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Wednesday, June 13, 2012

No Facts In Observations Means No Tenure Rights In NYC 3020-a in Incompetency Cases

There are no facts in observations, say the New York State Supreme Court and the New York State Supreme Court Appellate Division, Second Department (Elentuck v Green):

decided: March 7, 1994.


Harvey M. Elentuck, Jamaica, N.Y., appellant pro se.

Paul A. Crotty, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Carita R. Zimmerman of counsel), for respondents.

Guy James Mangano, P.j., VINCENT Pizzuto, Myriam J. Altman, Gabriel M. Krausman, JJ.


In a proceeding pursuant to CPLR article 78 to compel the respondents to give the petitioner access to certain documents, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated February 11, 1992, as, upon reargument, adhered to its original determination in an order and judgment (one paper) of the same court dated November 16, 1989, which granted the petition only to the extent of permitting the petitioner access only to certain hearing panel reports prepared pursuant to Education Law 3020-a.

Ordered that the order is affirmed insofar as appealed from, with costs.

The petitioner, who is a teacher, sought disclosure, pursuant to the Freedom of Information Law (see, Public Officers Law, art 6), of various documents related to the termination of his employment, including, inter alia, "all Chancellor's Committee reports, Education Law 3020-a reports, and 'unsatisfactory' lesson observation reports in the possession of Community School District/Board 24". We find that the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law 87[2][g]). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law 87(2)(g) (see, Matter of McAulay v Board of Educ. of City of N.Y., 61 A.D.2d 1048, 403 N.Y.S.2d 116, affd 49 N.Y.2d 659; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc. 2d 1041, 1046-1047, 430 N.Y.S.2d 460).

The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law 87(2)(g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268, 520 N.Y.S.2d 599).

We have reviewed the petitioner's remaining contentions and find them to be without merit.



Therefore, if end-of-year ratings of teachers are based solely on observations, and this is what is brought to 3020-a for a single arbitrator to rule on and for this single arbitrator to terminate an "incompetent" teacher, then teachers are being declared incompetent without any facts to base this decision on.

Furthermore, if teachers are being terminated based upon the observations of principals who have an ax to grind about the expensive tenured positions they have to pay for rather than getting two teachers who are half the salary, then there is no more tenure.

We know why the Mayor and the CEO of the public school system are not saying anything about how they ended tenure rights almost 10 years ago, but why did the UFT and NYSUT allow this?

Just askin'

Betsy Combier

Go to the links below to comment on the bills on teacher evaluations:

Go to the following websites often, to see what your future holds:

From the New York State Committee on Open Government:

 February 2, 2000
The staff of the Committee on Open Government is authorized to issue advisory opinions. 
The ensuing staff advisory opinion is based solely upon the information presented in your
I have received your letter of December 28 in which you sought an advisory opinion
in your capacity as attorney for the Ellenville Central School District concerning a request
made under the Freedom of Information Law. Your question is: "Are the ratings of
‘satisfactory' or ‘unsatisfactory' given to teachers for classroom evaluations to be considered
‘final ratings', which have to be made available under FOIL, or are they opinions or perhaps
‘interim ratings' which do not have to be made available under FOIL." You added that the
evaluations and ratings at issue are not "annual reviews".
In this regard, from my perspective, the question may be answered based on the
function of the ratings. The "annual reviews" to which you referred are not fully described. 
However, it appears that the outcome of those reviews would represent the District's final
determination concerning an employee's performance. If that is so, and if the ratings
prepared based on classroom evaluations represent a preliminary element used later in
reaching a final determination concerning performance, I do not believe that there would be
an obligation to disclose.
As you are aware, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a)
through (i) of the Law.
Pertinent to an analysis of rights of access is §87(2)(g), which permits an agency to
withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.
I point out that the Appellate Division, Second Department, has determined that
records apparently analogous to those requested may be withheld, stating that:
"The lesson observation reports consist solely of advice,
criticisms, evaluations, and recommendations prepared by the
school assistant principal regarding lesson preparation and
classroom performance. As such, these reports fall squarely
within the protection of Public Officers Law § 87(2)(g)"
[Elentuck v. Green, 202 AD2d 425, 608 NYS2d 701, 702

If the contents, nature or function of the records at issue are different or
distinguishable from the records considered in Elentuck, the result, in terms of the ability to
deny access, may also be different. If, however, they are indeed analogous to those found to
be deniable, I believe that the records may be withheld.
I hope that I have been of assistance.

