|Belinda Hope, principal at the Pine Ridge Alternative |
Center in Fort Lauderdale, Fla.
Tuesday, December 3, 2013
FORT LAUDERDALE, Fla. — Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses.
Perhaps nowhere has the shift been more pronounced than in Broward County’s public schools. Two years ago, the school district achieved an ignominious Florida record: More students were arrested on school campuses here than in any other state district, the vast majority for misdemeanors like possessing marijuana or spraying graffiti.
The Florida district, the sixth largest in the nation, was far from an outlier. In the past two decades, schools around the country have seen suspensions, expulsions and arrests for minor nonviolent offenses climb together with the number of police officers stationed at schools. The policy, called zero tolerance, first grew out of the war on drugs in the 1990s and became more aggressive in the wake of school shootings like the one at Columbine High School in Colorado.
But in November, Broward veered in a different direction, joining other large school districts, including Los Angeles, Baltimore, Chicago and Denver, in backing away from the get-tough approach.
Rather than push children out of school, districts like Broward are now doing the opposite: choosing to keep lawbreaking students in school, away from trouble on the streets, and offering them counseling and other assistance aimed at changing behavior.
These alternative efforts are increasingly supported, sometimes even led, by state juvenile justice directors, judges and police officers.
In Broward, which had more than 1,000 arrests in the 2011 school year, the school district entered into a wide-ranging agreement last month with local law enforcement, the juvenile justice department and civil rights groups like the N.A.A.C.P. to overhaul its disciplinary policies and de-emphasize punishment.
Some states, prodded by parents and student groups, are similarly moving to change the laws; in 2009, Florida amended its laws to allow school administrators greater discretion in disciplining students.
“A knee-jerk reaction for minor offenses, suspending and expelling students, this is not the business we should be in,” said Robert W. Runcie, the Broward County Schools superintendent, who took the job in late 2011. “We are not accepting that we need to have hundreds of students getting arrested and getting records that impact their lifelong chances to get a job, go into the military, get financial aid.”
Nationwide, more than 70 percent of students involved in arrests or referrals to court are black or Hispanic, according to federal data.
“What you see is the beginning of a national trend here,” said Michael Thompson, the director of the Council of State Governments Justice Center. “Everybody recognizes right now that if we want to really find ways to close the achievement gap, we are really going to need to look at the huge number of kids being removed from school campuses who are not receiving any classroom time.”
Pressure to change has come from the Obama administration, too. Beginning in 2009, the Department of Justice and the Department of Education aggressively began to encourage schools to think twice before arresting and pushing children out of school. In some cases, as in Meridian, Miss., the federal government has sued to force change in schools.
Some view the shift as politically driven and worry that the pendulum may swing too far in the other direction. Ken Trump, a school security consultant, said that while existing policies are at times misused by school staffs and officers, the policies mostly work well, offering schools the right amount of discretion.
“It’s a political movement by civil rights organizations that have targeted school police,” Mr. Trump said. “If you politicize this on either side, it’s not going to help on the front lines.”
Supporters, though, emphasize the flexibility in these new policies and stress that they do not apply to students who commit felonies or pose a danger.
“We are not taking these tools out of the toolbox,” said Russell Skiba, a school psychology professor at Indiana University who promotes disciplinary changes. “We are saying these should be tools of last resort.”
In Broward County, the shift has shown immediate results, although it is too early to predict overall success. School-based arrests have dropped by 41 percent, and suspensions, which in 2011 added up to 87,000 out of 258,000 students, are down 66 percent from the same period in 2012, school data shows.
Under the new agreement, students caught for the first time committing any of 11 nonviolent misdemeanors are no longer arrested and sent to court. Rather, they attend counseling and perform community service.
Nor do students face suspension for minor infractions. Instead, they also attend a program called Promise for three days or more. Repeat offenders get several chances to change their behavior before more punitive measures kick in.
One recent afternoon, an 18-year-old senior sat in the cafeteria at the Pine Ridge Alternative Center, where students are sent in lieu of a suspension, and spoke with a psychology graduate student on a counseling team. The girl had been caught with a small amount of marijuana in her car on her high school campus, a misdemeanor that would have led to a suspension or arrest in the past. It was the first time she had gotten in trouble at school.
“I was freaking out,” she said. Her first fear was that she would be barred from prom. Here, though, she saw the larger picture and came to view the incident as “her second chance.”
She learned about bullying and drugs and alcohol. “It was a slap in the face,” she said. “I don’t even want to smoke anymore.”
Other students here learn to manage their anger, if that is their issue. Parents are involved in the process. And counselors have helped identify problems at home including abusive situations, something that administrators said underscores how invaluable the counseling component has been for the Promise program, said Belinda Hope, the principal at Pine Ridge.
Mr. Runcie and others said the more punitive measures tended to make a bad situation worse. Suspended and expelled children would be home alone or on the street, falling behind academically. Those arrested could be stigmatized by criminal records.
“The data showed an increase in the harshness of the disciplinary practices in schools — what was once a trip to the principal’s office is now a trip to the jail cell,” said Judith Browne Dianis, co-director of the Advancement Project, a civil-rights group involved in the effort.
Juvenile judges were among the first to express alarm over the jump in the number of students appearing in court on misdemeanors, an increase they said is tied to the proliferation of school police officers.
