On June 29, 2009, Maria Colon and I met with UFT Staff Director Leroy Barr about what I and Maria believed was a solution to the problem destroying the lives of many tenured teachers, namely false claims made about innocent teachers by principals, with subsequent harm to the teacher's life and future career.
Maria and I worked on and presented The Teacher Initiative which I copy below. I also gave it once again to Ellie Engler and Mike Mulgrew the day after they told me that they no longer needed my advocacy at the UFT, and I would be dropped from the staff on July 22, 2010. David Hickey was at the goodbye and good riddence meeting. Then the UFT put my proposal on the UFT.org website as something that a teacher can count on when a principal is harassing him/her. Oh, really? I have never heard of any UFT rep. helping a member with the harassment by the principal. Never. I was also told never to question SCI or OSI agents. Is this because Mike Mulgrew and Emma Mendez were never investigated when they left Grady High School in 2004? Donald Herb the custodian at the time knows the answer.
Anyway, the UFT did, it is nice to know, adopt my proposal after they got rid of me, so I want to share my proposal with all of you not to say hey, it was my idea, but to encourage the implementation and discussion of how to end the Rubberization Process once and for all. all comments are welcome - if they are constructive and not destructive. I mentioned this proposal when I spoke on FOX News.
Thanx,
Betsy Combier
THE TEACHER ADVOCACY INITIATIVE
A Proposal for the UFT given to Leroy Barr, Ellie Engler and Mike Mulgrew in June 2009 and again in July, 2010
The process of re-assigning teachers to “Rubber Rooms” has become an explosive issue that the general public no longer wants continued. The press plays into this by writing about how scarce public education funds are spent on housing ‘bad’ teachers for months and/or years outside of the classroom when ‘these people’ should just be fired. We know that this is, in many if not most cases, simply the opposite of the truth. The Advocacy Initiative outlined below has teamwork as the central theme for UFT staff and Executive Board, District Representatives, Special Reps., members and advocates. The Advocacy Team provides closely followed case management as a support for all UFT staff and members and works to stop injustice before it starts.
We know that hard-working, excellent and caring UFT members are being unfairly charged on a whim of a Principal, other administrators, or in accordance with a “just get rid of somebody” mandate from higher authorities. There is an immediate need to address the practice of finding misconduct without presentation of valid and substantive evidence where “you are guilty and therefore you have to prove you are innocent.” The Advocacy Team would provide a much needed intervention in the rush to judgment.
There is, of course, still a need to find out who is guilty of misconduct and who is not, or who needs training and who does not, in an educationally sound manner. What the Advocacy Team could provide is early intervention to establish collaboration of all personnel in seeking accurate information at the beginning of the assessment process.
The New York City Board of Education is placing many Principals and APs in positions of making subjective judgments about personnel without the training and educational background necessary to validate their decisions. There is no standard to apply, and no accountability for the actions taken. For example, many Principals are writing “gotcha reports” instead of accurate comments on what happened in the classroom during an observation. These “gotcha” reports are used at 3020-a hearings. By this time, the process has already taken a toll on the teacher…and it is too late to turn the clock back.
The Advocacy Team would partner with the Principal and AP in the school to create a holistic approach to labor relations within the building by not waiting to quickly create an adequate defense after the TAC memos have been written, or after events and circumstances have made it impossible to repair the morale of all staff. Studies in this area have found that a “good” teacher has a positive relationship with the children/young adults in his or her class. If we can provide students of any age with techniques for personal self-discipline, responsibility, concern for others, communication skills, mutual respect, cooperation, problem-solving skills, and life skills supporting and reflecting good character, then we are on the path to assist in developing lesson plans and an education policy for children and young people who will be assets to our society and not liabilities.
If positive classroom relationships work, and this is a quality of “good” teaching, then we must expect our teachers, administrators, and staff to exemplify/model these qualities in the classroom and outside. When any administrator maintains a tough stance that employees perceive to be punitive, useful information that could provide students and school staff with tools to improve performance are hidden, kept secret, lost and discarded.
The short term effect of this punitive environment is to obtain scores on tests that may not reflect student abilities, increase the number of students suspended and placed in the school-to-prison pipeline, and terminations/resignations of staff. The long-term effect of this path may be possible lawsuits, parents and children fleeing the school, and an ultimate lack of qualified personnel to fill needed positions.
At times such as this (economic depression) all of us who advocate for public education must try to work on protecting people’s lives and careers against any rush to judgment based on unstated values and presumptions rather than fact. James A. Gross wrote an excellent book, “Teachers On Trial” with the following relevant passages:
“Fairness as well as effectiveness require that values be made explicit and that fact rather than assumption be the basis for assessing blame for deficiencies in education and formulating solutions…identifying and eliminating unfairness in the current disciplinary system for tenured teachers will require school districts to develop hiring, evaluation, promotion, and disciplinary policies and practices that can be validated with competent evidence. “ (p.2)
And,
"Attempting to determine what constitutes improper conduct and unsatisfactory teaching performance of necessity requires an explicit or at least an implicit statement about what constitutes proper conduct and satisfactory teaching performance. Well-meaning generalizations about educational excellence do not do that. An analysis of the nature of the standards used (or not used) in making these determinations, of course, has implications not only for educational policy but also for all judicial or quasi-judicial decision-making.” (p. 5)
An Advocacy Team trained in personnel management and conciliation techniques who addresses a problem at it’s inception would provide an added step in reaching the positive, enriching and successful outcomes sought by the New York City Department of Education, parents and all stakeholders. The purpose is to create win-win situations and not win-lose. Arbitration has a role to play in this process, but after other steps to conciliate/settle have been tried. Arbitration offsets a power imbalance, is based upon a need to decide past events, addresses a high number of disputes, compels participation, is speedy and effectively brings closure to the matter at hand.
If a teacher has been given tenure, this means that he/she has been in a classroom more than three years, and has been rated “satisfactory.” A conciliation meeting that is held at the start of some friction/harassment/negative reviews would preserve continuing relations in the school building before negative comments/actions forever close that door. The conciliation effort would put an emphasis on future dealings, not past events, would assist all parties involved in avoiding win-lose decisions, would leave all parties in total control of the process, and would promote resolution of problems without involving legal claims/entitlements.
The Advocacy Team would prioritize conciliation as a first cause of action. This is, we believe, key to the initiative’s success, and cannot be left to individual whim. How the Advocacy Initiative might work is:
When a problem arises, (and/or before there is any negative actions or harassment) either a teacher or a Principal may make a call to the Team asking for a conference to discuss the issues of concern to any party in the school. The chapter leader and District Rep. may also be invited to attend, depending upon the severity of the problem at hand.
All participants must have a chance to speak about “The Problem” and present any documentation available. The meeting serves to provide all parties a moment to decide what the issues are, and how to proceed. A record is made and suggestions are made on the spot or within a few days, on possible remedies.
All parties agree that the issues they have raised are truthful, and each person involved is required to commit to the implementation of solutions that are found to be reasonable.
No retaliation against any party after the presentation of any issue will be allowed.
The Advocacy Team must have trained personnel who have an office outside of a school yet call on the skills and advice of UFT reps. in the school when a problem starts there. A Team member is called in as needed and then follows a case throughout the year, and works to assist the member during the 3020-a process if the member wants the support.
In conclusion, we believe that if we intervene in a conciliatory and professional manner at the beginning of a possible problem, we can prevent the unnecessary removal of excellent and caring teachers from New York City public schools.
**********************
Here is the UFT published version that they are/will be implementing (or not):
Know your rights: Special complaints
NY Teacher newspaper, published April 14, 2011
LINK
Unfortunate though it is, at times UFT members report being harassed or subjected to intimidation by their supervisors.
These acts of intimidation may take many forms, which is why it is important that you contact the union for help.
You do not have to — nor should you — tolerate such harassment or acts of intimidation. A special complaint process was expanded in the 1990s to protect you from harassment or intimidation by your supervisors.
If you believe that you are the victim of supervisory harassment, tell your chapter leader immediately. You should also notify your UFT district representative.
The first thing you will need to do is to keep an anecdotal log indicating the place, time, date and any witnesses who were present during each incident. It is important to make this log as factual as possible, simply a recitation of the events as they occurred.
Article 23 of the UFT Teachers’ Collective Bargaining Agreement and corresponding articles in other UFT agreements set out a procedure to follow in cases of special complaints. It was designed to set up an expedited process for speedy resolution of special complaints not covered by the grievance procedure.
A special complaint will be filed with the chancellor by the UFT. Within 24 hours after it is filed, the Department of Education will inform the union of its representative to the joint investigating committee.
The joint investigating committee will be set up, composed of both DOE and UFT representatives. Its purpose is to reach a prompt resolution of disputes without having to resort to formal procedures.
The joint investigating committee will use a private meeting space at your school to discuss the issue and should complete its investigation in no more than one school day. The joint investigating committee will meet with you, the alleged harasser and witnesses to the alleged harassment that you notify them of. The purpose of these interviews is for the committee to gather enough information to help resolve the matter.
If the complaint is not resolved by the joint investigating committee, the union will determine if the matter has sufficient merit to request a hearing before the chancellor or the chancellor’s representative.
At the chancellor’s level meeting, the chancellor’s representative is required to “make every effort to informally resolve” the complaint. The joint investigating committee will report its findings and all persons involved will have the opportunity to be heard. According to the contract, the chancellor or his/her representative will make a decision within 72 hours of the close of the hearing.
If the complaint is not resolved by the chancellor, the union will review the matter to determine if it should be submitted for a fact-finding hearing before an arbitrator. Once the hearing has been held, the fact finder is required to issue his or her recommendation within 72 hours.
The UFT has filed a grievance, which is now in arbitration, to ensure that cases are completed in this expedited manner.
If you have a special complaint, you should be prepared to answer questions that come up with the joint investigating committee and you should focus primarily on the big issues — your most serious concerns.
Always be respectful and listen to all parties. You should also have witnesses to the harassment who can speak about what they saw or heard. Be prepared to prioritize your witnesses in case time runs short.
Think of what you want the resolution of the problem to be. This can include being treated fairly and respectfully, or more specific remedies that address your particular situation.
You should be aware that the joint investigating committee has no authority to discipline the alleged harasser. The goal is to resolve the problem going forward.
Source URL: http://www.uft.org/know-your-rights/special-complaints
Wednesday, April 27, 2011
The Rights of Kids, Texas Style
Wednesday, September 17, 2008
Why Just Having the Right to a Jury Trial Matters
LINK
Recently, I had a jury trial that reminded me why having the right to a jury trial matters, and why it is blatantly unfair that juveniles do not have that right, and yet their convictions from juvenile court can count significantly in sentencing decisions for crimes they may commit as adults.
My client was charged with stalking. I don't want to get into all the details, but I will say that, based on my interpretation of the stalking statute, I did not believe my client was guilty. Even assuming all the facts as laid out in the police report were true, I did not believe that my client committed the crime of stalking under any reasonable interpretation of the stalking statute. In Washington, this allows us to file a motion before trial, arguing that the charge should be dismissed. For the purpose of the hearing, you concede that everything in the police reports are true, but say that all of that information is insufficient to prove the crime charged. So, I filed that motion. The judge and the prosecutor each had their own different but equally unreasonable--in my opinion--interpretation of the statute, and so my motion was denied. My client was disheartened, but I told him I still thought we should win in a jury trial.
So, we went to a jury trial. This time, I made essentially the same argument in a motion to dismiss after the state rested its case. My legal argument was the same, but the judge this time was deciding whether the evidence actually presented at trial--as opposed to what the police reports said--was sufficient for any reasonable jury to convict my client of the crime. Again, I made my argument, and once again, the prosecutor had his unreasonable interpretation, and the judge came up with a strange interpretation of the evidence to go along with his strange interpretation of the law, and denied me again.
And so, I was left to argue the law to the jury. I had not disputed any real fact presented by the state. I gave a 5-7 minute closing argument. I just wrote the key words from the definitions in the statute and explained why, no matter what they thought of what my client did, they could not find that what he did was the crime of stalking. I was, essentially, making the exact same arguments on the law that I had made to the judge to the jury. The prosecutor made his arguments about why what my client did fit the statute and he argued his interpretation of the statute.
The jury deliberated for about 45 minutes, and found my client not guilty. This, despite the fact that the victim of the alleged stalking was a police officer.
When asked by the prosecutor afterwards why they acquitted, they said that the definitions made it pretty clear that what my client did wasn't stalking. A few days later, a friend of mine told me that a woman she knew had been on my jury, and that she had said that it took them a while to vote on who the foreperson would be, but that the "not guilty" verdict was easy.
And yet, if my client, like a juvenile, had no right to a jury trial, he probably would have been found guilty. He may have won an acquittal on appeal, but that likely would have been after he had done at least a significant amount of his probation and probably all of his detention time. Sometimes, even when your whole case is about a correct interpretation of the law, you need to have 12 citizens who can read two or three definitions, put them together, apply them to the virtually undisputed facts, and say, "not guilty." Sometimes, you need the jury to tell the judge that his interpretation of the law is wrong.
Thursday, September 11, 2008
Long time, no blog . . .
Yeah, I know you've heard that before. I apologize. Circumstances have conspired against me. So, here's an update:
I have moved from juvenile court to adult felonies. I was really torn when I was asked to make the move. It was considered an advancement in the office, but I had really grown to love juvenile work. I missed being able to do jury trials (and having my clients have the RIGHT to a jury trial), but I knew I would miss the kids. So far, though, I am happy where I am. I have been back in front of a few juries with pretty good results so far.
I am still busier than ever--the life of a public defender. And things at my office are far from perfect. But, what has inspired me to get back into blogging is what is going on at my old office in Dallas. They are really suffering. They are being messed with in the extreme by the political forces in the county, and good, experienced public defenders are quitting because they don't believe they can meet their ethical obligations to their clients under the quota system that has been imposed there.
My thoughts go out to all my former colleagues there in Dallas, whether they have chosen to leave or are trying to stick it out. I don't know what I would do if I were still there. On one hand, I respect those who have quit because they do not believe that they can fulfill their ethical obligations to provide zealous representation under the overly burdensome caseload standards that have been imposed. On the other hand, I respect those who are staying because they know that good, ethical attorneys need to be there to represent the indigent accused. I wish them all the best and hope that changes will be coming. (For more information about the situation in Dallas, check out Grits for Breakfast. As per usual, he is all over the issue.)
Hopefully, it won't be another year before my next post!
Why Just Having the Right to a Jury Trial Matters
LINK
Recently, I had a jury trial that reminded me why having the right to a jury trial matters, and why it is blatantly unfair that juveniles do not have that right, and yet their convictions from juvenile court can count significantly in sentencing decisions for crimes they may commit as adults.
