Archives For New York city Department of Education

Wednesday, May 14th, 2014
6:30-8:30 P.M.
Nuyorican Poets Cafe
236 E. Third St.
New York, New York
$10 at the door, proceeds to benefit MORE

"Davonte's Inferno"

Many thanks to Laurel for donating the proceeds from this reading to MORE!

We have, in the past, noted how New York City has moved to fired almost five times the amount of teachers that the rest of New York State has combined. In addition, we have highlighted how the city has spent the majority of $32.8 million (of state money)  on hearing officer fees alone to do so. For too long have we seen our colleagues removed from their duties, shamed in the press, abused in the workplace and silenced by a process that serves only to keep them silent. Today, we share the story of one of those teachers and declare our support of her reinstatement to full duties as soon as possible. 

Last March, the case of Christine Rubino was argued in front of the Appellate Division of the New York State Supreme Court. The judges’  unanimous decision, released just last week, revealed what real educators had been saying all along: A teacher with a spotless service record for fifteen years should not be fired for making one inappropriate comment on her Facebook account.

Christine Rubino had been fired (and humiliated in the press) after making one single dumb remark on Facebook several years ago. She sued to get her job back in the NYS Supreme Court and she won. The judge sent Rubino’s case back to the original hearing officer for a more lenient decision. The hearing officer then issued her a two-year suspension without pay.  She appealed that suspension, because she felt it was too harsh (so do we)  in front of the same judge who had overturned her original termination. She lost that appeal.

The department however, appealed the original decision reversing her termination to the New York State Appellate Court.   The argument made by the department was that the judge, the one who had ruled in Rubino’s favor the first time (the one who had sent the case back to the hearing officer), but ruled against her the second time had erred with her first decision and that Rubino should, in fact, be fired. The justices did not agree.

Anyone who’s familiar with Christine Rubino’s case understands it for what it is: A classic story of an employer playing the blame and shame game for keeps and an employee, also playing for keeps, who just won’t give up. Wherever you are in this scenario, whatever side you’re on, you have to admit that the case of Christine Rubino is at once breathtaking, captivating and terrifying to behold.

For us, it is unacceptable.

A large part of the attack on teachers is that too much of our lives, both  in and out of the classroom, is held to a level of scrutiny that is intolerable. This scrutiny has but one goal in mind: To create a climate of fear and intimidation among New York City’s  teachers. And teachers’ lives are destroyed as this goal is pursued. The toxic environment results from this fear fear creates is just what these people want and it leads good, proven teachers like Ms. Rubino, to be fired.

Not only teachers, but all workers should have the right to privacy outside of their jobs. This privacy was not afforded to Christine Rubino. If it had been, she would not have been investigated in the first place.   All workers should have the right to due process that is fair and appropriate to the accusation or act. While New York State’s termination process for educators, called 3020-a, provides a due process path, it leaves many infractions undefined, allowing our district, New York City, to pervert the process into a game which serves to publicly humiliate any teacher who, even once, steps the least bit out of line. Teaches, and all workers, deserve a disciplinary process that is fair and provides for support and development of employees rather than immediately turning to the harshest of penalties that can be dealt.

Let us be clear: What she said was a poor choice and a lapse in judgment. But she never had once had an incident of unprofessional conduct before this act in fifteen years of teaching. This one isolated incident does not identify Ms. Rubino as a teacher. Her fifteen years teaching countless students, however, does. That is why the Movement of Rank of File Educators is standing firmly behind her and will be alongside of her through the conclusion of this ordeal.

Regardless of what side of this fence you’re on you should know that it didn’t have to be as complex or as involved or as strange or complicated a story as it wound up being. This one act, written by a woman who had never been in trouble her whole career, generated no less than one formal disciplinary hearing, two hearing officer decisions, two Supreme Court decisions, one Appellate Court decision (possibly another), and very probably, one decision from the highest court in New York State: The Court of Appeals. Department lawyers have made their career on Rubino’s case. Judges and hearing officers have been able to book long vacations with the money they’ve earned hearing and deciding her professional fate. At one time, newspaper reporters and editors considered her’s the ‘go to’ story during a slow news week and many interested parties have spent many a difficult hour wondering where the proper precedent of her case, sure to effect teachers across the entire state, should be set.

