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Monday, October 12, 2015

Observations are Now Punitive, Replacing Rational Conclusions of Fact

re-post from 2012 on observations and evaluations.

The PIP+ program no longer exists, and has been replaced by Field Supervisors and Peer observers. Same old thing, focusing on the removal of teachers after finding everything wrong.

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

June 12, 2012
NYC Rubber Room Reporter
Betsy Combier, Editor
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.


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.


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.

New York State Supreme Court Judge Alice Schlesinger Rules in Favor of Substitute Teacher 2009

New York State Supreme Court Judge Alice Schlesinger (one of the BEST!) decided in favor of the Petitioner, Talib El, who asked the Court to give him back a job with the NYC DOE as a substitute teacher. (2009)

Betsy Combier, Editor
President, ADVOCATZ 

Matter of El v New York City Dept. of Educ.

Annotate this Case
[*1] Matter of El v New York City Dept. of Educ. 2009 NY Slip Op 50883(U) [23 Misc 3d 1121(A)] Decided on April 1, 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 April 1, 2009 
Supreme Court, New York County 

In the Matter of the Application of Talib A. El, Petitioner, 


The New York City Department of Education, Joel Klein, as Chancellor of The New York City Department of Education, and Lawrence Becker, as Chief Executive of the Division of Human Resources of the New York City Department of Education, Respondents. 


Attorney for Deft 
Daniel Gomez-Sanchez 
Corp. Counsel 
100 Church Street, Room 2-317 
New York, NY 10007 

Attorney for Plaintiff 
MFY Legal Services 
299 Broadway, 4th fl. 
New York, NY 10012 

Alice Schlesinger, J.
Petitioner Talib El commenced this Article 78 proceeding to annul the March 3, 2008 decision by respondent New York City Department of Education (DOE) denying his application for employment as a substitute teacher. Petitioner asserts that the decision is arbitrary and capricious and discriminatory in that it gives undue weight to the fact that he pleaded guilty to various crimes more than 20 years ago and fails to give appropriate consideration to the substantial evidence he presented in his favor, including a Certificate of Relief from Disabilities issued by the Parole Board.
Respondent DOE opposes the petition, asserting that it properly evaluated all the relevant factors outlined in the Correction Law and correctly denied Mr. El's application on the ground that: "In light of [your criminal record history], granting employment will pose an unreasonable risk to the safety and welfare of the school community." DOE also asserts that it did not receive a copy of the Certificate of Disabilities until after its decision had been rendered. 

The Governing Law Prohibits Discrimination
Petitioner's claims in this case rely in large part on Article 23-A of the Correction Law.[FN1] Included in that Article is Correction Law §752 which bars discrimination against persons previously [*2]convicted of criminal offenses. Pursuant to that law, employment cannot be denied based on an applicant's criminal history unless one or both of the following exceptions is found to apply: 

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or 

(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. 

In the case at bar, as noted above, petitioner's employment application was denied because, in light of his criminal history, his employment posed an "unreasonable risk" to the school community within the meaning of the above-quoted exception.
Section 753, subd. (1), provides a list of eight factors which the potential employer "shall consider" when making a determination pursuant to §752 whether the "unreasonable risk" exception applies. See, Arrocha v Board of Education of the City of New York, 93 NY2d 361, 364 (1999). Those factors include the following: 

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. 

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. 

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. 

(d) The time which has elapsed since the occurrence of the criminal offense or offenses. 

(e) The age of the person at the time of occurrence of the criminal offense or offenses. 

(f) The seriousness of the offense or offenses. 

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. 

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
As particularly relevant here, and in conjunction with factor (g) above, subdivision 2 of that same section requires the potential employer to consider any Certificate of Disabilities issued to the applicant, "which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."
In the case at bar, the Board of Parole issued petitioner a permanent Certificate of Disabilities on August 29, 2007 pursuant to Correction Law §703. The Certificate refers to petitioner's sentencing on March 31, 1988 for the crime of Burglary in the Second Degree and expressly states [*3]that it "removes all legal bars and disabilities to employment, license and privilege except those pertaining to firearms under Sections 265.01(4) and 400.00 of the Penal Law and except the right to be eligible for public office." 