Robert J. Freeman
Executive Director

The Issue Of Observation Reports And Using These To Punish and Terminate Teachers

The issue of teacher evaluations is fascinating, when you realize that the New York City Department of Education and the UFT (and NYSUT) violate the Collective Bargaining Agreement ("CBA") all the time.

Take the UFT/DOE Peer Intervention Plus (PIP+) process, for example. The way it works is this: RMC, the PIP+ vendor (at approximately $330,000/year) hires former educators (you can work for them if you have not worked for the DOE for 1 year) to observe teachers who are targeted for termination. RMC is contacted by the DOE and given an assignment: an employee who is not, supposedly, 'up to par' with the expected workload. In fact, any principal can request PIP+ after one "U" rating, a violation of their contract with the DOE -see my website and blog
RMC Contract 1-53
RMC Contract 54-105
RMC Contract 3

Training Manual 1
Training Manual 2

The RMC observer goes to the school and discusses the employee with the principal. The principal tells the observer what he/she wants the person to observe, and what the person is supposed to "find".
The RMC protocols do NOT call for pre-observations, which is a blatant violation of the contract which states that there must be a pre and post observation for each formal observation. RMC observers ignore this. In fact, I have heard RMC employees testify that they have never read the CBA.

The UFT did not object to the procedures used by RMC, thus there is no repercussion for the RMC observer for breaking the rules of observations. I can only wonder, "What was Randi Weingarten/Mike Mendel/mike Mulgrew thinking when they approved PIP+, the Termination Program?

 Below is the information gathered from the UFT on Observations:

Observation and Evaluation

The information below is about observations and evaluations. This information is the process REQUIRED by contract. Please use this to introduce the next hearing, because it shows that the PIP+ program violated the contract with the UFT and Teaching For the 21st Century, but also that Sue Lichtenstein's observations can hold no weight. Here is the link:
I'm home all weekend (drat)
Observations and evaluations fall under the general category of performance review, which is cited in Article 8J of the UFT contract. Performance reviews are intended to help teachers accomplish their educational goals with their students.
Currently, the UFT and the Department of Education have an agreed-upon plan for teacher evaluation that is incorporated in the contract and is spelled out in the document “Teaching for the 21st Century.”
Under that plan, tenured teachers, in consultation with their supervisors, may choose either the “performance option” or the traditional classroom observation as the basis for their performance review.
New and probationary teachers at all levels should expect to have formal, traditional classroom observations several times a year. If you think you are being excessively observed, keep a log of the visits and speak to your chapter leader.
A formal observation is one which includes pre- and post-observation conferences and written feedback and/or comments. A supervisor has the right to enter a teacher’s class unannounced. However, such informal visits generally are not written up. If your supervisor writes up such an informal observation and if it is negative in nature, you should ask in writing for a post-observation conference with the supervisor.
A pre-conference may be: 1. one-to-one conferences between the supervisor and teacher; 2. small group meetings; or 3. a written notification outlining a menu of possible instructional areas to be evaluated during the formal observation, with teacher input on the area(s) to be addressed.
One-to-one conferences are required for all formal observations of probationary teachers or U-rated teachers.
Tenured teachers who have been rated satisfactory are entitled to an individual, lesson-specific pre-observation conference if they request it in writing. The UFT recommends that all teachers make such a request at the beginning of each school year. A written request for a one-to-one conference must be granted (see Chief Executive Memorandum # 80, 1997-98). If your written request is denied, you may grieve under Article 8J and Article 20 of the teachers’ contract.
Following the observation, you should write down your recollections of the lesson, which will be helpful to you in the post-observation conference with your supervisor.
You will receive a written report of the observation after the post-observation conference and will be asked to sign it to indicate that you have seen it, whether or not you agree with it. If you believe the observation was improper, you should speak to your chapter leader, who can help you formulate a written response and advise you of the other options open to you. Your response must be attached to the original report and placed with the original in your file.

