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Saturday, January 3, 2009

Is Washington D.C. Schools Chief Michelle Rhee Really Making Any Difference in the Public Schools?



Beyond Publicity, What Is Rhee Producing?
By Colbert I. King, Washington Post,
Saturday, January 3, 2009; A13
LINK

During the end-of-year show last week, ABC 7 "Inside Washington" host Gordon Peterson asked panelists to cite their favorite story of the year.

The most surprising and intriguing selection was offered by Newsweek senior editor Evan Thomas.

"Most educators have given up on inner-city schools," Thomas said. "But right here in Washington, D.C., there's a lady named Michelle Rhee who is trying to actually win this battle, but she's trying to break the union to do it." Thomas called it "an epic struggle."

"Rarely have the lines been so clearly drawn," he said.

Breaking the teachers union may or may not be Rhee's ultimate goal. But Thomas is on to something.

Rhee was laboring in relative obscurity as a teacher trainer and headhunter for urban public schools only two years ago. Today, she's chancellor of the District's troubled school system and a proxy for the national education reform movement. She has risen, in the eyes of reformers, to near mythic heights, thanks to profiles in Time magazine (where she graced the front cover holding a broom), Newsweek, the Wall Street Journal, CNN and PBS's "NewsHour."

Clearly, Michelle Rhee is someone to watch in 2009.

But this column is about more than her celebrity status.

Rhee's "epic struggle" with the teachers union bears watching. Remember the old African proverb: "When elephants fight, the grass gets trampled." If a Rhee-union war paralyzes the school system, children may be the ones who suffer.

The struggle has already reduced the children to pawns, since what's really at stake are political interests.

Having muscled through his schools takeover, Mayor Adrian Fenty has his political future hanging on Rhee's ability to fulfill his promise to transform low-performing schools into a world-class system.

Education reformers across the nation have something on the line, too. Deep-pocketed reformers have placed large sums at Rhee's disposal to help her to loosen the union's grip on teachers. A Rhee victory would send a message to public schools nationwide.

The Washington Teachers' Union, scarred by scandal and with a warring leadership, also has much at stake. If Rhee succeeds in quashing tenure and seniority rights and if she scores with merit pay for teachers, the union loses its reason for being. National union leaders know that, too.

From a media viewpoint, the story of a firebrand educator taking the torch to a hidebound union is good copy.



But the issue is not whether the chancellor is a polarizing figure with her take-no-prisoners approach or is a fearless crusader against defenders of the status quo.

At issue is whether public education in the District is being improved.

What's known thus far is that plenty of principals, teachers and staff members have been fired, nearly two dozen schools have been closed, and dozens more have been overhauled and restaffed. But to what end?

People paying for the city's $1 billion system need to know whether Rhee is making any progress in reversing the record of failures in the schools. They deserve to know how her policies and practices -- not those of her predecessor -- are affecting teacher performance and student achievement. So, of course, do parents of the more than 46,000 students in the system.

Some parents have already rendered their verdict. Thousands of kids have been transferred to charter schools.

Lost in the squabble is the one ingredient that could help residents decide whether months of turbulence have been worthwhile.

D.C. Council Chairman Vincent Gray seems to agree.

He told me that he has decided that the council must do more than just appropriate funds for schools, leaving Rhee free to run the system as she sees fit.

He said he will propose this month that the council select an independent evaluator to examine the impact of changes initiated by Rhee on teacher and student performance, school system operations, and the school governance structure itself.

"I want to get away from the emotionalism surrounding Rhee and take a dispassionate look at school performance," he said.

Gray has tapped the D.C. auditor to organize the project, which will draw upon independently produced research, not just school system data. He said the mayor's office was to have produced an evaluation of the new governance structure a year ago. Instead, the mayor proposed a privately funded study to be conducted by researchers known to be favorable toward a mayoral takeover of schools.

Gray said he wants impartiality, not advocacy. He hopes to have the council's evaluation project up and running by early spring.

Good. The city must know where Rhee is going. I say this as a supporter of Fenty's takeover and of Rhee's whacks at the Gordian knots entangling the school system. ["Rhee vs. the Central-Office Hydra," Aug. 18, 2007; "Coming Soon: The Real Schools Battle," Sept. 29, 2007]. Last August, I had lunch with Rhee near the anniversary of our first meeting to get an update on school system reforms.

What a difference a year makes.

The session wasn't what I expected.

An hour's conversation, and it was all about her.

kingc@washpost.com

Michelle Rhee and Adrian Fenty Look Toward a Non-Union Washington DC Public Education System

An Unlikely Gambler
By firing bad teachers and paying good ones six-figure salaries, Michelle Rhee just might save D.C.'s schools.
Evan Thomas, Eve Conant and Pat Wingert
NEWSWEEK
From the magazine issue dated Sep 1, 2008

Not long after Michelle Rhee took over as head of the Washington, D.C., public schools a year ago, she announced a plan to shut down almost two dozen schools in D.C.'s decrepit, shrinking, public-education system. At a meeting at one school, parents began screaming at Rhee and throwing things. As it happened, Rhee's own parents were in Washington, visiting from Denver, and they saw the confrontation on TV. "So I come home at 11 o'clock at night," Rhee recalled in a recent interview with NEWSWEEK. "I am making myself a peanut-butter sandwich. My mother is, like, 'Are you OK?' I said, 'Yeah, I'm fine.' She said, 'You know, when you were young, you never used to care what people thought about you, and I always thought that you were going to be antisocial, but now I see this serving you well.' I was, like, 'Yeah'."

Rhee says she doesn't mind getting yelled at. "I don't take things personally," she says. Indeed, she seems unflappable, a slender, pretty young woman with a straightforward, though not humorless, manner. A tireless single mother of two young girls, she taps away at two BlackBerrys (one for her close friends and staff, the other for the city and the public at large) from early morning until after midnight, answering every e-mail personally. Her candor can be disarming, though risky in her position. "She is without guile," says her mentor, Joel Klein, the head of the New York City public schools, who adds, a little wistfully, "so rare in public life."

That is not to say that Rhee is relaxed. She says she wakes up every morning with a "knot in my stomach," and that she is "angry," though "angry in a good way." She is angry at a system of education that puts "the interests of adults" over the "interests of children," i.e., a system that values job protection for teachers over their effectiveness in the classroom. Rhee is trying to change that system. In a way that few realistic observers thought was possible, she has a chance to succeed, not just in Washington, but also around the country. She is entering into a struggle with the local teachers union that will test whether an urban school district can weed out its weak teachers—a profound threat to politically powerful teachers unions nationwide. "If she can pull it off, it's big," says Klein, who has battled, with mixed success, to tame the teachers union in New York City. Rhee's own story is a flicker, potentially a flame, of hope in the relentlessly depressing story of inner-city education.

For many years, high-achieving students chose not to be teachers (the average SAT of would-be elementary-school teachers taking a popular licensing exam is significantly below the national average for all college grads). The daughter of a doctor, Rhee, who was raised in Toledo, Ohio, describes herself as "a relatively high-achieving kid all through high school and college. So nobody tells you to go into education," she says, in her matter-of-fact way, not trying to be ironic. "You know, people are telling you to go be a doctor or a lawyer or a stockbroker. They are not telling you to be a teacher." Not sure what she wanted to do with her life as she graduated from Cornell in 1992, Rhee joined Teach For America, a then brand-new organization, created by a Princeton student, to get Ivy Leaguers to work in poor inner-city schools for a couple of years. The experience, she says, "has shaped every single day of my life since then."

Rhee was placed in one of the lowest-performing schools in Baltimore as a second-grade teacher. "It was a total culture shock for me," she recalls. While she was talking to her students as they lined up for lunch, one of the students fell down on the floor. "Each kid, as they were walking by, kicked the kid that was down," Rhee says. "I was, like, 'What are they doing?' But it was like second nature to them. The kid is down. Kick him."

Rhee was unable to stop the kids, or control them in the classroom for most of her first year. At Christmas, she went home scratching at huge welts on her arm. A doctor diagnosed stress. Her mother said, "You can apply for law school second semester." Her father, a strong believer in the work ethic and rooting for the underdog, said, "Suck it up and get back in there."

