument thing — like about a lifetime to learn how to do either one.

This year they've gone further astray, cut music altogether in my school, and asked me to teach health. I guess they figured that since I've had children of my own, that I seem to be keeping myself well enough, and that I've personally experienced every stage of life but old age, I must know something about health and healthiness. But, that doesn't make it legal under state law.

Mind you, for people who like total immersion, it's not at all bad to teach a whole program like health out of license. Delving into how the body really works and a whole range of other physical, emotional, intellectual, spiritual, social, and environmental topics is all good stuff and worth spending many hours on. I'm not begrudging any of that, but it sure does cut into my political work.

Which means that if I come across something that needs to be circulated widely, I'm happy to do it.

A few days ago Betsy Combier (NYC Rubber Room Reporter) drew attention to an article posted last week by Howard Wexler called: New York Labor and Employment Law Report.

It's important to read all of it, but here's an excerpt:
"Earlier this year, Governor David Paterson signed into law Chapter 103 of the Laws of 2010 which, among other things, drastically alters the way classroom teachers and building principals are evaluated and the procedures for disciplining tenured teachers. These changes will take effect over the course of the next several years. Many key provisions were effective on July 1, 2010. . . .

The most widely publicized aspect of the new legislation is Section 3012 c of the Education Law (“3012-c”), which contains the new comprehensive Annual Professional Performance Review (“APPR”) system for teachers and principals. For the 2011-2012 school year, the new APPR system applies only to evaluations of teachers in the common branch subjects or English Language Arts, and Math in grades four through eight, as well as building principals. The new APPR system will apply to all teachers and principals effective in the 2012-2013 school year. . . ."
This ed-deform movement is like building a bloody pyramid.

Stone by well-crafted stone, they put every piece of their agenda in place, not stopping for a moment to think of all the lives devastated in the making of such a gargantuan monument to self-aggrandizement, putrid values, and obscene wealth.

October 9, 2010

And the Nobel Prize for
Opposition to EdDeform goes to ...

South Bronx School

who just wrote the brilliant piece below. I'm thinking it should be plastered everywhere IN FULL.

Honestly, you need a sledgehammer to get the comfortable middle-class to wake up and smell the roses.


Friday, October 8, 2010

Joel Klein Writes A Manifesto
For Our Time

So Joel Klein knows how to write. Or at the very least knows how to have someone ghost write for him. At least that what it appears in the article in the Washington Post which is due out this Sunday. In fact to help the readers read this mess we here at SBSB have supplied some background music to play whilst reading it. Click here.
Not to leave any credit behind, the article was "co-written" with Michelle Rhee, Ron Huberman, and a bunch of other hacks.

So, the crack team read and reread the Manifesto to come up with a response. The first problem the crack team has is using "manifesto" in the title. Though there is a chance that the Post decided to give it the title it did. The crack team does have an issue with "manifesto." Conjures up crackpots who think 9/11 was an inside job, or Fasci di Combattimento. Something like that. So now down to the lowlights of the Manifesto.

Off to a brilliant, self centered, self absorbed, look at me start already.....

As educators, superintendents, chief executives and chancellors responsible for educating nearly 2 1/2 million students in America, we know that the task of reforming the country's public schools begins with us.

No, it does not begin with you. Sorry to say that. It begins with the families. The parents. The children. The community. The teachers. The people on the front lines. It is not all about you. Get over it.

But those reforms are still outpaced and outsized by the crisis in public education.

There is no crisis. You created the crisis (I urge all readers to read The Shock Doctrine). As with anything in life education is fluid. It ebbs and flows and changes naturally. What you are doing is unnatural and unethical.

The "Waiting for 'Superman' " documentary, the defeat of D.C. Mayor Adrian Fenty, Facebook founder Mark Zuckerberg's $100 million gift to Newark's public schools, and a tidal wave of media attention have helped spark a national debate and presented us with an extraordinary opportunity.

Who except politicians, and the deformers, loves "Waiting for Superman?" The movie that is supposed to have been made for the people of the inner city, to show the plight of the people of the inner city, is not even playing in the inner city! It's not playing on 161st St in the Bronx. It is not playing at Baychester. It is not playing at Whitestone. Not playing in Harlem or Washington Heights. Why isn't it? Is this not the audience you want to reach?