All for one comment, made on one day in June.

Pundits take note: This is how the nation’s largest school district treats its good teachers. It humiliates them in the press. It moves to fire them, then fights tooth and nail to make sure they stay fired.

But also note that they will no longer be facing this shame and abuse alone.

We urge the department to accept the decision of the court and let Ms. Rubino go back to work. Ms. Rubino has won her case at the appellate level with a unanimous opinion and the Court of Appeals is extremely unlikely to even agree to hear a department appeal, much less overturn the decision. Any further action by the department would be a waste of time, energy and our taxpayer money -money that could be spent teaching children.  Efforts to keep her fired should be dropped and she return to her to the classroom where she belongs.

We further call upon our brothers and sisters who lead the union to step up to the plate and work out a final resolution with the department -one that includes Ms. Rubino’s return to duty next month, at the conclusion of her suspension . We are not concerned with arguments as to whether leadership is weak or unwilling  to protect teachers like Rubino.  In fact,  given the current political climate, we certainly know that it is no small task.  But when we hear of the stories of other teachers, like Francesco Portelos, and Harris Lirtzman,  we conclude that there is a need strengthen, not weaken, collective bargaining protections for teachers in general, and for Ms. Rubino in particular,  so that one inappropriate comment, made from home, (after a fifteen year spotless record of public service) does not immediately lead to termination.

tenuredteacherhearingsfundchart In November of 2007, the Department of Education formed a new group, the Teacher Performance Unit (TPU); a team of five lawyers and consultants who were tasked with the job removing teachers that the department identified as ‘bad’. At that time, Dan Wesier, the chief labor relations officer for the DOE was quoted as saying that the TPU would “…ensure we have the capacity to seek the removal of all ineffective tenured teachers..”. He also said that the new team would “… also allow us to seek discipline where appropriate in a wider range of cases than before..”.

Former UFT president Randi Weingarten responded to the formation of this group by asserting that the DOE was .. relying on an unnecessarily punitive and counterproductive management style that is intended to create a climate of fear, rather than collaboration, in our city schools.”  She lead a candlelight vigil on the 27th of that month to protest the group’s forming.

Six years, and a brutal recession, have passed since this policy initiative was launched.  During this time, the ranks of lawyers who work for the TPU, and it’s sister group, the Administrative Trials Unit (ATU) have swelled, while many of us who teach in New York City’s classrooms have witnessed the numerous attempts to fire our colleagues, many for reasons that we can only be described as frivolous and petty .  The Movement of Rank and File Educators believes that it is time to begin examining how many teachers have lost or have been forced from their jobs by the department since this policy began.

This, to be clear, is no easy task. Anyone who knows anything about  the process of firing teachers in New York knows that much of that process is kept secret. Some of this secretiveness is by statute. The state law that governs the process, 3020-a, guarantees an accused teacher his or her confidentiality throughout the entire process (unless he or she chooses to have its proceedings made public). And some of this secrecy is because the DOE and the union have both agreed to keep the actual numbers -the specific amount of people who have been put through this process- secret. The resulting fact is that there is no data that tells people how many tenured teachers lost their job in New York City in any given year. As a consequence, no one  actually knows how many teachers the city has fired, or even how many it has tried to fire since the formation of what Weingarten termed the ‘Gotcha Squad’.  There are guesses and  nuggets and tidbits of information that has surfaced from time to time. But there is no real hard number that anyone can point to. This number could be ten or it could be ten thousand and none of us would know. The first step in finding out is to examine exactly how much money was spent since these years in the pursuit of firing teachers. 

It is, of course, is impossible to track every dollar that has been spent pursuing 3020-a charges of tenured teachers.  The school district who decides to fire a teacher pays much of this expense. It is responsible for any investigation related or leading to its decision to begin a 3020-a proceeding. It must also provide a venue where the hearing can occur, a place where that teacher will report to work while he or she is suspended and don’t forget  the salary of a replacement teacher during the time of the suspension. Most importantly, the district must pay the fees of the lawyer(s) who will try the case. The state teacher union (NYSUT) is, when a member so decides, responsible for the fees representing the teacher during his or her defense. It is simply not possible for us to account for all of the money has been spent.

