How The DOE and UFT Fail Teachers Who Receive "U" RATINGS

We know that the rubber rooms still exist, and people - "guilty" or not - can sit in these new semi-prisons for months and even years. The story is, they are told, they have to wait while the allegation is "investigated."

This is, in my opinion and experience, bulloney, and I've written about the Office of Special Investigations (OSI), the Special Commissioner of Investigation (SCI) and the Office of Equal Opportunity (OEO) before on this blog as well as on my website, Parentadvocates.org. All the people who work as "investigators" in any of these groups are, in my opinion, members of the Gotcha Squad. When given an allegation of misconduct the duty and responsibility of these agents are to substantiate the claim, not to find out if it is true or not.

The same is true of someone given a "U" rating. The principal and/or another designated person is given the responsibility to observe the person. Protocols in the contract may be in place, such as a pre-and post- observations and written reports given to the teachers at mandated conferences, but no one at the DOE, PIP+, or UFT enforces the Collective Bargaining Agreement in this area, so no one does anything if, indeed, the CBA is violated. 
Read the Chicago Teacher Observation Guidelines. (Thanks, Harvey!) 

The PIP+ program is a termination program, based on observations. The observation process has been criminalized, just like the misconduct category on the "Form 3020-a" that the Office of Legal Services under Director Theresa Europe and Naeemah Lamont (Administrative Trials Unit and Teacher Performance Unit, respectively) send out when they charge the employee with 3020-a. Ms. Europe and/or Ms. Lamont appoint a "charging attorney" to sift through the personnel file of the person who is targeted, and, when this attorney under their administration has enough so-called "evidence" to "prove" that the employee is indeed "guilty" of the incompetency (Lamont's group) or misconduct (Europe's group) at a minimal level, then NYSUT sends out the letter to the member telling him/her that NYSUT NYC Director Richard E.Casagrande has picked attorney X to represent him/her at 3020-a. A DOE Attorney told me that Claude Hersh is involved in picking the arbitrator for the case. Some arbitrators are pro-Union (NYSUT does not defend individual members at 3020-a) and others are pro-DOE, which shows when the so-called "evidence" is presented as well as when the decision is handed out for the case. 

Theresa Europe

The member then makes an appointment and hears that he or she will probably lose or pay a steep fine, and the best thing to do is resign, retire, get very sick and take permanent sick leave, or.....ooops, I mean the NYSUT Attorney will try to tell you gobblygook about the process and tell you not to discuss your case with anyone, including, but most importantly, with Betsy Combier, who will "get the member terminated if the member speaks with her." Several people have told me about these conversations, and I even have a statement on tape-recorded by a member who was assigned NYSUT Attorney Maria Elena Gonzalez Lichten about how harmful I am to members. I may post her recorded discussion on this blog shortly. I suggest you discard this as revenge for my posting information about the disastrous harm that both the UFT and NYSUT do to the members. You decide, but ask your NYSUT Attorney how many of their clients win at 3020-a arbitration under their management and control.

If the UFT and/or NYSUT wanted to stop the criminalization of the observation process, the people who work under these titles should have brought to the table the ruling by the New York State Supreme Court and Appellate Division in the matter of Elentuck v Green, wherein both Courts ruled that there are no facts in observations...."The lesson observation reports consisted solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance.":

In the Matter of Harvey M. Elentuck, appellant, v. Richard R. Green, etc., et al., respondents.

92-04493

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

202 A.D.2d 425; 608 N.Y.S.2d 701; 1994 N.Y. App. Div. LEXIS 1956

February 14, 1994, Argued
March 7, 1994, Decided

CASE SUMMARY

PROCEDURAL POSTURE: In a proceeding pursuant to N.Y. C.P.L.R. art. 78 to compel respondents to give petitioner teacher access to certain documents, the teacher appealed, from so much of an order of the Supreme Court, Kings County (New York), which, upon reargument, adhered to its original determination, which granted the petition only to the extent of permitting the teacher access to certain hearing panel reports prepared pursuant to N.Y. Educ. Law § 3020-a.