Petitioner Presented Substantial Evidence in Support of his Application 

As he properly asserts, petitioner presented to the Board of Education substantial evidence in support of his employment application. Admittedly, between 1985 and 1987, petitioner pled guilty to five misdemeanors involving Trespass, Petit Larceny, and Criminal Mischief. Additionally, on July 3, 1987, he pled guilty to Burglary, a Class C felony. During those years, petitioner was 18-20 years old. He is now about 42 years old.
Along with his seven-page employment application, filed in or about February 2007, petitioner demonstrated that he had been rehabilitated since his last conviction some 20 years ago. For example, he had not only obtained a high school diploma through a GED program, but he had also obtained a Bachelor's of Science in Human Resources from Touro College in 2000 and a Master's of Science in Counseling and Education from Long Island University in 2003.
During that time, petitioner obtained various licenses and accreditations. The New York State Education Department issued him a license to practice as a Mental Health Counselor through July 31, 2009. In 2002, he was also accredited by the State as an Alcoholism and Substance Abuse Counselor Trainee. In 2006 the State Education Department certified petitioner as a Teaching Assistant and awarded a provisional certificate valid through 2011 to work as a School Counselor. That same year he was licensed by the State as a Mental Health Counselor. He also received training related to HIV and STD's.
In connection with these certifications, petitioner worked in various capacities. From 1997 through 2002, he held internships providing counseling for mental health patients and community members. From 1999 through 2003, he worked as a Counselor at Creedmor Psychiatric Center. In 2003, he was employed as a Youth Supervisor for the Oneida County Workforce where he supervised a youth program. From 2004-2006, he worked as a counselor with developmentally disabled adults and youth at a Community Center in Albany. Thereafter, beginning in or about March of 2006, he worked as a substitute teacher at the New Covenant Charter School in Albany and then at Albany High School until he relocated to New York City and applied for the substitute teaching position at issue herein. In support of his application, petitioner also presented numerous references.
On July 11, 2007, petitioner appeared for an interview with respondent Board of Education at which time his background and criminal convictions were explored in detail. The following day, petitioner wrote to the interviewer, Ms. Patricia Hanks, confirming some of the things he had sought to explain at the interview. He reiterated that he had lived in foster care during the ages 11-18 and then was homeless, which had led him to commit theft for survival. He expressed his remorse, detailed his rehabilitation, and explained his reasons for becoming a teacher: "Today my direct goal is to help and prevent children from becoming homeless and living [a] self destructive life. This starts with education and commitment from people like myself who have struggled to learn about who I am and what I can offer someone who needs support." (See Exhibit A to Petitioner's Aff.).
According to the affidavit of Judith Kay, DOE's Deputy Director for Employee Relations (Exh. 15 to Answer), all of the above facts were considered by Ms. Kay as part of her review and determination of petitioner's application. By letter dated March 3, 2008, Ms. Kay notified petitioner [*4]that the Board had denied his application. (Exh. 16 to Answer). In that letter, Ms. Kay gave great wight to petitioner's criminal history. Indeed, she began by detailing petitioner's five convictions from the late 1980's. She then listed in general terms the other factors she had considered, many of which are listed in Correction Law §753(1), quoted above. Ms. Kay expressly acknowledged that the application could not be denied based on a criminal conviction absent a finding, pursuant to §752, of a direct relationship between the employment sought and the prior conviction, or that granting employment would pose an unreasonable risk to the safety or welfare of individuals. She then stated her conclusion as follows: 

Your application for a substitute teacher position is denied based on your criminal record history detailed above including a serious felony conviction. In light of this, granting employment will pose an unreasonable risk to the safety and welfare of the school community. 

Significantly, the letter then advised petitioner of his right to submit additional information 

in support of his application, stating as follows: 

If you have any additional information that you believe has not yet been considered you may submit it in writing to the Director of Employee Relations, Division of Human Resources at 65 Court Street, Room 200, Brooklyn, New York 11201.
Petitioner did precisely that. He wrote to Director Gordon protesting the decision to deny his application based on the prior offenses in light of the overwhelming evidence of his rehabilitation. (Exh B to Petitioner Aff.). He attached his Teaching Certificate, his School Counselor Certificate, his Mental Health Counselor Certificate, and two exceptional reference letters.
In addition, and quite significantly, he attached the Certificate of Relief from Disabilities issued him by the Board of Parole. The Certificate had been issued on August 29, 2007, after petitioner's interview had been held but before his application had been denied. While petitioner asserts in his petition (at ¶19) that he submitted the Certificate "in support of his application", he suggests in his affidavit (at ¶8) that he first submitted it in response to the denial letter, and Ms. Kay unequivocally attests that she did not review it as part of petitioner's application before she rendered her March 3, 2008 denial (see Kay Aff. at ¶16). In any event, the DOE in its March 3, 2008 denial letter explicitly advised petitioner of his right to submit additional relevant information, and respondent does not dispute that the Certificate of Disabilities falls into that category. However, the BOE never responded to petitioner's post-denial submission, and it appears that it never considered the Certificate. 