Rhee "sort of became obsessed," she says. "I was not going to let 8-year-olds run me out of town." Over the next two years, working with another teacher, she took a group of 70 kids who had been scoring "at almost rock bottom on standardized tests" to "absolutely at the top," she says. (Baltimore does not keep records by classroom, so NEWSWEEK was unable to confirm this assertion.) The key to success was, in her word, "sweat," on the part of the teacher and the students. "I wouldn't say I was a great teacher. I've seen great. I worked hard," says Rhee.

She had an epiphany of sorts. In the demoralized world of inner-city schools, it is easy to become resigned to poor results—and to blame the environment, not the schools themselves. Broken families, crime, drugs, all conspire against academic achievement. But Rhee discovered that teachers could make the critical difference. "It drives me nuts when people say that two thirds of a kid's academic achievement is based on their environment. That is B.S.," says Rhee. She points to her second graders in Baltimore whose scores rose from worst to best. "Those kids, where they lived didn't change. Their parents didn't change. Their diets didn't change. The violence in the community didn't change. The only thing that changed for those 70 kids was the adults who were in front of them every single day teaching them."

Rhee (with parental consent) made the kids go to school on Saturdays and gave them two hours of homework a night, so they would "not watch TV or sit on the stoop or play Nintendo." She slowly won the respect of parents. "My first year of teaching, they were, like, 'We do not want the crazy Korean lady,' and by the time I left, they were, 'Where are you going? You can't leave'."

Rhee stayed in education, starting an organization, The New Teacher Project, devoted to recruiting better teachers for hard-to-staff inner-city schools. She caught the attention of Joel Klein, who was trying to reform the New York City school system under Mayor Michael Bloomberg. Klein, in late 2006, recommended Rhee to Adrian Fenty, the newly elected mayor of Washington, D.C., who staked his reputation on fixing D.C.'s chronically poor schools.

At first Rhee said she was not interested. "It's not a job you would want," she says. "You have your hands tied. You have to deal with school boards. It's all about politics. You can't get anything done. It's an impossible job." But Fenty managed to convince Rhee that he was serious. Skeptical (she says she was "not wowed" by the mayor at first), she asked him, "What would you be willing to risk at the chance of being able to transform the schools?" According to Rhee, he "didn't hesitate. He said, 'Everything'." Rhee warned him that she was not politically correct and was sure to cause him political pain. (Last week Fenty told NEWSWEEK, "I don't want to look back on our time and say we were careful, we did the politically correct thing.") Fenty has kept his word to Rhee. His first act was to take away power from the D.C. school board, which had been for many years an obstacle to real reform. He showed a willingness to open up the city's checkbook. At one meeting not long ago, he asked Rhee how much more money she might need. "It would be about $40 million," she answered. (The D.C. school's annual budget is just under $800 million.) The stunned city administrator, Dan Tangherlini, spluttered, "We don't have an extra $40 million." Fenty ordered the administrator to start figuring out a way to get the money, even if it meant citywide reductions in force. (Fenty and Rhee communicate several times a day by e-mail and cell phone.)

Even measured by the low standard of inner-city schools, Washington's have long been among the worst. The math and reading skills of its students lag two or three years behind national norms, despite per-student expenditures greater than in any major city outside of New York. The school bureaucracy had a reputation for bloat and incompetence, and an almost Stalinist resistance to reform. (When she arrived, no one could tell her how many textbooks the schools owned.) The former president of the teachers union, Barbara Bullock, is now serving a six-and-a-half-year prison sentence for embezzling $4.6 million. She admitted using union funds to buy 13 furs, 37 designer handbags and a 288-piece antique Tiffany silver set (she told the judge she is now mentoring young inmates, who call her "Grandma").

Rhee is the seventh person to run the D.C. schools in the past 10 years. Most of her predecessors were, according to Rhee, "smart and worked hard and wanted to do the right thing for kids," but "they didn't get a whole lot done." The reason, she says, is that they "caved in" to the city's educational establishment, whose talk of reform was just that.

Rhee showed she was serious by firing more than a hundred non-union central office workers, including administrators, and 36 principals (one out of four). She even fired the principal of the school where she chose to enroll her own daughters, Starr, 9, and Olivia, 6. "I can't talk about the details, but let's just say I was in that school three days a week. I know what was going on there." The "sad thing," she said, "was when a parent e-mailed me to say that she [Marta Guzman, the fired principal] couldn't possibly have been one of the worst principals in the system. My answer was, is that our standard? Have our expectations been so lowered?" One co-chairman of the school's PTA, Eduardo Barada, accused Rhee of racism for ousting a Hispanic principal. (Guzman told NEWSWEEK that she did not know why she had been fired, a characterization Rhee disputes.) But the other PTA co-chair, Claire Taylor, told NEWSWEEK, "Rhee's making decisions that should have been made years ago, and she's accountable for those decisions. And that is what is so disarming to parents who have been traumatized by this school system." Taylor was impressed by Rhee's cool at raucous parents' meetings. "She clearly is a brave person. I have been in rooms where parents are hysterically upset and she walks in so quietly respectful, telegraphing accountability, and says, 'I'm gonna do something you may not like, but it's for the good of the children, and I'm doing it, it's all me'."

Other parents call her a "dictator" and predict she will flee or be driven into exile. "She gives you this stare as if she's looking right through you. 'I'm listening but I'm not hearing you'," says Clarence Cherry, another local PTA head. "Rhee and her people are not from D.C. They don't understand us. They are here for the money. She'll be here two years, tops." As a Korean-American, Rhee was regarded with suspicion by some in D.C., where 85 percent of public-school students are black, and where racial identity can still matter. But her directness and purposefulness have won over some early critics, like Ray Behbehani, a parent who was initially angered by Guzman's dismissal. "She may not be the warmest person, or maybe it's just me, I don't read Asian faces and people well, but she's got it totally together," he told NEWSWEEK.

Rhee's toughest fight, by far, is coming up. She has proposed a new contract for the union that would undermine tenure, the teachers union holy of holies. The carrot is money. By tapping Mayor Fenty and private philanthropists, she is hoping to make D.C. teachers the best-paid in the country. Current teachers would actually have a choice. If they are willing to go on "probation" for a year—giving up their job security—and can successfully prove their talent, they can earn more than $100,000 a year and as much as $130,000, a huge salary for a teacher, after five years. If not, they still get a generous 28 percent raise over five years and keep their tenure. (All new teachers must sign up for the first option and go on probation for four years.) Rhee predicts that about half the teachers will choose to take their chances on accountability for higher pay, and that within five years the rest will follow, giving up tenure for the shot at merit pay hikes.

She may be overly optimistic about getting the union to accept her terms. The union president, George Parker, has been willing to work with Rhee, but he has taken heat from some union members who accuse him of cozying up to the school chief. Privately, Rhee and Parker have had some shouting matches. Rhee said she would refuse to sign a contract that had provisions that are "bad for kids," and Parker is balking at the probationary period for teachers. (Some of his experienced teachers say they are "insulted" by the probation requirement, but Rhee told NEWSWEEK that probation is "non-negotiable" because it goes to the heart of the matter, the ability to remove teachers who are not performing well.) In one meeting, according to Rhee's own account, she said to Parker: "Either we do this with you or we do this to you." And then she challenged him by saying, "You don't have what it takes to pull this off."

Parker is caught in the middle. At the end of a week of meeting with suspicious and hostile teachers groups in early August, he appeared tired and beaten-down. (Rhee, who had sat in on many of the same meetings, seemed cool and relaxed.) The union's vice president, Nathan Saunders, has sued Parker to open up the negotiations to a wider group of union officials. "George was negotiating as if this was a private contract, one on one," says Saunders. "My reaction was, oh, hell no! The best unions have large negotiating teams. We had two folks dating." Saunders is whipping up opposition in the union. "I consider this proposal to be an IQ test as to whether teachers are willing to slit their own throats," says Saunders. A black inner-city kid who made a fortune on real estate, Saunders is a smart dresser who sports bow ties and talks a lot about "due process." Indeed, a critical and so far unresolved question is how teachers will be judged. Rhee will insist on hard data—test scores—showing effectiveness in the classroom, but union members warn about arbitrary firings.

