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Thursday, February 16, 2017

Why Observation Reports Should Not Be Used To Terminate a Tenured Employee by Betsy Combier

re-posted from           

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

In New York City, teacher tenure is public policy. Tenure gives an employee the right to a due process arbitration hearing on his/her job before anyone can terminate or discipline him/her. A tenured person is not an employee at will, nor is a tenured position protected "for life", as opponents to tenure rights say. Tenured educators get terminated at 3020-a. Alot. Especially if you have a NYSUT Attorney, or a private attorney who does not have extensive experience with the NYC Panel, which is full of bizarre arbitrators and unethical DOE Attorneys.

Just yesterday I was at the 3020-a hearing offices for a new case I was hired to work on, and I wanted to say hello to teacher starting a 3020-a for incompetency who had called me to get some pointers on how to win his case. His NYSUT Attorney, Lori Smith, was sooooo concerned that I might have told him something useful, like about Elentuck v Green, that when she saw me near the room where the Respondent teacher was standing, she immediately went in and closed the door so that I could not say anything to the teacher. So sad. I would like to think that defenders of teachers are all warm and friendly, but unfortunately this is not the case with NYSUT. Lori - there is always the telephone!!!

I believe in tenure rights and that Tenure matters. In all parts of the world right now there are people, good people, who should be in the classroom teaching but are not, because an administrator, parent, child, or other person has lied about the character or job performance of the teacher in order to get the employee fired or removed from his/her job. This is harmful to the children (especially in pre-k to grade 3), who need to know that their teacher is there, ready to be with them all day, every day. Children need to trust this relationship and the person who will replace their parent or guardian. That's why tenure matters.

The first tenure statute in New York state was enacted in 1897 — 70 years before public-sector unions had a right to bargain here — in recognition of society’s deep interest in safeguarding its teachers from unfair firing and political pressure. But current trends in employment in the United States dictate a very different approach to hiring/firing in educational settings. The current trend is to apply a business model of education, where the employer must get rid of 10% of the weakest links in the production line in order to stay viable. This line of reasoning was promoted by GE CEO Jack Welsh, in his book “Winning”:
"To attract the right personnel, Welch instituted a strategy that earned him the moniker "Neutron Jack" and made him a favorite ally of Mike Bloomberg and former Chancellor Joel Klein. Walsh had GE cut all businesses in which the company could not dominate the market in first or second positions. Next, he had managers fire the bottom 10% of GE employees, while he fired the bottom 10% of management. Welch's housecleaning cleared away layers of bureaucracy that had built up at the organization and made way for a quicker flow of ideas."

So, some administrator/CEO, or Human Resources Manager believes an an employee is in the lowest 10% of the workforce, and goes after his/her termination - based on what? Some kind of data? What kind? How does the manager know that the employee is in the lowest 10%? This is the key problem with current human resources policy and procedure for any Department employee. The Department decides that someone is no good based upon whether or not he/she is a snooper, saw some AP or principal taking money that wasn't theirs, saw an administrator hurting a child, reported the administrator for not having service providers for special education children, etc. Rarely is anyone's career destroyed for a valid reason. Getting removed from your job does not have anything to do with your actual performance in the classroom. Trust me on this, I've tried my best to research every case in 3020a or the Courts since 2000.

I see harm in this approach because under the umbrella of getting rid of 10% of the workforce, every employee fears for his/her job on a daily basis, thinking that he/she will "be next". Mayor Mike Bloomberg believed in this and tried to implement this management strategy in 3020-a proceedings, and that is where we are at now. I believe that fear should not be used in any workplace to keep employees in line and under control. Vigilance, yes. Fear, no.

The New York City Department of Education has given administrators the right to go after anyone who they feel is subpar, or slows down the assembly line of the widgets' education. (students = products). This approach lends itself to a generalized feeling by teachers that they cannot be creative. Teachers are mindful that they have limited time to get the curriculum done and learned, and if they don't do this, their jobs will be terminated. But many education scholars urge educators to be creative.

