Albany and The Art of Compromise: How Will the “Irreconcilable Differences” Be Resolved? (Or Maybe Not!)

Politics is the art of compromise, no matter the differences, the passions, the antagonisms, the vast majority of issues end in some kind of compromise. Electeds constantly have the proverbial “finger in the air,” testing the winds of public opinion. Yes, occasionally there are issues that require an “up or down” vote, issues that defy compromise: choice, death penalty and marriage equality are examples, and, yes, frequently the path is agonizingly slow.

Partisans on both sides drum up their troops: send emails, tweets with the proper hashtags, office visits, speaking out at public meetings, all try to tilt the final vote to their side of the street.

There are times when we wish Aztec Heart Sacrifice was an option.

Holding the still beating heart of your opponent over your head as you scream in victory is a fitting ending, although frowned upon by the officialdom.

Governor Cuomo, in his State of the State message outlined a litany of “reforms,” in reality political revenge against teacher unions that failed to support him, or, supported his opponent, and jumping on board the richly funded (de)form train.

The New York State fiscal year begins April 1, if the budget is not in place the state’s financial rating drops and the governor’s approval rating takes a hit. Legislators won’t get paid and in order for the state to continue to function “continuing resolutions” and “executive orders” drive the state budget process. The governor ends up incrementally getting what he could not get in the orderly budget process, although at a political cost.

The political calculus is at a very high level. The two legislative houses, the 150-seat Assembly dominated by the downstate Democrats and the 63-seat Senate led, by a hair, by primarily suburban Republicans have to negotiate settlements on hundreds of issues that are included in the budget.

Members in both houses are already deeply engaged in internal discussions about crafting compromises, trade-offs (“logrolling”) and drawing “lines in the sand” that may or may not be flexible.

A prime example: the property tax cap versus rent control.

The Cuomo “Opportunity Agenda” is a 500 plus page listing of hundreds of initiatives, the education section begins on page 218, not exactly at the top of the agenda.

Let’s take a look at some of the proposals:

“…the current teacher discipline system is broken … [its] costly and time consuming …physical and sexual abuse [accusations] teacher should be suspended without pay …”

Defending members who are accused of physical or sexual misconduct is not popular with the public, or for that matter, with legislators. In the last contract the UFT and the Department of Education negotiated changes in teacher discipline that only apply to teachers in New York City. Commissioner King called the provisions, “A model or the state,” The provisions are embedded in the collective bargaining agreement,

The parties agree that certain types of alleged misconduct are so serious that the employee should be suspended without pay pending the outcome of the disciplinary process. Serious misconduct shall be defined as actions that would constitute:

• the felony sale, possession, or use of marijuana, a controlled substance, or a precursor of a controlled substance or drug paraphernalia as defined in Article 220 or 221 of the Penal Law, or
• any crime involving physical abuse of a minor or student ….), or
• any felony committed either on school property or while in the performance of teaching duties, or
• any felony involving firearms as defined in Article 265 of the Penal Law.

A tenured pedagogue who has been charged under the criminal law or under §3020-a of the New York State Education Law with an act or acts constituting sexual misconduct (defined below) shall be suspended without pay upon a finding by a hearing officer of probable cause that sexual misconduct was committed.

A rebuttable presumption of probable cause shall exist where the Special Commissioner of Investigations (“SCI”) substantiates allegations of sexual misconduct, or a tenured pedagogue has been charged with criminal conduct based on act(s) of sexual misconduct.

The UFT has also entered into agreements with the Department to expedite hearing, since the agreement cases have averaged 105 days from the preferment of charges to the decision of the arbitrator.

The State Education Department (SED) does not have clean hands. For years the SED has hassled with arbitrators over the rates, length of hearings and other administrative matters, the “solution,” the SED decided, was slowing the payment of arbitrators, from 3-4 months to 18-24 months, and, eventually managed to change the law. Many arbitrators quit the panel and some refused to issue decisions until they were paid,

Nearly half of the state arbitrators assigned to hear cases of teacher misconduct in New York City have quit in the last few weeks [June, 2012], creating a potential backlog of cases in an already cluttered system,.
Ten of the 24 arbitrators who handle city cases have walked off the job, primarily because they have not been paid. Some arbitrators contracted by the state are owed at least two years’ back pay. State Education Department officials did not deny that the arbitrators are owed back pay.