The union can play hard. When Rhee moved to reclassify some central-administration workers so they could be terminated without cause, the union began running 60-second radio ads attacking Rhee, playing "Back Stabbers" by the O'Jays as background music. But Rhee has some sticks to wave as well as carrots. Although she will not go into detail, it is a good bet that she will find other legal tools to hold teachers accountable even if the teachers refuse to sign a contract. "I believe this contract is going to pass," she told NEWSWEEK. "And I believe it is going to have a huge impact." But, she added, "even if it didn't, it would not stop me."

The fact is that D.C.'s school system is shrinking. About a third of D.C. parents now opt to send their kids to charter schools, which are public schools—but where the teachers are non-union. The union has lost more than a thousand of its more than 5,000 teaching slots during the past decade. Rhee, it appears to many, is not interested in protecting turf. If she can open more charter schools that are better than the regular city schools, she seems willing to let the old system wither away. At first charter schools were often no better or even worse than schools in the system, but lately some—particularly the KIPP schools—have been scoring higher on tests. If the union doesn't accept reform, it may not have many jobs left to protect.

Rhee doesn't quite come out and say it, but she and her fellow reformers are trying to change the teaching profession, at least in the inner city, from an 8 a.m.-to-3 p.m. job with summers off, to something that bears more resemblance to joining the Green Berets. Rhee succeeded in Baltimore because she worked like a demon. The KIPP schools score well because teachers work from 7 a.m. to 7 p.m., and on Saturday, and carry cell phones so their students can reach them any time. Summer vacation lasts only about a month. There are teachers who can maintain this pace for decades (just as there are some older Special Forces operatives in the military), but in Rhee's world many teachers may find themselves working hard, burning out and moving on. "There are some absolutely fabulous teachers who have taught in very tough settings for 20 years and have consistently produced stunning growth, and have somehow found the stamina to do it, while some energetic 24-year-olds aren't up to it," says Kati Haycock, president of Education Trust, a longtime reform expert (and former D.C. school parent). "But what we need to do is change the idea that education is the only career that needs to be done for life. There are a lot of smart people who change careers every six or seven years, while education ends up with a bunch of people on the low end of the pile who don't want to compete in the job market."

Naturally, this sentiment seems patronizing, if not downright threatening, to many career teachers with a union card. They resent the young Ivy Leaguers who come in from Teach For America for a couple of years, acting superior, and then go off to become investment bankers or lawyers. (TFA stands for "Teach for Awhile," they joke.)

It is hard to know how Rhee sustains her own pace. Three days a week she picks up her kids at 5:30 (they are in after-school programs) and stays with them until bedtime—then it's back to work until 1 or 2 a.m. When their father, a TFA executive named Kevin Huffman, has the kids, she basically works 18-hour days. Having a mom as school chancellor is "hard on the kids," she says. She recalls that when she refused to cancel school on a not-very-snowy day, her older daughter, Starr, came home complaining, "Other kids are saying that by not canceling school because of the snow that you are putting all of our lives in danger." Rhee explained that some poor kids don't eat unless they can get a school meal. A couple of weeks later, Starr reported, "Now there's a rumor that you are going to lengthen the schoolyear and make us go to school longer." Rhee replied, "Well, you know, time on task is very important." Starr, who apparently takes after her mother, answered, "I backed you on the snow thing. I am not backing you on more school, though."

Rhee's bluntness and unwillingness to compromise are admirable, but they may also be her undoing. Rhee has Mayor Fenty's complete support, but she has irked some city council members, in one case because her aides supposedly blocked a council member from going onstage with her at a summer-school graduation. Rhee does not seem interested in the rituals of political nicety, and, while she says she's a Democrat, she can be very scornful of her own party. "It's embarrassing to be a Democrat when you hear Democrats talk about education," she says. "The Democratic Party is supposed to be the party that looks out for poor black kids, yet the kind of rhetoric they spew about … [how the Bush administration's No Child Left Behind law is] 'sucking the life out of our teachers'—come on. Get real. I believe that until the Democratic Party breaks ties with the teachers unions, we are not going to see the true reform in this country that we need."

As she spoke, late in the day (but only in the middle of her workday), she was becoming uncharacteristically wound up. "We do not have a nation right now where every child has an equal chance in life, because poor black kids don't have an equal shot in life, because they go to crappy schools, and the Democratic Party is not tackling this issue, which I think is one of the biggest problems that exist."

The interview was drawing to an end. A NEWSWEEK reporter asked her if she still got welts from stress. "Uh, yeah," she said, seeming slightly knocked off-balance for the first and only time. The moment passed; she excused herself to go back to work.

Friday, January 2, 2009

Union Member Required To Exhaust Administrative Remedies Before Suing His Union

Paulino v. New York Printing Pressman, ___F.3d___(2d Cir. Dec. 3, 2008) involves certain important principles under the LMRDA. (See also the complete text of the LMRDA - B.C.) Specifically, that a union can discipline its members, union members are entitled to a hearing, but that they must first exhaust administrative remedies. As the court explained:

Paulino also claims that the Union unlawfully suspended him without a full and fair hearing in violation of the LMRDA. The LMRDA requires that no member can be suspended from a union, except for failure to pay dues, without written notice, a
reasonable time to prepare his defense, and a full and fair hearing. 29 U.S.C. § 411(a)(5). But, before legal proceedings can be brought, any union member can be required to exhaust reasonable hearing procedures within his or her union. 29 U.S.C.
§ 411(a)(4). The requirement that a plaintiff exhaust internal union remedies under the LMRDA lies within the court's discretion. Maddalone v. Local 17, 152 F.3d 178, 186 (2d Cir. 1998) (citations omitted). The district court found that Paulino had failed to exhaust his internal union remedies, noting that, while Paulino did write letters to the Union president and to the International Union, none of these letters complained about not being given a full and fair hearing prior to his alleged
suspension.Paulino, 2007 WL 1345234, at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24. The district court was correct in finding Paulino has not exhausted his internal union remedies:

Paulino has never raised his claim that he was wrongfully suspended from the Union with the Union. Because there is no evidence that the Union officials in this case are so hostile to Paulino that there is no chance the Union would provide Paulino
with a fair hearing, that the Union's internal procedures are inadequate, or that exhaustion of his remedies within the Union structure would unreasonably delay his opportunity to obtain a judicial hearing, the district court correctly granted summary judgment because Paulino has not exhausted his union remedies.
See Schermerhorn v. Local 100, Transport Workers Union of America, AFL-CIO, 91 F.3d 316, 325 (2d Cir. 1996). Paulino's argument that going through the administrative process would have been futile is unsupported.

Mitchell H. Rubinstein

07-2425-cv
Paulino v. The New York Printing Pressman's Union, Local Two


UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED


AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND 6FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT 7CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION 8MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE 10WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, in the City of New York, on the
3rd day of December, two thousand eight.
PRESENT:
HON. ROBERT D. SACK,
HON. RICHARD C. WESLEY,
Circuit Judges,
HON. LAWRENCE E. KAHN,*
District Judge.
--------------------------------------
DANIEL PAULINO,
Plaintiff-Appellant,
- v -
THE NEW YORK PRINTING PRESSMAN'S
UNION, LOCAL TWO, and THE BOARD OF
TRUSTEES and ROBERT COSTELLO,
Administrator of the Pressman's
Publisher's Benefits Fund,
Defendants-Appellees.
No. 07-2425-cv
--------------------------------------

Appearing for Appellant: Neil M. Frank, Frank & Associates,
P.C., Farmingdale, New York, on submission.

Appearing for Appellee: Barry I. Levy, Rivkin Radler LLP,
Uniondale, New York, on submission.

Appeal from the United States District Court for the Southern District of New York (George B. Daniels, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

Daniel Paulino appeals from an order of the United States District Court for the Southern District of New York granting summary judgment in favor of Defendants-Appellees. We assume the parties' familiarity with the facts and procedural history of this case, and the issues presented on this appeal.

Paulino, a Hispanic male, claims he was intentionally placed lower than two Caucasians on his Union's "Revision List," a list kept by the Union which, among other things, determines allocation of work assignments, vacation days, and when an
employee may be promoted to Journeyman status. He also claims that following his complaints about his allegedly improper placement on the Revision List, he was unlawfully suspended from the Union without due process, because of his complaints about the alleged racial discrimination.

