But it was too late to turn back now. When you have lemons, you make lemonade, so on November 10, I held a press conference to make public these efforts to stop the hearings. The following day, the Times printed an article titled “School Unions Want to Cancel Labor Hearings, Official Says.” It read in part: “The chairwoman, Eva S. Moskowitz, also said that many potential witnesses were too scared to testify, describing an atmosphere of fear that she said brought to mind Frank Serpico, the whistle-blower on police corruption who testified for the Knapp Commission in the early 1970’s.” With an opener like that, at least people would be paying attention to the hearings. It might still be the end of my political career, but at least it wouldn’t be for nothing.
The hearings began on November 12. Our first witness was a DOE official who testified about a curious provision of the custodians’ contract called “retainage”:
MARTIN OESTREICHER: [The custodians] get an allocation . . . and then they have to spend a significant amount of money to maintain the building. [I]f you subtract one from the other, that could be their retainage . . .
MOSKOWITZ: So after the custodian has paid his or her employees, they are allowed to retain up to a certain level [of] monies; is that correct?
OESTREICHER: Right.
Thus, custodians had an incentive to spend less maintaining their buildings so they could keep more. Custodians could also increase their compensation, Oestreicher explained, by getting assigned to a second school that was temporarily without a custodian. In theory, that required more work, but in reality, according to the principals who testified, custodians would just split up their existing work hours. Through these various manipulations, custodians could make up to $184,000 annually. By contrast, a principal, who managed far more employees and was responsible for the education of hundreds of students, could make only $115,000.
Oestreicher also testified about how a school’s custodial budget was set. Any home owner knows that the cost and difficulty of maintaining and cleaning a house is affected by many factors, such as how old it is and how many people live in it, so I asked Oestreicher how these factors influenced a school’s custodial budget:
MOSKOWITZ: Does [it] take into account the age of the building?
OESTREICHER: No.
MOSKOWITZ: And does a 100-year-old building require more maintenance?
OESTREICHER: Yes.
MOSKOWITZ: Okay. And the condition of the building is also not a factor?
OESTREICHER: No.
MOSKOWITZ: If a building [is] at let’s say 140 percent capacity, would [it] require more maintenance than a building at 100 percent capacity?
OESTREICHER: Yes.
MOSKOWITZ: And is the allocation any different?
OESTREICHER: No.
MOSKOWITZ: Why is it that we have a system that doesn’t take into account what seem like fairly important factors?
OESTREICHER: The factors are determined by the contract. [I]t’s not something that the Department can determine itself.
While I understood why a labor contract would determine a custodian’s salary, I didn’t understand why it should determine a school’s maintenance budget. It was as if an airline determined how much it spent on maintaining each airplane based not on how much maintenance it needed but on the terms of the pilot’s contract.
The contract also had very little by way of minimum requirements for custodians. While an appendix said they should “wash and disinfect all toilet seats” and “fill all soap dispenser systems,” it expressly stated that “these are suggestions only.”* Moreover, the contract often limited what they were even allowed to do. For example, custodians couldn’t change the ballasts that made fluorescent lights turn on:
PRINCIPAL: [The custodian] could change bulbs but [not] ballasts. . . . And the [DOE] won’t send an outside electrician to do it unless you have something like 50 ballasts out. . . . [I]t becomes a nightmare because then you have kids sitting in the dark.
The result was often finger-pointing:
MS. DEANGELIS: [The custodian would] tell me the ballast is out and we can’t do anything about it. . . . But [some custodial assistant workers] told me that some of them . . . were light bulb problems, because in the evening they would change some of the light bulbs and get them working.
In other words, the answer to the question “How many unions does it take to change a light bulb?” was “two,” which coincidentally was also the answer to the question “How many unions does it take to paint a classroom?”:
OESTREICHER: The ten-foot rule [says] the custodians can paint up to ten feet and above that, that work must be turned over to the painter trades.
MOSKOWITZ: So he would be violating the contract if he were to paint eleven feet?
OESTREICHER: Yes.
MOSKOWITZ: How does this work? Does all the furniture get moved into the middle, the custodian does ten feet, and then you move it back and wait for the painters, or do they come at the exact same time?
OESTREICHER: [I]t’s not all as coordinated as we’d like it to be where the custodian will move every desk into the middle, go ten feet, and there’s a painter standing right next to him who says I’ll take it from here.
MOSKOWITZ: Have you ever had it work seamlessly, where the custodians come in and they paint and then the painter is right behind?
OESTREICHER: I have never seen that.
I asked Oestreicher how this crazy system had come about, and he explained that the custodians’ and painters’ unions had gotten into a fight over who had the right to paint in schools so “a determination was made [in] an arbitration.” In other words, the ten-feet rule had been created by an arbitrator in a dispute between two unions without anybody looking out for the best interests of children or taxpayers. It was as if King Solomon had proposed splitting the baby and the women had said, “Works for us!”