The Decision Denying Petitioner's Application is Arbitrary and Capricious
While the Board of Education has a certain amount of discretion in determining whether to hire a teacher, the decision must be annulled where, as here, it is arbitrary and capricious and fails to properly consider all the factors required by law. Arrocha, 93 NY2d at 363. As the Court of Appeals emphasized in Bonacorsa v Van Lindt, 71 NY2d 605, 611 (1988), "Article 23-A of the Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against ex-offenders which prevented them from obtaining employment. ... [The law] sought to remove this obstacle to employment by imposing an obligation on employers and public agencies to deal equitably with ex-[*5]offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons." To that end, "the statute sets out a broad general rule" barring potential employers from denying employment solely based on the applicant's status as an ex-offender unless one of the two exceptions noted above applies: a "direct relationship" exists between the crime and the employment, or the applicant's employment poses an "unreasonable risk" to individuals or the community. 71 NY2d at 611-612.
Relying on Arrocha, supra, respondent Board of Education argues in the case at bar that it properly denied petitioner's substitute teacher application based on its finding that, in light of petitioner's criminal history, he posed an "unreasonable risk" to the students. It correctly notes that a finding of unreasonable risk "depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct." Arrocha, quoting Bonacorsa, 71 NY2d at 612. It further argues that it considered the statutory factors listed above which it was required to consider under Correction Law §753.
However, as petitioner correctly notes, Arrocha is readily distinguishable from the case at bar when one considers the various factors. For example, the applicant in Arrocha was a mature adult when he committed the crime at issue, which was the sale of a controlled substance, a crime of particular concern due to the Board's duty to protect school children from drugs. In this case, petitioner had just been released from foster care onto the streets at the age of 18 when he committed the crimes at issue, and the crimes involved crimes of property. Some twenty years have passed since petitioner's last conviction, and he has proven himself during that time by obtaining relevant training and employment, including significant employment in positions involving youth as well as teaching. His letters of recommendation were numerous and outstanding.
Perhaps the most significant factor which distinguishes this case from Arrocha is the fact that the BOE here did not consider petitioner's Certificate of Relief from Disabilities. As made clear by Correction Law §753(2) and by the Court of Appeals in Arrocha and Bonacorsa, the Certificate creates a presumption of rehabilitation. While the Certificate does not establish a prima facie entitlement to the employment, the presumption of rehabilitation constitutes significant evidence in petitioner's favor and is one of the eight factors which the Board must consider when determining whether the "unreasonable risk" exception applies. [See Correction Law §753(1)(g), quoted above at p. 3].
The Board's decision in this case is also deficient in that, while some of the eight factors are mentioned in the March 3, 2008 denial letter, they are mentioned in conclusory fashion only, and no discussion is included of the particular facts of this case to demonstrate how the various factors were evaluated and what weight each was given. Absent a more detailed application of the factors to the evidence presented in this case, the Court cannot assess whether the Board truly considered all the record evidence and applied the eight factors in a manner that was consistent with the letter and spirit of the law. See Marra v City of White Plains, 96 AD2d 17 (Third Dep't 1983), cited with approval in Bonacorsa and Davis-Elliott v New York City Department of Education, 31 AD2d 266 (First Dep't 2006)(decision denying employment application properly annulled where the rejection was unlawful in the manner in which respondents considered the factors set forth in Correction Law §753); see also Black v New York State Office of Mental Retardation and Development Disabilities, 20 Misc 3d 581, 586 (Sup. Ct., Monroe Co. 2008)(rejecting as [*6]arbitrary "general catchall statements" with no attempt to address the specifics).
Although the Court cannot substitute its judgment for that of the agency, it has a duty to insure that the law is properly applied and that the decision is not based upon "speculative inferences unsupported by the record." Matter of Sled Hill Café v Hostetter, 22 NY2d 607, 612-613. Respondent's March 3, 2008 denial letter is particularly problematic here in that petitioner's criminal history is the only evidence detailed in any meaningful respect. Thus, the decision on the whole, as drafted, suggests that it was based primarily, if not entirely, on petitioner's criminal history, with little consideration of the other evidence and statutory factors.
For all these reasons, this Court finds that respondent's decision denying petitioner's substitute teacher application is arbitrary and capricious and must be annulled. The Board of Education failed to consider petitioner's Certificate of Relief from Disabilities and has not adequately demonstrated that it considered all eight of the statutorily-required factors in light of the specific evidence presented by petitioner in this case. The appropriate remedy is a remand to the Board for a detailed consideration of all eight factors, including a determination whether the Certificate of Relief from Disabilities would benefit this applicant in light of the public policy encouraging the employment of ex-offenders so that petitioner's positive factors outweigh the negative ones and warrant the granting of his application.
Accordingly, it is hereby
ADJUDGED that the petition is granted, respondent's March 3, 2008 denial of petitioner's application is annulled, and the matter is remanded for a new determination which applies the statutory presumption related to the Certificate of Relief from Disabilities and otherwise evaluates the relevant factors in accordance with the terms of this decision.
This constitutes the decision and judgment of this Court. 

Dated: April 1, 2009

Attorney for Deft 
Daniel Gomez-Sanchez 
Corp. Counsel 
100 Church Street, Room 2-317 
New York, NY 10007 

Attorney for Plaintiff 
MFY Legal Services 
299 Broadway, 4th fl. 
New York, NY 10012 
212-417-3700 Footnotes 

Footnote 1:Petitioner also relies on the New York State Human Rights Law, found at Executive Law §296(15), and the New York City Human Rights Law, found in the Administrative Code at §8-107(10), both of which bar public employment discrimination based on conviction alone.