Paulino filed this lawsuit against his union, the New York Printing Pressman's Union, Local Two (the "Union"), on January 4,2006, making three claims that he pursues on appeal: (1) race and national origin-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of 42 U.S.C. § 1981 based on his claim that he was lower on the Revision List than two Caucasians; (2) retaliation in violation of Title VII and section 1981 based on his alleged suspension from the Union following his complaints about his placement on the Revision List; and (3) that the Union violated the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 et seq., by suspending his membership without a full and fair hearing.

Defendants filed a motion to dismiss or for summary judgment, along with a statement of uncontested facts pursuant to Local Rule 56.1, as well as several declarations, affidavits, and exhibits. The district court granted defendants' motion for summary judgment. Paulino v. The New York Printing Pressmen's Union, Local Two, 2007 WL 1345234, 2007 U.S. Dist. LEXIS 33885 (S.D.N.Y. May 7, 2007).

"We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005) (citation omitted). Summary judgment is appropriate where there is "no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e. "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001)(citation omitted).

To survive a summary judgment motion on discrimination claims pursuant to Title VII and section 1981, the plaintiff must establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997). To do so, he must show:

(1) that he belongs to a protected class, (2) that his job performance was satisfactory, (3) that he suffered adverse employment action, and (4) that the action occurred under conditions giving rise to an inference of discrimination.
Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). The district court found that Paulino had failed to establish a prima facie claim because an adverse employment action had not been established, because Paulino had not shown he was actually lower on the Revision List than he should have been, and that
circumstances giving rise to an inference of discrimination had not been established, because Paulino failed to allege any reason to believe that even if his placement on the list was lower than it should have been, that it resulted from intentional discrimination. Paulino, 2007 WL 1345234, at *3-*4, 2007 U.S. Dist. LEXIS 33885, at *15-*16. We agree with the district court. Even accepting as true
that Paulino was lower on the list than he should have been, he fails to allege conditions giving rise to an inference of discrimination. Paulino provided alternate payroll records that purportedly show he should have been higher on the Revision List
than he was, but he never claims the records were given to the Union. Paulino fails to allege any reason to think the Union did anything but rely on the payroll records provided to it by Paulino's employer, as it customarily does when constructing the
list. Indeed, Paulino seems to base his belief that he was discriminated against because of his ethnicity on the fact that he had been working longer than the other two employees, without adequately addressing the Union's position that placement on the list does not depend on seniority alone. Because Paulino does not allege conditions giving rise to an inference of discrimination and thus fails to establish a prima facie claim under McDonnell Douglas, his claims for discrimination under Title VII and section 1981 fail as a matter of law.

A prima facie claim of retaliation under Title VII or section 1981 requires proof that the plaintiff (1) engaged in protected activity, (2) that his employer was aware of this activity, (3) that the employer took an adverse employment action
against him, and (4) that a causal connection exists between the alleged adverse action and the protected activity. Schiano v. Qual. Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006)(citation omitted). The district court found the section 1981
retaliation claim could not survive summary judgment because Paulino proffered no evidence that he had raised the issue of discrimination with anyone at the Union prior to the asserted adverse employment action, i.e., his alleged suspension from the Union, and that Paulino had failed to show that there was actually an adverse employment action. Paulino, 2007 WL 1345234, at *5, 2007 U.S. Dist. LEXIS 33885, at
*18-*20.

We agree. On appeal, Paulino asserts that he did complain of racial discrimination to the person in charge of the Revision List, Daniel Macphee, and to the president of the local Union, William Loftus. The record does not support these claims. The
letters Paulino wrote to Loftus did not assert discrimination. Instead, they alleged only that Paulino was improperly placed on the Revision List and asked for the formula for how the list is made. The statements Paulino alleged he made to MacPhee in his complaint and affidavit before summary judgment do not explicitly
allege racial discrimination either, and, although Paulino, in his appellate brief, alleges that he made it clear to Macphee that his complaints were about racial discrimination, alleging this on appeal is not sufficient to reverse summary judgment. See Katir v. Columbia Univ., 15 F.3d 23, 25 (2d Cir. 1994) ("Upon review of a grant by a district court of a motion for summary judgment, a federal appellate court may examine only the evidence which was before the district court." (internal quotation marks and citations omitted)). Because Paulino fails to allege that
his employer knew of his complaints about racial discrimination, he has failed to show that his employer was aware of any protected activity, and his claim for retaliation necessarily fails. See Schiano, 445 F.3d at 608.

Paulino does not challenge in his brief to this Court the district court's dismissal of his Title VII retaliation claim for failing to raise the claim first with the EEOC. Paulino, 2007 WL 1345234, at *4, 2007 U.S. Dist. LEXIS 33885, at *17. The claim is therefore waived. See, e.g. State St. Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004).

Paulino also claims that the Union unlawfully suspended him without a full and fair hearing in violation of the LMRDA. The LMRDA requires that no member can be suspended from a union, except for failure to pay dues, without written notice, a
reasonable time to prepare his defense, and a full and fair hearing. 29 U.S.C. § 411(a)(5). But, before legal proceedings can be brought, any union member can be required to exhaust reasonable hearing procedures within his or her union. 29 U.S.C.
§ 411(a)(4). The requirement that a plaintiff exhaust internal union remedies under the LMRDA lies within the court's discretion. Maddalone v. Local 17, 152 F.3d 178, 186 (2d Cir.1998) (citations omitted). The district court found that Paulino had failed to exhaust his internal union remedies, noting that, while Paulino did write letters to the Union president and to the International Union, none of these letters complained about not being given a full and fair hearing prior to his alleged
suspension. Paulino, 2007 WL 1345234,at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24.

The district court was correct in finding Paulino has not exhausted his internal union remedies: Paulino has never raised his claim that he was wrongfully suspended from the Union with the Union. Because there is no evidence that the Union officials in this case are so hostile to Paulino that there is no chance the Union would provide Paulino with a fair hearing, that the Union's internal procedures are
inadequate, or that exhaustion of his remedies within the Union structure would unreasonably delay his opportunity to obtain a judicial hearing, the district court correctly granted summary judgment because Paulino has not exhausted his union remedies. See Schermerhorn v. Local 100, Transport Workers Union of America, AFL-CIO, 91 F.3d 316, 325 (2d Cir. 1996). Paulino's argument that going through the administrative process would have been futile is unsupported.

The district court also found that Paulino had not established that he was actually suspended, and therefore had no claim whatsoever under the LMRDA. Paulino, 2007 WL 1345234, at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24. The court found that despite the minutes of the November 2004 local union meeting, which stated that Paulino had been "suspended," the Union had demonstrated that the statement was in error. The minutes, the Union argued, referred only to the suspension of his
health benefits because he had failed to pay the required contribution. Id. In light of this reasonable explanation of the statement in the minutes and the fact that Paulino continued to pay dues, attend, participate in, and vote at Union meetings, the district court did not err in concluding that summary judgment for the defendants was appropriate on the LMRDA claim.

In short, in light of the fact that Paulino failed to establish that he was suspended from the Union, he cannot prevail on a claim that such a suspension was unlawful. Paulino asserts that summary judgment was granted prematurely because further discovery was warranted. We review a district court's discovery rulings under Federal Rule of Civil Procedure 56(f) for abuse of discretion. Gualandi v. Adams, 385 F.3d 236, 244-245 (2d Cir. 2004). The district court gave Paulino ample opportunity to conduct discovery before the summary judgment motion was decided. While Paulino makes several new assertions in his appellate briefs about discovery he wishes he could obtain, because he did not raise these matters in his 56(f)
affidavit they will not be considered on appeal. See Gurary v.Winehouse, 190 F.3d 37, 43-44 (2d Cir. 1999). The district court did not abuse its discretion by not allowing further discovery.