The new evaluation and improvement plan for teachers

In May 2010, the UFT, NYSUT and the State Education Department agreed to create a new teacher evaluation and improvement plan.
This new evaluation system will include content knowledge, pedagogical practices, instructional delivery, classroom management, knowledge of student development, use of assessment techniques/data, effective collaborative relationships, and reflection of teaching practices (criteria that currently exist) as well as multiple measures of student learning such as test scores, classroom work, presentations and projects. The mix of those measures in New York City will be negotiated between the UFT and the Department of Education, but the use of state test scores will be capped at 25 percent.
The new system will take effect starting in the 2011-2012 school year. The union will be at the table during the 2010-11 school year working out the details of the agreement and determining the criteria to be used.

Useful Resources for Observations and Evaluations

Below is an email that my friend Harvey Elentuck sent to Daily News reporter Kenneth Lovett about teacher evaluations:

to:  Ken Lovett
from:  Harvey M. Elentuck
cc:  Betsy Combier, Robert J. Freeman, Esq., Camille S. Jobin-Davis, Esq.
date:  6/12/12

Hi, Mr. Lovett!

I just saw your article, "Shhh, it's a secret!" about teacher evaluations in the print edition of today's Daily News.  I also looked at the online version, "Unions want Cuomo to allow parents to see teacher evaluations."

I was the petitioner in Elentuck v. Green (202 AD2d 425).
That was a CPLR Article 78 suit (relating to the application of the Freedom of Information Law) in which the Second Appellate Division found that there were no "statistical or factual tabulations or data" in a large collection of records that I had requested, including unsatisfactory lesson observation reports and Chancellor's Committee reports that were in possession of Community School District 24 and Community School Board 24.  Don't ask me how the court made such a finding when there was never an in camera inspection of all the records that had been requested.  The Court of Appeals turned down my Motion for Leave to Appeal, so the decision stood.

My case was cited in the following advisory opinion of the NYS Committee on Open Government:

My case was also cited by the lower court (Judge Cynthia Kern of NYS Supreme Court, New York County) in the Mulgrew case about "teacher data reports" (which was the case responsible for the current push to close off access from the general public):

If there are no "statistics" or "facts" in lesson observation reports, then one must wonder:

1)  What good are they?

2)  Why is so much public money being spent on having supervisors observe lessons, discuss the lessons with teachers afterward (the "post-observation conference"), and then write up such reports?

3)  Why are teachers sometimes rated unsatisfactory or fired based on their contents, thereby denying teachers' rights to due process?

If there are no "statistics" or "facts" in Chancellor's Committee reports, then one must wonder:

1)  What is the purpose of holding administrative hearings that result in the issuance of such reports?

2)  How would the Chancellor know whether to adopt or reject the recommendation contained in such reports (which is practically always to sustain the adverse personnel action that had been taken -- such as a U-rating, discontinuance of probationary service, or denial of tenure) without a recitation of the facts and statistics upon which the recommendation had been based?

In my opinion, it is imperative that the final ratings of teachers, plus the statistical and factual aspects of the supporting documentation, continue to be made available to the general public pursuant to FOIL requests.  Furthermore, if teachers are being given "instructions to staff that affect the public" within the body of performance evaluations, then, that type of information, too, should continue to be accessible.

For one thing, school districts are spending huge sums of money on "professional development."  Think of how this can be avoided if teachers were simply able to easily access the specific "secrets of good teaching" (to emulate) and the "secrets of bad teaching" (to stay away from) as revealed in the supporting documentation.

For another thing, occasionally the evaluations of teachers and administrators reveal unsafe conditions in the schools, and these need to remain within the sphere of public access.