Fenty was defeated because him and Rhee were seen as elitists. According to Michael Fauntroy, an associate professor of public policy at George Mason University in the New York Times Magazine on October 3 said, "the black, often struggling residents of Washington — the vast majority of parents in the public-school system — have a hair-trigger intolerance for anything that smacks of paternalism or disdain by policy makers, particularly when they appear to be telling people how to run their lives and, most potentially offensive of all, how to educate their children." What is it you are not getting?

As far as Zuckerberg. He is an opportunist. Why waste time with him?

21st-century global economy simply will not happen unless we first shed some of the entrenched practices that have held back our education system, practices that have long favored adults, not children.

You mean, "Children First?" Funny. Joel will you set the example by doing away with all the over paid consultants? What about all these network leaders, children first leaders, etc... that just take up space? Favored adults? Why then is the principal that is responsible for the death of Nicole Suriel still employed?

As President Obama has emphasized, the single most important factor determining whether students succeed in school is not the color of their skin or their ZIP code or even their parents' income — it is the quality of their teacher.

Joel, boobala, just because Obama said it does not make it so. The single most important person in a child's education is the parent. In fact, superstar and world famous social worker Susanne Berman said so on my radio show. I posit it to think that Susanne knows more than you when it comes to the psychology of children.

Yet, for too long, we have let teacher hiring and retention be determined by archaic rules involving seniority and academic credentials. The widespread policy of "last in, first out" (the teacher with the least seniority is the first to go when cuts have to be made) makes it harder to hold on to new, enthusiastic educators and ignores the one thing that should matter most: performance.

So new, young teachers are enthusiastic? Performance? But it has shown that a teacher takes until about their fifth year to get their groove on. I would never, ever allow my child to have a new teacher. The rules are not archaic. They are there to protect indiscriminate retaliation which as you and your cronies have shown is quite prevalent in the NYC DOE. Does your pal Mike propose the same for cops, firefighters, sanitation workers, parks employees? What about corrections officers at Rikers? Your performance has been abhorrent yet you still have a job. Why is that? Want to do away with academic credentials for teachers? Sure, why not. Let's do the same for lawyers. How difficult can it be to bill $450/hr for a phone call?

There isn't a business in America that would survive if it couldn't make personnel decisions based on performance.

And there is not a business in America that would survive the way the NYC DOE treats its "customers." McDonald's treats its public better than the DOE treats its public.

The glacial process for removing an incompetent teacher....

This is due to due process. You are a lawyer, what is it you fail to comprehend about due process? Besides, define incompetence.

has left our school districts impotent.

Joel, and I might be wrong will will check with world famous social worker Susanne Berman on this, but you just might be projecting here. Yes, it happens. It is understandable. You are of course over 60 years of age. But you can do something. Perhaps join Bob Dole in a commercial?

District leaders also need the authority to use financial incentives to attract and retain the best teachers.

Financial incentives, merit pay has been shot down. Don't you read the papers? Or the internet?

Is it reasonable to expect a teacher to address all the needs of 25 or 30 students when some are reading on a fourth-grade level and others are ready for Tolstoy?

NO!!!! So why are you keeping class sizes so high? Why are you not using the funds given to reduce class size??

eliminate arcane rules such as "seat time," which requires a student to spend a specific amount of time in a classroom with a teacher rather than taking advantage of online lessons and other programs.

Yep. Another way to reduce the teachers. The unions. And the pay. Technology is great. I am all for it. But it is just another tool in the classroom. Akin to a book, or a piece of chalk.

That starts with having the courage to replace or substantially restructure persistently low-performing schools that continuously fail our students.

C'mon man. The grading system changes every single year. How can it have any credibility when it comes to closing schools?

Joel, you have done more to wreck education in NYC than anyone has in history. You are a rotten human being, and in a way I feel quite sorry for you. You have no shame, no compassion, and no remorse. Your policies are there to hurt people. I hope one day you can repent. Nixon did.