The New York City gives educators no room for individual initiative, and this is a key problem. All educators feel that their expertise is not respected, and are further insulted by observers who know less than they do, or nothing at all about the subjects taught, and yet write/say that the pedagogy is terrible. What an insult to an educator, especially one who is tenured and has spent more than 10 years successfully doing the job?

Bloomberg was frustratingly blocked from his goal of getting any and all teachers, Guidance Counselors and school staff considered subpar for any reason by a member of the administration, out of his/her job. However, the general public and certainly those who work on 3020-a arbitration hearing have, over the past few years, become concerned that the pendulum has begun to swing in the direction of the Department in their effort to get teachers out of their schools and their jobs despite public policy and the mandate of tenure law to have a fair hearing and make sure the charged employee has due process. 

These proceedings are controlled by Education Law3020-a, and employees charged under this law must be given a full hearing if requested, so arbitrators must - at least are supposed to -seek the facts in a case, not simply the opinions of the administrators, in order to honor and protect tenure rights of the accused. But arbitrators on the NYC Panel often do not listen to the facts, and terminate because an administrator looks good and talks well. If the DOE witness is credible, and the charged employee does not use the arguments cited in this post, does not testify, or  does not present wrong-doing by the DOE witnesses, there is a good chance that termination will be the decision. The DOE gives their witnesses a script to testify to, and some witnesses are very good at testifying to the script, and others are not so good. A good defense team for the charged employee can win nonetheless, with a good argument and/or facts to prove the DOE witnesses lied.

A decision at employment arbitration must not rest on malicious prosecution alone. But the NYC Department of Education would like you to think that observations, which are subjective nonfinal opinions, can, indeed, be the sole basis for removing an employee from his/her job due to the nebulous concept known as "incompetence". How does an observation prove incompetence? Sorry, it doesn't work for me. I don't get it. If a principal, assistant principal, peer validator, Field Supervisor has the job of finding you, a teacher, incompetent or abusive to children, their perception of everything and anything that you do is bad, "proof" of wrong-doing/ineffective pedagogy, or whatever they need to bolster their pre-determined decision to get you removed from the school or your job, permanently.

But there is nothing objective about a perception. What you see is filtered through your opinion of someone. If you do not like someone, or you are told horrible things about a person before you meet him/her, and your opinion is clouded by this information, whether or not you are aware of it. This is called Implicit Bias, and I have posted articles about this phenomenon:

Implicit Bias. Everyone Has It

An observation by an administrator is supposed to be a helpful part of the evaluation of a teacher's performance and intervention and remediation should not come as an afterthought. From a historical perspective, teachers/administrators have helped teachers before anyone asked them. It was called collegial support and camaraderie. Today, the buzzwords are different, and classrooms are hostile arenas filled with misinformation from administrators of pedagogical errors and with hidden agendas from administration, peers, and parents.

Elentuck v Green

Even the most elaborate procedural safeguards in a statutory or contractual disciplinary system are useless if a teacher's conduct is measured against subjective standards, as done in an observation.

Thus, observations are meaningless for purposes of discipline. Any observation report basically informs an arbitrator of nothing except that an administrator/evaluator liked/did not like what he/she saw. If there is any bad faith then the subjective views must be discarded as invalid. What a person, let's say a principal, filled with malice "sees" can be far different from the reality of what the student or teacher is actually doing.

Facts matter, and according to the kings County Supreme Court and the Second Department Appellate Division, there are no facts or statistical data in observations, only nonfinal opinions. (See Elentuck v Green, 202 A.D.2d 425; 608 N.Y.S.2d 701; 1994 N.Y. App. Div. LEXIS 1956, 1994)

Observation reports are not public or business records and cannot be the sole evidence used to support any penalty at an employment arbitration hearing dealing with incompetency. I have written about this and my team uses this at all of our incompetency hearings. Opinions of a person whose goal is to get an employee terminated cannot be validated without student outcomes, results, data. A claim of “incompetency” must have supporting information that proves students in Respondent’s class did not learn what they were supposed to learn.