OVERVIEW: The teacher sought disclosure, pursuant to the Freedom of Information Law, N.Y. Pub. Off. Law art. 6, of various documents related to the termination of his employment. On appeal, the court affirmed the trial court's decision. The Chancellor's Committee reports consisted of findings and recommendations regarding personnel actions to be taken by the board of education. The reports were prepared to assist the chancellor and were not binding. The hearing panel reports relating to N.Y. Educ. Law § 3020-a consisted of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, were not binding on either the board of education or the commissioner of education, and did not constitute final agency determinations. Thus, the requested Chancellor's Committee reports and hearing panel reports were pre-decisional material exempt from disclosure under N.Y. Pub. Off. Law § 87(2)(g).The lesson observation reports consisted solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fell squarely within the protection of § 87(2)(g)

OUTCOME: The court affirmed the trial court's decision, which granted the teacher's petition only to the extent of permitting the teacher access to certain hearing panel reports and, which denied the teacher's petition with respect to the disclosure of the other documents.

CORE TERMS: hearing panel, recommendations, lesson, disclosure, binding

Administrative Law; Governmental Information; Freedom of Information; General Overview
Education Law; Departments of Education; State Departments of Education; Authority

Note 1: Chancellor's Committee reports, which consist of findings and recommendations regarding personnel actions to be taken by the Board of Education, are prepared to assist the Chancellor and are not binding. Similarly, hearing panel reports relating to N.Y. Educ. Law § 3020-a, which consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, Chancellor's Committee reports and hearing panel reports are pre-decisional material exempt from disclosure under N.Y. Pub. Off. Law § 87(2)(g).

Note 2: Lesson observation reports that consist solely of advice, criticisms, evaluations, and recommendations regarding lesson preparation and classroom performance fall squarely within the protection of N.Y. Pub. Off. Law § 87(2)(g).

COUNSEL:  [***1]  Harvey M. Elentuck, Jamaica, N.Y., appellant pro se.

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

JUDGES: GUY JAMES MANGANO, P.J., VINCENT PIZZUTO, MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, JJ.

OPINION

 [*425]   [**701]  DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the respondents to give the petitioner access to certain documents, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated February 11, 1992, as, upon reargument, adhered to its original determination in an order and judgment (one paper) of the same court dated November 16, 1989, which granted the petition only to the extent of permitting the petitioner access only to certain  [**702]  hearing panel reports prepared pursuant to Education Law § 3020-a.

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

The petitioner, who is a teacher, sought disclosure, pursuant  [*426]  to the Freedom of Information Law (see, Public [***2] Officers Law, art 6), of various documents related to the termination of his employment, including, inter alia, "all Chancellor's Committee reports, Education Law § 3020-a reports, and 'unsatisfactory' lesson observation reports in the possession of Community School District/Board 24". We find that the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law § 87[2][g]).


^HN1Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor and are not binding. Similarly, hearing panel reports relating to Education Law § 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are [***3]  pre-decisional material exempt from disclosure under Public Officers Law § 87(2)(g) (see, Matter of McAulay v Board of Educ. of City of N.Y., 61 AD2d1048, 403 N.Y.S.2d 116, affd 49 N.Y.2d 659; Matter of Herald Co. v School Dist. of City of Syracuse, 104Misc 2d 1041, 1046-1047, 430 N.Y.S.2d 460)
.

The ^HN2lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law § 87(2)(g) (see Matter of Town of Oyster Bay v Williams, 134 AD2d 267, 268, 520 N.Y.S.2d 599).

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

MANGANO, P.J., PIZZUTO, ALTMAN and KRAUSMAN, JJ., concur. 