“We started to see the officers as a disciplinary tool,” said Judge Elijah H. Williams of Broward County Circuit Court, a juvenile judge who said he was “no flaming liberal” but saw the need for change. “Somebody writes graffiti in a stall, O.K., you’re under arrest. A person gets caught with a marijuana cigarette, you’re under arrest.”
Monday, December 2, 2013
December 1, 2013
|UFT President Mike Mulgrew|
The New Mayor and the Teachers
By THE EDITORIAL BOARD,NYTIMES
Mayor-elect Bill de Blasio will take office facing the need to forge new labor agreements with the unions that represent nearly all of New York City’s 300,000 municipal workers. The largest of these, the United Federation of Teachers, is in a particularly sour mood. Representing 40 percent of the city’s work force, the union has been without a contract since 2009.
Mayor Michael Bloomberg proposed, starting in 2010, that all new union contracts get a three-year freeze in base pay, to be followed by two years of raises at 1.25 percent each. During his campaign, Mr. de Blasio said that a retroactive pay raise — dating back to the expiration of the last contract — would be possible only if offset by cost savings. That’s a good start. But any sort of raise will require concessions in exchange. He will need to press the union to loosen work rules that stifle innovation and favor senior teachers over younger ones who may in fact be more talented. The union must also let go of the unspoken presumption that every teacher is entitled to a job for life. Here are some key issues:
SENIORITY Seniority trumps everything and is treated as a proxy for excellence. Under current rules, a school that has an enrollment shortfall or budget problem and has to cut one of its five math teachers cuts the least senior teacher, period. In progressive systems like the one in Washington, D.C., which has made big gains on federal assessment tests, decisions about which teachers to cut are based on a combination of factors, including how they stack up on evaluations and whether they possess special skills. The goal is to keep the most talented teachers.
Similarly, the salary schedule in New York is calculated to reward longevity, requiring 22 years to get to the top level. Teachers are also rewarded for work toward advanced degrees, but this coursework does not necessarily have any bearing on how poorly or well they teach.
Meanwhile, younger teachers start out with relatively low salaries and are at risk of leaving the system for higher pay elsewhere. The scales should be rebalanced so that teachers who are judged highly effective under the new evaluation system can move up quickly in the pay scale. Highly effective teachers should be paid more for teaching in areas with shortages or in high-need schools that have difficulty attracting qualified staff.
INACTIVE TEACHERS In 2005, the union took a brave step when it agreed to abandon a rule that guaranteed senior teachers the right to claim a job in another school — even if the new school did not want them — by bumping less experienced teachers. The change gave principals more control over who works for them, without grave damage so far to senior teachers. Six of 10 teachers who are told their position has been eliminated find jobs in other schools relatively quickly, according to the city, while an additional 10 percent simply leave the system.
Teachers who do not find positions, however, are placed in a costly reserve pool. They work as substitutes and are paid full salaries at an annual cost, according to city data, of $144 million a year. Many of them do not even seek permanent jobs, the city says. Increasingly, school systems like those in Chicago and Washington, D.C., remove inactive teachers who do not find jobs in the system within a prescribed period, through layoffs, unpaid leaves, early retirement or buyouts. Similar arrangements should be worked out in New York City.
TEACHER DISCIPLINE One particularly disturbing provision in the old contract is that it allows teachers to be absent without notice for 20 days before they are fired. The provision is not often invoked, the union says, but its very existence sends the wrong message. Moreover, there should be a clear list of offenses that, if substantiated, lead to termination. Under current rules, official investigations that uncover serious abuses like sexual misconduct are subject to review by arbitrators who can veto terminations in favor of lesser penalties.
FLEXIBLE SCHEDULES The teachers’ union has been particularly hostile to the city’s thriving charter schools, which receive public financing, are exempt from some state rules and regulations, and, on average, are outperforming traditional schools. One of their advantages is that individual charter schools can set many of their own rules, scheduling longer school days and making more time for parent-teacher conferences. Traditional schools often follow a by-the-book approach that dictates the length of the day, frequency of meetings and so on. They should be pushed toward greater flexibility.
All in all, Mr. de Blasio has serious work ahead if the city’s school are to improve
Saturday, November 30, 2013
Matter of Marin v Teachers' Retirement Sys. of City of N.Y.
[*1] Matter of Marin v Teachers' Retirement Sys. of the City
of New York 2009 NY Slip Op 51600(U) [24 Misc 3d 1223(A)] Decided on July 14,
2009 Supreme Court, New York County Schlesinger, J. Published by New York State
Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is
uncorrected and will not be published in the printed Official Reports.
Decided on July 14, 2009
Supreme Court, New York County
In the Matter of the Application of Esther
Marin, Petitioner, for a Judgment under Article 78 of the Civil Practice Law
Teachers' Retirement System of the City of New
Attorney for Petitioner
Michael Kalmus, Esq.
Stuart Salles, Esq.
225 Broadway, Ste. 900
New York, NY 10007
Attorney for Respondent
Jeremy I. Huntone, Esq.
100 Church Street
New York, NY 10007
Alice Schlesinger, J.
