New layoff bill combines Cuomo and Bloomberg's agendas

Mayor Michael Bloomberg and Governor Andrew Cuomo agree that the state should abandon the “last-in, first-out” layoff system — they have just differed about the appropriate time. Over the weekend, state Republicans who support Bloomberg’s plan proposed a compromise: use their criteria for layoffs now and the governor’s for layoffs starting next year.

The new language was included in a budget proposal that Republicans introduced in both the Senate and the Assembly on Saturday. It incorporates Cuomo’s proposal to speed up implementation of the state’s new teacher evaluation system and proposes to use that system to determine layoffs beginning next year. But if layoffs happen this year, then they would proceed according to criteria that are very similar to those in the original Senate bill, which was introduced by State Senator John Flanagan.

The bill addresses two perceived shortcomings of both Cuomo’s plan and the original bill that the State Senate passed two weeks ago. City officials attacked Cuomo’s proposed bill — which relies on new evaluations that would have to be negotiated in part by local districts in their unions — arguing that stalled negotiations could delay implementation of a new layoff system for months if not years. The new proposal calls for an arbitrator to rule if the district and union have not agreed on a plan 90 days before the start of the school year.

In addition, two criteria for laying off teachers this year that were included in the Senate’s original bill have been eliminated in the new language. The original proposal would have laid off teachers who had been ranked in the bottom 30 percent based on their students’ test scores for two years or more. It also proposed laying off teachers who, rather than receiving tenure after three years, were put on probation last year. Neither of those criteria are included in the new language.

The new bill would not change one component of Flanagan’s original bill that has attracted criticism: many of the layoffs would be based on whether or not a teacher has received an “unsatisfactory” rating from his or her principal. Under the new language, teachers would be laid off first if they have received two U-ratings in the past five years, or one U-rating this school year or last. Critics argue that this criteria relies too heavily on the subjective view of principals, who have in a few high-profile cases abused that power.

Last year, roughly 1,800 teachers were rated unsatisfactory, an increase of 17 percent from the year before.

Here is the full text of the compromise language introduced over the weekend:

S 4. Subdivision 3 of section 2588 of the education law is repealed and a new subdivision 3 is added to read as follows: 3. (a) Notwithstanding any other provision of law, rule or regulation to the contrary, the city school district and its employees’ collective bargaining agents shall establish a procedure governing the abolishment or reduction of teaching or supervisory positions citywide pursuant to the requirements of article fourteen of the civil service law. Any such locally established process shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; provided, however, that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be laid off occupying such positions may only be considered in a manner beneficial to an employee and that any such locally established process shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; and provided further that any such locally established process must ensure that high quality teachers in high-need schools are not laid off and that high-need schools do not bear a disproportionate share of workforce reductions pursuant to a citywide layoff; provided however, nothing shall prohibit the city school district from abolishing all positions in a license area pursuant to subparagraph (iv) of this paragraph. For purposes of this section, a high- need school shall be defined as a school in which at least ninety percent of the enrolled students are eligible applicants for the free and reduced price lunch program. For positions covered by section three thousand twelve-c of this chapter, any such locally developed process shall be significantly based on the annual professional performance review for teachers and supervisors pursuant to section three thousand twelve-c of this chapter and its implementing regulations. Until and unless such a process has been established at least ninety days before the effective date of any such abolishment or reduction of teaching or supervisory positions citywide for the two thousand eleven–two thousand twelve school year, the following shall apply: (i) the following teachers or supervisors shall be laid off prior to any other teachers or supervisors: (a) any teacher or supervisor who received two ratings of “unsatisfactory” on his or her annual professional performance review in the last five school years; (b) any teacher or supervisor who received one rating of “unsatisfactory” on his or her annual professional performance review in the two thousand nine—two thousand ten or two thousand ten—two thousand eleven school year; (c) any teacher or supervisor, if the person is a tenured employee, who within the last five years has been fined or suspended without pay as a penalty imposed pursuant to section three thousand twenty-a of this chapter or as a result of a settlement of charges brought pursuant to section