City Sues Union Over 'Rubber Room' Agreement

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One of the old "rubber rooms" where teachers accused of misconduct or incompetence used to wait, before the 2010 agreement to end the practice

The Bloomberg administration is suing the teachers union for failing to comply with an agreement intended to expedite cases involving teachers accused of misconduct or incompetence. The city claims the union has failed to uphold its end of the deal to expand the number of hearing officers from 20 to 39, thwarting the goal of the 2010 agreement.

But the union accuses the city of stalling the process. And arbitrators, who are appointed to hear the incompetence and misconduct cases, claim the reason the city can't get enough of them to work is because they have not been paid by the state.

Mayor Michael Bloomberg announced the lawsuit on a radio show. “We are filing a lawsuit against the U.F.T. because they have yet again decided to put their interests above those of city children," he said during his weekly appearance on WOR's The John Gambling Show Friday morning.

Bloomberg claimed the union "keeps delaying" the process to approve new hearing officers while the backlog of cases keeps getting bigger. 

"And it just prevents having a fair hearing for teachers who should be cleared of any charges, it allows teachers who should not be in front of our kids through incompetence or inappropriate conduct to continue collecting a paycheck," he said. "The public is paying for all of this. And year after year, we’ve really tried to come to an agreement." 

The D.O.E. claims the backlog includes well over 400 cases -- not including 150 cases accrued so far this school year -- with employees waiting many months before their disciplinary cases can be heard.

Click here to see the full legal complaint. 

The president of the teachers union, Michael Mulgrew, called the Bloomberg administration's lawsuit "typical."

"The administration mismanages the disciplinary process, and in its last days tries to blame someone else for it," Mulgrew said in a written statement. "It’s a shame the Mayor is wasting public resources on this frivolous lawsuit, but we can all take comfort from the fact that Bloomberg will soon be only a bad memory to the people who care about schools."

But a former arbitrator who spent decades hearing these types of cases told WNYC the problem is all about money.

"This is an absolute smokescreen and [Bloomberg] knows it," said Arthur Riegel, an attorney who quit the panel in 2012. "The reason many of the very senior arbitators no longer do these cases is the state would not pay us based on the work that we had done."

Riegel was referring to a lawsuit against the state brought by arbitrators. He said he is still owed just short of $200,000 for cases he heard. 

State law requires teachers accused of misconduct or incompetence to have a hearing within 60 days, but the delays became notoriously long over the last decade. Teachers sat in "rubber rooms" while they collected their paychecks and waited for their cases to be heard. The U.F.T. and the city were mutually embarrassed by the practice, and their 2010 agreement was intended to expedite the arbitration process by hiring more hearing officers. In addition, the city began sending teachers accused of misconduct to district offices where they could work instead of sitting and doing nothing each day in "rubber rooms" (often unused rooms and trailers). 

But both parties needed to sign off on the appointment of the hearing officers, who are assigned to a rotational panel. 

The city claims the two sides were able to seat 39 arbitrators that year. But they chose only 24 arbitrators in the 2011-2012 school year, and 20 the following year -- well short of the stated goal of 39.

By last count this month, there were only 18. The city said it sought to expedite the selection process beginning in July 2013, citing a pre-existing backlog and "the anemic pace at which selections had proceeded due to the U.F.T.'s intransigent delay."

Chancellor Dennis Walcott sent a letter earlier this month to Mulgrew, stating that the "current backlog of hearings needing assignment to an arbitrator far exceeds the number of cases that could be heard in a school year by 18 arbitrators." The D.O.E. proposed seating a total of 30 arbitrators. 

But in a letter of response to the Chancellor dated September 20, Mulgrew said his union "stands by the commitments made in the April 2010 agreement." He, in turn, accused the city of dragging its feet. 

"Unfortunately, it seems the D.O.E. is singularly focused on the number of arbitrators to the exclusion of all else, in an apparent effort to justify the swelled number of lawyers on the central DOE budget." 

Mulgrew claimed the city abandoned the mediation process for producing the voluntary pretrial settlements, thereby eliminating the need for more extensive hearings. 

He also claimed that contrary to the D.O.E.'s assertions, the misconduct panel is currently hearing cases that were charged just before the summer break and that the number of cases awaiting hearings is within the timelines provided by the union's agreement with the city. 

"Instead of ultimatums and threats, it would be better for teachers, students, and taxpayers if we reestablished the mediation program and returned to the business of promptly selecting arbitrators."