Movement of Rank and File Educators
Given impending budget cuts, many UFT members were given letters at the end of this 2019-2020 school year informing them that they were being excessed from their schools, generating confusion and fear. On the UFT website there is a brief overview of excessing as well as a few FAQs, but there is much that is left unsaid. This document addresses some of the major topics regarding excessing.
- What does it mean to be excessed?
- Why would my principal excess me before he/she even had the budget?
- How much say does my principal have in which license areas get excessed?
- What does it mean to be discontinued?
- What does it mean if there are layoffs?
- What are the steps available to address being excessed?
- What should I do if I am excessed or discontinued?
Q: What does it mean to be excessed?
A: For appointed teachers the excessing rules are covered under Article 17B of the contract. In short, a teacher is placed in excess because her/his school closed, is closing, or because the principal has decided to reduce the number of teachers within a given license at the school or work site (usually because of a budget change). There are a number of exceptions, particularly within Special Education and among elementary school teachers, which are explained in the various rules listed under Article 17B. However, the basic idea is that excessing is done by inverse system seniority within license. Excessing is carried out within a particular school or work site (again there are exceptions within District 75). This means that you are excessed by school site, but who gets excessed is determined by the amount of seniority you have in the DOE, not in your specific school.
|For example, suppose Mr. Jones is a tenured Social Studies teacher with 15 years of service in his license within the Department of Education. Mr Smith works at the same school, under the same license, is also tenured, but has only 14 years of service. In that scenario Mr. Smith must be excessed before Mr. Jones is excessed. The principal does not get to decide which one gets excessed, even though it may have been the principal who decided to excess Social Studies teachers rather than English teachers.|
Untenured teachers are always excessed before tenured teachers.
|For example, if Ms. Brown is appointed to the same school on the same license, has 16 years of service, but never completed probation, she must be excessed before Mr. Smith or Mr. Jones because she is untenured while the other two are tenured.|
As stated, this is the general rule. A member who grieves being excessed might discover that there are specific rules which allow a principal to excess somebody out of order. But it is always worth grieving because often a principal just makes up or blatantly ignores the excessing rules.
It is a common misconception that excessing is done by inverse seniority within departments, rather than by license. Excessing rules are based on license area, not the department you are in or what classes you teach.
|For example, say there are two teachers in the English department. One is appointed on a Reading Teacher license, another was appointed on a Special Education Teacher license. The fact that they both teach English would be irrelevant if they were excessed. As the only Reading teacher in the school, the principal could decide to retain her while excessing more senior English teachers, or he could have decided to excess her while retaining less senior English teachers.|
Q: Why would my principal excess me before he/she even had the budget?
A: Principals were supposed to notify teachers that they were being excessed by June 15, 2020. Many principals covered themselves by issuing excessing notices even though they did not yet have their budgets. Some will make clear in the notices that they hope to be able to rescind the excess notice after the budget comes in. Many are not so considerate. It is entirely possible that teachers who were given excessing letters will retain their positions at their schools come September. Principals know that they can rescind the letter over the course of the summer. However, it should be noted that if a teacher accepts a position at a new school, she forfeits the right to return to her position at her old school. Therefore, teachers should carefully consider the consequences of accepting a new position. Remember, excessed teachers remain employed by the DOE. They continue to earn their salary, receive benefits, and accrue time toward their pension and seniority.
Q: How much say does my principal have in which license areas get excessed?
A: The principal has nearly complete say. The only limitation is that the principal is required to follow class size rules and is required to follow state regulations on which courses must be offered and how many hours per day of instruction must be offered. The principal will need to have enough staff to meet those rules and regulations.That would make it very difficult, for example, for a principal to decide that he/she wanted no Math teachers in the school. However, if a principal has decided he/she needs to excess three teachers, he/she can choose which licenses go first, second, and third. Some principals are careful to not excess teachers if they need those teachers in order to cover all the classes that have to be run. Others, especially those who are more punitive, will excess needed teachers and then take their chances in the fall.
Q: What does it mean to be discontinued?
A: “Discontinued” is the equivalent of firing for a probationary (non-tenured) teacher. It has nothing to do with the school’s budget or excessing. A principal can issue a “D” rating at the end of a term or the end of a year. The discontinued teacher will be removed from the school and removed from payroll. A principal can discontinue a teacher for a variety of reasons, usually relating to allegations of poor teaching or misconduct. There is an appeals process but probationary teachers have far fewer rights than tenured teachers do. (Tenured teachers, for example, remain on payroll until their case is settled, while untenured teachers do not). There are ways to fight a discontinuance. See the last question for more information and contact us if you need assistance.
Q: What does it mean if there are layoffs?
A: Excessing and layoffs are two different unrelated actions. Excessing is an internal DOE process, whereas layoffs are determined by the city government. Layoffs are quite rare because they are disruptive to schools, to the Department of Education, and to principals. If the city declares a city-wide layoff in a particular license the least senior employee with that license in the city is laid off first, the second least senior employee second, etc.
|That means that multiple teachers in a given school may get lay off notices while no employee in another school receives one. In that situation, a teacher who was not issued layoff notices, can be involuntarily transferred to fill a vacancy left by a teacher who did receive a layoff notice.|
It can also happen that a teacher is transferred into another school that has no vacancies, causing other teachers in the same license in that school to be excessed and transferred to yet another school. That is nicknamed “bumping.” This would be disruptive for the employer because it would take away the power of principals to choose staff members and, therefore, disrupt their ability to control their own budgets. Giving principals power over budgets and staffing was a major achievement of the Bloomberg administration which Deblasio is unlikely to surrender. As of July 2020, no layoffs have been announced.
Q: What are the steps available to address being excessed?
A: Members who believe they were excessed improperly have a right to file a grievance*. Sometimes a well-organized chapter can put pressure on a principal to rescind an excess. But this requires organization. It is easier to do that if the principal is clearly violating the rules, excessing for punitive reasons, or engaging in reckless budgetary policies such as adding administrators or consultants while excessing teachers.
*Note: the UFT has said since we went remote that the grievance process is “frozen” and therefore your grievance will not be processed. The Department of Education has never confirmed this “freeze” in writing. The MORE caucus is organizing to have the grievance process resumed.
Q: What should I do if I am excessed or discontinued?
A: If you are excessed you should contact the UFT. Your chapter leader has an excessing seniority list so that you can check if your principal excessed you out of order. You can also speak to your chapter leader or to colleagues to see if they are willing to try to organize to get your excess letter rescinded. If you received a “D” and were discontinued you should also contact the UFT. Some of our members and friends have spoken highly of a particular private attorney who may be of assistance in cases of discontinuance. We can provide contact information for this attorney.
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