Esther Marin, a retired Supervisor of Special Education, commenced this Article
78 proceeding to annul the determination of the Teacher's Retirement System of
the City of New York to recoup pension overpayments by reducing Ms. Marin's
monthly pension allowance by 25%. Respondent has opposed, asserting that the
proceeding is time-barred and that, in any event, the decision was proper on
Marin began teaching in the New York City schools on February 6, 1965. She
continued working for thirty years, advancing to different positions until she
retired on August 22, 1995. Beginning with her eligibility in 1971 and
continuing thereafter for over twenty years, Ms. Marin was a member of the
Teacher's Retirement System (TRS), and she made all the required contributions
to her account. Contributions were reflected in terms of "units" in
various accounts denominated as "Fixed," "Variable A" and
31, 1995, shortly before she retired, Ms. Marin filed an application with TRS
for retirement benefits (Answer, Exh. 1). On that same date, she applied to
make a lump-sum withdrawal from her account. Following her retirement on August
22, 1995, Ms. Marin received a series of letters relating to her benefits,
beginning with a letter dated May 24, 1996, advising her of the breakdown of
funds in her various accounts. Based on a final average salary of $61,300.19,
her regular pension was set at $40,522.03 plus $738.60 for increased take home
pay for a total of $41,260.63 (Answer, Exh. 2). One week later, on May 31, Ms.
Marin was advised that her application for a lump sum partial payment had been
approved in the amount of $204,889.59 (Answer, Exh. 3). The transfer of those
funds reduced the annual retirement [*2]allowance, which was further reduced
based on a loan of nearly $50,000 outstanding on the date of Ms. Marin's
continued to receive benefits for about twelve years until she was advised by
letter dated January 19, 2007 that, during a routine audit, TRS had discovered
a calculation error which had resulted in an overpayment to Ms. Marin. The
letter was accompanied by detailed calculation sheets explaining both the
initial and the revised calculations which showed that funds which should have
been in the Fixed account had erroneously been allocated to the Variable A
account which had grown at a different rate than the Fixed account (Answer,
Exh. 4). Additional information was provided in a Revised Benefit Letter dated
February 1, 2007 (Answer, Exh. 5).
then contacted the Council of School Supervisors & Administrators (CSA),
which then wrote to TRS on April 13 on Ms. Marin's behalf requesting an audit
and a further explanation. That request led to a May 8, 2007 letter from the
TRS confirming the calculation error and explaining again that it was
attributable to the misallocation of a certain sum to the Variable A account
rather than the Fixed account (Answer, Exh. 6).
6, 2007 petitioner herself wrote directly to the TRS (Answer, Exh. 7). She
indicated that, while she understood the explanation, she questioned how any such
misallocation of fund units could have occurred, particularly in light of the
detailed calculations she had received in 1995 and 1996. Ms. Marin asserted
that she had relied on the original calculations and the continued payments for
twelve years, and that she would suffer financial hardship if her pension were
reduced. She requested a reevaluation.
sent Ms. Marin a letter dated August 15, 2007 (Answer, Exh. 8). In that letter,
TRS confirmed for the first time that the overpayment totaled $300,184.75, and
it advised Ms. Marin of her three options: (1) to repay the full amount in one
lump sum; (2) to take no action, in which case TRS would automatically initiate
a cost-recovery plan after 90 days by deducting 25% of the monthly amount; or
(3) appeal using the form provided (Answer, Exh. 8).
response, Ms. Marin appealed, disputing both the calculation of the overpayment
and the proposed cost-recovery plan. Pursuant to the Overpayment Recovery Rules
(Answer, Exh. 9), she sought to limit the recoupment to the last three years
and the monthly reduction to 10%, arguing that she did not know, nor could she
have reasonably been expected to know, that she had been receiving an excess
pension amount and that the proposed cost-recovery plan would lead to financial
hardship (Answer, Exh. 10). TRS acknowledged receipt of the appeal by letter
dated September 24, 2007 (Answer, Exh. 11).
Appeals Panel then reviewed all the relevant data relating to Ms. Marin's
account, as well as the balance in the account of her spouse, who was also a
retiree (Answer, Exh. 12). By letter dated November 1, 2007 (Answer, Exh. 13),
TRS advised Ms. Marin of its decision against her, stating that:
Based on the information provided in your "Cost-Recovery Appeal," the
TRS Committee on Cost Recovery has denied your appeal. Therefore, your
cost-recovery plan will be implemented on the November 30, 2007 payroll. The
terms of your cost-recovery plan are as follows: Your monthly retirement
benefits will be reduced by 25% per month until your deficit amount of
300,184.75 is recovered.
unknown reason, TRS sent Ms. Marin another letter on [*3]November 20, 2007
(Answer, Exh. 14). That letter, like the November 1 letter, indicated that the
appeal had been denied. The letter was otherwise identical to the prior letter
with one exception: it indicated that the monthly recoupment would be 10%,
rather than 25%. Under the above-cited Overpayment Recovery Rules, any
recoupment is limited to 10% and three years when the retiree did not know, nor
could be expected to know, of an overpayment (Answer, Exh. 9 and12).