My client was charged with stalking. I don't want to get into all the details, but I will say that, based on my interpretation of the stalking statute, I did not believe my client was guilty. Even assuming all the facts as laid out in the police report were true, I did not believe that my client committed the crime of stalking under any reasonable interpretation of the stalking statute. In Washington, this allows us to file a motion before trial, arguing that the charge should be dismissed. For the purpose of the hearing, you concede that everything in the police reports are true, but say that all of that information is insufficient to prove the crime charged. So, I filed that motion. The judge and the prosecutor each had their own different but equally unreasonable--in my opinion--interpretation of the statute, and so my motion was denied. My client was disheartened, but I told him I still thought we should win in a jury trial.
So, we went to a jury trial. This time, I made essentially the same argument in a motion to dismiss after the state rested its case. My legal argument was the same, but the judge this time was deciding whether the evidence actually presented at trial--as opposed to what the police reports said--was sufficient for any reasonable jury to convict my client of the crime. Again, I made my argument, and once again, the prosecutor had his unreasonable interpretation, and the judge came up with a strange interpretation of the evidence to go along with his strange interpretation of the law, and denied me again.
And so, I was left to argue the law to the jury. I had not disputed any real fact presented by the state. I gave a 5-7 minute closing argument. I just wrote the key words from the definitions in the statute and explained why, no matter what they thought of what my client did, they could not find that what he did was the crime of stalking. I was, essentially, making the exact same arguments on the law that I had made to the judge to the jury. The prosecutor made his arguments about why what my client did fit the statute and he argued his interpretation of the statute.
The jury deliberated for about 45 minutes, and found my client not guilty. This, despite the fact that the victim of the alleged stalking was a police officer.
When asked by the prosecutor afterwards why they acquitted, they said that the definitions made it pretty clear that what my client did wasn't stalking. A few days later, a friend of mine told me that a woman she knew had been on my jury, and that she had said that it took them a while to vote on who the foreperson would be, but that the "not guilty" verdict was easy.
And yet, if my client, like a juvenile, had no right to a jury trial, he probably would have been found guilty. He may have won an acquittal on appeal, but that likely would have been after he had done at least a significant amount of his probation and probably all of his detention time. Sometimes, even when your whole case is about a correct interpretation of the law, you need to have 12 citizens who can read two or three definitions, put them together, apply them to the virtually undisputed facts, and say, "not guilty." Sometimes, you need the jury to tell the judge that his interpretation of the law is wrong.
Thursday, September 11, 2008
Long time, no blog . . .
Yeah, I know you've heard that before. I apologize. Circumstances have conspired against me. So, here's an update:
I have moved from juvenile court to adult felonies. I was really torn when I was asked to make the move. It was considered an advancement in the office, but I had really grown to love juvenile work. I missed being able to do jury trials (and having my clients have the RIGHT to a jury trial), but I knew I would miss the kids. So far, though, I am happy where I am. I have been back in front of a few juries with pretty good results so far.
I am still busier than ever--the life of a public defender. And things at my office are far from perfect. But, what has inspired me to get back into blogging is what is going on at my old office in Dallas. They are really suffering. They are being messed with in the extreme by the political forces in the county, and good, experienced public defenders are quitting because they don't believe they can meet their ethical obligations to their clients under the quota system that has been imposed there.
My thoughts go out to all my former colleagues there in Dallas, whether they have chosen to leave or are trying to stick it out. I don't know what I would do if I were still there. On one hand, I respect those who have quit because they do not believe that they can fulfill their ethical obligations to provide zealous representation under the overly burdensome caseload standards that have been imposed. On the other hand, I respect those who are staying because they know that good, ethical attorneys need to be there to represent the indigent accused. I wish them all the best and hope that changes will be coming. (For more information about the situation in Dallas, check out Grits for Breakfast. As per usual, he is all over the issue.)
Hopefully, it won't be another year before my next post!
Lack of Remorse Not Sufficient To State A Claim To "Shocking The Conscience"
Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination
Cipollaro v New York City Dept. of Educ., 2011 NY Slip Op 03131, Appellate Division, First Department
Barbara Cipollaro was served with disciplinary charges pursuant to §3020-a of the Education Law by her employer, the New York City Department of Education, alleging that she had knowingly defrauded Department of $98,000 over a two-year period by enrolling two of her children in New York City public schools while she and her family lived in Westchester County.
The hearing officer found Cipollaro guilty of the charges and she was terminated from her position.
Cipollaro filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating hearing officer decision and the penalty imposed.
The Appellate Division ruled that there was no basis to disturb the Hearing Officer's determination. Significantly the court said that in view of Cipollaro’s “lack of remorse and failure to take responsibility for [her] actions, as well as the harm caused by her actions, the penalty of dismissal, even if there was an otherwise adequate performance record, cannot be said to shock the conscience” [of the court].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03131.htm
Cipollaro v New York City Dept. of Educ., 2011 NY Slip Op 03131, Appellate Division, First Department
Barbara Cipollaro was served with disciplinary charges pursuant to §3020-a of the Education Law by her employer, the New York City Department of Education, alleging that she had knowingly defrauded Department of $98,000 over a two-year period by enrolling two of her children in New York City public schools while she and her family lived in Westchester County.
The hearing officer found Cipollaro guilty of the charges and she was terminated from her position.
Cipollaro filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating hearing officer decision and the penalty imposed.
The Appellate Division ruled that there was no basis to disturb the Hearing Officer's determination. Significantly the court said that in view of Cipollaro’s “lack of remorse and failure to take responsibility for [her] actions, as well as the harm caused by her actions, the penalty of dismissal, even if there was an otherwise adequate performance record, cannot be said to shock the conscience” [of the court].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03131.htm
Saturday, April 23, 2011
The Disaster of Mayoral Control and Parent "Involvement"
One of the most obvious failures of the Bloomberg administration has been the effort to control all parents in the NYC public school and charter school systems, and keep a certain level of "parent engagement" on his and the NYC Department of Education's terms.
In order to do this they - Bloomberg, his Deputy Mayors and his trusted advisors - set up first the Panel For Educational Policy, a puppet group ("PEP") appointed by Mayor Bloomberg and NYC Borough Presidents, that replaced the NYC Board of Education, and second, Community Education Councils, ("CECs") unfairly elected by "selectors" gleaned from Parent Associations' Executive Boards throughout the City (Charter Schools do not usually have Parent or Parent Teacher ("PA/PTA") Associations). See following story below. Neither the PEP nor the CECs have open and public elections, and no member of any group has to listen to the many people who stand before them and beg for help of any kind. In fact, members who challenge the administration in any way are fired, as we saw Bloomberg do in March 2004 over the failed third grade promotion policy. Where, exactly were all the failed third graders supposed to go, Mayor Bloomberg?
By the way, I was in the audience that evening (of the firing) and I sat directly in front of Deputy Mayor Dennis Walcott, who I had met a few times. I listened as he insulted all the protestors who were exercising their right to speak out against the firings of the PEP members, and just before leaving the room, I turned around to say hello to Mr. Walcott, and I saw his startled face as he correctly assumed I had heard all his comments.
In a bizarre manner, they - the Mayor and his cronies - understood human nature to be one of greed and of the search for power and acclaim, and believed that they had the structure they needed to achieve their agenda of total control over the New York City's 1.1 million children, their families and guardians, and the accompanying Federal, State and local funding that went with them. They gave so-called "parent leaders" positions within their tightly controlled system that at no level had a voting system for the public. Public participation in government except by an elite few is dangerous, "they" knew. The limited selection structure, built on a foundation of appointments and closed, secret ballots/voting, divided parent groups and others, as those on the "inside" on the PEP and the CECs became the people who blocked others from information and services formerly offered by school boards to all who lived within the jurisdiction. This was planned and successfully executed, however nothing else in Bloomberg's 3 terms has yet been effectively put into place. It will be his failures that Bloomberg will be known for, much to the dismay of those of us who fought in 2002 and are still fighting to get back a democratic government based upon free and open elections. NYC needs an elected school board and open elections for school board members in each district, or the sham education "reform" will continue. If all the Borough Presidents had refused to appoint members to the Panel for Educational Policy in 2003, we all would have been in a better place in terms of our city's public schools effectively servicing the 1.1 million children in the system.
Many CEC members lived up to their roles by turning away parents and joining forces with the Department when issues that challenged the Department's agenda appeared before them. I, a parent advocate, started hearing from confused parents in 2002 when my oldest daughter was at Stuyvesant High School. The battle there focused on more than $380,000 that seemed to be missing from the PA funds. The chinese parents were attacked by the PA Presidents and some members of the Executive Board, such as Paola De Kock, for asking where this money was and why the IRS 990s were not filled out properly. I called the accountant hired by the Stuyvesant PA to do the 990s, and I was told that there was "so much money missing that there could be no audit." I contacted the Special Commissioner's office (Richard Condon), the Manhattan DA, the New York Post, Daily News, Wall Street Journal and other media, and no one would do the story or look into what happened.
We parents were sufficiently concerned by these attacks that we went to Jimmy Yan, Counsel to Manhattan Borough President Scott Stringer and a relative of one of the parents at Stuyvesant who didnt like the attacks of the Executive Board. Mr. Yan emailed me and called me that he was waiting for a reply from NYC DOE Superintendent Alexis Penzel, who was investigating. We never heard back. Scott Stringer appointed Patrick Sullivan to the PEP. We presented our issue to the District 1 CEC as well as the PEP, all in vain.
Then the Stuyvesant PA Executive Board scheduled an election to change the bylaws and successfully removed the Chinese Outreach Committee from a voting position on the Board.
When my youngest daughter's school, NEST+M at 111 Columbia Street in District 1 protested the stuffing of the Ross Global Charter Academy into the school in 2006-2007, (NYC DOE's Garth Harries said that NEST was an "underutilized plant"), we parents asked the District 1 CEC and President's Council for help, and we were called "racists". We filed lawsuits at the New York State Supreme Courts in NYC and in Albany against the New York City BOE and New York State Regents and won, with the help of Assembly Speaker Sheldon Silver, in whose District NEST+M is located. See the Memorandum of Law.
What these and other events have done is drive a wedge directly through the heart of parent involvement in NYC, leaving distrust and even hatred among parents and between the groups and "cliques" exactly as the NYC BOE planned. Now it is painfully obvious that the parents on the PEP and the parents selected to be on the CECs are at minimum ineffective and in many cases deliberately proud of their positions of power and "acclaim" and willing to please the powers that be (NYC BOE) at the expense of parents and children in the City's public and charter schools.
However, the NYC DOE and the Mayor's cronies have ultimately failed, as the story by Beth Fertig below shows, as well as the hugely embarrassing hiring and firing of Dennis Walcott , Cathie Black and Joel Klein. A solution to this one area of The Problem (Mayoral control) is: dissolve the CECs, get rid of the PEP, and let's all engage our State legislature in setting up an elected New York City School Board and elected community school boards. And I mean elected by ALL, not a select few.
Oh, by the way, Gwen (Hopkins, former Director of the Office of Parent Advocacy and Engagement) you should really be more careful when you talk badly about parents - and me personally - at your office, even now that you are at Tweed. You should know that walls have ears, pens and paper.
Betsy Combier
Ed Dept Ripped Over Waning Interest in Parent Elections
Thursday, April 21, 2011
By Beth Fertig
LINK
The deadline for city parents to apply and run for positions on Community Education Councils that sign off on school zoning changes and play an advisory role is Friday — but the city is still struggling with waning interest in the posts.
Fewer than 450 parents applied for 325 seats citywide as of Thursday, according to the Department of Education.
Each of the 32 local community councils representing elementary and middle schools consists of nine elected members, plus two appointed by the borough presidents and a non-voting student member. There are also citywide councils for high school parents, parents of English Language Learners and parents of special education students.
Manhattan Borough President Scott Stringer said the lack of interest shows the department hasn't provided the councils with enough support. He called its Office for Family Information and Action a "disaster," and said outside groups should work with parents instead.
"We can show them how to engage parents working with existing parent associations in the schools," Stringer said. "And we can do it on the cheap. It'd probably the best savings the DOE has had. And they don't need to even hire an outside consultant."
Stringer sent a letter to Schools Chancellor Dennis Walcott Thursday recommending more outreach and recruitment, training of Community Education Council members and ongoing guidance to help them understand school budgets and zoning.
In a statement, Walcott replied that he has "repeatedly spoken about the importance of parent involvement in our schools and have had several meetings with parents and CEC members from a variety of communities."
"I look forward to working with Borough President Scott Stringer and other elected officials to ensure that they play a vibrant role in our efforts to increase parent engagement," Walcott said.
Department of Education officials said the agency has advertised in community newspapers in numerous languages to attract parents. It's also sent teams to communities with low turnout, and partnered with the Housing Authority and the Department of Youth and Community Development to reach more residents.
But as of Thursday, the agency said there were still five CEC's without the seven candidates needed to fill a quorum. The DOE wouldn't give a breakdown but said District 19 in Brooklyn had the fewest number of candidates. District 1 in Lower Manhattan had the most. District 3 on Manhattan's West Side, which had trouble attracting candidates, now has enough for a quorum.
Noah Gotbaum, the president of the CEC for District 3, claimed the DOE doesn't give parents enough reasons to want to spend long hours volunteering on the councils.
"The bottom line is the CECs have been emasculated," he said. "The groups have very little power, and they're not listened to when we do stand up and say this is what we want. We're completely ignored."
Gotbaum, a frequent critics of the DOE, said CECs have been ignored when they opposed closing schools or having charter schools share space with regular district schools. He also accused the department of deliberately obstructing parent involvement.
"The DOE has, since the very beginning, has put out false eligibility information," he said. "They've put out information which limits the number of candidates."
Gotbaum said parents of children in grades K-8 are allowed to run for Community Education Councils, as well as anyone who's had a child in the school system within the past two years. That could mean parents of 10th graders in some cases. But he this information is sometimes difficult to determine from the DOE, he said.
This is how the eligibility rules are explained on the election site:
"Parents are eligible to serve on the CEC for their local community school district if their child is currently in grades K-8 at a school under the jurisdiction of the community school district, or if their child was in grades K-8 at a school under the jurisdiction of the community school district within the past two years."
The DOE acknowledged an earlier version suggested only parents of children in grades K-7 could run, and officials say this current explanation is accurate.
Learning As They Go: A Look At Changes To The School System
Forty-two third graders failed at least one exam at P.S. 40 in South Jamaica.
By Azi Paybarah, Queens Tribune
LINK
The turbulent school year, full of change and controversy, came to end this week, marking the completion of the new system’s first term.
From crime to the curriculum to the chain of command, New York City’s school system underwent its most dramatic changes in recent history, when Mayor Mike Bloomberg took control of the system and turned it upside down.
This week, looking back at the changes that were made, many of his initiatives were deemed successes, including his anti-crime program, while many were criticized, such as a third grade promotion policy.
While the Mayor looks back to evaluate how he did, the rest of the city is looking to the future, where more change still lies ahead.
Crime In The Classroom
This week, Bloomberg released crime statistics for the 16 city schools with the highest incidents of crime – schools that were targeted earlier this year in a new anti-crime initiative launched by the Mayor and the Department of Education (DOE).