My next day of hearings was on the teachers’ contract. This would be the real showdown since the UFT was by far the city’s most powerful union. Randi Weingarten had been waffling about whether she’d testify. Doing so would give credence to the idea that the contracts were an appropriate subject of inquiry, which she disputed. Refusing to testify, however, would leave the union’s viewpoint unrepresented. At the last minute, we were informed she’d testify, which I took as a good sign since it meant she’d concluded our hearings had gotten too much traction to ignore.
When she showed up the following morning, she arrived with a man who sat down beside her in the front row and who, when I later called upon Weingarten to testify, joined her at the witness table where he fixed the committee members with an icy stare. Without saying a single word, he had more influence on these hearings than any other person. He was Brian McLaughlin, the leader of New York City’s Central Labor Council, an umbrella organization for more than 400 unions with more than 1.5 million members, and was also a member of the State Assembly. But what truly made him powerful was not merely the positions he held but his willingness to use them without regard for ethics or legality. Of course, he hid his misdeeds behind closed doors, but they would be brought to light two years later when he was indicted and pleaded guilty to stealing over $2 million from taxpayers, labor unions, and not-for-profits including a Little League baseball team. Among his schemes was demanding that a company that had gotten a contract to upgrade the city’s traffic lights give him $450,000 to avoid labor trouble. He used his ill-gotten gains to pay for luxuries such as a country club membership, a plasma-screen television for a girlfriend, and an $80,000 Mercedes-Benz. At the time of my hearings, McLaughlin had reached the peak of his power and was even rumored to be considering a run for mayor.
McLaughlin later explained that he was at the hearings “to remind the city council members that the entire labor movement in the city is watching them.” In other words, there would be consequences if they joined my efforts to examine the terms of the labor contracts. Weingarten would be forever grateful to McLaughlin for helping keep my colleagues in line. When his
corruption came to light, she said she was “rooting for”33 him because “even if you’re in a fight that’s unpopular”—an obvious reference to my hearings—“he’ll stand with you.”34
The first witness that day wasn’t Weingarten, however, but the only principal who was brave enough to testify openly, Tony Lombardi, who described his frustrations with how teachers used the sabbaticals that were supposed to be for professional development:
I have known teachers who have taken courses such as swimming, golf, history of the movies and contemporary cinema, human sexuality, and TV communications. . . . Courses that discuss Fellini’s use of montage in his early films do not help my students meet academic standards. . . . You as citizens . . . were paying the teachers 70 percent of their salary to take these courses . . .
Moreover, teachers could take these sabbaticals whenever they wanted, which created scheduling nightmares. One spring, five of Lombardi’s teachers had taken half-year sabbaticals simultaneously, so he’d been forced to cover their classes with day-to-day substitute teachers for the remainder of the year.
Lombardi also objected to a provision of the contract that prohibited him from collecting lesson plans from his teachers. One of his teachers wrote his lesson plans on napkins. Lombardi explained that
planning is the heartbeat of teaching. . . . You can’t just randomly teach whatever you feel like teaching each day. So what I teach today has an impact on what I teach tomorrow and the next day and the next day.
Even more problematic were the limitations on hiring and firing teachers. Principals could choose between two systems for hiring teachers. One required that 50 percent of vacancies be filled based on seniority. As Lombardi explained, “A teacher will just send me a letter saying ‘I have twenty-five years’ and . . . that person gets the position.” The problem with this was not just that this teacher might be weak but also that she might be ill suited to the school since different schools have different needs. Some schools, like Stuyvesant, need teachers who can teach calculus or AP physics; others need teachers who are strong in remediation or behavior management. Schools may also be premised on different pedagogical beliefs. None of that, however, could be taken into account.
The second alternative was the “school-based option,” a process in which candidates were selected by a committee, most of whose members were teachers. One principal described it as follows:
The process itself is so cumbersome and so time consuming [and] the rules and regulations are so extensive and so potentially litigious that everything that one does as a Committee is based on this possibility of grievance. . . . When you . . . take[] a situation which could be a simple interview . . . and turn that . . . into a process that [takes] weeks . . . of bookkeeping and meetings and explanation and trainings, what you are simply doing is overburdening people who are trying to do the best.
But the bureaucracy involved in hiring a teacher was nothing like that involved in firing one, as Lombardi explained:
You need to be prepared to give up two to three years of your life. [It’s] very difficult to prove they’re incompetent. . . . [F]rom day one you need to document everything. You need to have informal observations, to call the teacher in, to give them a warning that they may get a U rating [i.e., an unsatisfactory rating], to assign someone to work with them, to put them with a professional developer, to provide inter-class visits with them, to do formal observation, to give U-rated observations, and all of these things are grievable if they’re file material. [Y]ou give a warning, then you give another warning, then you write a file letter that refers to the warning letter. . . . Every time you give a file letter you must . . . meet with them, you must discuss the issue and you must provide remediation for that issue. You must document every step of the way. Then if you get to the point where you want to U-rate a teacher . . . you have to provide that documentation to everyone. Then you have to go to a hearing, there are always appeals when you U-rate a teacher. If you want to move to dismiss a teacher, there’s another issue, then you must . . . get what they call a “tech conference,” technical assistance. You have to deal with the court, and so it’s very demoralizing.