January 17, 2008, TRS sent Ms. Marin a Revised Benefits Letter detailing the
re-calculation of her pension. The letter included a breakdown of the amounts
held in the Fixed Portion and the Variable A and Variable B accounts and
provided information regarding payment options and tax consequences (Answer,
dated February 5, 2008, TRS retracted the 10% error which had been included in
its November 20 letter and confirmed that the monthly reduction would be 25%,
as previously stated (Answer Exh. 16). Apparently, Ms. Marin had again
contacted the Council of School Supervisors & Administrators (CSA) because
the February 5 TRS letter referenced receipt of a letter from CSA regarding Ms.
Marin's account. As Ms. Marin emphasizes, the February 5 letter, signed by a
Member Services Representative, stated: "The [CSA] letter is under review
by the Retirement Board and they will contact you. Please be assured that I
will continue to monitor your case." (Answer, Exh. 16).
TRS sent Ms. Marin a lengthy letter dated July 17, 2008 with a multi-page
attachment (Answer, Exh. 17). The letter began by acknowledging receipt of an
"inquiry " from Ms. Marin to the City Comptroller concerning the
November 20, 2007 TRS decision. It indicated that its letter was intended to
provide additional information on the calculations. It again attributed the
error to the misallocation of certain funds to the Variable A, rather than
Fixed, account and set forth both the original and the revised calculations, as
well as an annual statement of the account. It appears that no further
correspondence was exchanged. This Article 78 proceeding was commenced about
four months later, on or about November 6, 2008.
While not disputing the TRS conclusion that her pension was initially
miscalculated, resulting in an overpayment, Ms. Marin complains herein (and
correctly so) that the letters sent her by TRS were oftentimes complicated and
occasionally conflicting. She asserts that it was not until July 17, 2008 that
she received a detailed analysis of all the relevant calculations supporting
the November 1, 2007 decision by TRS. In that November 1 decision, TRS had
advised Ms. Marin that it had denied her appeal and was confirming that she had
been overpaid $300,184.75,and that the overpayment would be recouped at the
rate of a 25% reduction in her monthly benefits until the sum was recovered in
though she now appears to understand the calculations, Ms. Marin insists that
the terms of the cost-recovery plan must be annulled as arbitrary and
capricious. Specifically, she asserts that the miscalculation was entirely the
fault of the TRS and that she did not know, nor could she have reasonably been
expected to now, about the error. Further, she relied on the TRS calculations
in purchasing a home and establishing a particular lifestyle and would suffer
hardship if a 25% reduction were imposed to recoup the overpayment.
Accordingly, under the Overpayment Recovery Rules (Answer, Exh. 9), Marin
asserts that she is entitled to have the recoupment rate reduced to 10%, with
any recoupment ending after three years. [*4]
TRS opposes on two grounds. First, it asserts that the proceeding is barred by
the four-month Statute of Limitations applicable to Article 78 proceedings.
CPLR §217. In addition, it asserts that the decision is rationally based on the
evidence and entitled to judicial affirmance.
first to the threshold issue of the Statute of Limitations, the four-month
period begins to run when the agency's determination becomes "final and
binding" against the petitioner, within the meaning of CPLR §217. The
Court of Appeals has identified two requirements for fixing that time.
"First, the agency must have reached a definitive position on the issue
that inflicts actual, concrete injury and second, the injury inflicted may not
be prevented or significantly ameliorated by further administrative action or
by steps available to the complaining party ..." Matter of Best Payphones,
Inc v Department of Information Technology, 5 NY3d 30, 34 (2005)(citations
omitted)(letter advising petitioner that it had failed to meet a condition of
City approval and that the City was deemed to have determined not to approve a
franchise for petitioner, indicated that agency had reached a definitive
position which caused injury and caused the statute of limitations to begin to
case at bar, TRS communicated a definitive position that inflicted actual
injury to Ms. Marin when it stated in its November 1, 2007 letter that
"Based on the information provided in your "Cost-Recovery Appeal,'
the TRS Committee on Cost Recovery has denied your appeal." The letter
then went on to confirm the precise overpayment amount of $300,184.75 and the
monthly reduction of 25% to recoup that amount. The letter was written in
response to Ms. Marin's appeal, submitted on the form provided by TRS for that
purpose. As there was no ambiguity in that letter and no question as to its
finality, the four-month Statute of Limitations began to run on that date, and
the commencement of this proceeding on November 6, 2008, nearly a year later,
was untimely. See Saddlier v Teachers' Retirement System of the City of New
York, 7 AD3d 430 (1st Dep't 2004)(statute of limitations began to run upon
petitioner's receipt of letter denying her application, as letter was
unambiguous and raised no question as to finality).
argues that in her case an ambiguity was created by the November 20, 2007
letter, which was identical to the November 1 letter but for the change in the
recoupment amount to 10%. However, the error in the November 20 letter was
corrected by the February 5, 2008 letter which reinstated the 25% amount. The
February 5 letter gave no indication of a right to a further administrative
appeal or of any other steps that Ms. Marin could take to ameliorate the
decisions against her. But even if one were to accept Ms. Marin's argument and
calculate the four-month period from February 5, 2008, the commencement of this
proceeding on November 6, 2008 was untimely.