Citywide, 13 percent of major school crimes were committed in schools representing one percent of the city’s school children. Among those schools were Far Rockaway High School and Franklin K. Lane on the Brooklyn-Queens border in Woodhaven. In January, Bloomberg named them Impact Schools, and working with the New York City Police Department (NYPD), had them flooded with police officers.
Major crimes, which occurred on average every day at schools like Lane, were cut in half, according to statistics released by Bloomberg and the DOE. Four additional schools outside Queens were designated impact schools in April, and results there were just as dramatic.
Crimes there dropped by 66 percent, compared to earlier that year.
According to a public statement from the DOE, “School personnel focused on responding to even the most minor infractions of the New York City Discipline Code.” That led to a spike in the number of suspensions at both sets of Impact schools. In the first 12 weeks, principals suspended twice as many students, compared to earlier that year. At the second set of Impact schools, suspensions rose 63 percent. Ultimately, the new policy led to the removal of 494 students to “alternative school settings or off-site suspension centers.”
In explaining the philosophy behind the Impact Schools, Police Commissioner Raymond Kelly said it is “the same approach we used to address crime in our neighborhoods.”
Whether it’s a teacher, school aide or police officer, “everyone is speaking with one voice,” said Criminal Justice Coordinator John Feinblatt.
“If students are afraid to go to school,” said Bloomberg in a public statement, “they simply cannot learn.”
Upgrades to school policies also helped. At Lane, for example, the handwritten hallway passes were replaced with a color-coded system that includes the teacher’s name.
Social Promotion Over
One of the most discussed changes to the school system was Bloomberg’s new promotion policy, which forces third grade children to pass both the citywide math and reading tests to move on to fourth grade.
The new standard was meant to combat so-called social promotion policy, which pushed failing students into higher grades.
To enact the policy, Bloomberg fired three members of the Panel for Educational Policy who opposed the measure.
“Mayoral appointees are there to represent the mayor’s view,” said mayoral spokesperson Chris Coffey. “If they don’t have the stomach to do that they didn’t have to stay. Mayoral control means mayoral control.” The policy passed eight to five with two non-voting student members opposing the policy.
Test administrators got failing marks after a series of snafus.
Students in District 29 and elsewhere studied by reviewing old exams, inadvertently exposing them to questions recycled on this year’s exam. Talk swirled of retesting those students, but DOE officials settled on scoring the original exam, minus those questions. Chairperson Jane Hirschmann of Parents Coalition To End High Stakes Testing said the whole test should be thrown out. She obtained a manual from the two companies who prepared the test, which said, “The tests favors white children by 11 questions…[and] no questions favor Hispanic and black children.”
Students who were absent for the reading exam were not given the same test for their makeup because Hirschmann released some questions to the media during a press conference. Third graders opened the newly created exams and discovered answer options that did not correspond to those in their test booklets.
When results of those exams were released, more than 10,000 third graders citywide failed, including 1,796 in Queens. When the policy was first announced, DOE officials estimated 15,000 might fail.
Two of the city’s top three school districts were in Queens. In School District (SD) 26, only 14 students failed. SD 25 came in third with 78 students failing at least one of the exams.
Thirteen elementary schools in SD 26 had a 100 percent passing rate for their third graders. The borough’s worst performing school was South Jamaica’s P.S. 40, where 42 third graders failed at least one exam.
Punishing Principals
“Poor performance” was the reason given for removing 45 principals this year, according to Schools Chancellor Joel Klein. Sixteen of the deposed principals were tenured, and two of them are “being formally charged with incompetence,” according to a public statement from Klein’s office.
Schools in Queens where principals were reportedly removed include Franklin K. Lane, Far Rockaway, Beach Channel, and Springfield Gardens High Schools; P.S./I.S. 499, J.H.S. 190, and P.S. 111. President Jill Levy of the principals union said the DOE “was not able to provide the support and skill development these principals needed in order to succeed.”
Removed earlier this year was Superintendent Diana Lam, who resigned after a special DOE investigator discovered Lam forced school officials to give her husband a $100,000 a year job.
School Boards
Replacing each of the city’s 32 school boards will be Community Education Councils (CEC), whose members were elected earlier this year. Each CEC will have nine elected parent representatives, and two members appointed by the borough president. Two citywide CECs will be established for special education and high schools. The CEC for Special education will have nine elected parent members, and two members appointed by the Public Advocate.
The main difference between School Boards (SB) and CECs are their eligibility requirements.
School board members were voted in by the public, had to live in the district, but their children did not have to attend district public schools.
“At one point I was the only one on the board who had their kids in public school,” said SB30 member Jeannie Basini.
CEC members are voted in by the executive members of each school’s Parent Association or Parent Teacher Association, and have to have a child in a district public school.
Although unclear in their roles, CECs are expected to operate similarly to School Boards, sources said.
One major procedural change was the high school application process. Students are no longer guaranteed a seat in their zoned schools, meaning each incoming ninth grader has to apply to the school of their choice. Since no seat is guaranteed, even in their nearest school, some students have been forced into schools across town. Adding to the influx of applications are the new federal standards of the No Child Left Behind Law, which allows students in failing schools to request seats in better performing ones.
Total Number Of Failing Third Graders In Queens School Districts
District = Total
24 = 364
25 = 78
26 = 14
27 = 484
28 = 243
29 = 404
30 = 209
Boroughwide = 1,796
In order to do this they - Bloomberg, his Deputy Mayors and his trusted advisors - set up first the Panel For Educational Policy, a puppet group ("PEP") appointed by Mayor Bloomberg and NYC Borough Presidents, that replaced the NYC Board of Education, and second, Community Education Councils, ("CECs") unfairly elected by "selectors" gleaned from Parent Associations' Executive Boards throughout the City (Charter Schools do not usually have Parent or Parent Teacher ("PA/PTA") Associations). See following story below. Neither the PEP nor the CECs have open and public elections, and no member of any group has to listen to the many people who stand before them and beg for help of any kind. In fact, members who challenge the administration in any way are fired, as we saw Bloomberg do in March 2004 over the failed third grade promotion policy. Where, exactly were all the failed third graders supposed to go, Mayor Bloomberg?
By the way, I was in the audience that evening (of the firing) and I sat directly in front of Deputy Mayor Dennis Walcott, who I had met a few times. I listened as he insulted all the protestors who were exercising their right to speak out against the firings of the PEP members, and just before leaving the room, I turned around to say hello to Mr. Walcott, and I saw his startled face as he correctly assumed I had heard all his comments.
In a bizarre manner, they - the Mayor and his cronies - understood human nature to be one of greed and of the search for power and acclaim, and believed that they had the structure they needed to achieve their agenda of total control over the New York City's 1.1 million children, their families and guardians, and the accompanying Federal, State and local funding that went with them. They gave so-called "parent leaders" positions within their tightly controlled system that at no level had a voting system for the public. Public participation in government except by an elite few is dangerous, "they" knew. The limited selection structure, built on a foundation of appointments and closed, secret ballots/voting, divided parent groups and others, as those on the "inside" on the PEP and the CECs became the people who blocked others from information and services formerly offered by school boards to all who lived within the jurisdiction. This was planned and successfully executed, however nothing else in Bloomberg's 3 terms has yet been effectively put into place. It will be his failures that Bloomberg will be known for, much to the dismay of those of us who fought in 2002 and are still fighting to get back a democratic government based upon free and open elections. NYC needs an elected school board and open elections for school board members in each district, or the sham education "reform" will continue. If all the Borough Presidents had refused to appoint members to the Panel for Educational Policy in 2003, we all would have been in a better place in terms of our city's public schools effectively servicing the 1.1 million children in the system.
Many CEC members lived up to their roles by turning away parents and joining forces with the Department when issues that challenged the Department's agenda appeared before them. I, a parent advocate, started hearing from confused parents in 2002 when my oldest daughter was at Stuyvesant High School. The battle there focused on more than $380,000 that seemed to be missing from the PA funds. The chinese parents were attacked by the PA Presidents and some members of the Executive Board, such as Paola De Kock, for asking where this money was and why the IRS 990s were not filled out properly. I called the accountant hired by the Stuyvesant PA to do the 990s, and I was told that there was "so much money missing that there could be no audit." I contacted the Special Commissioner's office (Richard Condon), the Manhattan DA, the New York Post, Daily News, Wall Street Journal and other media, and no one would do the story or look into what happened.
We parents were sufficiently concerned by these attacks that we went to Jimmy Yan, Counsel to Manhattan Borough President Scott Stringer and a relative of one of the parents at Stuyvesant who didnt like the attacks of the Executive Board. Mr. Yan emailed me and called me that he was waiting for a reply from NYC DOE Superintendent Alexis Penzel, who was investigating. We never heard back. Scott Stringer appointed Patrick Sullivan to the PEP. We presented our issue to the District 1 CEC as well as the PEP, all in vain.
Then the Stuyvesant PA Executive Board scheduled an election to change the bylaws and successfully removed the Chinese Outreach Committee from a voting position on the Board.
When my youngest daughter's school, NEST+M at 111 Columbia Street in District 1 protested the stuffing of the Ross Global Charter Academy into the school in 2006-2007, (NYC DOE's Garth Harries said that NEST was an "underutilized plant"), we parents asked the District 1 CEC and President's Council for help, and we were called "racists". We filed lawsuits at the New York State Supreme Courts in NYC and in Albany against the New York City BOE and New York State Regents and won, with the help of Assembly Speaker Sheldon Silver, in whose District NEST+M is located. See the Memorandum of Law.
What these and other events have done is drive a wedge directly through the heart of parent involvement in NYC, leaving distrust and even hatred among parents and between the groups and "cliques" exactly as the NYC BOE planned. Now it is painfully obvious that the parents on the PEP and the parents selected to be on the CECs are at minimum ineffective and in many cases deliberately proud of their positions of power and "acclaim" and willing to please the powers that be (NYC BOE) at the expense of parents and children in the City's public and charter schools.
However, the NYC DOE and the Mayor's cronies have ultimately failed, as the story by Beth Fertig below shows, as well as the hugely embarrassing hiring and firing of Dennis Walcott , Cathie Black and Joel Klein. A solution to this one area of The Problem (Mayoral control) is: dissolve the CECs, get rid of the PEP, and let's all engage our State legislature in setting up an elected New York City School Board and elected community school boards. And I mean elected by ALL, not a select few.
Oh, by the way, Gwen (Hopkins, former Director of the Office of Parent Advocacy and Engagement) you should really be more careful when you talk badly about parents - and me personally - at your office, even now that you are at Tweed. You should know that walls have ears, pens and paper.
Betsy Combier
Ed Dept Ripped Over Waning Interest in Parent Elections
Thursday, April 21, 2011
By Beth Fertig
LINK
The deadline for city parents to apply and run for positions on Community Education Councils that sign off on school zoning changes and play an advisory role is Friday — but the city is still struggling with waning interest in the posts.
Fewer than 450 parents applied for 325 seats citywide as of Thursday, according to the Department of Education.
Each of the 32 local community councils representing elementary and middle schools consists of nine elected members, plus two appointed by the borough presidents and a non-voting student member. There are also citywide councils for high school parents, parents of English Language Learners and parents of special education students.
Manhattan Borough President Scott Stringer said the lack of interest shows the department hasn't provided the councils with enough support. He called its Office for Family Information and Action a "disaster," and said outside groups should work with parents instead.
"We can show them how to engage parents working with existing parent associations in the schools," Stringer said. "And we can do it on the cheap. It'd probably the best savings the DOE has had. And they don't need to even hire an outside consultant."
Stringer sent a letter to Schools Chancellor Dennis Walcott Thursday recommending more outreach and recruitment, training of Community Education Council members and ongoing guidance to help them understand school budgets and zoning.
In a statement, Walcott replied that he has "repeatedly spoken about the importance of parent involvement in our schools and have had several meetings with parents and CEC members from a variety of communities."
"I look forward to working with Borough President Scott Stringer and other elected officials to ensure that they play a vibrant role in our efforts to increase parent engagement," Walcott said.
Department of Education officials said the agency has advertised in community newspapers in numerous languages to attract parents. It's also sent teams to communities with low turnout, and partnered with the Housing Authority and the Department of Youth and Community Development to reach more residents.
But as of Thursday, the agency said there were still five CEC's without the seven candidates needed to fill a quorum. The DOE wouldn't give a breakdown but said District 19 in Brooklyn had the fewest number of candidates. District 1 in Lower Manhattan had the most. District 3 on Manhattan's West Side, which had trouble attracting candidates, now has enough for a quorum.
Noah Gotbaum, the president of the CEC for District 3, claimed the DOE doesn't give parents enough reasons to want to spend long hours volunteering on the councils.
"The bottom line is the CECs have been emasculated," he said. "The groups have very little power, and they're not listened to when we do stand up and say this is what we want. We're completely ignored."
Gotbaum, a frequent critics of the DOE, said CECs have been ignored when they opposed closing schools or having charter schools share space with regular district schools. He also accused the department of deliberately obstructing parent involvement.
"The DOE has, since the very beginning, has put out false eligibility information," he said. "They've put out information which limits the number of candidates."
Gotbaum said parents of children in grades K-8 are allowed to run for Community Education Councils, as well as anyone who's had a child in the school system within the past two years. That could mean parents of 10th graders in some cases. But he this information is sometimes difficult to determine from the DOE, he said.
This is how the eligibility rules are explained on the election site:
"Parents are eligible to serve on the CEC for their local community school district if their child is currently in grades K-8 at a school under the jurisdiction of the community school district, or if their child was in grades K-8 at a school under the jurisdiction of the community school district within the past two years."
The DOE acknowledged an earlier version suggested only parents of children in grades K-7 could run, and officials say this current explanation is accurate.
Learning As They Go: A Look At Changes To The School System
Forty-two third graders failed at least one exam at P.S. 40 in South Jamaica.
 |
| Forty-two third graders failed at least one exam at P.S. 40 in South Jamaica. Tribune photo by Azi Paybarah |
LINK
The turbulent school year, full of change and controversy, came to end this week, marking the completion of the new system’s first term.
From crime to the curriculum to the chain of command, New York City’s school system underwent its most dramatic changes in recent history, when Mayor Mike Bloomberg took control of the system and turned it upside down.
This week, looking back at the changes that were made, many of his initiatives were deemed successes, including his anti-crime program, while many were criticized, such as a third grade promotion policy.
While the Mayor looks back to evaluate how he did, the rest of the city is looking to the future, where more change still lies ahead.
Crime In The Classroom
This week, Bloomberg released crime statistics for the 16 city schools with the highest incidents of crime – schools that were targeted earlier this year in a new anti-crime initiative launched by the Mayor and the Department of Education (DOE).
Citywide, 13 percent of major school crimes were committed in schools representing one percent of the city’s school children. Among those schools were Far Rockaway High School and Franklin K. Lane on the Brooklyn-Queens border in Woodhaven. In January, Bloomberg named them Impact Schools, and working with the New York City Police Department (NYPD), had them flooded with police officers.
Major crimes, which occurred on average every day at schools like Lane, were cut in half, according to statistics released by Bloomberg and the DOE. Four additional schools outside Queens were designated impact schools in April, and results there were just as dramatic.