Part of the problem was that principals were trained to educate students, not litigate, so they were inevitably outmatched, as one of the principals explained in the voice-disguised recorded testimony:
The union has people whose job it is to know exactly how to dissect [a termination case]. That’s all they do. . . . It becomes a living nightmare.
I asked Lombardi how long this nightmare lasted “from the time you’ve identified a poor-performing teacher, to the day the children are no longer under that teacher’s supervision?”
LOMBARDI: Two to three years . . .
MOSKOWITZ: [I]f you really put your mind to it, can you deal with the problem in six months?
LOMBARDI: No, impossible.
MOSKOWITZ: Okay, so, in your experience it’s never taken less than two years?
LOMBARDI: It can’t be done.
And of course, it was a nightmare for families too. Put yourself for a moment in the shoes of a parent. Imagine you have a second-grader who’s been having some difficulties learning to read, perhaps he’s dyslexic. You meet with his teacher and she somehow hasn’t even noticed your child has a reading problem, so you meet with the principal to express your concern. He tells you this teacher is completely incompetent and that he’s in fact in the process of firing her. You heave a sigh of relief since you know your child will soon have a new teacher. But then he explains that the process of firing her will take two to three years. Your intellectually and emotionally vulnerable child will therefore spend an entire critical year of his education in the classroom of a teacher your principal admits is completely incompetent.
It didn’t even matter if the case was cut-and-dried:
PRINCIPAL: The last two teachers that I U-rated were . . . missing between twenty-five and fifty to sixty days of school. [That’s] a third of the entire school year.
MOSKOWITZ: So you’re not even talking about the skill of the teacher. You’re talking about a teacher simply not showing up.
PRINCIPAL: Right. Which to me is cut-and-dried . . . I don’t understand why that should require documents and documents and documents. . . . Two U ratings, they’re still there. You cannot get rid of them until they’re U-rated three times.
This was confirmed by a DOE witness:
CHAD VIGNOLA: You have to . . . provide them with mentoring or other types of supports.
MOSKOWITZ: What if the teacher is consistently late? How is the principal supposed to advise the teacher on correcting that problem? Set the alarm clock?
VIGNOLA: You would have to put them on notice that being late was unacceptable. You’d have to engage a progressive discipline.
Moreover, every time a principal U-rated a teacher, the teacher could appeal it at three levels: the superintendent’s office, the chancellor’s office, and in arbitration.
Even teachers whose poor management skills made them a danger to children were difficult to terminate:
LOMBARDI: There was a teacher that really couldn’t control the class at all . . . The profession was not for her. [One day, an eight-foot-long] window pole goes out the window, almost hits somebody on the fourth floor. . . . I went to the classroom, called the teacher in the hallway, the class is going wild. “Are you missing a window pole?” She looks around, “Yes, I am.” I said, “Well, how did it get out the window?” She says, “I apologize, Mr. Lombardi, I was so busy putting out the fire in the garbage can.”
Because it took so long to terminate teachers, Lombardi began taking a different approach. He’d tell a weak teacher that she should consider transferring as he was going to U-rate her but that since U-rated teachers couldn’t transfer, he wouldn’t U-rate her if she agreed to leave. Lombardi knew this was problematic:
LOMBARDI: I’ve been unethical, I’m going to say it in front of the Committee. . . . I made my school better, but they made
your system . . . worse, because now they’re going to [another] school.
MOSKOWITZ: [I]n other words, you gave someone a better rating than they deserved?
LOMBARDI: Let’s put it this way, during the year I was very critical. At the end of the year we had a meeting of the minds that this might not be the best place for you.
This practice was so widespread it had a name: “passing the lemon.” In fact, we’d heard similar testimony the day before concerning custodians. A principal testified that the only way to get rid of a bad custodian was to rate him highly so he could get transferred to a larger school at which he’d make more money. Rate a custodian poorly and you’d just be stuck with him forever.
After I asked Lombardi questions, it was my colleagues’ turn. I understood they didn’t share my perspective on the teachers’ contract and I figured they might ask questions that got at issues such as protecting teachers from being unfairly terminated. Instead, however, they seemed intent on launching ad hominem attacks on Lombardi:
COUNCIL MEMBER JACKSON: [A]t what point in time does Tony Lombardi stand up and say I am not going to pass the buck anymore, I’m going to stand up and do what has to be done and give this instructor, this teacher a U rating. . . .
The Education of Eva Moskowitz Page 26