unavailing is petitioner's attempt to toll the running of the Statute of
Limitations based on inquiries made by the CSA on Ms. Marin's behalf at her
urging. For example, the February 5, 2008 letter acknowledges such an inquiry
and indicates that the "letter is under review by the Retirement Board and
they will contact you." While Ms. Marin has not included in the record
either her letter to the CSA or the CSA letter to the TRS, it appears the letters
were similar to the April 13, 2007 letter from the CSA responded to by TRS in
May (Answer, Exh. 6). There, CSA, apparently a member organization, asked the
TRS in a one-sentence letter to provide a fuller explanation of its findings,
and the TRS responded by explaining its calculations again. This type of
inquiry, which did not even come directly from Ms. Marin and in no way amounted
to a formal administrative challenge [*5]or appeal of the determination, did
not extend the Statute of Limitations. See Lubin v Board of Education of the
City of New York, 60 NY2d 974, 976 (1983), citing Matter of De Milio v
Borghard, 55 NY2d 216 ("petitioner's direction of correspondence to
respondents, which can be viewed, at most, as a request for reconsideration,
did not toll or revive the Statute of Limitations").
the February 5 letter create any ambiguity as to finality, even though it did
indicate that the TRS was reviewing the matter. In sharp contrast to the
November 1 letter, the February 5 letter did not indicate that any further
administrative appeal was available to Ms. Marin. At most, it intended to
respond to the CSA inquiry, as it had responded to prior letter inquiries, by
providing a fuller explanation of its calculations. Thus, the injury inflicted
by the November 1 denial of Ms. Marin's appeal could not be prevented or
significantly ameliorated by further administrative action or by steps taken by
petitioner as required by the Court of Appeals to toll the running of the
Statute of Limitations. The fact that a TRS customer service representative
agreed to "monitor" the case did not reasonably suggest that a person
with managerial authority from the Retirement Payroll Unit, like the person who
had authored the November 1 appeal determination, would reopen the case.
Ms. Marin's February 20, 2008 complaint to the City Comptroller about an
"abuse of power" by the TRS (Petition, Exh J), which resulted in the
TRS explanatory letter of July 17, 2008, did not extend the Statute of
Limitations. See Lubin, supra. Ms. Marin had no reason to believe that a
complaint letter to the Comptroller would be treated as some sort of
administrative appeal or yield any different result than the one she had
received by filing a formal appeal with the TRS. What is more, the July 17
responding letter, like so many before it, simply provides details explaining
the calculations and does not address the issues central to the denial of Ms.
Marin's appeal of the cost-recovery plan; namely, whether Ms. Marin had reason
to know of the overpayment or would suffer hardship from the 25% recoupment.
Marin's reliance on A.C. Transportation, Inc. v Board of Education, 253 AD2d
330 (1st Dep't 1999) is misplaced. The Appellate Division found that the letter
at issue was not "final and binding" because, while it advised
plaintiff of an intention to recoup any overpayment of funds, it "went on
to state plaintiffs could still present documentation to substantiate any
increase in their operating costs. Thus, there is no indication that the Board
had made a final determination with respect to the amount of the overpayments
..." 253 AD2d at 336 (citations omitted). In contrast here, the TRS
November 1 letter explicitly denied Ms. Marin's appeal and confirmed the
overpayment total and monthly recoupment amounts; it did not request any
further information or otherwise suggest that Ms. Marin could take any
administrative steps to cause the TRS to modify its decision, and it had no
duty to advise Ms. Marin of the availability of Article 78 relief.
contends in its memorandum of law (at p 8) that the February 5 letter indicated
that the TRS agreed "to consider additional material submitted," the
letter does not say that. Further, the record is devoid of any evidence that
any additional material was submitted with the CSA letter which might lead the
TRS to change its final determination, and such speculation is particularly
unwarranted in light of the brevity of the CSA's prior one-sentence inquiry.
Further, contrary to petitioner's claim (memorandum at p 14), Ms. Marin had
received ample information explaining the calculation error, and the
[*6]provision of additional explanatory information in the July 17 letter did
not extend the Statute of Limitations.
this Court were to accept Ms. Marin's argument that the February 5 TRS letter
created an ambiguity which was not finally resolved until the TRS issued its
July 17, 2008 letter, the petition must fail. While the commencement of the
proceeding on November 6, 2008 would be timely if the four-month period were
calculated from July 17, it cannot be said that the TRS decision is arbitrary
and capricious on the merits and must be annulled. Ms. Marin does not, and
cannot, reasonably dispute that the TRS made a calculation error. As such, TRS
has a duty to correct its erroneous calculations, and no claim of estoppel
based on detrimental reliance is available to Ms. Marin. See Matter of
Galanthay v New York State Teachers' Retirement System, 50 NY2d 984, 986
(1980)(erroneous calculations could not be basis of estoppel claim by retiree).
issue is whether the TRS misapplied the Overpayment Recovery Rules when setting
the terms of Ms. Marin's cost-recovery plan. Under those Rules (Answer, Exh.