Crimes there dropped by 66 percent, compared to earlier that year.
According to a public statement from the DOE, “School personnel focused on responding to even the most minor infractions of the New York City Discipline Code.” That led to a spike in the number of suspensions at both sets of Impact schools. In the first 12 weeks, principals suspended twice as many students, compared to earlier that year. At the second set of Impact schools, suspensions rose 63 percent. Ultimately, the new policy led to the removal of 494 students to “alternative school settings or off-site suspension centers.”
In explaining the philosophy behind the Impact Schools, Police Commissioner Raymond Kelly said it is “the same approach we used to address crime in our neighborhoods.”
Whether it’s a teacher, school aide or police officer, “everyone is speaking with one voice,” said Criminal Justice Coordinator John Feinblatt.
“If students are afraid to go to school,” said Bloomberg in a public statement, “they simply cannot learn.”
Upgrades to school policies also helped. At Lane, for example, the handwritten hallway passes were replaced with a color-coded system that includes the teacher’s name.
Social Promotion Over
One of the most discussed changes to the school system was Bloomberg’s new promotion policy, which forces third grade children to pass both the citywide math and reading tests to move on to fourth grade.
The new standard was meant to combat so-called social promotion policy, which pushed failing students into higher grades.
To enact the policy, Bloomberg fired three members of the Panel for Educational Policy who opposed the measure.
“Mayoral appointees are there to represent the mayor’s view,” said mayoral spokesperson Chris Coffey. “If they don’t have the stomach to do that they didn’t have to stay. Mayoral control means mayoral control.” The policy passed eight to five with two non-voting student members opposing the policy.
Test administrators got failing marks after a series of snafus.
Students in District 29 and elsewhere studied by reviewing old exams, inadvertently exposing them to questions recycled on this year’s exam. Talk swirled of retesting those students, but DOE officials settled on scoring the original exam, minus those questions. Chairperson Jane Hirschmann of Parents Coalition To End High Stakes Testing said the whole test should be thrown out. She obtained a manual from the two companies who prepared the test, which said, “The tests favors white children by 11 questions…[and] no questions favor Hispanic and black children.”
Students who were absent for the reading exam were not given the same test for their makeup because Hirschmann released some questions to the media during a press conference. Third graders opened the newly created exams and discovered answer options that did not correspond to those in their test booklets.
When results of those exams were released, more than 10,000 third graders citywide failed, including 1,796 in Queens. When the policy was first announced, DOE officials estimated 15,000 might fail.
Two of the city’s top three school districts were in Queens. In School District (SD) 26, only 14 students failed. SD 25 came in third with 78 students failing at least one of the exams.
Thirteen elementary schools in SD 26 had a 100 percent passing rate for their third graders. The borough’s worst performing school was South Jamaica’s P.S. 40, where 42 third graders failed at least one exam.
Punishing Principals
“Poor performance” was the reason given for removing 45 principals this year, according to Schools Chancellor Joel Klein. Sixteen of the deposed principals were tenured, and two of them are “being formally charged with incompetence,” according to a public statement from Klein’s office.
Schools in Queens where principals were reportedly removed include Franklin K. Lane, Far Rockaway, Beach Channel, and Springfield Gardens High Schools; P.S./I.S. 499, J.H.S. 190, and P.S. 111. President Jill Levy of the principals union said the DOE “was not able to provide the support and skill development these principals needed in order to succeed.”
Removed earlier this year was Superintendent Diana Lam, who resigned after a special DOE investigator discovered Lam forced school officials to give her husband a $100,000 a year job.
School Boards
Replacing each of the city’s 32 school boards will be Community Education Councils (CEC), whose members were elected earlier this year. Each CEC will have nine elected parent representatives, and two members appointed by the borough president. Two citywide CECs will be established for special education and high schools. The CEC for Special education will have nine elected parent members, and two members appointed by the Public Advocate.
The main difference between School Boards (SB) and CECs are their eligibility requirements.
School board members were voted in by the public, had to live in the district, but their children did not have to attend district public schools.
“At one point I was the only one on the board who had their kids in public school,” said SB30 member Jeannie Basini.
CEC members are voted in by the executive members of each school’s Parent Association or Parent Teacher Association, and have to have a child in a district public school.
Although unclear in their roles, CECs are expected to operate similarly to School Boards, sources said.
One major procedural change was the high school application process. Students are no longer guaranteed a seat in their zoned schools, meaning each incoming ninth grader has to apply to the school of their choice. Since no seat is guaranteed, even in their nearest school, some students have been forced into schools across town. Adding to the influx of applications are the new federal standards of the No Child Left Behind Law, which allows students in failing schools to request seats in better performing ones.
Total Number Of Failing Third Graders In Queens School Districts
District = Total
24 = 364
25 = 78
26 = 14
27 = 484
28 = 243
29 = 404
30 = 209
Boroughwide = 1,796
Tuesday, April 19, 2011
Judge Edmead Decides Locklear v Teachers' Retirement Sys. of the City of New York
New York State Supreme Court Justice Carol Edmead rules that "...no City pension fund member can earn service credits from both funds [TRS and NYCERS] simultaneously, whether petitioner signed a waiver is inconsequential.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, 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.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, 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 4, 2011
Supreme Court, New York County
In the Matter of the Application of Elizabeth Locklear, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules
against
Teachers' Retirement System of the City of New York, Respondent.
113595/06
ATTORNEY FOR THE PLAINTIFF :
Firm: LLOYD SOMER
Address : 330 SEVENTH AVENUE, 15TH FL.
NEW YORK, NY 10001
Phone : 212 629-7001
ATTORNEY FOR THE DEFENDANT :
Firm: TEACHERS' RETIREMENT SYSTEM - Prose
Address : OF THE CITY OF NY
55 WATER STREET
NEW YORK NY 10041
Carol R. Edmead, J.
Petitioner Elizabeth Locklear ("petitioner") moves for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System ("TRS") to process her application for retirement, and provide her with a service retirement pension based on her service time and credits.
Background Facts
The New York City Police Department ("NYPD") hired petitioner on July 3, 1973 as a Police Administrative Assistant ("PAA"), and petitioner became a member of the New York City Employees' Retirement System ("NYCERS") when she enrolled on July 19, 1973. (Exhibit 1).
Fifteen years later in 1988, while working nights as a PAA, petitioner began working [*2]during the day for the New York City Department of Education ("DOE") (see Petition ¶4).[FN1] Petitioner became a substitute teacher, and then an attendance teacher in 1998 (Answer, Exh. 4), at which time, she filed her TRS application under the "Tier III/IV" benefits plan, dated November 22, 1998. (Id.). Petitioner's TRS application stated that she was a member of NYCERS under membership number 711265.
Petitioner then retired from the DOE on October 29, 2009, and from the NYPD on November 22, 2009.[FN2]
In response to her application for TRS retirement benefits, TRS advised petitioner that it was "reviewing" her application and that "the processing of [her] application may take additional time if we need to verify information from other agencies. Once we process your retirement application, we will notify you as to whether your eligible for retirement. If you are eligible, your prospective date of retirement would be 10/29/2009." (October 29, 2009 letter, Answer, Exh. 7). TRS advised that to "provide [petitioner] with retirement income as soon as possible," TRS would send her "advance payments" approximately one to two months after her effective retirement date.
During this process, on November 10, 2009, NYCERS notified TRS that the petitioners' membership with NYCERS began in 1973, that petitioner was in good standing, and that petitioner applied to retirement effective November 22, 2009.[FN3] NYCERS next advised that petitioner's TRS membership "should be considered invalid because her NYCERS membership would take precedence" and that her membership in TRS "should be withdrawn" immediately (Answer, Exhibit 8).
On the same date, November 10, 2009, TRS's Correspondence Unit notified petitioner that they were "unaware"of her "active membership" in NYCERS, and that since "dual membership in two New York City retirement systems is prohibited" and her NYCERS membership precedes her TRS membership, her TRS membership is invalid, rendering her unable to receive retirement benefits from TRS (hereinafter, the "cancellation letter") (Answer, Exhibit 9). TRS advised that she could receive her "erroneous contributions" through a refund process (id.).
Notwithstanding TRS's cancellation letter, TRS's Retirements/Withdrawals Unit then informed petitioner on November 16, 2009, that she would be receiving monthly advance payments in order to provide her with retirement income as soon as possible. However, TRS's Retirements/Withdrawals Unit then advised petitioner that her membership in TRS was going to be cancelled because her TRS members was invalid. This letter reiterated the reasons stated in the earlier November 10, 2009 cancellation letter sent from TRS's Correspondence Unit, and advised that she would receive a refund of her contributions.
However, TRS's Retirements/Withdrawals Unit sent another letter to petitioner on [*3]January 13, 2010, advising that when petitioner retired, she had "10 years, 4 months, and 0 days of total service credit" and that TRS members attain "vested rights when they have at least five years of total service." As a result, petitioner was a vested member, with certain options concerning her contributions and balances in her account. The letter advised, for example, that petitioner could lever her fund balances with TRS in order to receive a retirement allowance beginning as early as age 55; however, to do so, petitioner would have to file a service retirement application for her tier, and contact "TRS before you file your retirement application to obtain information about your eligibility; the letter also noted that she could transfer her membership to "another eligible public retirement system within New York State." The options available were reiterated in a subsequent letter sent by TRS's Member Status Unit on February 26, 2010.
Thereafter, TRS reimbursed petitioner for all contributions she made over the course of her tenure as a teacher, and this petition ensued.
Petitioner's Contentions
Petitioner argues that under caselaw, TRS must be estopped from denying her a pension, in that Petitioner was informed throughout her career that she would receive two pensions as a result of working for both entities. When petitioner took on both jobs, it was with the expectation and understanding that she would receive two pensions. Petitioner received a combined W-2 tax form from the City of New York while jointly employed by the NYPD and the DOE. In 2006, petitioner spoke to a TRS representative concerning purchasing prior service credit in the amount of 9 years, 2 months, and 25 days. During the conservation, petitioner never hid from her employers, NYCERS, or TRS, the fact that she was employed by both the NYPD and the DOE. When petitioner met with her unions in 2009 for pension counseling, she was informed that she would receive both pensions. Petitioner also completed a form in 2009 to combine her time for the two pensions.
Petitioner argues that if she was informed from the beginning that she would not be eligible for a TRS pension, then she would have sought a position in the private industry to gain a second pension. Petitioner maintained both jobs with the expectation that she would receive a pension for her y years of employment.
Petitioner argues that it is an injustice to deny her TRS pension, after working for the City of New York with the expectation and the understanding that she would receive two pensions.
Thus, petitioner urges the Court to rule that TRS should process her retirement application in order for petitioner to receive her pension.
Petitioner further argues that any bar to her joining TRS while a member of NYCERS is of no effect because she was never asked to sign a waiver pursuant to NYC Admin. Code § 13-104(2).
Respondent's Contention
TRS argues that under caselaw, New York City Pension Funds have a statutory obligation to follow NYC Administrative Code §13-184 as written, and that attempts to modify the law on equitable grounds have been rejected. According to Admin. Code § 13-184, a member of NYCERS cannot simultaneously be a member of another New York City retirement system. Thus, petitioner's membership in TRS is a nullity because she remained an active member of NYCERS while she was enrolled in TRS. Thus, TRS's determination was not arbitrary, capricious, or an abuse of discretion. [*4]
Further, in canceling petitioner's membership, TRS was exercising its governmental function, and caselaw holds that estoppel is not available against a governmental agency in the exercise of its governmental functions. And, the few instances in which the doctrine of estoppel has been applied to governmental agencies are distinguishable since such instances involved NYCERS taking a position inconsistent with the governing law.
And, petitioner cannot rely on conversations she had with pension counselers, her union, and TRS representatives because such conversations are unsubstantiated. In any event, it has been held that advice given to pension fund members regrading interpretations of controlling laws cannot bind the pension fund. Nor can TRS be bound by the letters sent out in error in November 2009, January 2010, and February 2010, which mistakenly informed petitioner that she was considered retired.
Petitioner's claim that she would incur financial harm should she be denied TRS membership is untrue, as she is receiving a pension from NYCERS, and was reimbursed for all her contributions.
Respondent contends that if a member of another City pension fund wants to join either TRS or NYCERS, he or she must submit a waiver of all present and prospective benefits provided by the city, pursuant to NYC Admin. Code § 13-304(3). Thus, a member may receive two pensions upon retirement from both funds as long as the member suspends his or her membership with the first fund while he or she is active in the second fund. However, no City pension fund member can be active in two funds and earn service credits from both funds simultaneously regardless of whether he or she signed a waiver. When petitioner joined TRS, she never suspended her then active membership with NYCERS. Thus, petitioner was never entitled to become a member of TRS, and her membership is a nullity. Since petitioner does not meet the requirements for TRS benefits, TRS's determination that her membership is invalid and its cancellation of petitioner's membership was proper.
Discussion
CPLR 7803 states that the court review of a determination of an entity, such as the Board of Education, consists of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty imposed (CPLR 7803(3) (see Windsor Place Corp. v New York State DHCR, 161 AD2d 279 [1st Dept.1990]; Mazel v DHCR, 138 AD2d 600 [1st Dept1988]; Bambeck v DHCR, 129 AD2d 51 [1st Dept 1987], lv. den. 70 NY2d 615 [1988]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Education, 34 NY2d 222, 231 (1974)). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion (Matter of Pell v Board of Education, 34 NY2d at 231). The court's function is completed on finding that a rational basis supports the DHCR's determination (see Howard v Wyman, 28 NY2d 434 [1971]). Where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept], affd 66 NY2d 1032 [1985]).
NYC Admin. Code § 13-184, which governs the parties' dispute, provides in relevant part as follows: [*5]
No other provision of law which provides wholly or partly at the expense of the city for pensions or retirement benefits for employees in the city-service, shall apply to such employees who become members or beneficiaries of the retirement system provided for by this chapter, their widows or their other dependents. . . . Notwithstanding the foregoing provisions of this section, nothing therein contained shall prevent a member of this retirement system whose membership is authorized by subdivision three of section 13-104 of this chapter, upon his or her retirement from this retirement system . . . from receiving benefits from this retirement system, as well as benefits to which they may be entitled from any other retirement system or pension fund maintained by the city.
"It is implicit in the language of the Administrative Code provision that joining one City retirement system automatically bars joining another system subsequently and remaining a member of both" (Zimet v Teachers' Retirement Bd., 41 AD2d 919, 343 NYS2d 617 [ Dept 1973]). Thus, a member of NYCERS cannot simultaneously be a member of another New York City pension fund.