three thousand twenty-a of this chapter; (d) any teacher or supervisor not currently appointed to a regular position in a school for a period of six months or more as of the effective date of any citywide layoff pursuant to this section; (e) any teacher or supervisor convicted of a qualifying criminal offense in the past five years and since being appointed as a teacher or supervisor. “Qualifying criminal offense” shall mean: (1) any felony, any class a misdemeanor, or any class b misdemeanor under article one hundred twenty, one hundred thirty, one hundred thirty-five, one hundred forty, one hundred fifty-five, two hundred twenty, two hundred thirty, two hundred forty-five, two hundred sixty, two hundred sixty-three or two hundred sixty-five of the penal law, or a felony or misdemeanor under sections eleven hundred ninety-two and eleven hundred ninety-three of the vehicle and traffic law, or (2) any offense in any other jurisdiction for which a sentence to a term of imprisonment of one year or of more than one year was authorized and is authorized in this state irrespective of whether such sentence was imposed, or (3) any offense in any other jurisdiction the commission of which constitutes the substantial equivalent of any offense under article one hundred twenty, one hundred thirty, one hundred thirty-five, one hundred forty, one hundred fifty-five, two hundred twenty, two hundred thirty, two hundred forty-five, two hundred sixty, two hundred sixty-three or two hundred sixty-five of the penal law or a felony or misdemeanor under sections eleven hundred ninety-two and eleven hundred ninety-three of the vehicle and traffic law; (f) any teacher or supervisor, if the person is a tenured employee, who within the last five years has been fined as a penalty imposed pursuant to charges related to chronic absenteeism, chronic lateness, or improper use or recording of leave time or as a result of settlement of charges brought pursuant to charges related to chronic absenteeism, chronic lateness or improper use or recording of leave time; (g) any teacher or supervisor who within the last five years was the subject of an investigation where allegations of misconduct were substantiated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity; and (h) any teacher or supervisor who has failed to fulfill all requirements for certification from the department as of august thirty-first of the year in which there is a citywide layoff; (ii) notwithstanding any other provision of law, rule or regulation to the contrary, in the case that the number of teaching or supervisory positions that are abolished, or the number of teaching or supervisory employees that are laid off pursuant to subparagraph (i) of this paragraph is greater than the number of such positions that must be abolished or reduced as a result of a citywide layoff, then the decision concerning which positions are to be abolished, and which persons occupying such positions are to be laid off, shall be made in accordance with this subparagraph. The following protocol shall be used until such time that the total number of employees identified is equal to the total number of teaching or supervisory positions abolished. For purposes of the protocol, the categories listed as clauses (a), (b), (c), (d), (e), (f), (g), and (h) of subparagraph (i) of this paragraph shall be ranked alphabetically (a) through (h), provided that (a) shall be ranked the highest priority and (h) shall be ranked the lowest priority. The protocol shall be established as follows: (a) teachers or supervisors who fall within all eight of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those eight categories; (b) teachers or supervisors who fall within seven of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those seven categories; (c) teachers or supervisors who fall within six of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those six categories; (d) teachers or supervisors who fall within five of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those five categories; (e) teachers or supervisors who fall within four of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those four categories; (f) teachers or supervisors who fall within three of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those three categories; (g) teachers or supervisors who fall within two of the categories listed as clauses (a), (b), (c), (d), (e), (f), (g) and (h) of subparagraph (i) of this paragraph, in order of the combined rank priority of those two categories; (h) teachers or supervisors who received two ratings of “unsatisfactory” in any of the last five school years on their annual professional performance review; provided, however that if fewer layoffs are required than there are persons in this category, layoffs shall be done in the following order: (1) a teacher or supervisor with the highest number of unsatisfactory ratings in the last five years; and (2) a teacher or supervisor with an unsatisfactory rating received in the most recent year or years; (i) a teacher or supervisor who received an unsatisfactory rating in either the two thousand nine–two thousand ten or two thousand ten—two thousand eleven school year, however that if fewer layoffs are required than there are persons in this category, layoffs shall be done in the following order: (1) a teacher or supervisor with unsatisfactory ratings in both two thousand nine–two thousand ten and two thousand ten–two thousand