There are a small number of teachers who have been awaiting decisions for a few years.

Additionally, cases are costly because school districts use outside counsel at hourly rates, depending upon the location, hundreds of dollars an hour is a standard rate. SED could force school districts to use state attorneys housed in BOCES centers and bill the school district, the cost would be substantially lower.

As of this date both sides are adamant, “fixing a broken system” on one side and “defending due process” on the other.

Another issue on the governor’s agenda is the recertification of teachers every five years.

“…recertify every five years much in the same way as attorneys …”

My lawyer friends smile, they can take “recertification” courses online [formally known as Continuing Legal Education], while on a cruise, at some fabulous resort, at worst, an annoyance, at best combining a vacation with some education. From the courts website:

Q] As an experienced attorney, what is my CLE requirement?
A] Experienced attorneys must complete a total of 24 accredited CLE credit hours during each biennial reporting cycle (the two-year period between your attorney registrations). At least 4 of these credit hours must be in the Ethics and Professionalism category. The remaining credit hours may be in any category of credit.

Q] What kinds of courses count toward my CLE requirement?
A] Experienced attorneys may earn CLE credit by attending CLE courses offered in the traditional live classroom format, or in nontraditional formats such as audiotapes, videoconferences, online, etc., so long as the CLE Board has accredited the provider to offer the course in the particular format, or the course is eligible for credit under New York’s Approved Jurisdiction policy.

If the “recertification” process is the same as “Continuing Legal Education,” this item does not, on the surface, appear to be an irreconcilable issue.

The Cuomo Opportunity Agenda also has a lengthy section on “Raising the Bar,” increasing the requirements for teacher candidates, requiring higher grade point averages in college to enter a teacher education program, evaluating teacher education programs based on the “grades” of graduates once they enter teaching, etc. However, just released research questions the need for any changes,

The academic capability of new teachers in New York City has risen over the past 15 years, new research shows. Between 1999 and 2010, the average SAT scores of New York City college students receiving their teaching certification increased by 18 percent, and the SAT scores of entering teachers in New York City improved by 49 percent, according to the study published in Educational Researcher.

The test score gains were particularly pronounced among teachers hired to work in high-poverty schools, which resulted in a substantial reduction of the academic ability gap of teachers hired at affluent versus high-poverty schools.

If we continue to “Raise the Bar” are we going to reduce the applicant pool? What is the correlation between SAT scores and effective teaching? What will be the impact on candidates who were English language learners or came up the ladder from community colleges? Will “Raising the Bar,” in effect bar minority teachers? After the first year of the new required teacher certifications exams applicants of color and Hispanic applicants have significantly lower pass rates (Read here)

Another Opportunity Agenda idea is to increase the probationary period from the current three to five years.

Under current law school districts have the ability to extend tenure, with the agreement of the teacher, and, in New York City the practice is not uncommon. The major problem is not granting tenure too early, the problem is teacher attrition. 31.1% of teachers who were hired in 2009-10 quit by year four. 16.6% of teachers in 2012-13 have quit. School districts, and, in New York City, schools, have total discretion who to hire. New York State colleges, up to last year were pumping out far more teachers (except in ESL, bilingual and some science areas) than could be absorbed. This year the registration in schools of education declined sharply. The extension of the probationary period could discourage applicants and have very significant “unintended consequences.”

On a range of other issues the governor and teachers/parents are miles apart.

Over the next two months the battle for hearts and minds will resonate around the state. Will the governor’s approval rating dive? Will legislators line up with Cuomo or his opponents? Will the print, electronic and cyber media tilt for or against? Bus and train loads of foot soldiers will trek up or down the Hudson to walk the corridors of the Legislative Office Building (LOB) as the emissaries of the “three men in a room” exchange ideas and memorandum and actual texts of proposed legislation.

For many any compromise is a loss, the equivalent of planting the flag on the top of Mount Suribachi must be the outcome.

I expect that the outcome will be a very complex combination that to some extent can be viewed as a partial victory for all sides; although I do envy the Aztecs.

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