9), the monthly pension allowance is reduced by 25% until the overpayment is
recovered in full. If the retiree establishes that she "did not know or
could not have reasonably been expected to know that an overpayment had been
made," the recovery will be limited to three years prior to the date of
the TRS notice and the monthly recoupment rate will be limited to 10%. The rate
may also be reduced for reasons of financial hardship. Ms. Marin was well aware
of the Rules, which she quoted at length in her appeal (Answer, Exh. 10).
indicated above, the overpayment error was attributable to the misallocation of
certain funds to the Variable A account, rather than the Fixed account. While
Ms. Marin might not have had reason to know about that specific error, the
consequences of the misallocation would have led a reasonable person to know
that she was being overpaid. For example, Ms. Marin confirms in her TRS appeal
and herein that she met with a pension consultant upon her retirement. She was
told at that time that her final benefit would be $47,323, calculated at 77.2%
of her final salary of $61,300, plus an additional amount for employer deposits
over the years for Increased Take-Home Pay (ITHP).
argues that it was reasonable to assume that the ITHP would be substantial, as
it had been invested in the Variable A account which held stocks. TRS
persuasively disputes that argument. It notes that, due to the initial
miscalculation, Ms. Marin's total annual retirement allowance was calculated to
be approximately $65,000. For that number to be correct, the value of the ITHP
would have been $18,000, an extraordinarily high amount particularly
considering that the May 17, 1996 statement set it at less than $1000. What is
more, the $65,000 figure was not only far greater than the $47,000 figure
quoted by the retirement consultant, but it exceeded Ms. Marin's final salary
by nearly $4000. In addition, since Ms. Marin chose to make a lump-sum
withdrawal from her account of over $200,000, and since she knew her account
would be further reduced by her outstanding $50,000 loan, it was unreasonable
to believe that her retirement allowance would exceed her final salary.
Considering all these circumstances, this Court cannot find that it was
arbitrary and capricious for the TRS to conclude that Ms. Marin could have
reasonably been expected to know that an overpayment had been made.
this Court cannot find that it was arbitrary and capricious of the TRS to
decline to reduce the 25% recoupment based on financial hardship. The only
information provided by Ms. Marin with her appeal was a general statement that
the 25% reduction [*7]would force her to sell her home at a loss in a weak
market. No specifics were provided. TRS balanced this claim against the
following evidence: Ms. Marin's account balance when the overpayment was
discovered was $522,529.83, arguably allowing her to repay the entire $300,000
overpayment in one lump-sum; the 25% monthly reduction would allow Ms. Marin to
repay the overpayment over 21 years with no interest charged; even with the
reduction, Ms. Marin's benefits would be $3563.12 monthly or $42,757.44
annually, still a relatively substantial amount and not significantly less than
the figure originally quoted to her by the retirement consultant; and Ms. Marin
shares expenses with her spouse, who also receivesTRS benefits.
Article 78 proceeding such as this one, the court's function is limited to a
determination whether the administrative determination is arbitrary and
capricious in that it is "without sound basis in reason and is generally
taken without regard to the facts." Matter of Pell v Board of Education,
34 NY2d 222, 231 (1974). Unless the decision is arbitrary, the court cannot
substitute its judgment, even if it would have reached a different result if
presented with the issue in the first instance. Cuccia v Martinez &
Ritorta, P.C., 61 AD3d 609,610 (1st Dep't 2009), citing Flacke v Onondaga
Landfill Sys., 69 NY2d 355, 363 (1987). Applying this standard, the petition
must be denied.
it is hereby
that the petition is denied and the proceeding is dismissed without costs or
disbursements. The Clerk is directed to enter judgment accordingly.
Dated: July 14, 2009
Decided on July 14, 2009
Supreme Court, New York County
In the Matter of the Application of Esther Marin, Petitioner, for a Judgment under Article 78 of the Civil Practice Law and Rules,
Teachers' Retirement System of the City of New York, Respondent.
Attorney for Petitioner
Michael Kalmus, Esq.
Stuart Salles, Esq.
225 Broadway, Ste. 900
New York, NY 10007
Attorney for Respondent
Jeremy I. Huntone, Esq.
100 Church Street
New York, NY 10007
Alice Schlesinger, J.
Petitioner Esther Marin, a retired Supervisor of Special Education, commenced this Article 78 proceeding to annul the determination of the Teacher's Retirement System of the City of New York to recoup pension overpayments by reducing Ms. Marin's monthly pension allowance by 25%. Respondent has opposed, asserting that the proceeding is time-barred and that, in any event, the decision was proper on the merits.
Based on the information provided in your "Cost-Recovery Appeal," the TRS Committee on Cost Recovery has denied your appeal. Therefore, your cost-recovery plan will be implemented on the November 30, 2007 payroll. The terms of your cost-recovery plan are as follows: Your monthly retirement benefits will be reduced by 25% per month until your deficit amount of 300,184.75 is recovered.
While not disputing the TRS conclusion that her pension was initially miscalculated, resulting in an overpayment, Ms. Marin complains herein (and correctly so) that the letters sent her by TRS were oftentimes complicated and occasionally conflicting. She asserts that it was not until July 17, 2008 that she received a detailed analysis of all the relevant calculations supporting the November 1, 2007 decision by TRS. In that November 1 decision, TRS had advised Ms. Marin that it had denied her appeal and was confirming that she had been overpaid $300,184.75,and that the overpayment would be recouped at the rate of a 25% reduction in her monthly benefits until the sum was recovered in full.
Dated: July 14, 2009
Thursday, November 28, 2013
No. Michele Ehrlich, an ESL teacher at PS 79 in Whitestone until her probationary termination
in July 2011, complained to several DOE departments and some private advocacy groups about
a violation of an IEP of one of her students. After her termination she claimed she was covered
by the Whistleblower’s Law Section 75-b. (A federal claim concerning her free speech rights
was dismissed in a federal action that had been removed to that court by the DOE).
