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Teachers union president piles on objections to turnaround plan

Teachers union president Michael Mulgrew is lodging a formal complaint about the city’s plans to overhaul 33 struggling schools, a day after the head of the city’s principals union did the same thing.

When Mayor Bloomberg announced last month that the schools would undergo a federally prescribed process known as “turnaround,” which requires half of teachers to be removed, Mulgrew was immediately dismissive.

In a letter sent today to State Education Commissioner John King, Mulgrew fleshes out those objections, arguing that the plan as the city has explained it would violate state and federal regulations and the city’s contract with the UFT.

The city has leaned on that contract when touting the plan, saying that a clause known as 18-D represents union sign-off on the turnaround bid and allows for rehiring at schools that are closed and reopened, as would be the case under turnaround. But Mulgrew contends in his letter that 18-D applies only when schools are truly closed.

“What the DOE proposes is a classic sleight of hand,” he writes. “While it tells the public and the UFT it will technically ‘close’ these schools and ‘reopen’ them as new schools, what it really intends and seeks your permission for is a turnaround where the same students continue to be served in the same school with a portion of the same staff. … This is not a closure and does not trigger application of 18-D.”

The distinction between closure and turnaround has confounded even Department of Education officials in the weeks since the city unveiled the turnaround plan.

Mulgrew also argues that the plan represents “regulatory chicanery” to allow the city to sidestep negotiating with the UFT over new teacher evaluations, a requirement of the overhaul processes the schools were previously undergoing and a top priority of state officials. Gov. Cuomo has set a deadline for districts and their unions to agree on new evaluations that is just weeks away.

Before talks fell apart in late December, the city and union were separated by only issue, the appeals process for teachers who receive low ratings. If King intervenes and state labor relations board forces the city back to the bargaining table, an agreement could be reached quickly, Mulgrew said.

“This would be a considerably superior approach than that for which the DOE seeks your approval, particularly since, as explained above, all roads lead to bargaining,” he said.

Mulgrew’s letter comes shortly after the head of the city’s principals union sent his own letter urging King not to approve the city’s turnaround plan.

The city has not yet submitted formal applications for the schools to undergo turnaround. Those applications, which must detail the costs and benefits for each school, are due Feb. 10. King has said that it would take several weeks for the state to review the applications but that the city’s plan is “approvable.”

But at the same time, the state has been turning up the screws on districts to finalize new evaluations. Cuomo even said he would push changes to the state’s 2010 evaluation law if districts do not adopt new evaluations by mid-month. City officials are lobbying legislators to take that route, even though a statewide teachers union, NYSUT, has said it is on the verge of agreement for nearly all districts other than New York City.

Mulgrew’s complete letter to King is below:

February 1, 2012

Dr. John B. King, Jr.
New York State Education Department
89 Washington Avenue
Albany, New York 12234

Dear Commissioner King:

I write with respect to Mayor Michael Bloomberg’s request to abandon the previously approved implementation of the “Transformation” or “Restart” models in favor of “Turnaround” in certain City schools designated as “persistently low achieving” (“PLA”). On behalf of the United Federation of Teachers (“UFT”), I respectfully request that you deny such request, which is being made because the New York City Board of Education (known as the “DOE”) refuses to follow the law and honor its commitment to you and the UFT to negotiate in good faith a new teacher evaluation system for these schools. The UFT has asked that the Public Employment Relations Board (“PERB”) appoint a mediator on an expedited basis to quickly resolve the differences between the parties. Engaging in that process, rather than the regulatory chicanery the Mayor seeks to invoke, is the best way to secure federal School Improvement Grant (“SIG”) funding for improving these schools.

To make the at-issue PLA schools eligible for SIG funds under the Transformation and Restart models, the UFT and the DOE had agreed in July to negotiate a new evaluation system for classroom teachers in these schools that complied with Education Law § 3012-c. That law specifically requires that an “appeals procedure” be established through collective bargaining in “which the evaluated teacher or principal” may “challenge the substance of the annual professional performance review.” Education Law § 3012-c(5) (emphasis added). Yet, in negotiations with the UFT, the DOE has repeatedly insisted (to the point of walking out on negotiations) that the Chancellor make the final determination on any rating appeal, even as the DOE has simultaneously stated that the Chancellor will not reverse the rating of any teacher based on any substantive ground under any circumstance. In short, no agreement has been reached because the DOE has insisted that the UFT agree to a system that is violative of law as well as bad for children and unfair to teachers. Now, to avoid that bargaining obligation and mask its bad faith, the DOE seeks SED’s blessing to change the selected models mid-stream. You should not condone this attempt at an end-run around the DOE’s commitment that it would negotiate in good faith a new evaluation system for these schools.

The need for continued negotiations is underscored by the fact that the change in model is problematic under federal regulations, SED regulations, and the applicable collective bargaining agreement covering teachers (the “CBA”):

First, SED itself has cautioned that changes in the selected improvement model should not generally be needed or made because the selection of a model is driven by an analysis of school needs. As you know, funding depends on which of the four different models – Transformation, Restart, Turnaround and Closure – is selected. The Closure model, as would be expected, receives significantly less funding with that funding limited to the costs of closing the school. Here, the DOE attempts to manipulate these models in a contrived attempt to avoid the simple reality, that the DOE “will need to engage their collective bargaining units in discussions around the staffing requirements of the models.”