Petitioner's argument that TRS should be estopped from canceling her membership is unavailing. The doctrine of estoppel only applies "against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained. Estoppel cannot operate to create a right where none exists (Owens v McGuire, 121 AD2d 292, 503 N.Y.S.2d 387 [1st Dept 1986], citing Matter of McLaughlin v Berle, 71 AD2d 707, 708, 418 NYS2d 246, affd. 51 NY2d 917, 434 NYS2d 994). Further, estoppel is not available against a governmental entity in the exercise of governmental functions (Owens, supra citing Mtr. of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33, 475 NYS2d 826 ). "[E]stoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties," except in "unusual factual situations" (Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379, 636 NYS2d 291 [1st Dept 1996], citing Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369-370, 526 NYS2d 56). Application of the doctrine should be made "only when failure to do so would operate to defeat a right legally and rightfully obtained" ( Scheurer v New York City Employees' Retirement Sys., citing, Matter of Hauben v Goldin, 74 AD2d 804, 805, 426 NYS2d 273). "It cannot operate to create a right . . . Nor can it operate to relieve one from the mandatory operation of a statute" (Scheurer, supra). Lastly, "[t]he courts must weigh the degree of manifest injustice against the effect, in the particular case, of intervention into the public processes" (Scheurer, supra). And, in such unusual factual situations, the Court must determine that certain conditions are initially satisfied: the governmental body "must know the facts ... he must intend that his conduct shall be acted on ... the [other party] must be ignorant of the true facts; and ... he must rely on the former's conduct to his injury" (Brennan v New York City Housing Auth., 72 AD2d 410, 424 NYS2d 687 [1st Dept 1980]).
Here, it is uncontested that petitioner's TRS service credits accrued during her simultaneous membership in NYCERS, which is strictly prohibited by NYC Admin. Code § 13-184. Therefore, TRS's determination was not arbitrary, capricious or irrational.
Brennan v New York City Housing Auth., cited by petitioner, is not controlling. In Brennan, plaintiffs with years of service on the Housing Authority's police force were New York State residents at the time of their appointment. The examination taken prior to appointment did [*6]not specify a residence requirement, other examinations given at the same time for other peace officer positions specified residence in certain areas within New York State. Thereafter each purchased a home in New Jersey and Connecticut and lived there for an average of seven years. Parenthetically, several plaintiffs have resided out of State for over 15 years. "Most, if not all, moved only after receiving assurances from superior officers that their then contemplated move was lawful. Prior to moving, these officers were aided by defendant in securing mortgages on their property. After their moves, defendant rendered further aid by securing New York State driver's licenses and domiciliary pistol permits for plaintiffs." (Emphasis added).
The Court held that it was "evident that defendant Housing Authority knew the residential status of their employees, and the law applicable to them. The open publication of examinations for entry level and promotional positions without a residence requirement, coupled with the affirmative aid given by defendant prior and subsequent to the out-of-State relocations rendered foreseeable plaintiffs' reliance thereon."
It cannot be said that the alleged knowledge that TRS had about petitioner's then current enrollment in NYCERS was evident. While petitioner's TRS application provided information about her enrollment in NYCERS, the application actually calls for "prior" service. Petitioner's alleged conversations with TRS representatives of being informed that she would receive two pensions, in and of themselves, are insufficient to rise to the level of knowledge by TRS that she was simultaneously enrolled in NYCERS. Nor are such representations inconsistent with the position TRS now takes to cancel her membership; NYC Admin. Code § 13-184 bars simultaneous membership; not the receipt of two pensions. It does not appear that petitioner would be precluded from receiving two city pensions if she did not earn such service credits simultaneously. And, petitioner points to no affirmative action undertaken by TRS prior to her application for retirement, in assisting her to maintain simultaneous membership in both pensions from NYCERS and TRS.
Further, the Court notes that petitioner's allegation that she had been repeatedly informed that she would receive a TRS pension is vague and conclusory. In any event, errors in opinions made by pension fund employees cannot bind the pension fund (Zucker v New York City Emp. Retirement Sys., 27 AD2d 207, 277 NYS2d 978 [1st Dept 1967]; Distelman v Regan, 128 AD2d 935, 512 NYS2d 586 [3d Dept 1987] (stating that "[t]he doctrine of estoppel will not reach so far as to hold an individual eligible for vested retirement where by statute, he clearly does not qualify for such eligibility")).
Unlike the case cited by petitioner, Eden v Board of Trustees of State University (49 AD2d 277, 374 NYS2d 686 [2d Dept 1975]), estoppel did not operate so to compel the governmental agency from violating any Administrative or statutory laws (Eden, granting petitioners/applicants application for estoppel and to compel respondent to operate a podiatry school, where they were accepted into respondent's podiatry program, but later told that the opening of school "has been deferred"); Tamulinas v Board of Educ. of Jericho Union Free School Dist., 279 AD2d 527, 719 NYS2d 660 [2d Dept 2001] (annulling NYCER's determination that petitioner was not eligible for retroactive membership, after "she was specifically misinformed that she was not eligible to join the TRS" notwithstanding her "right to join the TRS").
The Court further notes that petitioner's claim of financial hardship is belied by the fact [*7]that she is receiving her NYCERS pension and was reimbursed her contributions into TRS. Also, her claim that she would have worked in the private sector had she known she was ineligible to receive two pensions is conclusory and unsupported by the record.
Finally, as to the failure of TRS to provide petitioner with a waiver, petitioner's failure to execute such a waiver does not entitle her to receive pension benefits to which she is not entitled or for which she is not qualified. Since no City pension fund member can earn service credits from both funds simultaneously, whether petitioner signed a waiver is inconsequential.
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Dated: April 4, 2011______________________________________
Hon. Carol Robinson Edmead, J.S.C.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Footnotes
Footnote 1:According to the "Record of Prior Service" attached to petitioner's TRS enrollment form, she began working as a substitute teacher from November 1989.
Footnote 2: In connection with her retirement from the DOE, petitioner filed an retirement application with TRS, dated October 21, 2009, requesting that she be retired as of October 29, 2009.
Footnote 3: Petitioner is currently receiving retirement benefits from NYCERS.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, 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.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, 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 4, 2011
Supreme Court, New York County
In the Matter of the Application of Elizabeth Locklear, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules
against
Teachers' Retirement System of the City of New York, Respondent.
113595/06
ATTORNEY FOR THE PLAINTIFF :
Firm: LLOYD SOMER
Address : 330 SEVENTH AVENUE, 15TH FL.
NEW YORK, NY 10001
Phone : 212 629-7001
ATTORNEY FOR THE DEFENDANT :
Firm: TEACHERS' RETIREMENT SYSTEM - Prose
Address : OF THE CITY OF NY
55 WATER STREET
NEW YORK NY 10041
Carol R. Edmead, J.
Petitioner Elizabeth Locklear ("petitioner") moves for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System ("TRS") to process her application for retirement, and provide her with a service retirement pension based on her service time and credits.
Background Facts
The New York City Police Department ("NYPD") hired petitioner on July 3, 1973 as a Police Administrative Assistant ("PAA"), and petitioner became a member of the New York City Employees' Retirement System ("NYCERS") when she enrolled on July 19, 1973. (Exhibit 1).
Fifteen years later in 1988, while working nights as a PAA, petitioner began working [*2]during the day for the New York City Department of Education ("DOE") (see Petition ¶4).[FN1] Petitioner became a substitute teacher, and then an attendance teacher in 1998 (Answer, Exh. 4), at which time, she filed her TRS application under the "Tier III/IV" benefits plan, dated November 22, 1998. (Id.). Petitioner's TRS application stated that she was a member of NYCERS under membership number 711265.
Petitioner then retired from the DOE on October 29, 2009, and from the NYPD on November 22, 2009.[FN2]
In response to her application for TRS retirement benefits, TRS advised petitioner that it was "reviewing" her application and that "the processing of [her] application may take additional time if we need to verify information from other agencies. Once we process your retirement application, we will notify you as to whether your eligible for retirement. If you are eligible, your prospective date of retirement would be 10/29/2009." (October 29, 2009 letter, Answer, Exh. 7). TRS advised that to "provide [petitioner] with retirement income as soon as possible," TRS would send her "advance payments" approximately one to two months after her effective retirement date.
During this process, on November 10, 2009, NYCERS notified TRS that the petitioners' membership with NYCERS began in 1973, that petitioner was in good standing, and that petitioner applied to retirement effective November 22, 2009.[FN3] NYCERS next advised that petitioner's TRS membership "should be considered invalid because her NYCERS membership would take precedence" and that her membership in TRS "should be withdrawn" immediately (Answer, Exhibit 8).
On the same date, November 10, 2009, TRS's Correspondence Unit notified petitioner that they were "unaware"of her "active membership" in NYCERS, and that since "dual membership in two New York City retirement systems is prohibited" and her NYCERS membership precedes her TRS membership, her TRS membership is invalid, rendering her unable to receive retirement benefits from TRS (hereinafter, the "cancellation letter") (Answer, Exhibit 9). TRS advised that she could receive her "erroneous contributions" through a refund process (id.).
Notwithstanding TRS's cancellation letter, TRS's Retirements/Withdrawals Unit then informed petitioner on November 16, 2009, that she would be receiving monthly advance payments in order to provide her with retirement income as soon as possible. However, TRS's Retirements/Withdrawals Unit then advised petitioner that her membership in TRS was going to be cancelled because her TRS members was invalid. This letter reiterated the reasons stated in the earlier November 10, 2009 cancellation letter sent from TRS's Correspondence Unit, and advised that she would receive a refund of her contributions.
However, TRS's Retirements/Withdrawals Unit sent another letter to petitioner on [*3]January 13, 2010, advising that when petitioner retired, she had "10 years, 4 months, and 0 days of total service credit" and that TRS members attain "vested rights when they have at least five years of total service." As a result, petitioner was a vested member, with certain options concerning her contributions and balances in her account. The letter advised, for example, that petitioner could lever her fund balances with TRS in order to receive a retirement allowance beginning as early as age 55; however, to do so, petitioner would have to file a service retirement application for her tier, and contact "TRS before you file your retirement application to obtain information about your eligibility; the letter also noted that she could transfer her membership to "another eligible public retirement system within New York State." The options available were reiterated in a subsequent letter sent by TRS's Member Status Unit on February 26, 2010.
Thereafter, TRS reimbursed petitioner for all contributions she made over the course of her tenure as a teacher, and this petition ensued.
Petitioner's Contentions
Petitioner argues that under caselaw, TRS must be estopped from denying her a pension, in that Petitioner was informed throughout her career that she would receive two pensions as a result of working for both entities. When petitioner took on both jobs, it was with the expectation and understanding that she would receive two pensions. Petitioner received a combined W-2 tax form from the City of New York while jointly employed by the NYPD and the DOE. In 2006, petitioner spoke to a TRS representative concerning purchasing prior service credit in the amount of 9 years, 2 months, and 25 days. During the conservation, petitioner never hid from her employers, NYCERS, or TRS, the fact that she was employed by both the NYPD and the DOE. When petitioner met with her unions in 2009 for pension counseling, she was informed that she would receive both pensions. Petitioner also completed a form in 2009 to combine her time for the two pensions.
Petitioner argues that if she was informed from the beginning that she would not be eligible for a TRS pension, then she would have sought a position in the private industry to gain a second pension. Petitioner maintained both jobs with the expectation that she would receive a pension for her y years of employment.
Petitioner argues that it is an injustice to deny her TRS pension, after working for the City of New York with the expectation and the understanding that she would receive two pensions.
Thus, petitioner urges the Court to rule that TRS should process her retirement application in order for petitioner to receive her pension.
Petitioner further argues that any bar to her joining TRS while a member of NYCERS is of no effect because she was never asked to sign a waiver pursuant to NYC Admin. Code § 13-104(2).
Respondent's Contention
TRS argues that under caselaw, New York City Pension Funds have a statutory obligation to follow NYC Administrative Code §13-184 as written, and that attempts to modify the law on equitable grounds have been rejected. According to Admin. Code § 13-184, a member of NYCERS cannot simultaneously be a member of another New York City retirement system. Thus, petitioner's membership in TRS is a nullity because she remained an active member of NYCERS while she was enrolled in TRS. Thus, TRS's determination was not arbitrary, capricious, or an abuse of discretion. [*4]
Further, in canceling petitioner's membership, TRS was exercising its governmental function, and caselaw holds that estoppel is not available against a governmental agency in the exercise of its governmental functions. And, the few instances in which the doctrine of estoppel has been applied to governmental agencies are distinguishable since such instances involved NYCERS taking a position inconsistent with the governing law.
And, petitioner cannot rely on conversations she had with pension counselers, her union, and TRS representatives because such conversations are unsubstantiated. In any event, it has been held that advice given to pension fund members regrading interpretations of controlling laws cannot bind the pension fund. Nor can TRS be bound by the letters sent out in error in November 2009, January 2010, and February 2010, which mistakenly informed petitioner that she was considered retired.
Petitioner's claim that she would incur financial harm should she be denied TRS membership is untrue, as she is receiving a pension from NYCERS, and was reimbursed for all her contributions.
Respondent contends that if a member of another City pension fund wants to join either TRS or NYCERS, he or she must submit a waiver of all present and prospective benefits provided by the city, pursuant to NYC Admin. Code § 13-304(3). Thus, a member may receive two pensions upon retirement from both funds as long as the member suspends his or her membership with the first fund while he or she is active in the second fund. However, no City pension fund member can be active in two funds and earn service credits from both funds simultaneously regardless of whether he or she signed a waiver. When petitioner joined TRS, she never suspended her then active membership with NYCERS. Thus, petitioner was never entitled to become a member of TRS, and her membership is a nullity. Since petitioner does not meet the requirements for TRS benefits, TRS's determination that her membership is invalid and its cancellation of petitioner's membership was proper.
Discussion
CPLR 7803 states that the court review of a determination of an entity, such as the Board of Education, consists of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty imposed (CPLR 7803(3) (see Windsor Place Corp. v New York State DHCR, 161 AD2d 279 [1st Dept.1990]; Mazel v DHCR, 138 AD2d 600 [1st Dept1988]; Bambeck v DHCR, 129 AD2d 51 [1st Dept 1987], lv. den. 70 NY2d 615 [1988]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Education, 34 NY2d 222, 231 (1974)). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion (Matter of Pell v Board of Education, 34 NY2d at 231). The court's function is completed on finding that a rational basis supports the DHCR's determination (see Howard v Wyman, 28 NY2d 434 [1971]). Where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept], affd 66 NY2d 1032 [1985]).
NYC Admin. Code § 13-184, which governs the parties' dispute, provides in relevant part as follows: [*5]
No other provision of law which provides wholly or partly at the expense of the city for pensions or retirement benefits for employees in the city-service, shall apply to such employees who become members or beneficiaries of the retirement system provided for by this chapter, their widows or their other dependents. . . . Notwithstanding the foregoing provisions of this section, nothing therein contained shall prevent a member of this retirement system whose membership is authorized by subdivision three of section 13-104 of this chapter, upon his or her retirement from this retirement system . . . from receiving benefits from this retirement system, as well as benefits to which they may be entitled from any other retirement system or pension fund maintained by the city.
"It is implicit in the language of the Administrative Code provision that joining one City retirement system automatically bars joining another system subsequently and remaining a member of both" (Zimet v Teachers' Retirement Bd., 41 AD2d 919, 343 NYS2d 617 [ Dept 1973]). Thus, a member of NYCERS cannot simultaneously be a member of another New York City pension fund.