MATTER OF McAULAY v. BD. OF EDUC. OF THE CITY OF NEW YORK

61 A.D.2d 1048 (1978)

In the Matter of Mary McAulay, Respondent,v.Board of Education of the City of New York et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 27, 1978

Titone, J. P., Rabin, Gulotta and Margett, JJ., concur.

---

Judgment reversed, on the law, without costs or disbursements, cross motion granted, and petition dismissed on the merits.

The petitioner teacher seeks disclosure, pursuant to the Freedom of Information Law (Public Officers Law, art 6), of documents prepared by or for a hearing panel which heard her appeal from an unsatisfactory rating. On the basis of the evidence gathered by the panel, the Chancellor sustained the appeal, reversed the unsatisfactory rating and ordered it expunged from her records. The Chancellor issued no written opinion. The documents sought by petitioner include, inter alia, those setting forth the panel's evaluation of the facts and issues, and its recommendations and reasoning. Special Term granted the petition. We reverse. The Freedom of Information Law, as recently amended (L 1977, ch 933, eff Jan. 1, 1978), specifically exempts intra- and inter-agency materials which are not: statistical or factual tabulations or data; instructions to staff that affect the public; or final agency policy or determination (Public Officers Law, § 87, subd 2, par [g]). Petitioner contends that the subject documents represent the application of agency policy and rules to a specific case and that to deny disclosure would allow appellants to perpetuate their tradition of maintaining a body of "secret agency law" in this area. Appellants, on the other hand, contend that the subject documents represent precisely the kind of predecisional information which is prepared in order to assist the decision-making process and, hence, exempt from disclosure. We agree with appellants. The hearing panel documents or report sought are not final agency determinations or policy. Rather, they are predecisional material, prepared to assist an agency decision maker (here, the Chancellor) in arriving at his decision. Only the latter has the legal authority to decide whether the rating should stand. The panel's recommendations and reasoning are not binding upon him and there is no evidence that he adopts its reasoning as his own when he adopts its conclusion. Petitioner's desire to bring to light the policies and rules governing the appellants' evaluation of what constitutes a satisfactory teacher is commendable. However, the real problem here, considering the administrative process set up in the appellant board's by-laws, is the absence of any obligation upon the Chancellor to explain his decisions. The Freedom of Information Law does not require an agency to develop a body of written law or policy. Nor does it permit us to substitute therefor a compilation of nonfinal recommendations which may be based upon reasoning rejected or never adopted by the ultimate decision maker, the disclosure of which might not only impinge upon the agency's predecisional processes, but affirmatively mislead the public. We note, too, that our holding today

[ 61 A.D.2d 1049 ]

accords with, and is in large part based upon, decisional law interpreting the Federal Freedom of Information Act (US Code, tit 5, § 552), upon which our statute is patterned (see Renegotiation Bd. v Grumman Aircraft, 421 U.S. 168;National Labor Relations Bd. v Sears, Roebuck & Co., 421 U.S. 132).

**************
 Therefore, if there are no facts in observations, how do so many teachers get terminated at 3020-a for having taken PIP+ (conclusions based upon observations of the RMC observer), or having one- or more - "U" ratings? I have been speaking out about the biased opinions of PIP+ observers for years, even though I was ordered by Mike Mendel at the UFT to support the program and urge members to sign up for the program. I couldn't do it.

Betsy Combier

Computer science teacher Peter Lamphere says he received a U-rating after challenging an administrator over school policy.

  Q&A With An 'Unsatisfactory' Teacher

By Kelly Virella, City Limits

LINK

In the debate over budget cuts, teacher layoffs and improving schools, much has been said about teachers who get “unsatisfactory” ratings. But little has been heard from those instructors.

Teachers Who Have Been Disciplined Get Tagged In Galaxy

Tweed Finds New Way to Harm Teachers: Flag them for Principals

MAY 16, 2012 PM31 3:10 PM

LINK

by Lynne Winderbaum, retired ESL teacher, JFK HS, and former Bronx High School UFT District Rep

Principal’s Weekly May 1, 2012
New Notification of Employee Disciplinary Flags
All schools

In accordance with the DOE’s effort to provide more comprehensive personnel information to principals, employees who have been the subject of disciplinary action will be identified with a flag symbol in Galaxy. The DOE is currently conducting a review of prior disciplinary cases and will be updating Galaxy with disciplinary flags as this review proceeds. Going forward, flags indicating employee disciplinary actions will be displayed in Galaxy.

Please note that access to this information is limited to principals and is confidential. You may share this information with your assistant principal(s) but you should not share this information with students, families, members of the community, or other staff members.

For questions, contact your senior field counsel or network HR director.

Somewhere in the middle of the Department of Education’s weekly advisory to New York City principal’s, this notice was buried. It may have escaped the notice of the union. It may have escaped the notice of almost all of the teachers and other employees whose careers would be affected. But it will not escape the notice of principals at hiring time who will now see certain applicants’ names boldly emblazoned with a flag. The flag, like the scarlet letter, identifies them as having been the subject of an allegation of misconduct. It does not mean that the employees have been found guilty of any wrongdoing, simply that they were accused and the subject of an investigation. In fact, many of them were never found guilty of anything or were forced to accept a file letter or fine to settle the charges of which they were innocent as a plea bargain. In that way, they could return to their livelihoods.
For now, the Department of Education is claiming that only those who have been subject to OSI or SCI investigations will be flagged. But no reading of this advisory precludes flagging any teacher or employee “going forward” who were simply “subjects of disciplinary actions” such as letters in file.
Branding teachers with a flag in Galaxy means that anyone seeking to work at a new school under the Open Market transfer plan or as an ATR whose school has closed and who is now seeking a new teaching assignment, will be denied an interview. As such, this constitutes a change in teachers’ working conditions. Article 19 H1 of the Collective Bargaining Agreement, signed by the Department of Education says that “The Chancellor or his/her designated representative shall meet and consult once a month during the school year with representatives of the Union on matters of educational policy and development and on other matters of mutual concern.” Did the DOE ever attempt to propose this policy change that will stain innocent teachers to the UFT? Or did they just think they could slip it into the middle of principal’s weekly and prevent teachers from gaining employment without the union’s notice? Was it a misunderstanding of the agreements they signed with the union or was it another blatant example of the pattern of disrespect for the UFT and its members that has been the DOE’s way of operating since mayoral control?
Surely, no one wants to see teachers convicted of serious misconduct in front of students. But they are flagging the names of many teachers who are currently working in classrooms because they have never been found guilty of allegations! As they comb through their records of Office of Special Investigations (OSI) and Special Commissioner of Investigation (SCI) probes, they will flag the names of many teachers who were innocent of charges but technically were “subject of disciplinary actions”. They may have signed stipulations that said that no admission of wrongdoing was implied but they would pay a fine or receive a letter to dispose of the matter. That way the DOE would not look like they penned a teacher in a rubber room for years on unfounded charges and the teacher could resume working. Win-win. But under this new policy, there could be belated consequences nonetheless.
As District Representative of Bronx High Schools for the UFT, I represented many members who accepted disciplinary actions as a plea bargain to make false charges against them go away so they could resume their jobs and leave the rubber room. More than anything, they wanted to spare their families any more torture and torment.
There was a middle aged teacher with a clean record out of Stevenson High School who was accused by a student of “humping her” on a daily basis as she sat on a stool in front of the class taking attendance as his monitor. Not a single child in the class witnessed this alleged action. But one friend who was not even in the class told investigators she saw it one day from the hallway. What prompted this horrific allegation? Her guidance counselor told her that morning she was failing this teacher’s class. So she came to his room, broke the glass on the door and shouted that she was going to get him. The OSI never interviewed the students in either the class where the misconduct supposedly took place or the class present when the ranting child broke the glass. OSI also failed to include the threat in their report. The teacher agreed to a U rating and a file letter in return for making it all go away and to go back to work. Well he will get a flag in Galaxy.
A world renowned music teacher at Kennedy HS who recorded with international stars was accused of harassment by a special education student a full year after an alleged incident. There were no witnesses or evidence to support the allegation. In fact, there were witnesses who testified to the emotional instability of the child. But the talented music teacher was removed from the classroom for a year and a half and finally agreed to a fine at 3020a to settle the case and return to work. It saved face for the DOE but such a teacher would now earn a flag. A former teacher at Astor Collegiate took a stipulation of settlement to make 3020a charges lodged by a female student go away. He admitted no guilt in the stipulation but he had to retire to get the deal. The student and her boyfriend had threatened to “get him fired” after he called her home. There was no corroborating evidence except the alleged victim and her boyfriend and the threat was not mentioned in the investigation. Flag for him.
A man with a successful business career made a mid-life career change to teach mathematics at Renaissance Theater HS. He wanted to “give back and make a contribution”. But his career was cut short when his principal tried to have him removed by urging students to come to her office and report him. A litany of minor incidents resulted such as “getting spittle” on a student while reprimanding him for misbehavior. That was described as “corporal punishment” and prompted a mandatory OSI investigation. He also took a stipulation to make it all end and left the system with charges dropped. A flag assures he will never come back.
A UFT chapter leader at Kennedy HS was totally exonerated of 3020a charges but accepted a letter to gain release from over a year in the rubber room. That is a “disciplinary action”. Flag.
Another chapter leader at Bronx Theater HS was exonerated at 3020a of serious charges brought by his principal but agreed to a letter and no finding of guilt to get of the rubber room after a year–the expeditious way an innocent man could get back to work and out from under an undeserved cloud. Flag anyway.
Then there are all the teachers detailed in the Thatcher Report which investigated the investigations. They were accused of helping students cheat on exams. The Thatcher Report was an embarrassment to the Board of Education because it found the investigations to be fatally flawed. They all went to the rubber room for months and were brought up on 3020a charges. The railroaded innocent teachers settled for letters in file to end the nightmare and were returned to the classroom. Do they take a flag?
A teacher at Stevenson ran afoul of her assistant principal and after a long, distinguished career inside and outside of the schools was brought up on charges of incompetence. Lacking evidence, the 3020a saved face by fining her and she accepted because, as a single mother, it returned her to work. Raise the flag on her.
I have represented many members who have agreed to fines, to letters in file, or to retire or resign to make the humiliation of the rubber room conditions end. They were not guilty of anything and the charges were not proven, but they could not foresee spending years under the shadow cast by the allegations and the pain it caused them and their families. Grab a flag, all of you.
And just because the Department contends that their unilateral actions will only apply to OSI and SCI investigations for the time being, doesn’t mean that the way the language of the policy is written precludes them from applying it to “disciplinary actions” such as file letters in the future, or removal from classrooms and suspensions of pay pending court cases in which the were acquitted. If we don’t stop it here, the implications of that would be chilling to those victims of supervisory abuse as well.
Readers who believe that anecdotal cases do not prove the point should know that many teachers who read this have been victims of the same system that investigates any and all allegations and makes them part of a permanent record whether they are substantiated or not. And if not personally a victim, surely they know teachers in their schools who have been so tarred. One thing we can agree on based on this policy and the cases I have described is that any effort on the part of the Department of Education to tarnish teachers’ reputations based on a record of disciplinary actions taken against them even if the charges were dismissed or unproven must be challenged. The ability of teachers to utilize the Open Market or find jobs when their schools close cannot be limited by a policy that entraps the innocent and cuts the union out of its formation.
In an era of blaming and bashing teachers for everything and anything, it is time to stand up and say “enough”. The flagging of teachers based on “disciplinary actions” must be taken up by the union and its members who deserve the respect of the rights of the innocent and the honor of the agreement of the Department of Education to discuss damaging policy changes with the union before enacting them unilaterally.