Acting Justice Ellen M. Coin ruled that Ehrlich could not maintain her action under the Whistleblower’s law since she was covered by the UFT contract and was required to exhaust
her remedies available under the grievance procedure before she could commence an action.
Ehrlich v. DOE (November 7, 2013, Decided)
Wednesday, November 27, 2013
Cover-Up Charged in School Official's Sex-Abuse Case
Published: October 11, 1991
In what investigators described as a cover-up by an "old boys' network," two current and two former officials of the New York City Board of Education were accused yesterday of conducting a cursory investigation of a colleague's conviction for sexually abusing a child and then letting him keep his job.
The two current officials are James T. Stein, who was dismissed by Schools Chancellor Joseph A. Fernandez as the $68,394-a-year head of the office that hears appeals by teachers disciplined for misconduct, and Howard S. Tames, the $95,000-a-year head of the office that tests and licenses teachers. Mr. Tames, who received a "severe reprimand" from Mr. Fernandez, heads the office that replaced the Board of Examiners last year.
Mr. Fernandez also dismissed Jerry Olshaker, a $71,000-a-year administrator of food supply who pleaded guilty in 1987 to sexually abusing a neighbor's daughter in Matawan, N.J.
A report by Edward Stancik, the Deputy Commissioner of Investigation for the city's schools, said Mr. Stein appointed a three-person panel that was made up entirely of associates of Mr. Olshaker to review the arrest. The report said the panel, loath to dismiss a well-regarded colleague, deliberately avoided seeking out the facts behind the sex charges. Mr. Stancik said the officials seemed "visibly shaken" when they later learned those details during the course of his investigation. 'One Big Happy Family'.
"They didn't want to know the truth," Mr. Stancik said, describing the officials as an "old boys' network." "The department of personnel acted like one big happy family. When someone got into trouble the family took care of it."
The record on the entire episode was secreted for four years in the top drawer of Mr. Stein's desk instead of being placed in the appropriate board file, the report said.
Mr. Stancik's office, part of the city's Department of Investigation, was created last year to be independent of the board after disclosures that the board's own investigatory arm was doing a poor job of policing corruption.In January 1987, the 56-year-old Mr. Olshaker, then the administrator of support services in the Personnel Division, was charged with repeated acts of sexual abuse of his daughter's friend from the time the friend was 8 until she was 14. Most of the acts described in the report involved his placing of the girl's hand on his genitals.
Mr. Olshaker, a board employee since 1962, confided the arrest four months later to his immediate supervisor, Geri Morganteen, and said he intended to plead not guilty. The report said Ms. Morganteen, who resigned from the board more than a year ago, notified Mr. Stein. Mr. Stein, 56, and Edward Aquilone, executive director of the personnel division, decided, in accordance with board regulations, to convene a Personnel Review Panel to evaluate the case and recommend action. The panel was made up of Mr. Stein, Ms. Morganteen and Mr. Tames, all friends of Mr. Olshaker.
The panel, the report said, may have conducted no inquiry and, indeed, Mr. Stein, its leader, "chose not to ask" the specifics of the arrest. After seeing the Monmouth County indictment, which included no description of the acts of abuse, he had Mr. Tames and Ms. Morganteen sign a document recommending Mr. Olshaker's retention.
The report said the panel members and Mr. Aquilone, who has since retired, defended the handling of the case. The report said that Mr. Stein may also have falsified a document.The board's regulations require a representative of the Chancellor to be part of the panel. So Mr. Stein, the report said, apparently wrote an identification next to Mr. Tames's signature that indicated he worked for the Office of School Safety, which he did not.
On June 9, 1987, Mr. Olshaker pleaded guilty and he was sentenced to three months' probation on the condition that he undergo psychotherapy. A second review panel, without any details of the plea, again recommended Mr. Olshaker's retention.
Mr. Fernandez defended his decision to let Mr. Tames remain by arguing that Mr. Tames merely went along with a process that was engineered by Mr. Stein with little knowledge of the charges at issue.
Tuesday, November 26, 2013
Laurel Sturt, Author of "Davonte's Inferno: Ten Years in the New York Public School Gulag", Speaks Out in Atlantic Magazine
'It Feels Like Education Malpractice'
What one woman learned from 10 years of teaching in a New York City public school
Laurel Sturt was a 46-year-old fashion designer in New York City whose career trajectory took an unlikely shift one day on the subway. A self-proclaimed social activist, Sturt noticed an ad for a Teaching Fellows program. Then and there, she decided to quit her job in fashion design and shift her focus to her real passion: helping others. She enrolled in the two-year program and was assigned to teach at an elementary school in a high-poverty neighborhood near the South Bronx.
A decade later, Sturt has written about the experience in her provocative memoir Davonte’s Inferno: Ten Years in the New York Public School Gulag. I spoke with her about how her time in the classroom affected her views on education today.
You got into teaching at the age of 46, which is later than most. What spurred you to make the big life change?