Petitioner's argument that TRS should be estopped from canceling her membership is unavailing. The doctrine of estoppel only applies "against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained. Estoppel cannot operate to create a right where none exists (Owens v McGuire, 121 AD2d 292, 503 N.Y.S.2d 387 [1st Dept 1986], citing Matter of McLaughlin v Berle, 71 AD2d 707, 708, 418 NYS2d 246, affd. 51 NY2d 917, 434 NYS2d 994). Further, estoppel is not available against a governmental entity in the exercise of governmental functions (Owens, supra citing Mtr. of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33, 475 NYS2d 826 ). "[E]stoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties," except in "unusual factual situations" (Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379, 636 NYS2d 291 [1st Dept 1996], citing Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369-370, 526 NYS2d 56). Application of the doctrine should be made "only when failure to do so would operate to defeat a right legally and rightfully obtained" ( Scheurer v New York City Employees' Retirement Sys., citing, Matter of Hauben v Goldin, 74 AD2d 804, 805, 426 NYS2d 273). "It cannot operate to create a right . . . Nor can it operate to relieve one from the mandatory operation of a statute" (Scheurer, supra). Lastly, "[t]he courts must weigh the degree of manifest injustice against the effect, in the particular case, of intervention into the public processes" (Scheurer, supra). And, in such unusual factual situations, the Court must determine that certain conditions are initially satisfied: the governmental body "must know the facts ... he must intend that his conduct shall be acted on ... the [other party] must be ignorant of the true facts; and ... he must rely on the former's conduct to his injury" (Brennan v New York City Housing Auth., 72 AD2d 410, 424 NYS2d 687 [1st Dept 1980]).
Here, it is uncontested that petitioner's TRS service credits accrued during her simultaneous membership in NYCERS, which is strictly prohibited by NYC Admin. Code § 13-184. Therefore, TRS's determination was not arbitrary, capricious or irrational.
Brennan v New York City Housing Auth., cited by petitioner, is not controlling. In Brennan, plaintiffs with years of service on the Housing Authority's police force were New York State residents at the time of their appointment. The examination taken prior to appointment did [*6]not specify a residence requirement, other examinations given at the same time for other peace officer positions specified residence in certain areas within New York State. Thereafter each purchased a home in New Jersey and Connecticut and lived there for an average of seven years. Parenthetically, several plaintiffs have resided out of State for over 15 years. "Most, if not all, moved only after receiving assurances from superior officers that their then contemplated move was lawful. Prior to moving, these officers were aided by defendant in securing mortgages on their property. After their moves, defendant rendered further aid by securing New York State driver's licenses and domiciliary pistol permits for plaintiffs." (Emphasis added).
The Court held that it was "evident that defendant Housing Authority knew the residential status of their employees, and the law applicable to them. The open publication of examinations for entry level and promotional positions without a residence requirement, coupled with the affirmative aid given by defendant prior and subsequent to the out-of-State relocations rendered foreseeable plaintiffs' reliance thereon."
It cannot be said that the alleged knowledge that TRS had about petitioner's then current enrollment in NYCERS was evident. While petitioner's TRS application provided information about her enrollment in NYCERS, the application actually calls for "prior" service. Petitioner's alleged conversations with TRS representatives of being informed that she would receive two pensions, in and of themselves, are insufficient to rise to the level of knowledge by TRS that she was simultaneously enrolled in NYCERS. Nor are such representations inconsistent with the position TRS now takes to cancel her membership; NYC Admin. Code § 13-184 bars simultaneous membership; not the receipt of two pensions. It does not appear that petitioner would be precluded from receiving two city pensions if she did not earn such service credits simultaneously. And, petitioner points to no affirmative action undertaken by TRS prior to her application for retirement, in assisting her to maintain simultaneous membership in both pensions from NYCERS and TRS.
Further, the Court notes that petitioner's allegation that she had been repeatedly informed that she would receive a TRS pension is vague and conclusory. In any event, errors in opinions made by pension fund employees cannot bind the pension fund (Zucker v New York City Emp. Retirement Sys., 27 AD2d 207, 277 NYS2d 978 [1st Dept 1967]; Distelman v Regan, 128 AD2d 935, 512 NYS2d 586 [3d Dept 1987] (stating that "[t]he doctrine of estoppel will not reach so far as to hold an individual eligible for vested retirement where by statute, he clearly does not qualify for such eligibility")).
Unlike the case cited by petitioner, Eden v Board of Trustees of State University (49 AD2d 277, 374 NYS2d 686 [2d Dept 1975]), estoppel did not operate so to compel the governmental agency from violating any Administrative or statutory laws (Eden, granting petitioners/applicants application for estoppel and to compel respondent to operate a podiatry school, where they were accepted into respondent's podiatry program, but later told that the opening of school "has been deferred"); Tamulinas v Board of Educ. of Jericho Union Free School Dist., 279 AD2d 527, 719 NYS2d 660 [2d Dept 2001] (annulling NYCER's determination that petitioner was not eligible for retroactive membership, after "she was specifically misinformed that she was not eligible to join the TRS" notwithstanding her "right to join the TRS").
The Court further notes that petitioner's claim of financial hardship is belied by the fact [*7]that she is receiving her NYCERS pension and was reimbursed her contributions into TRS. Also, her claim that she would have worked in the private sector had she known she was ineligible to receive two pensions is conclusory and unsupported by the record.
Finally, as to the failure of TRS to provide petitioner with a waiver, petitioner's failure to execute such a waiver does not entitle her to receive pension benefits to which she is not entitled or for which she is not qualified. Since no City pension fund member can earn service credits from both funds simultaneously, whether petitioner signed a waiver is inconsequential.
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Dated: April 4, 2011______________________________________
Hon. Carol Robinson Edmead, J.S.C.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Footnotes
Footnote 1:According to the "Record of Prior Service" attached to petitioner's TRS enrollment form, she began working as a substitute teacher from November 1989.
Footnote 2: In connection with her retirement from the DOE, petitioner filed an retirement application with TRS, dated October 21, 2009, requesting that she be retired as of October 29, 2009.
Footnote 3: Petitioner is currently receiving retirement benefits from NYCERS.
Saturday, April 16, 2011
Who Are "Bad" Teachers?
The Myth of the “Crappy Teacher”
By: Crystal Sylvia
Date Published: March 11, 2011
LINK
On February 2, I attended a forum at the Fordham Institute titled “Are Bad Schools Immortal?” One of the speakers was Jeanne Allen, founder and president of the Center for Education Reform, which promotes “school choice,” a.k.a. charter schools and vouchers.
In her talk (at 56:27), Allen stated that she had recently visited an underperforming public high school in Philadelphia. To make the point about how awful this school was, she claimed that it had been open for 35 years yet “has never graduated one child who has actually gone to college.” When I challenged Allen on this outrageous claim she then said that “no child has graduated from college in 35 years.”
The purpose of both statements was to show how rotten and entrenched some public schools are. Allen’s story sounded made up to me; it would have been a monumental feat for a high school to track all of its students’ post high school lives for thirty-five years. I asked Allen for the name of the school and, not surprisingly, she said she didn’t remember.
This is not an isolated incident, as vilifying unions and teachers has become the focal point of corporate education reform. Michelle Rhee spent much of her time ”transforming” DC Public Schools (DCPS) by creating stereotypes that they were filled with incompetent teachers who were failing children. The claim was that these teachers had jobs for life, no matter how badly they performed, because the adult-serving, anti-child teachers’ union protected them.
In interviews and at countless speaking engagements, Rhee shared anecdotal stories about her experience walking into different DCPS classrooms and seeing “crappy teachers.” She recounted numerous stories of parents and students begging her to get ”good teachers” into the classrooms. The public was appalled by these stories, and this gave Rhee the upper hand in union contract negotiations, which she was using to try and secure a first-of-its-kind contract that gutted tenure and tied pay to performance. This, after all, was a public relations battle.
Attacks on welfare
Rhee and Allen’s attacks on teachers and unions are reminiscent of Ronald Reagan’s attacks on welfare, in which he promoted a stereotype of welfare recipients who were cheating the system, living high off the hog, and popping out babies just to collect more money. During Reagan’s 1976 presidential campaign he talked about a woman from Chicago who received welfare benefits:
“She has eighty names, thirty addresses, twelve Social Security cards and is collecting veteran’s benefits on four non-existing deceased husbands. And she is collecting Social Security on her cards. She’s got Medicaid, getting food stamps, and she is collecting welfare under each of her names. Her tax-free cash income is over $150,000.”
Even though this story was never corroborated, its repetition and others like it left an indelible image in the minds of people in the US and helped to shape the punitive welfare reform laws that were passed years later.
Susan Douglas, Professor of Communication Studies at the University of Michigan, offered an excellent analysis of Reagan’s strategy:
“He specialized in the exaggerated, outrageous tale that was almost always unsubstantiated, usually false, yet so sensational that it merited repeated recounting… and because his ‘examples’ of welfare queens drew on existing stereotypes of welfare cheats and resonated with news stories about welfare fraud, they did indeed gain real traction.”
This strategy of manufacturing facts or finding a think tank to support an agenda is also employed by many proponents of the corporate education model. It is used as a way to not only attack teachers’ unions, but to go after public schools in general, and push through privatization measures such as charter schools and vouchers.
Rhee has repeated outrageous anecdotes about abysmal teachers, and has also made statements that are not supported by statistics or studies in order to further her goals. In “How to Fix Our Schools: A Manifesto,” which was signed by sixteen school district chiefs, including Rhee, and was published in the Washington Post on October 10, 2010, it stated: “As President Obama has emphasized, the single most important factor determining whether students succeed in school is not the color of their skin or their ZIP code or even their parents’ income—it is the quality of their teacher.”
In this case, not only had the original statement been distorted—President Obama had said that teachers were the most important factor inside the school—the claim was not supported by any studies or data. As Diane Ravitch writes, “The single biggest correlate with low academic achievement—contrary to the film Waiting for Superman—is poverty.”
Yet because it has been reiterated over and over again, the myth of the “crappy teacher,” like the myth of the “welfare queen,” is now a common misconception.
For more on this issue, see "The 'Bad' Teacher"
The "Bad" Teacher
Teachers & Parents for Real Education Reform"
An initiative of teachers and parents in the DC Public Schools aimed at improving the quality of teaching and learning. We aim to get the administration and the union focused on what matters -- support for high quality teaching.
LINK
They are infamous. Countless newspaper stories have been written about them. DC school leaders and politicians include classroom horror stories about them in their speeches. Parents lament about them. They are assailed in e-mail posts and comment sections of articles and blog postings. They’ve even gotten attention nationwide with the recent spotlight on DCPS’ chancellor in the national media.
Lazy, incompetent, irresponsible and selfish are some words used to describe them. They are touted right now as being the primary obstacle to DCPS reform efforts. Who are they? The “bad” DCPS teachers, of course.
Anyone who has worked in DCPS or has had their children enrolled in the public schools has encountered teachers who should be removed from the classroom ASAP.
But how many “bad” teachers are there? The hype created by our school leaders, politicians and reporters would lead one to believe that most DCPS teachers are abject failures while only a small minority are really good. The few great teachers are described as mostly young and are talked about in saint-like terms. Anecdotal stories are told about how these extraordinary teachers struggle with the burdens of working in schools with a bunch of professional rejects.
However, the reality is quite different. While bad DCPS teachers exist, they are not the majority. Teachers have become an easy scapegoat for a reform effort that doesn’t understand the complexities of the problems facing DCPS. If we look closer, we see a failed system that has left the majority of teachers overwhelmed without the proper supports or the necessary training to overcome the tremendous obstacles that the children present.
Complicating matters, the Washington Teachers Union appears to rigidly defend all teachers, including the “bad” ones. This feeds into the stereotype that the Union doesn’t care about children, but is only concerned with protecting jobs. Our school leaders take advantage of this, framing the reform debate in these terms: eroding or even eliminating tenure is the only way to rid the system of the incompetents. Can’t we get rid of bad teachers without depriving all teachers of their due process rights?
Along with this massive firing campaign, huge salary increases are being proposed as the primary way to improve academic instruction. If you oppose this you are labeled an obstructionist who is interested in only preserving the status quo.
It is not that simple. Almost doubling teachers’ salaries will not magically make them better able to teach students who are disruptive nor will it make it easier to teach students who are several grade levels behind. These are the tougher issues that need to be addressed before any reform can be successful.
Posted by Crystal Sylvia at 8:46 PM
11 comments:
Anonymous said...
Great question--how many bad teachers are there?
Rhee's constant finger pointing to the bad DCPS teachers is like a broken record.
I guess she learned from George Bush. Just keep repeating it, no matter how untrue, and people will believe it.
How many American's still believe that Iraq had weapons of mass destruction and links to Al Qaeda after 9/11?
Unfortunately, it seems to be working.
November 16, 2008 4:41 PM
Anonymous said...
Yes- How many? I have taught in DCPS for 15 years and have had three children go through the system. I have encountered some "bad" teachers, but I have met many more great ones. This is all part of the negative propaganda that is everywhere- today's Parade Magazine, The News Hour and just about every issue of the Washington post. The idea that getting rid of bad teachers will fix the system sounds good to some- it is a quick fix. Unfortunately, it is not the solution. Supporting teachers in becoming great teachers, and implementing a fair evaluation process is one part of what is necessary to improve education for the District's children.
November 16, 2008 8:28 PM
The Washington Teacher said...
The tactics that Rhee and company are using are called union busting 101. One of the main tactics used to break unions is the divide and conquer tactic. Typically employers who engage in these tactics pit a group of employees against one another such as old versus young, men vs. women, etc. They get a group of employees to turn against their own union in support of the organization they work for . They even use unethical and illegal methods such as paying union members to advocate their cause. Sound familiar? They use other psychological tactics like I am your friend, don't let your union get in the way of our great relationship as I really care about your welfare.
These tactics have nothing to do with student achievment or bad or good teachers. The goal is to outsource and privatize as many jobs as they can. Unions are an impediment to their ultimate goal of privatization. Ask the United Federation of Teachers (UFT) in New York about Joel Klein and company. It is all about capitalism. If they can privatize and get more contracts - union busters can make lots more money with plenty of million dollar contracts going to their already wealthy friends and associates.
Contrary to what many in this city think, teachers unions work for not only workers but they also support what is in the educational best interests of our students such as limits on class size ratios which Rhee has failed to adhere to with class sizes of 40 and up. They also support improved working conditions which helps facilitate student learning in the classroom. Unions also provide professional development and teacher centers which help to support teachers in the classroom. The reform model (peer assistance and review) on this blog which is implemented in counties such as P.G. and Mongomery has been spearheaded by teacher unions.
Please check out my blog on union busting 101 and other educational issues @ http://www.thewashingtonteacher.blogspot.com/
November 16, 2008 10:36 PM
gt said...