Yet in NYC, the Department of Education attorneys ignore this, and state that any student outcomes are "irrelevant". The only information an arbitrator needs, these attorneys say, is what they see in the observation, and whether or not the teacher had a good lesson plan (or a Guidance Counselor wrote a timely assessment of the child(ren)).

Any school administrator who sees that an employee is, according to what they "see", subpar, is given the right to create whatever papers they need to terminate this employee. It's a simple straight line: you don't like an employee and believe this employee to be a nuisance, so you use observations to create a paper trail and get the employee terminated. What is so frightening is that no one holds the administrators accountable for making up "fake news", and the UFT/NYSUT does not stop this from occurring, either.. In fact, the rubber rooms were invented to keep those "subpar" employees out of their schools so that the administration and the Department's legal services could create the necessary paperwork to "prove" that the employee is guilty of incompetent service. In this scenario the employee is guilty and must prove his/her innocence - exactly the opposite of the law and due process.This is not tenure support, folks, this is employment at will.

The opinions of an administrator who wants the Respondent removed from the school cannot be the only determining factor in any termination hearing nor in handing down penalty. As Arbitrator Joel Douglas wrote in Matter of Great Neck U.F.S.D. v M.H. (SED #5,043, July 20, 2008, Hearing Officer Joel Douglas):

“The record demonstrates that for a teacher to be charged with incompetence, and for the Specifications to be sustained, the teacher must fall below the minimum level of the competency expected of a reasonable teacher…That the Respondent did not live up to (her Supervisor’s] expectations does not de facto establish a degree of incompetency…."

Arbitrators must not decide 3020-a cases only on hearsay, either. N.Y.C.
Arbitrator Josh Javits ruled in a decision
“It would be unacceptable to accept the hearsay evidence of an individual as conclusive proof of an allegation over the live testimony of a teacher with fourteen (14) years of teaching. The Respondent has the right to confront and challenge the testimony of her accuser, and to have the accuser’s credibility tested. Absent this right, the Hearing Officer cannot accept that hearsay evidence alone satisfies the Department’s burden of proof with respect to this issue.”

In DOE v. Rykman, SED File No. 17,731 (Bluth, 2012), at 49, Arbitrator Bluth wrote:
“It is well established that a disciplinary charge pursuant to Education Law 3020-a cannot be sustained when the only evidence to support a charge is uncorroborated hearsay.”

Certainly any of the phrases such as "failures in the nature of incompetent and inefficient service, neglect of duty, unwillingness and/or inability to follow procedures and carry out normal duties, and engaging in misconduct" do not define the word "incompetency" itself, although some forms of "misconduct", "unwillingness", "insubordination", etc., can be classified into categories of "unprofessional" or "improper" behavior within a properly made argument and context.

The above cited vague definitions used to clarify standards of conduct have been applied to other vague concepts such as maintaining "professionalism", and providing an "environment conducive to student learning". These subjective-relative ideas have no standard upon which to rely, leaving a void as to what penalty, if any, should be given which would be "adequate" under the circumstances presented.

Elentuck makes clear that that lesson observations are not “statistical or factual tabulations of data".
Significantly, if material such as lesson observations is non-factual, as Elentuck specifically held, observations are of little value to a 3020-a hearing on incompetency.

Observations are solely subjective and must be considered as such at 3020-a hearings. These reports are not proof of anything.