eleven; and (2) a teacher or supervisor with an unsatisfactory rating received in the two thousand ten–two thousand eleven school year; (j) any teacher or supervisor, if the person is a tenured employee, who within the last five years has been fined or suspended without pay as a penalty imposed pursuant to section three thousand twenty-a of this chapter or as a result of a settlement of charges brought pursuant to section three thousand twenty-a of this chapter; provided, however that if fewer layoffs are required than there are persons in this category persons shall be laid off in order of the most recent disposition; (k) any teacher or supervisor with a current status as a teacher or supervisor not appointed to a permanent position in a school for a period of six months or more as of the effective date of any citywide layoff pursuant to this section; provided, however that if fewer layoffs are required than there are persons in this category, layoffs shall be done in order of persons who have been without an appointed position to a school the longest period of time; (l) any teacher or supervisor convicted of a qualifying criminal offense in the past five years and since being appointed as a teacher or supervisor. “Qualifying criminal offense” shall mean: (1) any felony, any class a misdemeanor, or any class b misdemeanor under article one hundred twenty, one hundred thirty, one hundred thirty-five, one hundred forty, one hundred fifty-five, two hundred twenty, two hundred thirty, two hundred forty-five, two hundred sixty, two hundred sixty-three or two hundred sixty-five of the penal law or a felony or misdemeanor under sections eleven hundred ninety-two and eleven hundred ninety-three of the vehicle and traffic law, or (2) any offense in any other jurisdiction for which a sentence to a term of imprisonment of one year or of more than one year was authorized and is authorized in this state irrespective of whether such sentence was imposed, or (3) any offense in any other jurisdiction the commission of which constitutes the substantial equivalent of any offense under article one hundred twenty, one hundred thirty, one hundred thirty-five, one hundred forty, one hundred fifty-five, two hundred twenty, two hundred thirty, two hundred forty-five, two hundred sixty, two hundred sixty-three or two hundred sixty-five of the penal law or a felony or misdemeanor under sections eleven hundred ninety-two and eleven hundred ninety-three of the vehicle and traffic law; provided, however that if fewer layoffs are required than there are persons in this category, layoffs shall be done in the following order: i. A teacher or supervisor convicted of a felony in the last five years and since being appointed as a teacher or supervisor, with layoffs done based upon the chronological order of the date of conviction, beginning with the most recent; and ii. A teacher or supervisor convicted of a class a misdemeanor in the last five years and since being appointed as a teacher or supervisor, with layoffs done based upon the chronological order of the date of conviction, beginning with the most recent; and iii. A teacher or supervisor convicted in the last five years and since being appointed as a teacher or supervisor of a class b misdemeanor under article one hundred twenty, one hundred thirty, one hundred thirty-five, one hundred forty, one hundred fifty-five, two hundred twenty, two hundred thirty, two hundred forty-five, two hundred sixty, two hundred sixty-three or two hundred sixty-five of the penal law or a misdemeanor under sections eleven hundred ninety-two and eleven hundred ninety-three of the vehicle and traffic law, with layoffs done based upon the chronological order of the date of conviction, beginning with the most recent; (m) any teacher or supervisor who has received a fine as a penalty or as part of a stipulation in settlement of charges of chronic absenteeism or lateness, or improper use or recording of leave time; provided, however that if fewer layoffs are required than there are people in this category, layoffs shall be done in order of the most recent disposition; (n) any teacher or supervisor who within the last five years was the subject of an investigation where allegations of misconduct were substantiated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity, provided however if there are fewer layoffs than there are persons in this category, layoffs shall be done in order of the most recent investigation of substantiated allegations; and (o) any teacher or supervisor who has failed to fulfill all the requirements for state certification as of august thirty-first of the school year in which there is a citywide layoff, provided however if there are fewer layoffs than there are persons in this category, teachers who have been without full certification from the department the longest shall be laid off first. (iii) notwithstanding any other provision of law, rule or regulation to the contrary, in the case that the number of teaching or supervisory positions that are abolished, or the number of teaching or supervisory employees that are laid off pursuant to subparagraph (i) of this paragraph is fewer than the number of such positions that must be abolished or reduced, the decision concerning which additional positions are to be abolished, and which persons occupying such positions are to be laid off, shall be made in accordance with this subparagraph. Upon notification by the city school district