I had always been a social activist and felt there was a responsibility for the “haves” to help the “have-nots.” I used to fulfill that obligation by tutoring inner-city kids, but my actual career was in fashion design and illustration. I remember thinking: When someone’s on their deathbed, are they really going to think about the dress I designed for them? Not to put down fashion design, but it’s just not enough. I decided to flip the equation and instead of doing social activism part-time, make it a full time job.
You began teaching just as No Child Left Behind took effect. How did you see it affecting your school?
I saw a lot of problems with all the testing, with all the slogans everywhere, as if you were in North Korea or something. It was very strange. … It was all about achievement through test scores. I resented the fact that we were test-prepping them all the time and we couldn’t give them a rich, authentic education.
But if not testing, how should we be measuring a school’s success?
We should do it the way they do in Finland, which is the gold standard for the world. You have high-quality teachers, pay them well, and have a lot of community social support. Finland has the lowest socio-economic segregation out of the 57 countries that take the international test. There’s a correlation between low socio-economic segregation and success. The kids don’t take high-stakes tests in Finland, and the teachers are never evaluated on that.
It’s absurd to tie a test score to a teacher. The kids we teach face so many variables at home, many negative. Tests are used to vilify and get rid of teachers so you can make money from a privatized school. It makes you think of the Hippocratic Oath doctors take: first, do no harm. We feel like we’re harming the kids. It feels like education malpractice. It’s not education, it’s torture.
You taught in an area affected by poverty. How did the environment affect the students’ performance in school?
It was a very poor neighborhood with a lot of English-language learners who knew little or no English. With poverty comes this condition called Toxic Stress. It explains why the children were so difficult to handle, needy, and so behind in learning. When your dad is in prison or your mom is on drugs, or your mom drank alcohol when you were a fetus, if you didn’t sleep the night before because you were allowed to play video games all night, or maybe there was a shooting, your cognitive ability is harmed. It rewires their brain so they’re unable to employ working memory, which is what you use when you’re learning. We’re charged with being the parents of these kids, being the friends, the mentors. Teachers are given all these social responsibility towards children that aren’t ours. It’s a failure of the system to address the poverty that creates the achievement gap.
Has the poverty gap changed over time?
The gap between poor and wealthy kids has grown by 50 percent since 1980. In 1963, a poor child was one year behind a wealthier child in school, in terms of learning. Now they’re four years behind. There hasn’t been money invested in eradicating poverty since the ‘60s, with President Johnson’s Great Society.
How do you think schools can overcome this achievement gap?
Experiments around the country show it’s not about racial desegregation anymore—it’s about socio-economic desegregation. There’s something called inclusionary-zoning where they’ve forced developers to build affordable housing for the poor, mixed right in the neighborhood with the wealthier people. Right now they’re doing that with four million kids in 80 districts. Those kids are doing great. You could say to a wealthy school district, “We’ll give you this subsidy if you take this number of poor kids.” It has to be less than 50 percent, or else it’ll create the same conditions that exist in the high-needs community. But it would take away crowding in the poor school which would help with lower class sizes. It would benefit everybody. The wealthy schools benefit from the diversity.
You’ve been critical of Mayor Bloomberg’s role in the New York Public School System. What do you think about de Blasio?
Bill de Blasio’s whole focus on early childhood is so great. He’s getting on board with a national trend now. Even President Obama is called for it in the next budget. In Minnesota, they’re implementing it widely. Unfortunately, it’s not everywhere. And we don’t know if de Blasio can get the money from Albany to do that. But Albany’s split in half, politically. The idea of de Blasio using the “tale of two cities” thing and talking about inequality is great.
Why is early childhood education so important?
It’s a goldmine in terms of what it does for kids and what it does for society. For every dollar you invest in early childhood education, you get a seven-to-ten yieldon your investment, in terms of lower incarceration cost, higher graduation rate, lower usage of welfare. It all comes back.
How did your attitude towards teaching evolve over your ten years in the Bronx?
I went in as an idealist. I’d seen all the movies, seen all the poor kids and heroic teachers. But those movies were fake. They started out with a real story but turned it into a happy ending when there wasn’t one. It was grueling. You had to save these kids, but if one was running around the room or dancing on the tables or beating another kid up, you had to deal with it yourself. They’re unhappy kids and they’re going to look for fights to express their frustration. We need legions of psychologists in the school to get the kids the therapy they need. We need wraparound services, community services that give mothers prenatal care, home-visits, teaching parents to read to kids, health services, food. It has reached an emergency level. Almost one out of two kids in public school now is in poverty.
Why did you eventually leave?
I saw that no matter what I wanted for the kids, it wasn’t going to happen. The system purported to be supporting students just wasn’t there. They need remediation, tiny class sizes, one-on-one attention—they need parenting, basically. Their parents are affected by the same Toxic Stress that they are, and it repeats itself in a cycle from parent to child. In America, the wealthiest school is going to get ten times more funding than the lowest one. For every dollar my school was getting, one in the suburbs was getting ten dollars. That’s huge. The kids come in disadvantaged, and they’re subjected to this disadvantaged school. My school was completely third-world. And through it all, it completely negated your life outside school. It was so exhausting. To teach anyway means to be giving, to deliver something. You’re giving out, giving out, giving out. And when you come up against these natural obstructions because of poverty, and then the lack of support from the administration, it’s just too much.
This interview was condensed and edited for clarity.
This article available online at: