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Sunday, February 3, 2013

How NYSUT Attorneys Fail: Cohn v New York City Department of Education

Richard Casagrande
 re-posted from
Betsy Combier, Editor

In an effort to overturn a "U" rating for NYC teacher Mitchell Cohn, NYSUT, (New York State United Teachers) Attorneys did not mention the case of Elentuck v Green in the Article 78 petition. The Kings County Supreme Court and 2nd Department Appellate Division ruled that there are no facts in observations, and observations are not binding and nonfinal determinations.

In the case below, NYSUT defended teacher Mitchell Cohn when he asked the court to review the circumstances of his "U" rating.

NYSUT used the appropriate Collective Bargaining Agreement terms and other Union protections in their defense, but they never brought in, as far as I can see, the case Elentuck v Green. This case as ruled on by both the Kings' County Supreme Court and 2nd Department Appellate Division, and both courts substantiated the decision that:

"the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law § 87 (2) (g)). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law § 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law § 87 (2) (g) (see, Matter of McAulay v Board of Educ., 61 A.D.2d 1048, affd48 N.Y.2d 659; Matter of Herald Co. v School Dist., 104 Misc.2d 1041, 1046-1047).
The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law § 87 (2) (g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268)." 
NYSUT and the UFT did argue Elentuck when Mike Mulgrew tried to keep TDR's without names, in the Mulgrew Article 78:
"The UFT's reliance on Matter of Elentuck v Green (202 AD2d 425 [2d Dept 1994]), in which the Court held that it was proper to withhold lesson observation reports, is misplaced. The Court there held that lesson observation reports are not statistical or factual data as they consist solely of advice, criticisms, evaluations and recommendations prepared by the school's assistant principal. In the present case, unlike in Elentuck, the determination by the DOE that the TDRs are statistical data has a rational basis. Unlike lesson observation reports, which are individual opinions of a teacher's lesson, the unredacted TDRs are a compilation of data regarding students' performance."

Therefore, NYSUT's effort to defend Cohn only on procedural errors in violation of various rules held within the CBA, etc., and not going to the substance of the "U" ratings as nonfinal, not factual opinions, the court saw no reason to overturn the "U" and give the Petitioner, here Mitchell Cohn, a win.

I am not an attorney and I dont give legal advice, but this omission of Elentuck v Green in the petition makes no sense. I have not read the Memorandum of Law in this case, maybe it is there. But Judge Schlesinger did not bring up Elentuck in her decision.

Just Asking.

Betsy Combier

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y.
2013 NY Slip Op 00418
Decided on January 29, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on January 29, 2013
Andrias, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.

9078 110409/10
In re Mitchell Cohn, Petitioner-Appellant, —
Board of Education of the City School District of the City of New York, et al.,

Richard E. Casagrande, New York (Ariana A. Gambella of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered October 27, 2011, which denied the petition seeking, inter alia, to annul the determination of respondents denying petitioner's appeal of an unsatisfactory rating (U-rating) for the 2006-2007 school year and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without

Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith. The detailed observations in reports prepared by the principal and two assistant principals, describing petitioner's poor performance in class management, engagement of students, and lesson planning,
provided a rational basis for the rating (see Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 (1st Dept 2011); Batyreva v New York City Dept. of Educ., 50 AD3d 283 (1st Dept 2008). While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or anysubstantial right (see Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 AD3d 486 (1st Dept 2011); Matter of Munoz v Vega, 303 AD2d 253, 254 (1st Dept 2003); compare Matter of Kolmel v City of New York, 88 AD3d 527 (1st Dept 2011). To the contrary, the record demonstrates that, after petitioner received a U-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 and, throughout the year, received professional support and had a series of classroom observations by the principal and two assistant principals, each one documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies.


Ineffective Assistance of Counsel - Wikipedia

LII Ineffective Assistance of Counsel

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