For the foregoing reasons, the judgment of the District
Court is hereby AFFIRMED.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of the Court
By:_________________________________

Thursday, January 1, 2009

Joel Klein and NYPD Commissioner Ray Kelly are Sued For Allowing Police Abuse in NYC Public Schools



Many parents were very worried about the New York City police presence in our public schools when Mayor Bloomberg brought in the NYPD troops as his allies in 2003 to enhance school security. Bloomberg believed in Rudy Giuliani's

COMSTAT policy that successfully reduced crime in the

city, and decided to place police officers, or "safety agents" in public schools as a way to curb the violence that he heard was rampant there. (But many police officers dont like COMSTAT, and frankly, I dont see how a child is equal to a statistic. However, that's what we got when we gave Mike Bloomberg our children to 'protect' and 'keep safe' in the NYC public schools - Betsy Combier).

The TV show "The District" used the version of COMSTAT called 'Citistat'.


Craig T. Nelson meets Jack Maple (CBS, 2000). Maple whose life experience in crime fighting (as well as eccentricities) is the basis of Nelson's character on The District, also helped produce the show before his passing.

Citistat is a bureaucracy-breaking system which was developed in the City of Baltimore. It was the brainchild of Mayor Peter O'Malley and former NYPD deputy chief, the late Jack Maple. Maple proved in New York City that crime could be reduced by mapping criminal patterns of behavior and like unique evidence in order to gain timely intelligence to help an investigation.
This system, which started for Maple as large sheets of paper covering the walls in his office to a sophisticated computer program. ArcView GIS from ESRI, is the computer software in what eventually became "Comstat."
An example of the use of Comstat was given by Jack Maple in his book Crime Fighter. A prostitute was strangled, a particularly gruesome murder. She was hog-tied and gagged with a pink towel.
When Comstat was beginning, statistics dug up had found a previous similar murder. When a third murder of the same sort occurred, it showed a definite pattern, as well as displaying an isolated part of the city where the similar offenses were occurring.
Police then followed this pattern by canvassing prostitutes in that part of town and eventually got the tip that helped to catch this serial killer.
Finding even the most minute patterns quickly--out of mountains of data--as well as being able to visualize and digest the information easily on large screen monitors is what gives progressive police forces using the Comstat model an edge.
Minute details that used to take hours or days to sort through filing cabinets to retrieve are now entered into a database and connected in a meaningful pattern, using software and posing "what if" scenarios.
The similar information, such as some unique piece of evidence, could then be displayed on demand as colored push points on ArcView's map software for use at a crime solving strategy meeting.
Its use in NYC helped dramatically reduce crime during the Giuliani administration and make New York America's safest big city.
ComStat has been studied by policing agencies for replication all over the world. Former Mayor Guiliani is consulting on solving crime with Mexico City at present.

Comstat becomes Citistat

Comstat turned into the CitiStat model in Baltimore. It has already saved the taxpayers millions of dollars there. Citistat's premise is similar to ComStat: regular accountability meetings and graphical data a few clicks away.
As an example of usage one mappage in Baltimore has displayed real-time snow plows (using GPS on each truck) that light up the map as they move around the city, showing lit up on the computer screen like little Pacmen.
Getting a successful handle on the information crunch in a part of the Roads Department of activities in Baltimore has resulted in the ability for the mayor to make a pledge to pave any pothole reported by citizens within 48 hours. (Effective pothole repair is the first defense against premature deterioration of the road, saving on major repair costs later.)
Like Comstat, officials from all over the world have made the pilgrimage to Baltimore to study this successful system. A number of cities are also adopting major portions of Citistat.


The public has also seen the Mayor adopt the "Broken Windows" theory to our education system here in New York. However, the "Broken Windows" theory has never been "proven" to be valid, but this never stopped Bloomberg from buying into it anyway. See an overview of "Fixing broken windows"

Mr. Joel Klein, the CEO of the New York City Board of Education, and NYPD Commissioner Ray Kelly are now in federal court defending a safety agent's use of extreme force against a child, and the question of whether or not the police belong in schools will be answered - I hope (they dont, in my opinion - B.C.). Mr. Nat Hentoff has now been laid off from The Village Voice, (see below) and I cant help but wonder whether or not his articles on Mr. Klein and Mayor Bloomberg had anything to do with this?


Federal Court Defendants Joel Klein & Ray Kelly
Our Education Mayor remains silent about police abuses of students in public schools

By Nat Hentoff, (pictured at right) The Village Voice
published: December 31, 2008

While Joel Klein was among those being seriously considered by Barack Obama for Secretary of Education—Chicago Superintendent Arne Duncan won out—a civil rights complaint, demanding a jury trial, was filed in U.S. District Court here [Southern District, 08 Civ. 10055 (RJH)(MHD)]. The defendants include Chancellor Klein, Police Commissioner Kelly, the City of New York, and School Safety Agent Daniel O'Connell. The plaintiff is Carlos Cruz, father of Stephen Cruz, an 11th-grade student at Robert F. Kennedy Community High School in Flushing, Queens.

Klein is a defendant in the lawsuit, which was filed by attorney Jeffrey Rothman, because he "is and was at all times, the Commissioner of Education . . . and is responsible, in whole or in part, for the creation . . . and enforcement of the policies and practices . . . herein. He is sued individually and in his official capacity."

I have reported often here on the documented abuses of students, and even some teachers, by the School Safety Agents deployed in this city's schools under Kelly, Klein, and Michael Bloomberg (the latter two praised around the country as champions of "school reform"). Since the 1950s, I've written in columns and books on our schools—and their chancellors from the worst to the best. But not until the Bloomberg/Klein regime have I seen such flagrant dereliction of accountability at the very top of the school system for frequent abuse of students by police agents. This Stephen Cruz case will be followed in next week's column by the even more outrageous treatment of 16-year-old Rohan Morgan at Hillcrest High School in Queens.

Teaching fear of the police is part of the curriculum in the school system—of which Bloomberg is so proud that he is striving (with the help of the City Council) to control the schools permanently.

On September 19, 2008, Stephen Cruz entered one of the stalls in the second-floor bathroom of his school and, as he leaned over to unbuckle his pants, School Safety Agent Daniel O'Connell—known as "Robocop" by the students—smashed open the door without any warning, let alone justification, cutting Stephen's head below the hairline. Bleeding, dizzy, the lump on his head swelling, Cruz showed his blood to the attacker, who said, "That's life. It will stop bleeding"—and left to do his safety rounds. A fellow student in the bathroom helped Cruz to the principal's office to get medical help. Cruz's parents were called to the school and told by the principal that since "Robocop" was an employee of the NYPD, he had no power to discipline the SWAT man.

But why had O'Connell knocked down the door? Stephen's father kept trying to find out, but was told that the Safety Agent didn't even have to submit a report to school officials. His immediate boss was School Safety Agent Supervisor Anthony Pelosi at the 107th Precinct. The impotent principal did schedule a meeting at the precinct to discuss the violence, but Pelosi abruptly canceled it—with, of course, no explanation.

Rothman said (as reported by the New York Civil Liberties Union, which has been trying to teach Klein and Bloomberg the Bill of Rights for years, concerning these cases): "It is appalling that the system is so broken that the only way for a parent to stand up for his son—and to prevent the same things from happening to other children—is to file a lawsuit and an Internal Affairs complaint." He added: "We shouldn't need attorneys to hold this man accountable for his shocking misconduct."

But not only Robocop should be held accountable. (Place your bets on whether he'll even be chided in an NYPD Internal Affairs "investigation.") Where was the chancellor of this city's public school students? Where was the Education Mayor? Not shocked—and not heard from.

If there are civics classes in our schools, then teachers—despite any fear of retaliation from the chancellor—should be reading to students from Rothman's suit during the testing-for-tests time of the No Child Left Behind Act: "School Safety Agent Daniel O'Connell, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to—or a reckless disregard for the natural and probable consequences—caused injury and damage in violation of the plaintiff's constitutional rights . . ."

As for the creepy cover-up, the lawsuit continues: "By their conduct and actions in covering up the conduct and actions of the School Safety Agent," the other culpable defendants include "Raymond Kelly and Joel Klein," who also scorned the constitutional rights of Stephen Cruz. This lawsuit—and others are coming—also focuses on the failure "to properly train, screen, supervise, or discipline" O'Connell and others in that chain of command. Most clearly accountable for that failure is, of course, Police Commissioner Kelly. Aside from what your flack may conjure up, what say you directly, Commissioner?