Excellent points made. No matter how good or saint-like you are, the current status of our challenge chews up and spits out many quality individuals who cannot deal with the variety of obstacles we face. Bring in all the new folks you want. Unless we also focus on problems such as school discipline and rampant absenteeism (to name just a few), our district will continue to tread water.
November 16, 2008 11:11 PM
The Educator said...
I absolutely love your post! You should share with the WashPo. I am in a school with a mix of veteran and (mostly)new teachers. We have exactly 2 "bad" teachers. Everyone knows it but only the administration (principal) can do anything about and he has chosen not to do ANYTHING! So whose fault is it that the "bad" teachers are still teaching our children... surely not the teachers (good or bad). Our principals have to do their jobs with a take no prisoners attitude because our children are at stake!
November 17, 2008 8:17 AM
Ame in DC said...
We have one in my building -- out of about 30.
November 17, 2008 6:37 PM
Anonymous said...
I think there are also reasons that schools keep under-performing teachers that are unfortunately necessary. Huge teacher shortages force principals to hire who they can find, not necessarily who they want, and the angry anti-teacher rhetoric of late has only mad this worse. Many schools are currently so desperate to fill vacancies they'll take what they can get.
November 17, 2008 6:59 PM
Anonymous said...
I am concerned about the effect of the constant teacher bashing on the morale of teachers and the overall school climate. Add to this the constant drumbeat of directives from on high to teach to the test. And finally overstretched principals having to look over their shoulders for fear of a Friday afternoon meeting with the chancellor that could mean getting the boot.
November 17, 2008 10:01 PM
Anonymous said...
At one school the PTA I was a board member of documented 14 teachers who we requested the principal fire.
I believe that about 60% of DCPS teachers are Bad teachers. Certainly the majority of DCPS teachers must be fired, that is inarguable, but I don't think it's more than 60%.
In some schools I know they fired almost all the teachers, and that's fine for Wards 7 and 8 where the teachers stopped caring, but over all, in the entire DCPS, I don't think more than 60% should lose their jobs.
December 7, 2008 11:42 PM
meaningful change said...
Previous poster- you should not throw around statistics that are not evidence based. Where did you get 60% from?
There are incompetent teachers in DCPS for sure but no way near 60%. I think some people just repeat the same lines over and over again until people start believing and repeating.
December 9, 2008 10:24 AM
Anonymous said...
If you're all such great teachers, then what are you afraid of? If the union were gone and you were allowed major pay raises for strong performance (not necessarily entirely through standardized testing, although other countries use it and it delivers results juuuust fine), wouldn't you want that? I know I would. That's why I quit being a teacher. No incentives. If you're dissing on Rhee, why don't you look at the turnaround she's brought about.
Here are some more stats for you:
"In 1989 U.S. dollars, only Switzerland, with $4,845 per pupil, spent more. Spain spent only $938 per student, compared to our $4,083. France spent $2,483. Japan and Germany--major economic competitors known for their excellent education--spent only $2,243 and $2,487 per pupil, respectively."
"In math, the only nation America outscored was Jordan, and in science only Jordan and Ireland. We were outscored by two countries full of poverty--including one with a large number of Palestinian refugees! In the math test, Americans averaged 55 percent correct, as opposed to 73 percent for Koreans and Taiwanese, 71 percent for Swiss and 70 percent for students of the former Soviet Union. Our scores were 2 points below Slovenia's and equal to Spain's."
Trends in Academic Progress: The Nation's Report Card
Digest of Education Statistics 1992.
February 28, 2009 11:44 PM
By: Crystal Sylvia
LINK
On February 2, I attended a forum at the Fordham Institute titled “Are Bad Schools Immortal?” One of the speakers was Jeanne Allen, founder and president of the Center for Education Reform, which promotes “school choice,” a.k.a. charter schools and vouchers.
In her talk (at 56:27), Allen stated that she had recently visited an underperforming public high school in Philadelphia. To make the point about how awful this school was, she claimed that it had been open for 35 years yet “has never graduated one child who has actually gone to college.” When I challenged Allen on this outrageous claim she then said that “no child has graduated from college in 35 years.”
The purpose of both statements was to show how rotten and entrenched some public schools are. Allen’s story sounded made up to me; it would have been a monumental feat for a high school to track all of its students’ post high school lives for thirty-five years. I asked Allen for the name of the school and, not surprisingly, she said she didn’t remember.
This is not an isolated incident, as vilifying unions and teachers has become the focal point of corporate education reform. Michelle Rhee spent much of her time ”transforming” DC Public Schools (DCPS) by creating stereotypes that they were filled with incompetent teachers who were failing children. The claim was that these teachers had jobs for life, no matter how badly they performed, because the adult-serving, anti-child teachers’ union protected them.
In interviews and at countless speaking engagements, Rhee shared anecdotal stories about her experience walking into different DCPS classrooms and seeing “crappy teachers.” She recounted numerous stories of parents and students begging her to get ”good teachers” into the classrooms. The public was appalled by these stories, and this gave Rhee the upper hand in union contract negotiations, which she was using to try and secure a first-of-its-kind contract that gutted tenure and tied pay to performance. This, after all, was a public relations battle.
Attacks on welfare
Rhee and Allen’s attacks on teachers and unions are reminiscent of Ronald Reagan’s attacks on welfare, in which he promoted a stereotype of welfare recipients who were cheating the system, living high off the hog, and popping out babies just to collect more money. During Reagan’s 1976 presidential campaign he talked about a woman from Chicago who received welfare benefits:
“She has eighty names, thirty addresses, twelve Social Security cards and is collecting veteran’s benefits on four non-existing deceased husbands. And she is collecting Social Security on her cards. She’s got Medicaid, getting food stamps, and she is collecting welfare under each of her names. Her tax-free cash income is over $150,000.”
Even though this story was never corroborated, its repetition and others like it left an indelible image in the minds of people in the US and helped to shape the punitive welfare reform laws that were passed years later.
Susan Douglas, Professor of Communication Studies at the University of Michigan, offered an excellent analysis of Reagan’s strategy:
“He specialized in the exaggerated, outrageous tale that was almost always unsubstantiated, usually false, yet so sensational that it merited repeated recounting… and because his ‘examples’ of welfare queens drew on existing stereotypes of welfare cheats and resonated with news stories about welfare fraud, they did indeed gain real traction.”
This strategy of manufacturing facts or finding a think tank to support an agenda is also employed by many proponents of the corporate education model. It is used as a way to not only attack teachers’ unions, but to go after public schools in general, and push through privatization measures such as charter schools and vouchers.
Rhee has repeated outrageous anecdotes about abysmal teachers, and has also made statements that are not supported by statistics or studies in order to further her goals. In “How to Fix Our Schools: A Manifesto,” which was signed by sixteen school district chiefs, including Rhee, and was published in the Washington Post on October 10, 2010, it stated: “As President Obama has emphasized, the single most important factor determining whether students succeed in school is not the color of their skin or their ZIP code or even their parents’ income—it is the quality of their teacher.”
In this case, not only had the original statement been distorted—President Obama had said that teachers were the most important factor inside the school—the claim was not supported by any studies or data. As Diane Ravitch writes, “The single biggest correlate with low academic achievement—contrary to the film Waiting for Superman—is poverty.”
Yet because it has been reiterated over and over again, the myth of the “crappy teacher,” like the myth of the “welfare queen,” is now a common misconception.
For more on this issue, see "The 'Bad' Teacher"
The "Bad" Teacher
Teachers & Parents for Real Education Reform"
An initiative of teachers and parents in the DC Public Schools aimed at improving the quality of teaching and learning. We aim to get the administration and the union focused on what matters -- support for high quality teaching.
LINK
They are infamous. Countless newspaper stories have been written about them. DC school leaders and politicians include classroom horror stories about them in their speeches. Parents lament about them. They are assailed in e-mail posts and comment sections of articles and blog postings. They’ve even gotten attention nationwide with the recent spotlight on DCPS’ chancellor in the national media.
Lazy, incompetent, irresponsible and selfish are some words used to describe them. They are touted right now as being the primary obstacle to DCPS reform efforts. Who are they? The “bad” DCPS teachers, of course.
Anyone who has worked in DCPS or has had their children enrolled in the public schools has encountered teachers who should be removed from the classroom ASAP.
But how many “bad” teachers are there? The hype created by our school leaders, politicians and reporters would lead one to believe that most DCPS teachers are abject failures while only a small minority are really good. The few great teachers are described as mostly young and are talked about in saint-like terms. Anecdotal stories are told about how these extraordinary teachers struggle with the burdens of working in schools with a bunch of professional rejects.
However, the reality is quite different. While bad DCPS teachers exist, they are not the majority. Teachers have become an easy scapegoat for a reform effort that doesn’t understand the complexities of the problems facing DCPS. If we look closer, we see a failed system that has left the majority of teachers overwhelmed without the proper supports or the necessary training to overcome the tremendous obstacles that the children present.
Complicating matters, the Washington Teachers Union appears to rigidly defend all teachers, including the “bad” ones. This feeds into the stereotype that the Union doesn’t care about children, but is only concerned with protecting jobs. Our school leaders take advantage of this, framing the reform debate in these terms: eroding or even eliminating tenure is the only way to rid the system of the incompetents. Can’t we get rid of bad teachers without depriving all teachers of their due process rights?
Along with this massive firing campaign, huge salary increases are being proposed as the primary way to improve academic instruction. If you oppose this you are labeled an obstructionist who is interested in only preserving the status quo.
It is not that simple. Almost doubling teachers’ salaries will not magically make them better able to teach students who are disruptive nor will it make it easier to teach students who are several grade levels behind. These are the tougher issues that need to be addressed before any reform can be successful.
Posted by Crystal Sylvia at 8:46 PM
11 comments:
Anonymous said...
Great question--how many bad teachers are there?
Rhee's constant finger pointing to the bad DCPS teachers is like a broken record.
I guess she learned from George Bush. Just keep repeating it, no matter how untrue, and people will believe it.
How many American's still believe that Iraq had weapons of mass destruction and links to Al Qaeda after 9/11?
Unfortunately, it seems to be working.
November 16, 2008 4:41 PM
Anonymous said...
Yes- How many? I have taught in DCPS for 15 years and have had three children go through the system. I have encountered some "bad" teachers, but I have met many more great ones. This is all part of the negative propaganda that is everywhere- today's Parade Magazine, The News Hour and just about every issue of the Washington post. The idea that getting rid of bad teachers will fix the system sounds good to some- it is a quick fix. Unfortunately, it is not the solution. Supporting teachers in becoming great teachers, and implementing a fair evaluation process is one part of what is necessary to improve education for the District's children.
November 16, 2008 8:28 PM
The Washington Teacher said...
The tactics that Rhee and company are using are called union busting 101. One of the main tactics used to break unions is the divide and conquer tactic. Typically employers who engage in these tactics pit a group of employees against one another such as old versus young, men vs. women, etc. They get a group of employees to turn against their own union in support of the organization they work for . They even use unethical and illegal methods such as paying union members to advocate their cause. Sound familiar? They use other psychological tactics like I am your friend, don't let your union get in the way of our great relationship as I really care about your welfare.
These tactics have nothing to do with student achievment or bad or good teachers. The goal is to outsource and privatize as many jobs as they can. Unions are an impediment to their ultimate goal of privatization. Ask the United Federation of Teachers (UFT) in New York about Joel Klein and company. It is all about capitalism. If they can privatize and get more contracts - union busters can make lots more money with plenty of million dollar contracts going to their already wealthy friends and associates.
Contrary to what many in this city think, teachers unions work for not only workers but they also support what is in the educational best interests of our students such as limits on class size ratios which Rhee has failed to adhere to with class sizes of 40 and up. They also support improved working conditions which helps facilitate student learning in the classroom. Unions also provide professional development and teacher centers which help to support teachers in the classroom. The reform model (peer assistance and review) on this blog which is implemented in counties such as P.G. and Mongomery has been spearheaded by teacher unions.
Please check out my blog on union busting 101 and other educational issues @ http://www.thewashingtonteacher.blogspot.com/
November 16, 2008 10:36 PM
gt said...
Excellent points made. No matter how good or saint-like you are, the current status of our challenge chews up and spits out many quality individuals who cannot deal with the variety of obstacles we face. Bring in all the new folks you want. Unless we also focus on problems such as school discipline and rampant absenteeism (to name just a few), our district will continue to tread water.
November 16, 2008 11:11 PM
The Educator said...
I absolutely love your post! You should share with the WashPo. I am in a school with a mix of veteran and (mostly)new teachers. We have exactly 2 "bad" teachers. Everyone knows it but only the administration (principal) can do anything about and he has chosen not to do ANYTHING! So whose fault is it that the "bad" teachers are still teaching our children... surely not the teachers (good or bad). Our principals have to do their jobs with a take no prisoners attitude because our children are at stake!
November 17, 2008 8:17 AM
Ame in DC said...
We have one in my building -- out of about 30.
November 17, 2008 6:37 PM
Anonymous said...
I think there are also reasons that schools keep under-performing teachers that are unfortunately necessary. Huge teacher shortages force principals to hire who they can find, not necessarily who they want, and the angry anti-teacher rhetoric of late has only mad this worse. Many schools are currently so desperate to fill vacancies they'll take what they can get.
November 17, 2008 6:59 PM
Anonymous said...
I am concerned about the effect of the constant teacher bashing on the morale of teachers and the overall school climate. Add to this the constant drumbeat of directives from on high to teach to the test. And finally overstretched principals having to look over their shoulders for fear of a Friday afternoon meeting with the chancellor that could mean getting the boot.
November 17, 2008 10:01 PM
Anonymous said...
At one school the PTA I was a board member of documented 14 teachers who we requested the principal fire.
I believe that about 60% of DCPS teachers are Bad teachers. Certainly the majority of DCPS teachers must be fired, that is inarguable, but I don't think it's more than 60%.
In some schools I know they fired almost all the teachers, and that's fine for Wards 7 and 8 where the teachers stopped caring, but over all, in the entire DCPS, I don't think more than 60% should lose their jobs.
December 7, 2008 11:42 PM
meaningful change said...
Previous poster- you should not throw around statistics that are not evidence based. Where did you get 60% from?
There are incompetent teachers in DCPS for sure but no way near 60%. I think some people just repeat the same lines over and over again until people start believing and repeating.
December 9, 2008 10:24 AM
Anonymous said...
If you're all such great teachers, then what are you afraid of? If the union were gone and you were allowed major pay raises for strong performance (not necessarily entirely through standardized testing, although other countries use it and it delivers results juuuust fine), wouldn't you want that? I know I would. That's why I quit being a teacher. No incentives. If you're dissing on Rhee, why don't you look at the turnaround she's brought about.
Here are some more stats for you:
"In 1989 U.S. dollars, only Switzerland, with $4,845 per pupil, spent more. Spain spent only $938 per student, compared to our $4,083. France spent $2,483. Japan and Germany--major economic competitors known for their excellent education--spent only $2,243 and $2,487 per pupil, respectively."