of the public employment relations board, the matter of how additional layoffs shall be effectuated shall be referred to arbitration. Within two days of receipt of the petition the board shall submit to the parties a list of qualified, disinterested persons for the selection of a single arbitrator. Each party shall alternately strike from the list one of the names with the order of striking determined by lot, until the remaining one person shall be designated to hear the matter. This process shall be completed within one day of receipt of this list. The parties shall notify the board of the designated arbitrator. The arbitration shall be commenced no later than seven days and completed no later than thirty days of the date the parties notified the board of the designation of the arbitrator, provided that notwithstanding any other provision of law, rule or regulation to the contrary, no adjournments may be granted that would extend the arbitration beyond such thirty days. The arbitrator shall issue a decision to the parties within ten days of completion of the hearing. Said decision shall be final and binding on the respective parties and not subject to judicial review pursuant to article seventy-five of the civil practice law and rules or any other law, rule or regulation. Each of the respective parties shall equally share the cost of the arbitrator. Any decision issued pursuant to this subparagraph shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; provided, however, that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be laid off occupying such positions may only be considered in a manner beneficial to an employee and shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; and provided further that any decision must ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide; provided however, said percentage may be exceeded where the city school district chooses to abolish all positions in a license area pursuant to subparagraph (iv) of this paragraph. Said percentages shall be calculated excluding any teachers or supervisors laid off pursuant to subparagraphs (i) and (ii) of this paragraph. For purposes of this section, a high-need school shall be defined as a school in which at least ninety percent of the enrolled students are eligible applicants for the free and reduced price lunch program. (iv) notwithstanding any other provision of law, rule or regulation to the contrary, any locally developed process pursuant to the requirements of article fourteen of the civil service law, and decision issued pursuant to subparagraph (iii) of this paragraph, or the layoffs effectuated pursuant to subparagraph (v) of this paragraph, the city school district shall not be prohibited from abolishing all positions in an entire license area. (v) should the city school district and its collective bargaining agents fail to establish a procedure governing the abolishment or reduction of teaching or supervisory positions citywide pursuant to article fourteen of the civil service law no later than ninety days prior to the two thousand twelve–two thousand thirteen school year and subsequent school years, the matter shall be submitted to arbitration pursuant to the procedures in subparagraph (iii) of paragraph (a) of subdivision three of this section. Any decision issued pursuant to this subparagraph shall be significantly based on the annual professional performance review for the preceding school year pursuant to section three thousand twelve-c of this chapter and shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; provided, however, that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be laid off occupying such positions may only be considered in a manner beneficial to an employee and shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be laid off; and provided further that any decision ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide; provided however, said percentage may be exceeded where the city school district chooses to abolish all positions in a license area pursuant to subparagraph (iv) of this paragraph. Said percentages shall be calculated excluding any teachers or supervisors laid off pursuant to subparagraphs (i) and (ii) of paragraph (a) of this subdivision. For purposes of this section, a high-need school shall be defined as a school in which at least ninety percent of the enrolled students are eligible applicants for the free and reduced price lunch program. (b) notwithstanding any other provision of law, rule or regulation to the contrary, the city school district and its employees’ collective bargaining agents shall establish a procedure governing the abolishment or reduction of teaching or supervisory positions at individual schools in order to meet school budgetary needs, reorganize functions, or for other compelling reasons outside of a citywide reduction in accordance with paragraph (a) of this subdivision, pursuant to the requirements of article fourteen of the civil service law. Any such locally established process shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed; provided however that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be excessed occupying such positions may only be considered in a manner beneficial to an employee and that the promulgation of any such regulation shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed. For positions covered by section three thousand twelve-c of this chapter, any such locally developed process