Even more ultimately responsible for not bringing accountability and badly needed discipline to all of the potential defendants in this and other such lawsuits is the New York City Council leadership.

As I've detailed in previous columns, the Student Safety Act, which has long been before the council, would finally compel transparency and accountability for these and other police practices in the schools. Only 28 of the 51 council members support the Act, but there has yet to be even a hearing. Council member Melissa Mark-Viverito, a co-sponsor of the Student Safety Act, emphasizes: "What happened to Stephen is a disturbing reminder of the deep flaws in our Student Safety model. Ensuring students' safety is not a controversial matter. We all want safe schools, and this bill helps us meet that goal."

Of all big school systems in the country, only in New York does student safety also have to be protected from agents of the police. Why is there no hearing on the bill by the City Council? In the past, I've blamed Speaker Christine Quinn, but I now know that blocking this peril to the safety of students, especially in mainly black and Hispanic schools, is Queens Councilman Peter Vallone Jr., chairman of the Public Safety Committee, a majority of whose members support the Student Safety Act. Mr. Vallone has yet to respond to my calls to him and to his aides.

An assistant has told investigative reporter Vladic Ravich of the Queens Chronicle that there aren't enough funds for the Civilian Complaint Review Board to handle the additional casework of parent complaints about the Robocops among the Safety Agents. To hell with these parents and their children?! Vallone has two daughters in the public schools. I guess they're safe, too.

School Safety Agent O'Connell is now patrolling a middle school nearby.

Complaint:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
CARLOS CRUZ, as Father and Next Friend
of STEPHEN CRUZ, COMPLAINT
Plaintiff, JURY TRIAL DEMANDED
-against-
ECF CASE
THE CITY OF NEW YORK; RAYMOND KELLY,
COMMISSIONER OF THE NEW YORK CITY 08 Civ. 10055 (RJH)(MHD)
POLICE DEPARTMENT; JOEL KLEIN,
COMMISSIONER OF THE NEW YORK CITY
DEPARTMENT OF EDUCATION; SCHOOL
SAFETY AGENT DANIEL O’CONNELL, Shield
No. 2816; SCHOOL SAFETY AGENT
SUPERVISOR ANTHONY PELOSI AT THE
NYPD 107TH PRECINCT, Shield No. 0049;
JOHN DOES; RICHARD ROES,

Defendants
--------------------------------------------------------X
PRELIMINARY STATEMENT
1. This is a civil rights action in which CARLOS CRUZ seeks relief on behalf of his son STEPHEN CRUZ for the defendants’ violation of STEPHEN CRUZ’s rights secured by the Civil Rights Act of 1871, 42 U.S.C. Section 1983, by the United States Constitution, including its Fourth and Fourteenth Amendments, and by the laws and Constitution of the State of New York. The plaintiff seeks damages, both compensatory and punitive, affirmative and equitable relief, an award of costs and attorneys’ fees, and such other and further relief as this court deems equitable and just.

JURISDICTION

2. This action is brought pursuant to the Constitution of the United States, including its Fourth and Fourteenth Amendments, and pursuant to 42 U.S.C. §1983. Jurisdiction is conferred upon this court by 42 U.S.C. §1983 and 28 U.S.C. §§1331 and 1343(a)(3) and (4), this being an action seeking redress for the violation of STEPHEN CRUZ’s constitutional and civil rights.

JURY TRIAL DEMANDED

3. Plaintiff demands a trial by jury on each and every claim as pleaded herein.

VENUE

4. Venue is proper for the United States District Court for the Southern District of New York pursuant to 28 U.S.C. §1391 (a), (b) and (c).

PARTIES

5. Plaintiff CARLOS CRUZ is a citizen of the United States, and at all times relevant herein resided in the state of New York, county of Queens. STEPHEN CRUZ, a minor, is the son of CARLOS CRUZ, and is and was at the time of the events complained of herein fifteen years of age. STEPHEN CRUZ at all times relevant herein resided with his parents and family in the state of New York, county of Queens.

6. Defendant THE CITY OF NEW YORK (“The City”) is and was at all times relevant herein a municipal entity created and authorized under the laws of the State of New York. It is authorized by law to maintain a police department, which acts as its agent in the area of law enforcement and for which it is ultimately responsible. It is also authorized by law to maintain a department of education, which acts as its agent in the area of education of the City’s youth and for which it is ultimately responsible. Defendant THE CITY OF NEW YORK assumes the risks incidental to the maintenance of a police force and system of public education and the employment of school safety agents as said risk attaches to the public consumers of the services provided by the New York City Police Department (“NYPD”) and Department of Education (“DOE”).

7. Defendant RAYMOND KELLY is and was at all times relevant herein, the Police Commissioner for the City of New York, and he is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and /or customs complained of herein. He is sued individually and in his official capacity.

8. Defendant JOEL KLEIN is and was at all times relevant herein, the Commissioner of Education for the City of New York, and he is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and /or customs complained of herein. He is sued individually and in his official capacity.

9. Defendants SCHOOL SAFETY AGENT DANIEL O’CONNELL, Shield No. 2816, and JOHN DOES, are and were at all times relevant herein duly appointed and acting officers, servants, employees and agents of THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, municipal agencies of defendant THE CITY OF NEW YORK. Said individual defendants are and were at all times relevant herein acting under color of state law in the course and scope of their duties and functions as officers, agents, servants, and employees of defendant THE CITY OF NEW YORK, were acting for, and on behalf of, and with the power and authority vested in them by THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, and were otherwise performing and engaging in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants O’CONNELL and JOHN DOES are sued individually and in their official capacity.

10. Defendants SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, Shield No. 0049, and RICHARD ROES are and were at all times relevant herein duly appointed and acting supervisory officers, servants, employees and agents of THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, responsible for the training, retention, supervision, discipline and control of school safety agents and other employees under their command. Said individual defendants are and were at all times relevant herein acting under color of state law in the course and scope of their duties and functions as supervisory officers, agents, servants, and employees of defendant THE CITY OF NEW YORK, were acting for, and on behalf of, and with the power and authority vested in them by THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, and were otherwise performing and engaging in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants SCHOOL SAFETY AGENT SUPERVISOR PELOSI AT THE NYPD 107TH PRECINCT, Shield No. 0049 and RICHARD ROES are sued individually and in their official capacity.

STATEMENT OF FACTS

11. STEPHEN CRUZ is a student at Robert F. Kennedy High School in Flushing, Queens.

12. The afternoon of September 19, 2008, Plaintiff STEPHEN CRUZ entered the second floor bathroom, and entered one of the bathroom stalls so that he could use the facilities.

13. As he leaned his head over to unbuckle his pants, defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, without any warning or justification, violently kicked the door of the stall into STEPHEN CRUZ’S head.

14. When he saw that there was blood coming from the wound that he had inflicted upon STEPHEN CRUZ, Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL said, “That’s life, it will stop bleeding.”

15. Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL then left the bathroom, without any attempt to seek medical attention for STEPHEN CRUZ.

16. Another student who was present in the bathroom assisted STEPHEN CRUZ to clean the blood off of his head, and assisted STEPHEN CRUZ in getting to the school’s main office, where the incident could be reported and STEPHEN CRUZ could get medical attention.

17. STEPHEN CRUZ’s parents were called to the school.

18. STEPHEN CRUZ’s father CARLOS CRUZ made repeated attempts on that occasion and in the days that followed to ascertain what Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL’s explanation was for his conduct. CARLOS CRUZ was unable to obtain that information from the school’s officials, and was informed that SCHOOL SAFETY AGENT DANIEL O’CONNELL did not have to submit a report to school officials, since he was governed by the NYPD 107th Precinct.

19. STEPHEN CRUZ’s father CARLOS CRUZ was subsequently informed by the school’s Principal that SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT had cancelled a meeting with the Principal at which meeting the Principal had expected to obtain further information as to what Defendant SCHOOL SAFETY
AGENT DANIEL O’CONNELL’s explanation was for his conduct.

20. To date, no explanation has been provided to STEPHEN CRUZ or his father CARLOS CRUZ for what transpired in the bathroom stall.

21. Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL is referred to as “Robocop” by the students at Robert F. Kennedy High School because of his routine aggressive and inappropriate behavior towards the students.