Why Tenure Matters
Teacher tenure is under attack in New York state and nationwide. In July 2014, two lawsuits were filed — Davids v. New York and Wright v. New York — that claim New York's tenure laws deprive students of their right to a sound basic education. The lawsuits specifically attack the tenure process, the use of seniority in layoffs, and the three-year probationary period for new teachers, which they claim is too short. Former news anchor Campbell Brown, fronting for a shadowy group calling itself the Partnership for Educational Justice, is bankrolling the Wright case. Brown, who won’t disclose her financial backers, makes the unsupported claim that tenure is responsible for low student achievement.
The New York state lawsuits were filed after a lower-court ruling in the case of Vergara v. California gutted that state’s tenure laws. NYSUT attorneys believe the California ruling will be overturned on appeal — but meanwhile it has emboldened copycat suits across the country. Bankrolled by the wealthy elite and anti-union forces, these attacks represent an all-out assault on the fundamental labor rights of working people.

NYSUT is mounting an aggressive and vigorous defense of tenure both in the courts and the court of public opinion.

What’s really important

New York state is widely recognized for its exemplary teaching force and has earned high marks for its rigorous standards and credentialing requirements — typically ranking among the nation’s top ten. Tenure is just one of the safeguards New York state has put in place to ensure every student has an effective teacher. A teacher must earn tenure after three years or more of effective teaching, oversight and evaluation. A teacher then is entitled to a fair hearing before being fired — a basic due process right. Focusing on a due process right that is used by a very few is a distraction from what must be our main priority: ensuring every child has an effective teacher. We need to focus on what helps students the most: recruiting and retaining quality teachers and providing the resources to help every child succeed.

Three key points about tenure

New York state’s rigorous teaching standards provide many safeguards that ensure children have good teachers. Tenure is one of them.

Tenure is a safeguard that ensures good teachers can speak up for what students need.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right.
Tenure is working in New York state. The process has been reformed to be faster and more cost efficient, with most cases now resolved within five months. Meanwhile, New York state’s many safeguards for teacher quality ensure that its teaching force is among the best credentialed, most effective in the nation.
Tenure is a safeguard that ensures good teachers can speak up for their students.

Tenure helps safeguard children's right to an effective education because it provides teachers freedom to advocate for their students without fear of reprisal. Because tenure exists, teachers in New York state can speak out freely on issues such as over-testing, cuts in academic programs, elimination of art, music and language and inappropriate placements for students with disabilities.
Without tenure, working under the constant threat of arbitrary firing would have a chilling effect on a teacher’s professional judgment and create an environment that would erode, not enhance, educational quality.
There is no evidence that teachers’ employment rights have anything to do with student achievement. Teachers in the wealthiest districts have the identical due process and seniority rights as teachers in the poorest districts — yet students in wealthy districts have much higher graduation and college acceptance rates. The real factor contributing to these differences in achievement is poverty.
Students in our poorer districts have the greatest educational needs but are given the least resources, with our richest districts spending 180 percent as much on education as our poorer districts do.
Tenure is essential in empowering teachers to make the case that all students deserve an effective education — not just those who happen to be the children of hedge-fund millionaires. Attacking tenure, and seeking to make teachers vulnerable to being fired at will is a smokescreen for failing to tackle the real reason why students struggle: poverty.
Blaming tenure for low student performance is as illogical as it is inflammatory.
Student safety is paramount and it is safeguarded under the state’s tenure laws. Teacher-supported changes to the law in 2008 mean that any teacher, tenured or not, will automatically lose both job and teaching license if guilty of certain sexual offenses — without recourse to a hearing.
Blaming low-student achievement on teacher tenure —a meritless claim not supported by any evidence — is like blaming the due process granted to police officers for crime or blaming the due process granted to firefighters for fire.
If the wealthy elite truly cared about advancing student achievement they would partner with parents and teachers to achieve state budgets that provide equitable funding for all schools. They would oppose the state's tax cap, which worsens constraints on local communities. Instead, the wealthy elite and corporate forces are missing-in-action in these critically important battles. Teachers and parents stand together in calling for a renewed focus on learning and for the resources our students need to be prepared for college and career.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right