shall be significantly based on the annual professional performance review for teachers and supervisors pursuant to such section three thousand twelve-c and its implementing regulations. Until and unless such a process has been established at least ninety days before the start of the two thousand eleven–two thousand twelve school year, the following shall apply: (i) decisions concerning which positions are to be abolished shall be made in accordance with the same process prescribed for making layoff decisions set forth in subparagraphs (i) and (ii) of paragraph (a) of this subdivision. In the case that the number of teaching or supervisory employees excessed is fewer than the number of such positions that must be excessed pursuant to this subparagraph, the matter shall be referred to arbitration as set forth in subparagraph (iii) of paragraph (a) of this subdivision. Any decision by an arbitrator pursuant to this subparagraph shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed; provided however that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be excessed occupying such positions may only be considered in a manner beneficial to an employee and that the promulgation of any such regulation shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed. The arbitrator shall further be required to incorporate the following factors in any award setting forth a process for the district regarding which positions shall be abolished and which persons occupying such positions are to be excessed: (a) schools’ needs for particular license areas; and (b) when more than one person holds a position within the same license area: (1) significant relevant contributions, accomplishments, or performance of each such person; (2) relevant supplemental professional experiences of each such person as demonstrated on the job; (3) office or school needs, including curriculum specialized education, degrees, licenses or areas of expertise; and (4) length of satisfactory service by each such person. Should city wide layoffs in accordance with paragraph (a) of this subdivision be carried out, a determination of whether any teacher or supervisor shall be laid off whose position has been abolished and is in excess from a regularly appointed position in the district for less than six months, shall be made pursuant to subparagraphs (i) and (ii) of paragraph (a) of this subdivision. (ii) should the city school district and its collective bargaining agents fail to establish a procedure governing the abolishment or reduction of teaching or supervisory positions at individual schools pursuant to article fourteen of the civil service law no later than ninety days prior to the two thousand twelve–two thousand thirteen school year and subsequent school years, the matter shall be submitted to arbitration pursuant to the procedures in subparagraph (iii) of paragraph a of subdivision three of this section. Any decision issued pursuant to this subparagraph shall be significantly based on the annual professional performance review for the preceding school year pursuant to section three thousand twelve-c of this chapter and shall not permit an employee’s length of service to be the sole factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed; provided, however, that any consideration of an employee’s length of faithful and competent service as a factor for the abolishment of positions or persons to be excessed occupying such positions may only be considered in a manner beneficial to an employee and shall not permit an employee’s salary to be a factor in any decision regarding which positions are to be abolished and which persons occupying such positions shall be excessed; S 5. Subdivision 4 of section 2588 of the education law is repealed and a new subdivision 4 is added to read as follows: 4. Whenever a teaching or supervisory position is abolished pursuant to subparagraph (iii) of paragraph (a) of subdivision three of this section effective before or during the two thousand eleven–two thousand twelve school year, should a vacancy occur in the same position at the same school or administrative office within one year of the date when the position was abolished, the principal, or the chancellor or his or her designee, shall offer the position to the person who held the position before it was abolished. If the person rejects the offer, or fails to respond to the offer within thirty days, the person shall no longer have a right to return to the position. If more than one position was abolished in the same license area at the same school or administrative office, and there are fewer vacancies in the same license area than persons whose positions were abolished, the principal, or the chancellor shall have the discretion to determine which person should be offered the position first. The chancellor shall promulgate guidance to deter mine the right of return of any teachers or supervisors laid off pursuant to subparagraph (iv) of paragraph (a) of subdivision three of this section. Teachers or supervisors laid off pursuant to subparagraph (i) of paragraph (a) of subdivision three of this section and subparagraph (ii) of paragraph (a) of subdivision three of this section, and all teachers or supervisors laid off effective for the two thousand twelve -two thousand thirteen school year and beyond, shall have no rights to return to a vacant position pursuant to this section. S 6. Subdivision 7 of section 2588 of the education law is repealed.