22. In 1998, School Safety Agents were transferred from the Department of Education and placed under the authority of the New York City Police Department. Since that time there has been a widespread lack of transparency and accountability concerning the actions of School Safety Agents in the New York City Public Schools.

FIRST CLAIM
DEPRIVATION OF RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND 42 U.S.C. §1983

23. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

24. By his conduct and actions in assaulting and battering STEPHEN CRUZ with unwarranted and excessive force, by wrongfully invading the privacy of STEPHEN CRUZ, by falsely imprisoning STEPHEN CRUZ in a bathroom stall, by inflicting emotional distress upon STEPHEN CRUZ, by failing to provide proper medical care for STEPHEN CRUZ, and by violating STEPHEN CRUZ’s right to substantive due process, defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to or a reckless disregard for the natural and probable consequences of their acts, caused injury and damage in violation of plaintiff’s constitutional rights as guaranteed under 42 U.S.C. §1983 and the United States Constitution, including its Fourth and Fourteenth amendments.

25. By their conduct and actions in covering up the conduct and actions of defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL and preventing transparency regarding the September 19, 2008 incident, defendants JOHN DOES, SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, RAYMOND KELLY, and JOEL KLEIN, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to or a reckless disregard for the natural and probable consequences of their acts, caused injury and damage in violation of plaintiff’s constitutional rights as guaranteed under 42 U.S.C. §1983 and the United States Constitution, including its Fourth and Fourteenth amendments.

26. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

SECOND CLAIM
SUPERVISORY LIABILITY FOR DEPRIVATION OF RIGHTS
UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. §1983

27. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

28. By failing to remedy the wrongs committed by their subordinates, including defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, and in failing to properly train, screen, supervise, or discipline their subordinates, including defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, supervisory officers RICHARD ROES, SCHOOL SAFETY
AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, RAYMOND KELLY, and JOEL KLEIN caused damage and injury in violation of STEPHEN CRUZ’s rights guaranteed under 42 U.S.C. §1983, and the United States Constitution, including its Fourth and Fourteenth amendments.

29. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

THIRD CLAIM
LIABILITY OF THE CITY OF NEW YORK
FOR CONSTITUTIONAL VIOLATIONS

30. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

31. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department and department of education, and through the individual defendants had de facto policies, practices, customs and usages which were a direct and proximate cause of the unconstitutional conduct alleged herein.

32. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department and department of education, and through the individual defendants, had de facto policies, practices, customs, and usages of failing to properly train, screen, supervise, or discipline employees and school safety agents, and of failing to inform the individual defendants’ supervisors of their need to train, screen, supervise or discipline said defendants. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

33. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the violation of the rights of New York City Public School students by School Safety Agents and by other members of the NYPD. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

34. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the covering up of the improper conduct and actions of School Safety Agents and other members of the NYPD in the New York City Public Schools. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

35. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the widespread lack of transparency and accountability concerning the actions of School Safety Agents and other members of the NYPD in the New York City Public Schools. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

36. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

WHEREFORE, plaintiff demands the following relief jointly and severally against all of the defendants:
a. Compensatory damages;
b. Punitive damages;
c. The convening and empanelling of a jury to consider the merits of the claims herein;
d. Costs and interest and attorney’s fees;
e. Such other and further relief as this court may deem appropriate and equitable.
Dated: New York, New York
November 19, 2008

________/S/____________________
JEFFREY A. ROTHMAN, Esq. [JR-0398]
Law Office of Jeffrey A. Rothman
315 Broadway, Suite 200
New York, New York 10007
(212) 227-2980

RONALD L. KUBY, Esq. [RK-1879]
Law Office of Ronald L. Kuby
119 W. 23rd Street, Suite 900
New York, New York 10011
(212) 529-0223

Attorneys for Plaintiff Carlos Cruz,
as Father and Next Friend of Stephen Cruz

See The School To Prison Pipeline

Here is a report by CBS in August, 2008:
Proposed 'Student Safety Act' To Police Security
NYC Schools Cop Report Card To Monitor Gender, Race Of Those Arrested, Suspended & Expelled

LINK
With shootings on campuses making headlines across the country, security remains a major concern.

But here at home some are saying those called on to help keep students and faculty safe are going too far.

On the steps of City Hall on Thursday, dozens of students, politicians and parents tried to make a point that the people who police the schools need to be policed themselves.

"I have seen a school safety agent handcuff one of my friends and punch her in the face," student Jaritza Geigel said.

Accusations are flying that school safety officers are treating too many students like criminals.

"What used to be a walk to the principal's office has now become a walk to your local precinct," said Udi Ofer of the New York Civil Liberties Union.

Now comes the Student Safety Act that's essentially a report card of school cops, meant to monitor arrests, suspensions and expulsions of students, and then break down the information by race, sex and disability status -- with complaints going to the civilian complaint review board.

"The information can be analyzed to determine is there racism going on? Is there sexism going on? Is it because any one student who has special needs?" said NYC Education Committee chairman Robert Jackson.

Backers of this bill say it would lead to more accountability and transparency in the schools but critics say it's just another layer of bureaucracy."

"It's very difficult to do your job under these kinds of pressures," said Gregory Floyd of Local 237.

The union head says with his officers in place crime in schools is down, yet this bill would be a punishment.

"The punishment is if you sneeze the wrong way, somebody is going to come after your position," Floyd said.

CBS 2 HD wanted to know if Mayor Michael Bloomberg's office thought added oversight for school officers was a good idea, but it deferred all comment to the city's Department of Education. However, the DOE wasn't talking either, saying it doesn't comment on pending legislation.

And by the way, The Village Voice has laid off Mr. Hentoff:

December 31, 2008
Village Voice Lays Off Nat Hentoff and 2 Others
By STEPHANIE CLIFFORD, NY TIMES

The troubled Village Voice laid off three employees Tuesday, including Nat Hentoff, the prominent columnist who has worked for the paper since 1958, contributing opinionated columns about jazz, civil liberties and politics.

Lynn Yaeger, a fashion writer who has worked for the paper for about 30 years, was also laid off, as was Chloe A. Hilliard, who has written for two years.

“Nat Hentoff wrote liner notes for every great musician that I’ve ever loved, from Billie Holiday to Bob Dylan and Aretha Franklin, and that’s not even what he’s been writing about for the last 30 years,” said Tom Robbins, a Voice staff writer.

Founded in 1955, The Village Voice was sold in 2005 to New Times Media, a Phoenix-based publisher of alternative weeklies that later changed its name to Village Voice Media. Calls for comment from Jim Larkin, the chief executive of Village Voice Media, and Tony Ortega, who was hired as Village Voice editor in 2007, were not returned.

Mr. Robbins estimated that since the sale, The Voice has laid off about half of its staff. “I understand they have serious advertising revenue problems, but they don’t seem to be able to sit there and just talk about them with their own work force to deal with these problems,” he said.

In an article in the current issue of The New Yorker about The Voice, Louis Menand wrote, “Until its own success made it irresistible to buyers who imagined that they could do better with a business plan than its founders had done from desperation and instinct, it had the courage to live by its wits.”

Mr. Hentoff said he learned the news in a phone call with Mr. Ortega on Tuesday morning. “I’m 83 and a half. You’d think they’d have let me go silently,” he said. “Fortunately, I’ve never been more productive.”

Mr. Hentoff plans to continue to write a weekly column for the United Media syndicate and contribute pieces to The Wall Street Journal. His book “At the Jazz Band Ball: 60 Years on the Jazz Scene,” is expected next year.

“With all due immodesty, I think it doesn’t help to lose me because people have told me they read The Voice not only for me, but certainly for me,” he said.

Tuesday, December 30, 2008

Nick De Marco, NYC Teacher, Loses His Appeal For a Three-Member Panel in His 3020a Hearing



Wednesday, December 24, 2008
Commissioner of Education (Richard Mills, pictured at right) no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850, December 12, 2008

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that [1] it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4); [2] its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels;** and [3] the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[3][c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

** §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer. However, as the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet:

Appeal of NICOLA A. DeMARCO, from action of the New York City Department of Education regarding disciplinary charges.

Decision No. 15,850

(December 12, 2008)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Ivan A. Mendez, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner challenges disciplinary charges brought against him by the New York City Department of Education (“respondent”). The appeal must be dismissed.

Petitioner is a tenured teacher employed in respondent’s district since 1994. On December 7, 2007, disciplinary charges were brought against him by his principal at Louis Armstrong Middle School, I.S. 227. Petitioner demanded a hearing on the charges by a three-member panel pursuant to Education Law §3020-a, and demanded dismissal of the charges on the ground that disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.

Respondent refused petitioner’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4), and that its agreement with the United Federation of Teachers did not provide for three-member panels. It also refused to dismiss the charges because it claims that authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District 30 on August 27, 2007.

Petitioner commenced this appeal on June 25, 2008, to seek dismissal of the disciplinary charges and to enjoin the disciplinary proceeding during the pendency of the appeal. Interim relief was denied on July 8, 2008.

Petitioner argues that the alternative disciplinary procedures adopted by agreement between respondent and the United Federation of Teachers are improper and effectively deprive him of due process. He contends that the disciplinary proceeding against him also violates his rights under the New York Human Rights Law and the federal Family and Medical Leave Act.

Respondent denies any wrongdoing on its part and asserts several affirmative defenses, including lack of personal jurisdiction and lack of subject matter jurisdiction over some or all of petitioner’s claims.

The appeal must be dismissed for lack of personal jurisdiction. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

According to the affidavit of petitioner’s process server, he made service of the notice of petition and petition upon Christine J. Kicinski on June 25, 2008, at 52 Chambers Street, the location of the Chancellor’s office. Respondent alleges that Ms. Kicinski is not a person authorized to accept service on its behalf. Respondent alleges that “Ms. Kicinski informed the deliverer that she would not accept service on behalf of the DOE, and that he would have to serve the petition on the only agent authorized to accept service on behalf of the DOE, the Office of the Corporation Counsel.” Respondent further avers that the Office of the Corporation Counsel was not served with the petition.

Petitioner’s reply does not address or refute the statement attributed to Ms. Kicinski with respect to her lack of authority to accept service on behalf of respondent. The reply states only, in a general way, that all of petitioner’s papers were served “properly, legally and sufficiently.” This general statement is insufficient to contradict respondent’s assertion.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).

The appeal must also be dismissed for lack of subject matter jurisdiction. Education Law §3020-a was substantially amended by Chapter 691, §3, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994. Pursuant to that amendment, the Commissioner’s jurisdiction to review determinations of hearing officers, both final and nonfinal, has been removed (Appeal of T.W., 47 Ed Dept Rep ___, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725). The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law §3020-a[3][c][iii] and [iv]). Petitioner’s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

Giving Something Back While Representing NYC

Michael A. Cardozo, New York City Law Department

Stacey Laskin
New York Law Journal
August 7, 2007

Name and Title: Michael A. Cardozo, corporation counsel

Age: 66

Like A Big Law Firm: The New York City Law Department represents and provides legal counsel to Mayor Michael Bloomberg, the City Council, other elected officials and city agencies. Cardozo heads a staff of 1,300 employees, 690 of them attorneys grouped into 17 legal divisions.

Cardozo works mostly in the department's headquarters near City Hall, but oversees offices in each of the city's five boroughs and maintains a desk inside City Hall. His staff vets $4 billion in contracts each year.

According to Cardozo, the department is the third-largest law firm in New York City and operates in much the same way as a large firm, except for the pay -- the average starting salary is $55,000. Still, Cardozo said, the excitement and the responsibility to which city employees are exposed more than make up for the money.

Legal Team: New York City gets sued approximately 200 times every week, and about 65 cases go to trial each week. To staff all of these cases, Cardozo frequently relies upon his first- and second-year attorneys, but also borrows lawyers from large New York firms.

"Unfortunately, because of the economics of the law industry, it's hard to give new associates trial practice. But if they're here for their first year at the firm, they're assigned to one of our trial offices. We win, the law firm wins," Cardozo said.

The law department sometimes refers cases to outside firms. In 2004, for example, New York-based Skadden, Arps, Slate, Meagher & Flom took on a case involving a shooting incident in a city jail. The firm assigned summer associates at no charge to the city. "It's a terrific help," Cardozo said. "The generosity of the private bar is just terrific. It's not just generosity; they gain from it."

Cardozo maintains an active affirmative litigation division, and recently argued, and won, a case before the U.S. Supreme Court, establishing the city's authority to charge property tax against foreign embassies that use their buildings to house employees.

Cardozo counsels the mayor on legislation, including the city's bans on smoking in bars and restaurants and use of trans fats by restaurants. He helped launch police searches of passengers' bags on the subway system following the 2005 London transit system bombings.

The Sept. 11, 2001, attacks generated 9,000 lawsuits against the city, including claims by workers that they had become sick while cleaning up the ruins of the World Trade Center. "This was huge, huge litigation," he said.

Outside Counsel: The city "very, very rarely" retains outside counsel, Cardozo said. Exceptions occur when city attorneys are conflicted out of a case or lack the necessary legal expertise. Litigation arising from the fatal 2003 Staten Island Ferry accident, for example, required retention of Freehill Hogan & Mahar, a firm specializing in admiralty law, as well as another New York firm, Debevoise & Plimpton. Federal regulations require the city to outsource the work involved in selling municipal bonds; firms doing that work have included Sidley Austin, Fulbright & Jaworski and Boston-based Edwards Angell Palmer & Dodge. The city turns to outside experts in medical malpractice litigation arising from the 14 municipally run hospitals; they have included McAloon & Friedman and Martin Clearwater & Bell, both of New York. For litigation arising from city pension investments, the office has turned to firms including Cohen, Milstein, Hausfeld & Toll of Washington, Grant & Eisenhofer of Wilmington, Del., and Labaton Sucharow & Rudoff of New York. Conflict counsel have included Seiff Kretz & Abercrombie and Peltz & Walker, both of New York. The city chooses among firms that respond to a formal request-for-proposal process.

Diversity: Cardozo prides himself on the diversity within his office. Women make up 65 percent of his staff and whites perhaps less than 50 percent, he said. According to Cardozo, the office has the largest number of gay and lesbian attorneys of any municipal law department in the country. "We are a very representative microcosm of society," he said.

Route To Present Position: The Sept. 11 attacks convinced Cardozo, then a partner at New York-based Proskauer Rose, to contribute more to the city in which he was born and spent much of his life. At the time, he was co-chairman of the firm's litigation department and had an active practice, representing the National Basketball Association, the National Hockey League and Major League Soccer in antitrust and labor cases.

"The city was on its knees. But this was an opportunity to give back, so when the mayor offered me the job, I said, 'Yes,'" he said.

"This is my absolute dream job. We make a difference. You can stand up in court and say, 'I represent the city of New York' -- there's a lot of meaning behind that. That's a powerful statement. It's very satisfying."

Cardozo served as president of the Bar Association of the City of New York from 1996 to 1998, and said that it helped prepare him for his job's management and executive duties. He graduated from Brown University with a bachelor's degree in political science in 1963 and earned a J.D. from Columbia Law School in 1966.

Daily Duties: Cardozo starts his day at 9 a.m. with meetings in City Hall with the mayor and other officials. Then he'll usually head back to his office to confer with aides on management issues and with lawyers working on individual cases. He tries to visit each of his offices every week, has frequent meetings with judges and attends charity and bar association events.

One task the mayor assigned Cardozo was to help lead a parade safety task force. Bloomberg set up the panel after a wind gust blew a helium-filled balloon into a lamp post and injured two people during the 2005 Macy's Thanksgiving Day parade. It followed a similar incident involving a Cat in the Hat balloon in 1997.

"We realized this was something serious," Cardozo said. "We came up with a new protocol for measuring wind -- that's something I didn't learn in law school."

Personal: The Scarsdale, N.Y., resident enjoys attending the theater with his wife, Nancy, and spending time with daughters Hedy and Sheryl, and 3-year-old twin grandchildren, Joshua and Lucy. He is an avid New York Yankees fan, and likes to "putter around the garden." He runs three days a week on a treadmill and relaxes in the evenings by reading.

Last Book and Movie: Team of Rivals, by Doris Kearns Goodwin, and Sicko.