Here is an example of an evaluation of a high school principal which was released to me under FOIL over thirty years ago by Ruth Bernstein, the (at the time) Deputy Records Access Officer of the NYC Department of Education:

    [Name Deleted]’s performance as principal during the school year 1980-81 was unsatisfactory.
            This evaluation is based on a review of the degree to which he fulfilled specified goals and objectives, and on his performance in the organization, administration, and supervision of other school-based matters.
            However, it should be noted that [Name Deleted] did satisfactorily fulfill, at least in part, some specified priorities.  These included formulation of plans to accomplish schoolwide goals and objectives; making plans for review of lesson planning; establishing plans to increase the school’s holding power and to improve attendance and decrease cutting.  Unfortunately, while these plans were made, few were implemented successfully.
            A major positive accomplishment was the establishment of an Honor Academy in the 9th grade.  This will serve as the basis for expansion of the Honors program into higher grades.  In addition, objectives to strengthen communications among and between members of the school’s staff appear to have been met.  The Business Education program was expanded.
            [Name Deleted]’s overall performance, however, was unsatisfactory in the following areas:

(1)        He violated policy with regard to admitting students who arrived late to school.
(2)        He failed to address or remedy the lockout situation until mid-October 1980 despite the superintendent’s prior instructions.
(3)        He failed to organize and administer a procedure to properly and accurately record pupil lateness to school in such a way that parents would know of these latenesses.
(4)        He failed to follow the superintendent’s instructions to identify, diagnose, and analyze absenteeism and cutting so as to improve performance in those areas.
(5)        He failed to organize, administer, and supervise a program of classroom observations by assistant principals in a manner and on a schedule which would afford sufficient opportunity and time to provide assistance to teachers for improvement of their performance.
(6)        He failed to administer and supervise procedures to guarantee a safe, secure, and wholesome school atmosphere with special reference to stairways and the student cafeteria.
(7)        He violated instructions and guidelines concerning implementation of a funded PSEN math position.
(8)        He failed to properly follow instructions concerning the exclusion of non-immunized pupils.
(9)        He violated High School Division instructions regarding the administration of final examinations and end-of-year activities for the Spring 1981 semester.  This resulted in a loss of 4 full days of instruction to students, waste of instructional time and resources, waste of tax-levy and funded monies, and substantial and unwarranted decrease in attendance.
[Name Deleted] has demonstrated by the above that while he is generally capable of making plans, either alone or with others, to address daily and/or ongoing school-based problems and situations, he is inefficient and incompetent in satisfactorily fulfilling the administrative and supervisory functions and activities necessary to their successful implementation, in keeping with the level of performance expected of a high school principal.
                                                [Superintendent’s Signature Deleted]
                                                            [Superintendent’s Name Deleted]

Wouldn't you agree that the above performance evaluation contains material that is of vital public interest to the students who attended the school in question, and, of course, to their parents, guardians, members of the community, the media, etc.?

I hope you will contact your colleagues at the Daily News, and at other newspapers, and see to it that the newspapers and publishers of New York State and New York City step forward to vehemently oppose the three "bad bills" which are currently in Albany that seek to exempt records of teacher evaluation from the Freedom of Information Law.

I'm aware that back in April, the Daily News came out pretty strongly for public access in the opinion piece, "Don't even think of a gag order for parents on teacher evaluations."

Here are the URLs of the bills:

Take a look at the following article from Education Week as reprinted in Betsy Combier's blog, NYC Rubber Room Reporter:

Take a look at the following North Dakota judicial decision which was referred to in the above article:

Take a look at the following Michigan judicial decision on the same topic:

Take a look at the following advisory opinion from the NYS Committee on Open Government:

It seems to me that the benefits of disclosure far outweigh the potential for "embarrassment" of named employees.

Finally, here is a little-known judicial decision, Blecher v. NYC Board of Education (NYLJ, 10/25/79), which I "rediscovered" in the 1980s, when I saw it summarized in the FOIL Case Summary of the NYS Committee on Open Government.  You may wish to research the case.