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Wednesday, January 14, 2015

Winning Your 3020-a Incompetency Case: NYC DOE Courtenaye Jackson-Chase Says There Are No Facts In Observations

Harvey Elentuck and I have been filing freedom of information requests for many years. His case is a precedent, of course, used by Judges, advocates, and..... Well, that's about it. The Department's case is based upon the fallacy that a subjective standard can be used to judge whatever level of incompetency occurred, when indeed, an objective standard must be used to make that determination.

I don't understand why NYSUT seems not to use the case of Elentuck v Green when defending a teacher going through the process known as 3020-a arbitration:

202 A.D.2d 425 (1994)
608 N.Y.S.2d 701

In the Matter of Harvey M. Elentuck, Appellant, v. Richard R. Green et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.
March 7, 1994
Mangano, P. J., Pizzuto, Altman and Krausman, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
The petitioner, who is a teacher, sought disclosure, pursuant

[202 A.D.2d 426]
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., 61 A.D.2d 1048, affd 48 N.Y.2d 659; Matter of Herald Co. v School Dist., 104 Misc.2d 1041, 1046-1047).
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).
We have reviewed the petitioner's remaining contentions and find them to be without merit."

We at ADVOCATZ always submit this case, as well as the letter NYC DOE General Counsel Courtenaye Jackson-Chase sent Harvey when his request for observations of teachers was denied because observations have no facts in them:

Courtenaye Jackson-Chase