But it is possible to track the amount of money spent on hearing officers. Those are the arbitrators who are tasked with presiding over a 3020-a case and ultimately decide whether or not a teacher should be fired. In New York State, nearly every teacher who faces 3020-a dismissal charges has a hearing officer assigned to their case and, as it so happens, every hearing officer submits their fees to the same New York Sate Education Department office;  the Tenured Teacher Hearing Unit. This unit

“… manages aspects of the statutory process, including receipt of charges, maintenance of case files and case information, and facilitation of the assignment and payment of hearing officers/arbitrators and court reporters.”

Referring to this unit, New York’s Deputy Commissioner of NYSED, Theresa Salvo described the state’s role in the disciplinary process like this (here):

“. The [Education] Department’s role in the tenured teacher disciplinary process is primarily ministerial.The Department has little or no ability to control costs associated with the Tenured Teacher Hearing (TTH) process.” (emphasis added)”

This unit also manages a  fund called the Tenured Teacher Hearings Fund. This is actual account out of which hearing officers and court reporters are paid. This account has an annual budget of approximately $3 Million. Its monthly expenditures are reported on their own line in the NYSED State Education Department Monthly Fiscal Report.

So tracking how much money is spent on trying to fire teachers isn’t so difficult after all: We must simply examine how much money is spent on the fees for hearing officers in any given year from the state’s Tenured Teacher Hearings Fund.  If NYSED was compelled to spend more from this fund than usual, then we know that school districts in New York tried to fire more teachers than usual.

 In New York State, the fiscal year ends on March 31. So, in any given year, any money that the state has spent through this date (called “actual expenditures”), and in NYSED’s case, any money that is earmarked to be spent through the rest of the school year (called “projected expenditures”) is reflected in the monthly fiscal report for March of that year.

Below is the total amount of money that was spent by the Tenured Teacher Hearing Fund between the years of 2005 and 2013 as presented in the Monthly Fiscal Reports for March (the end of the fiscal cycle) of each year. (As you may find the documents a bit dense, I suggest searching for the term “Tenured Teacher Hearings” in each of them.)



Money Spent

$2.1m $2.1m
2006 $3.3m $3.3m
2007 $3.3m $3.3m
2008 $3.3m $3.3m
2009 $2.8m $4.2m
2010 $3.1m $6.0m
2011 $3.6m $10.1m
2012 $3.6m $12.6m
2013 $3.6m


It isn’t difficult to see that, beginning FY 2008/2009, and continuing through FY ’11/’12, there was a significant increase in spending from this fund on fees for 3020-a hearing officers. The only conclusion that can be drawn is that during, and just before, this period of time, hearing officers -who’s only job is hear the 3020-a hearings of teachers who were in the process of being fired by their district- were presiding over a great many 3020-a cases -many more than usual. So much, in fact, that the fund ran in deficit. During these years, more money was spent on fees for hearings officers and court reporters than NYSED or the state legislature had anticipated.

You’ll also note an increase in spending from this fund just two years after the formation of the ‘gotcha squad’ of at least $2 million each year. In 2007, with New York City’s Rubber Rooms still open, it took approximately that long to bring a teacher to trial.  While some of this money is, indeed, carry over debt from previous year, an examination of the budget reports will show you that new money -at times at an alarming rate- was spent from this fund during the subsequent four years.

Just another look at the line graph depicting expenditures from this fund.

We now know that more teachers experienced the 3020-a termination process during these years than ever had before. While we hesitate to guess the amount of teachers, we anticipate that this number must be staggering. That money, however, reflects 3020-a hearings from all across the state, not only here in New York City.  In order to show that the lion’s share of this money was spent firing city teachers, it’s important to separate New York City’s expenditures from the Tenured Teacher Hearings Fund from the rest of the state’s 694 school districts. Fortunately, there is a way to do that.

In May of 2011, NYSUT’s Andrew Pallotta offered testimony to the New York State Senate about the process of disciplining teachers. During those remarks, he made it a point to draw a stark dividing line between New York City’s 3020-a experiences and the rest of New York State. Time and again he reminds the committee that, when talking about 3020-a, there is a difference between New York City and the rest of the state. He starts off here

 “There are over 120,000 tenured teachers in New York State, not including those working in New York City.”