"In math, the only nation America outscored was Jordan, and in science only Jordan and Ireland. We were outscored by two countries full of poverty--including one with a large number of Palestinian refugees! In the math test, Americans averaged 55 percent correct, as opposed to 73 percent for Koreans and Taiwanese, 71 percent for Swiss and 70 percent for students of the former Soviet Union. Our scores were 2 points below Slovenia's and equal to Spain's."
Trends in Academic Progress: The Nation's Report Card
Digest of Education Statistics 1992.
February 28, 2009 11:44 PM
Friday, April 8, 2011
The Domino Effect: David Steiner, NYS Commissioner of Education, Announces His Resignation The Same Day As Cathie Black Says She's Gone
April 8, 2011
Ah, the domino effect! Howard [Wolfson] are you running for cover?
What I see is this: the total failure of the Bloomberg political machine. Mike, why not get out while you can? I actually believe it's too late for your saving any part of your agenda, and anyone who aligns with you will be embarrassed for doing so.
By the way, Madoff is talking.......
Betsy Combier
David Steiner to resign as education chief
Cara Matthews
Gannett Albany Bureau
LINK
ALBANY — David Steiner, the state's education commissioner, announced his resignation Thursday after less than two years in the job.
The news came the same day that New York City Schools Chancellor Cathleen Black abruptly resigned, and as the state Board of Regents is working in earnest on a policy to reform the way teachers and principals are evaluated.
Steiner, considered a national leader in education reform, said in a statement Thursday that he intends to leave the $250,000-a-year post later this year. He has informed the Board of Regents, which he reports to, and he pledged to work with Regents to "plan for a seamless transition."
"As the end of the school year and the legislative session approaches, I am immensely proud of the reforms we've achieved — guiding New York's successful Race to the Top application, designing a new teacher and school leader evaluation system, reforming teacher preparation and certification and implementing a tough re-setting of our 3-8 tests," he said in a statement.
The Board of Regents appointed Steiner in the summer of 2009 as the state's 13th education commissioner. He started Oct. 1 that year.
Steiner drew fire last November when he approved a waiver that allowed Black to become chancellor of New York City schools, even though the publishing executive didn't have any experience or credentials as an educator. Black has had a rocky tenure, culminating in an approval rating of just 17 percent in a Quinnipiac University poll released Thursday.
Steiner told the Associated Press that the resignations were unrelated and it was just a coincidence they were announced on the same day.
Regents Chancellor Merry Tisch said Thursday that the Regents would "begin an orderly transition" in the coming weeks and continue pursuing its reform agenda.
The Board of Regents has until July 1 to set up the new evaluation system for math and English teachers in grades 4 to 8 and their respective principals for the 2011-12 school year. The rest of the teachers and principals will start participating in the new evaluations in 2012-13.
Gov. Andrew Cuomo wants lawmakers to speed up the process so all teachers and principals will fall under the new system in 2011-12, but it is unclear whether the legislation will move forward.
CLMATTHE@Gannett.com
Ah, the domino effect! Howard [Wolfson] are you running for cover?
What I see is this: the total failure of the Bloomberg political machine. Mike, why not get out while you can? I actually believe it's too late for your saving any part of your agenda, and anyone who aligns with you will be embarrassed for doing so.
By the way, Madoff is talking.......
Betsy Combier
David Steiner to resign as education chief
Cara Matthews
Gannett Albany Bureau
LINK
ALBANY — David Steiner, the state's education commissioner, announced his resignation Thursday after less than two years in the job.
The news came the same day that New York City Schools Chancellor Cathleen Black abruptly resigned, and as the state Board of Regents is working in earnest on a policy to reform the way teachers and principals are evaluated.
Steiner, considered a national leader in education reform, said in a statement Thursday that he intends to leave the $250,000-a-year post later this year. He has informed the Board of Regents, which he reports to, and he pledged to work with Regents to "plan for a seamless transition."
"As the end of the school year and the legislative session approaches, I am immensely proud of the reforms we've achieved — guiding New York's successful Race to the Top application, designing a new teacher and school leader evaluation system, reforming teacher preparation and certification and implementing a tough re-setting of our 3-8 tests," he said in a statement.
The Board of Regents appointed Steiner in the summer of 2009 as the state's 13th education commissioner. He started Oct. 1 that year.
Steiner drew fire last November when he approved a waiver that allowed Black to become chancellor of New York City schools, even though the publishing executive didn't have any experience or credentials as an educator. Black has had a rocky tenure, culminating in an approval rating of just 17 percent in a Quinnipiac University poll released Thursday.
Steiner told the Associated Press that the resignations were unrelated and it was just a coincidence they were announced on the same day.
Regents Chancellor Merry Tisch said Thursday that the Regents would "begin an orderly transition" in the coming weeks and continue pursuing its reform agenda.
The Board of Regents has until July 1 to set up the new evaluation system for math and English teachers in grades 4 to 8 and their respective principals for the 2011-12 school year. The rest of the teachers and principals will start participating in the new evaluations in 2012-13.
Gov. Andrew Cuomo wants lawmakers to speed up the process so all teachers and principals will fall under the new system in 2011-12, but it is unclear whether the legislation will move forward.
CLMATTHE@Gannett.com
Thursday, April 7, 2011
Cathie Black Leaves, A Major Embarrassment To Mike Bloomberg
By SALLY GOLDENBERG, DAVID SEIFMAN and YOAV GONEN, NY POST
April 7, 2011
LINK
Mayor Bloomberg’s embattled, hand-picked schools chancellor, Cathie Black, is out after just 96 days on the job.
One source said Bloomberg made the decision himself and told Black of it during a meeting this morning.
"He initiated the conversation," the source said.
Having no choice, Black agreed to go, the source added.
At a news conference at City Hall this morning, Bloomberg sugar-coated the decision, saying the two had "mutually agreed" it was time for her to go.
"I take full responsibility for the fact that this did not work out," he said.
Bloomberg said, "The story had really become about her and away from the kids and that's not right."
Despite that, Bloomberg also said he "thinks [Black] has done an admirable job."
"I have nothing but respect ... for the work she has done," he added.
Black will be replaced by Deputy Mayor Dennis Walcott, who has served as a cross between a chaperone and mentor to Black since the out-of-left-field announcement of her appointment was made Nov. 11.
The head of the teachers’ union sidestepped questions about his opinions of Black’s departure.
Asked what grade he’d give Black, United Federation of Teachers President Michael Mulgrew said, “She wasn’t in the class for a semester so it wouldn’t be correct for me to give her a grade.“
The former publishing executive’s brief tenure had been wracked by public gaffes, abysmal poll numbers and a steadily departing crew of top level cabinet officials.
Black, 66, who officially took over for former Schools Chancellor Joel Klein in January, has been plagued by low approval ratings over the past few months.
Earlier this week, a NY1/Marist College poll showed that just 17 percent of New Yorkers think she was doing a good job, while 61 percent would give her a failing grade.
Black's approval rating in a Quinnipiac University poll three weeks ago was a similarly abysmal 17 percent, with 49 percent wishing she'd leave.
Apparently, the sentiment was echoed by some inside the administration.
"This is very good news," said one mayoral insider. "The fallout from the Black appointment just got so untenable."
Black's brief tenure was marked by controversy from the get-go.
In January, Black, whose lack of education and government work had been controversial since her appointment, joked about using "birth control" to stem school overcrowding during a meeting with concerned Manhattan parents.
She also likened her hard choices to those of a Holocaust victim from the novel and movie "Sophie's Choice."
Black later personally apologized, but some people say she never quite rebounded from the fallout. Mayor Bloomberg defended her on that occasion.
"I think the comment she made to me and my neighborhood was the writing on the wall," said Community Board 1 chair Julie Menin.
At a meeting with students and parents in Brooklyn, Black again put her foot in her mouth.
As a chorus of boos greeted her at Brooklyn Tech HS this past February, Black mocked the crowd.
"I cannot speak if you are shouting," Black had said before mocking the crowd's response by repeating, "Ohhhhh."
Since Black took the helm of the nation's largest school system, four of the eight top deputies in place to support her have jumped ship -- include two just this week.
City Council Education Chairman Robert Jackson called Black’s sudden departure "a surprise," but he said it was "best overall for the city of New York and the children of New York City."
"I have high regards for Dennis Walcott," said Jackson. "I’ve known Dennis for over 20 years. "I know Dennis went to the public school system. I know as the deputy mayor he’s not going to lose his ground."
Black's replacement has plenty of education experience.
Walcott has worked as Deputy Mayor for Education and Community Development and was a former kindergarten teacher in Queens.
After joining the Bloomberg administration in 2002, he was the President and CEO of the New York Urban League. Walcott graduated from the University of Bridgeport in Connecticut with a Bachelor's degree and a Master of Education in 1973 and 1974, respectively, and in 1980, received his Master of Social Work from Fordham University.
Walcott, who served on the now-defunct Board of Education, said he is happy to have the job.
"I am a believer in reform and I am a believer in Mayor Bloomberg," he said.
Black this afternoon said she was happy and relieved, adding that she had gone out and bought a new pair of running shoes.
She also said she was happy to have served and praised Walcott.
Amber Sutherland contributed to this story
Goodbye, Cathie Black
Posted by Amy Davidson, April 7, 2011
LINK
There are many moments New Yorkers might focus on as they contemplate why Cathie Black, our improbable schools chancellor, is, as the Times reported, out already, just a few months after Mayor Bloomberg confused everyone by picking her. You don’t get a seventeen per cent approval rating without real effort.
But here’s my favorite, perhaps because it has to do with the particular zone my child is enrolled in, and also says something about the way the city has responded to the legacy of September 11th. As Black heard at a meeting with downtown parents (video above, via the Tribeca Tribune), the area around Ground Zero is, in many ways, doing inspiringly well: through some combination of resilience, urban stubborness, and construction-tax incentives, the population has doubled downtown. This means that the same schools that were evacuated on September 11th are now badly overcrowded. My child’s school, with many more kindergarteners than fifth graders, resembles one of those developing countries in which half the population is under the age of eighteen. Black’s answer?
Can we just have some birth control for once? It would really help us all out.
After some nervous laughter, a parent repeats that he’s talking about children who are already born. Black says, in effect, that things are tough all around—even on the Upper East side.
It is—and I don’t mean this in any flip way—it is many Sophie’s Choices.
Holocaust metaphors are rarely a good idea. The head of a public-school system using one that involves picking one child for the Nazis to send to the gas chambers—which was Sophie’s choice in the novel—is really not a good idea. I’ll be curious to see what Black does next.
Retrospective: The Cathie Black Gaffe-A-Thon
BY CELESTE KATZ, NY Daily News
From verbal gaffes to losing her temper, Cathie Black added fuel to her critics' fire soon after Mayor Bloomberg appointed her chancellor, reports our Education Team's Meredith Kolodner:
Public outrage accompanied her November appointment to replace outgoing chancellor Joel Klein, taking the form of public protests and a lawsuit to deny her the state waiver she needed to become chancellor.
But barely two weeks after her handlers released her from a month-long seclusion from public questions and interviews, she stepped into controversy.
At a meeting about massive overcrowding in lower Manhattan schools, the new chancellor, whose own children never attended public school, asked parents, "Could we just have some birth control for a while?...It would really help us."
There was more to come.
Hundreds of parents booed her at the next school policy meeting, waving condoms. Black managed to keep her cool through the meeting, but revealed her lack of familiarity with school matters by referring to long-time panel member Patrick Sullivan as "Mr. Cunningham."
At the next public meeting, where she was booed again, she let her annoyance get the best of her. She responded to the hecklers by mocking them, screwing up her face and mimicking them, "Oooooh." The clip played continuously on local television stations.
Her public appearances began to dwindle, and she was flanked wherever she did go by deputy mayor Dennis Walcott, who stepped into taking the substantial questions.
She further alienated principals, who complained she was not as responsive to emails as Klein had been, when she refused to overturn a decision to take half the money principals had saved for next year in anticipation of budget cuts.
By Monday, Cathie Black clocked in with an approval rating of 17%.
Some saw the writing on the wall early. The first deputy chancellor to jump ship - Photeine Anagnostopoulos, deputy chancellor for finance and technology - left the agency the day after Black was appointed.
Eric Nadelstern, who was essentially number two in command under Klein, resigned in January. He was followed by well-regarded veteran Santiago Taveras and wunderkind John White this week.
CATHIE BLACK TIMELINE
Nov. 9, 2010 - Schools Chancellor Joel Klein abruptly steps down, and city officials announce magazine exec Cathie Black as his surprisingly replacement. Since she lacks the proper education background, she'll require a waiver from the state Education Department.
Nov. 23, 2010 - An advisory board created by State Education Commissioner David Steiner gave a thumb's down to Black, unless a chief academic officer is appointed.
Nov. 26, 2010 - Mayor Bloomberg caves and appoints Deputy Chancellor Shael Polakow-Suransky as chief academic officer.
Nov. 29, 2010 - Steiner grants Black the necessary waiver. "I'm ready to roll up my sleeves and get going," she says.
Dec. 8, 2010 - A group of public school parents sued the state for granting Black the waiver, saying Steiner "acted unlawfully." An Albany judge affirmed Steiner's right to to make the call several weeks later.
Jan. 2, 2011 - On her first official day on the job, Black tours a school in each borough. "For me, this is a dream. It's a dream job, a dream opportunity, a chance to make a difference," she said.
Jan. 13, 2011 - Black's joke at a parent meeting about overcrowding bombed. "Could we just have some birth control for a while?" she asked.
Jan. 19, 2011 - Parents at an education policy meeting waved condoms at her in protest.
Feb. 1, 2011 - At another contentious meeting, Black lost her temper and replied "oooh" at parents who booed her.
April 4, 2011 - Deputy chancellor Santiago Taveras steps down, the third to leave during Black's brief tenure. An an NY1/Marist poll shows her approval rating is a dismal 17 %.
April 6, 2011 - Deputy chancellor John White announces he will also leave for a job heading New Orleans public schools.
April 7, 2011 - Black steps down.
State Education Commissioner Steiner next out after Cathie Black
BRENDAN SCOTT and YOAV GONEN, NY POST
Posted: 2:25 PM, April 7, 2011
Steiner, who drew fire for granting a critical waiver to let Cathie Black become city schools chief, will soon be the next education big to hit the road, state education sources told The Post this afternoon.
State Regents Chancellor Merryl Tisch confirmed during a radio interview this morning rumors that the former Hunter College dean was mulling an exit less than two years after taking the state's top education job.
Tisch insisted Steiner had not yet made a decision, but sources later told The Post that Steiner's departure was imminent.
"I have heard a lot about that," Tisch told the Syracuse-based public radio station, WCNY. "I believe that the commissioner is exploring other options, but no decision has been made."
The spokesman for the State Education Department said the agency had no immediate comment.
The Regents – in one of their first acts under Tisch's leadership - voted with great fanfare in July 2009 to elect Steiner commissioner, where he oversees the state's some 700 school districts and 240,000 certified educators.
The commissioner drew criticism in November for granting a waiver that allowed Cathie Black to serve as chancellor, even though she lacked formal education experience. A state court later upheld the waiver.