Though it's been on the books for more than a century, New York state's tenure laws remain wildly misunderstood. Tenure, simply put, is a safeguard that protects good teachers from unfair firing. Once a teacher is granted tenure — a right that must be earned after three years or more of service, oversight and evaluation — a teacher cannot be fired without a fair hearing. Tenure does not mean a job for life. It means simply that a teacher has the right to a fair hearing on charges that could end a career. This is fundamental due process — an American value enshrined in our Bill of Rights and one that is not reserved only for the wealthy elite.
Tenure must be earned. It is not automatic. During a teacher’s three-year probation, school officials carefully evaluate that teacher's job performance. Upon completion of that evaluation, the local school board then votes whether to grant tenure — which simply means the teacher cannot be fired without a fair hearing.
Tenure is a safeguard that protects teachers’ civil rights. Tenure ensures good teachers cannot be fired for reasons of race, gender, age, religion, handicapping condition or sexual orientation. It ensures that good teachers cannot be fired because of cronyism or local politics. It ensures they cannot be fired for pregnancy. Before tenure was in place, teachers could — and did — lose their jobs for arbitrary and politically motivated reasons, or for no reason at all.
Seniority rights, which like tenure are a fundamental employment right, ensure that when layoffs are unavoidable, they are conducted fairly and objectively. A system based on seniority guards against abuses by those who would use ‘layoffs’ as another way to fire those who advocate too fiercely for their students or are at the top of the pay scale.
The obscene, profit-motivated attacks on the rights of working people in places like California and New York are why America no longer has the world's largest middle class. Fundamental rights for workers are essential to a decent standard of living in New York state. And fundamental rights for teachers are essential to fairness and defending what students need.


Anonymous said...

Question: I work with a fellow teacher who is probationary. She is not "popular" with the principal. The teacher is in her 2nd year of teaching with mostly ineffective observation ratings and has many letters to her file. (Her first year she had ok ratings but was then put in a rubber room for an unfounded incident.) Since returning to school she has been getting the ineffective ratings. Can the principal discontinue this teachers employment at any time or must the principal wait till the end of the 4 year probationary per. This teacher believes that since the incident was unfounded the principal is using the ineffective ratings to get rid of her. I thank you for any info you can provide!

Betsy Combier said...

The principal can discontinue the teacher at any time, for any reason. The teacher must write a letter to the Superintendent fighting the discontinuance, grieve it, and within 120 days file an Article 78. This sounds like retaliation for the success at getting the incident withdrawn.

Anonymous said...

Yes This is exactly what it is. I just find it strange the the principal keeps writing inneffective observations and keeps putting letters in this teachers file. If the principal really has it in for this teacher I don't understand why she has not simply discontinued her. Does she have to wait till the end of the school year? I feel very sad for this teacher.

Harvey M. Elentuck said...

Betsy, this is an extremely informative article filled with useful information that is bound to help NYC teachers who are fighting against the allegations contained within observation reports which characterize a lesson, or portions thereof, as either "Unsatisfactory," "Ineffective," or "Developing."

It is interesting to note that back in 1970, the NYC Department of Education (then called the NYC Board of Education) was involved in a Federal litigation with substitute teacher Leslie Canty, who was challenging his dismissal.

At page 256 in Canty v. NYC Board of Education (312 F.Supp. 254), the United States District Court stated:

"The terms 'arbitrary' and 'capricious' embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision."

In my opinion, for adverse ratings such as U, I, or D to have any validity, whatsoever, they must have a rational factual basis or reasonable justification in support. However, what kind of rational factual basis or reasonable justification in support could there possibly be when the observation reports which are submitted by the administration as "appropriate supporting data" do not contain any "facts" or "statistics"?

Betsy Combier said...

Thanks Harvey!! you always have excellent cases to add to the issue of observations and evaluations!

Anonymous said...

So, a principal can discontinue a probationary teacher even in the middle of the year?

NV said...

As always, Betsy, you explain things to us in a way that makes sense and helps us understand. Thank you for all your help, not only through this blog, but personally. I have slept well, many a night, thanks to your advice.