And then reminds the committee here (twice)

“During the 2005-06 through 2009-10 school years, our office handled an average of 104 new cases annually outside New York City.  In other words, fewer than one 3020-a case is filed for every seven school districts per year outside New York City.

And again here

 “We have studied the results in the 351 cases handled by NYSUT attorneys brought outside of the City of New York, which began and ended in the last 5 ½ years. In about 35% of the cases, the teacher resigned soon after charges were filed.”

And when he addresses New York City’s 3020-a statistics, he specifically mentions that remarks pertain to (only) the city:

In New York City, despite a number of attempts to improve the disciplinary system in the last ten years, the UFT felt that this system was not working for our members or the DOE.

This difference between the city and the rest of the state when discussing the 3020-a process is no coincidence. Thanks to the 2005 UFT contract, the actual process for terminating teachers in New York City is much more different than it is in the rest of the state (see here).

Let’s take another quick look Vice President Pallotta’s testimony about the 3020-a statistics outside of New York City:

“During the 2005-06 through 2009-10 school years, our office handled an average of 104 new cases annually outside New York City.  In other words, fewer than one 3020-a case is filed for every seven school districts per year outside New York City.

The number he sites reflects only those teachers who were charged, who chose the free legal defense from NYSUT (a great number of teachers opt to hire their own private defense attorney) and who’s charges were not settled before the hearing concluded. Anecdotaly , we know that the overwhelming majority of charges  filed end up in settlement. A settlement is an agreement entered into between the department and the teacher who has been charged whereby the teacher agrees to some type of penalty. In the past, this penalty has included a letter to file, a course (that the teacher must pay for) and in many settled cases, a monetary fine that is deducted from the teacher’s pay over a series of months. The numbers Mr. Pallota cites represent the smallest fraction of teachers who have been charge: Those who were charged, were not offered (or didn’t accept) a settlement and did not opt for private attorney representation, instead choosing the services that NYSUT offers. However,  using this number, which we have no reason to doubt, we are able to estimate that approximately 208 teachers outsideof New York City experienced this process through it’s entirety (with NYSUT representation) between September of 2009 June of 2010.

Vice President Pallatto accounts for this same period of time, and the same percentage of teachers who experienced the full process and opted for a NYSUT attorney, when revealing how many teachers within New York City:

Over the 2009-10 and 2010-11 school years, a period which covers both the backlogged and the newly filed cases, we have completed 561 cases.

That’s 561 cases (counting the backlogged cases that lead to the famous April, 2010 agreement to end the rubber rooms and speed up the process) that were handled by NYSUT attorneys within New York City. We can now see that, according to NYSUT, 353 more teachers cases were handled by NYSUT inside New York City during the same period of time.

There are 120,000 tenured teachers across the rest of New York State, where 208 cases were settled during this time. In New York City, it is generally understood that approximately half of that amount, 60,000, enjoy the same protections. Yet it seems the amount of city teachers who have faced termination charges double. In fact, using these numbers, it becomes clear that city teachers during  were at least 4.6 times more likely to face 3020-a charges than were teachers from across the rest of the state.

We can now see that between the years of 2009 and 2012 New York City spent the lion’s share of $32.8 million in state funds, running the state into a $19.7 million deficit in the process, to dutifully try to fire more than four times the amount of teachers as anywhere else in the state. Only two possible conclusions can be drawn from this realization: Either an astoundingly high amount of teachers here in the city are bad, or our employer, the city’s Department of Education, has zealously pursued a course to fire as many teachers as it can.

We  believe the latter: That, instead of spending badly needed money on children and on schools during the depths of the recession,  the department engaged in a zealous attempt to fire as many teachers as possible and used the state’s money -more than $19 million of which it did not have- to prosecute those attempts. We also believe this policy continues to today.

Former president Weingarten’s  prediction was correct; the DOE has created a climate of fear and intimidation in our schools.  This climate of fear has had an adverse effect on the working conditions of our colleagues and must end.  We must establish an open environment of collaboration if we expect our teachers to excel. In addition, the department must  direct as much money as possible to the actual classroom -to actual students-  instead of using it in an attempt to fire teachers (at a rate at almost five times as frequent as other districts throughout the state) if they expect their schools -our schools- to be successful.