The DOE’s and the Mayor’s motives are plain: They are orchestrating sham closures of these schools in an effort to remove half of their staff. In fact (if not in DBN number), the same school will continue to exist if the DOE’s model-shuffling is allowed to occur. This is contractually and statutorily prohibited and cannot fulfill the Turnaround model’s requirement. Only through collective bargaining can the DOE implement a Turnaround model.

Just as it would have to with regard to Transformation, the DOE must negotiate implementation of a Turnaround model. The Turnaround model contemplates that a struggling school continue to serve its students after specified changes are made. Two such changes are that the school “screen existing staff” and “rehire no more than 50 percent.” There is no provision in the existing CBA that permits. The DOE has implicitly acknowledged in exploratory discussions with the UFT that application of a Turnaround model requires bargaining. The procedure the DOE is now attempting to usurp – Article 18D – provides a mechanism for selecting staff from a closing school for placement in a new school. By its explicit terms, 18D applies only when a school is actually closed, not when the DOE seeks, as it does here, to apply the Turnaround model.

To avoid this contractual provision, the DOE has described its intended application of the Turnaround model with the language of “closure” but not its reality. What the DOE proposes is a classic sleight of hand; while it tells the public and the UFT it will technically “close” these schools and “reopen” them as new schools, what it really intends and seeks your permission for is a Turnaround where the same students continue to be served in the same school with a portion of the same staff under the same Turnaround plan. This is not a closure and does not trigger application of 18D. (Had this been a true closure and opening of a new school, such new school would not be a PLA school and, thus, would not be required to impellent any model). Absent a closure, a school may generally only reduce its staff by either (i) excessing, that pursuant to the CBA occurs when the school has a genuine need to reduce faculty size, must be in reverse seniority order and, accordingly, would not satisfy the Turnaround screening or rehire requirements, or (ii) by negotiating an alternative with the UFT.

Even if the DOE were permitted to effectuate its proposed Turnaround by “sham” closure and apply Article 18D, it could not satisfy both the Turnaround requirement that retain at most 50% of the staff and the requirements of 18D at the same time. They are incompatible. Article 18D guarantees all qualified staff at the closing school, taking seniority into account, an opportunity to be chosen for a new school by a tripartite selection panel (consisting of DOE and UFT appointees, as well as other stakeholders), with no maximum limit as to how many could be chosen. In fact, the application of 18D routinely results in more than 50% of a closing school’s staff being selected. The DOE’s “plan” places it in an untenable situation of either violating the CBA or the Turnaround requirement.[1]

Second, a declaration of impasse from PERB recognizes that the issues in dispute are mandatory subjects of bargaining and may not be changed unilaterally by the DOE. Even if the status quo were to change prior to a declaration of impasse, since the DOE has bargained in bad faith it is subject to PERB ordering that the present status quo be restored. In this case, that would mean returning to the Transformation and Restart models and negotiating an evaluation system. Indeed, it would be an enormous waste of effort to simply toss away the nearly completed negotiations for an evaluation system because the DOE has improperly insisted on a bargaining position that is contrary to law.

Third, the Transformation model – which SED had previously approved for these schools – requires the DOE to “[i]mplement such strategies as financial incentives, increased opportunities for promotion and career growth, and more flexible work conditions that are designed to recruit, place, and retain staff with the skills necessary to meet the needs of the students in the … school.” To meet this requirement (as well as others), the UFT and DOE had already bargained to completion the creation of two new positions – master teacher and turnaround teacher, for Transformation and Restart schools only, not Turnaround schools. Should SED approve the current request to now apply the Turnaround model, the same requirement could only be met through additional bargaining. Inasmuch as the DOE’s SIG applications indicate this is the primary method the DOE has to meet this requirement in Transformation schools, it is self-evident that without further negotiation with the UFT the DOE is unable to meet this requirement in Turnaround schools.

Finally, as SED’s SIG application makes clear, there must be consultations with relevant stakeholders consistent with the New York City School Governance Law, Commissioner’s Regulation 100.11, and the City’s Title I Parent Involvement Policy. The pages and pages of consultation documentation forms attached to the DOE’s SIG application pertaining to the at-issue schools refers only to Transformation or Restart models, not Turnaround. With the Mayor making this decision by fiat, unsurprisingly, no such consultations have taken place with respect to the “Turnaround” plan.

The UFT stands behind its commitment to negotiate a new evaluation system to be used in these schools. With your direction and the help of PERB, an agreement can be reached quickly if the DOE negotiates in good faith. This would be a considerably superior approach than that for which the DOE seeks your approval, particularly since, as explained above, all roads lead to bargaining. To delay through misdirection and avoidance, as the DOE attempts, is to harm students in these struggling schools.


Michael Mulgrew
United Federation of Teachers

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