COBRA Premium Subsidy and Advice For Employers by Lorisa D. LaRocca, Esq.

COBRA Premium Subsidy – Employers Must Take Action
By Lorisa D. LaRocca, Esq.
LINK

On February 17, 2009, President Obama signed his economic stimulus plan, the American Recovery and Reinvestment Act of 2009 (the "Act"), into law. However, what you may not know is that the Act significantly modifies the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") so as to provide a 65% government subsidy toward payment of COBRA premiums for certain employees, for up to nine months. Perhaps most importantly, the subsidy must be initially paid by employers who can then recoup these payments from the government as a credit against its federal payroll tax liabilities. In addition, employers are required to notify all affected individuals of their right to receive the subsidy, including all individuals involuntarily terminated from September 1, 2008 forward and in some cases, their dependents.

Given that the law became effective at the time of its signing, immediate action is likely required on your part to comply with the Act's requirements. Below are details that outline the specifics of the Act and prove some suggestions as to the steps you should take to comply. If you have any questions regarding this information, please do not hesitate to contact me.

COBRA Premium Subsidy

What is the subsidy?

The Act provides for a COBRA premium subsidy, whereby the federal government will pay sixty-five percent (65%) of the cost of a qualified beneficiary's COBRA premium if the qualified beneficiary:

i. experiences a qualifying event that is an involuntary termination during the period beginning September 1, 2008 and ending December 31, 2009;

ii. elects COBRA coverage; and

iii. pays thirty-five percent (35%) of the COBRA premium.

The employer must then pay the remaining sixty-five percent (65%) of the COBRA premium and will receive a credit for this amount against its federal payroll tax liabilities. If the amount of the credit exceeds the amount of payroll taxes owed, the Act provides that the Treasury Secretary will pay the excess directly to the employer.

With regard to the requirement that a qualified beneficiary be "involuntarily terminated" in order to be eligible for the subsidy, the term "involuntarily terminated" was not defined by the Act. However, it is clear that the termination must not be for gross misconduct. Layoffs or plant closings will qualify but it remains unclear whether an employee who takes advantage of a voluntary exit incentive program will qualify.

How is the subsidy calculated?

The thirty-five percent (35%) premium payment that the qualified beneficiary must make and the sixty-five percent (65%) premium subsidy are based on the COBRA premium that the qualified beneficiary is otherwise required to pay. For example, if an employer had already agreed to pay 10% of the total COBRA premium as part of a severance agreement, the employee will need to pay only 35% of 90% of the total COBRA premium, and the employer will receive a payroll tax credit for only 65% of 90% of the total COBRA premium. The employer would not be entitled to a payroll tax credit for the 10% of the premium that the employer was otherwise obligated to pay under the severance agreement.

How does the Act affect state Mini-COBRA Provisions?

The COBRA premium subsidy will also apply to health care continuation coverage provided by state and federal governments, or mandated by state law for group health plans with fewer than 20 employees. Accordingly, the subsidy applies to New York employers who employ between 2 and 19 employees and are covered by New York’s mini-COBRA regulation.

Are there any exceptions to the Act?

First, subsidies are not applied to payments for coverage under a health flexible spending account offered under a "cafeteria plan" (i.e., Section 125 plan).

Second, the Act conditions an individual's entitlement to the subsidy on an income threshold (per taxable year). Individuals whose income is $125,000 (or $250,000 for joint filers) are not eligible for the subsidy. If an individual's modified adjusted gross income for the taxable year in which the subsidy is received exceeds $145,000 ($290,000 for joint filers), then the amount of the premium subsidy that was provided to the individual, the individual's spouse or the taxpayer's dependents for all months during such taxable year must be repaid.

For taxpayers with modified adjusted gross income between $125,000 and $145,000 (or $250,000 and $290,000 for joint filers), the amount of the premium subsidy for the taxable year that must be repaid is reduced proportionately. The repayments are captured on the individual's federal income tax return. However, the Act allows each individual to make a permanent election to waive the right to the premium subsidy for all periods of coverage, thereby allowing any individual who is certain that he or she will surpass the income threshold to avoid being subject to the recapture tax. The income threshold applies on a per-taxable year basis.

When is the effective date of the Act?

The subsidy is effective for the first period of coverage beginning on or after February 17, 2009. Therefore, for employers who bill COBRA premiums on a monthly basis, the subsidy will commence March 1, 2009.

However, the Act provides a grace period for employers and plan administrators who are unable to modify their March or April COBRA bills in time to reflect the subsidy. The grace period allows the employer or plan administrator to charge the qualified beneficiary for the full COBRA premium for two billing periods following February 17, 2009. However, the employer must then either reimburse the qualified beneficiary for the amount equal to the subsidy or credit the qualified beneficiary for the amount of the subsidy toward future COBRA premium payments.

If the employer plans to credit a qualified beneficiary for their March or April payments, the employer must reasonably believe that the credit will be used by the qualified beneficiary within one hundred eighty (180) days of the date on which the employer or the plan administrator received the payment of the full COBRA premium amount from the qualified beneficiary.

When does the subsidy end?

The COBRA premium subsidy will end on the earliest of the following dates:

i. nine (9) months after the first day that the individual became eligible for the subsidy;

ii. the date the individual becomes eligible for coverage under any other group health plan** (other than coverage consisting of only dental, vision, counseling or referral services, or a combination thereof), coverage under a flexible spending arrangement or coverage of treatment that is furnished in an on-site medical facility maintained by the employer that consists primarily of first-aid services, prevention and wellness care, or similar care (or a combination thereof);

iii. the date the individual is eligible for Medicare;

iv. the date following the expiration of the maximum period of continuation coverage required under the applicable COBRA continuation coverage provision; or

v. the date following the expiration of the period of continuation coverage elected pursuant to the special COBRA election opportunity (as discussed herein).

**An individual must notify the plan of a loss of COBRA entitlement due to eligibility for other health plan coverage. Failure to do so will result in a penalty imposed on the individual equal to 110% of the improperly paid subsidy amount.

What if the employer offers alternative coverage following involuntary termination?

The Act does not address whether the subsidy will still apply if an employer offers alternative coverage independent from COBRA, following involuntary termination. For example, if an individual is involuntarily terminated on December 1, 2009 and the employer provides for a 6-month period of non-COBRA continued coverage and the COBRA coverage does not begin until the employer-provided coverage expires (i.e., on June 1, 2010), it is unclear whether the COBRA premium subsidy will still apply for nine months (i.e., through February 28, 2011), assuming that the other subsidy termination events listed above do not occur earlier. It is likely that this will be addressed by the Department of Labor or the Legislature at a later date.

What is the “Special COBRA Election”?

The Act also provides that qualified beneficiaries who would otherwise be eligible for the COBRA premium subsidy but who did not elect COBRA continuation coverage prior to February 17, 2009, will have an additional opportunity to elect COBRA. This “Special COBRA Election” period began on February 17, 2009 and ends sixty (60) days after notice is provided to the qualified beneficiary of this Special Election opportunity. Coverage elected pursuant to this election right begins on March 1, 2009 and ends no later than the date that the original maximum COBRA continuation coverage period would have expired. For example, if an individual who was involuntarily terminated from employment on October 1, 2008, but did not elect COBRA continuation coverage, and such individual is otherwise eligible for the COBRA premium subsidy, the individual would have sixty (60) days after notification of this special COBRA election opportunity to elect COBRA coverage and receive the subsidy. If the individual makes the election, the coverage would begin March 1, 2009 and end no later than the maximum required COBRA continuation period (18 or 36 months) after October 1, 2008. This Special Election right is also available to a qualified beneficiary who elected COBRA coverage but who is no longer enrolled on the date of enactment because, for example, the beneficiary was unable to continue paying the premiums.

By what date must employers provide notice of the Act to affected employees?

In addition to their standard COBRA notices, employers must inform COBRA eligible individuals about their new COBRA rights under the Act by April 18, 2009. The new information must be provided to any individual who becomes a qualified beneficiary-not just to individuals who were involuntarily terminated- during the period beginning September 1, 2008 and ending December 31, 2009. Employers must also send new COBRA notices to individuals who are entitled to the Special COBRA Election opportunity describing those individuals' rights. The Secretary of Labor is scheduled to provide model notices by March 19, 2009 but, in the event that such model notices are not issued in a timely manner, the April 18, 2009 deadline for employers still applies so it is critical that affected employers immediately begin drafting such notices.

How do employers go about receiving their subsidy credit?

To claim the payroll tax credit, employers must file a report that includes an attestation of the involuntary termination, a report of the payroll tax credits for the current period and the estimated credits for any subsequent period, the taxpayer identification numbers of the terminated employees, the amount of the subsidy reimbursed with respect to each qualified beneficiary, and information as to whether the subsidy provided was for one or more qualified beneficiaries.

What should employers do now?

Given the relatively short deadline for employer compliance with the Act, employers should take several immediate steps:

Identify individuals eligible for COBRA who were terminated on an involuntary basis on or after September 1, 2008, as well as the qualifying dependents of these individuals;

Begin drafting new and/or revised COBRA notices and notify all affected individuals of their new COBRA rights under the Act;

Update COBRA premium payment methods to take into account the employer’s payment for the sixty-five percent (65%) share of the COBRA premium;

Revise payroll systems and other procedures so that the employer will be ready to obtain reimbursement from the federal government without delay; and

Develop any procedures necessary to determine when the premium subsidy ends for each affected individual and to reinstate the full COBRA premium charge with respect to such individual.
Please feel free to contact any member of the Woods Oviatt Labor & Employment Practice Group with questions:

Gordon S. Dickens, Esq., Chair
(585) 987-2851

William G. Bauer, Esq.
(585) 987-2811

Greta K. Kolcon, Esq.
(585) 987-2812

Andrew J. Ryan, Esq.
(585) 987-2809

Lorisa D. LaRocca, Esq.
(585) 987-2834

Teacher Chance Nalley Invites All His Students to His Commitment Ceremony

I applaud Mr. Nalley for openly announcing his commitment to another man.

Betsy Combier
Editor, NYC Rubber Room Reporter

March 23, 2009
Big City
Most of the Seventh Grade Will Be at the Commitment Ceremony
By SUSAN DOMINUS, NY TIMES

Sometimes the best news is that a story makes no news.

In the fall of 2008, the supporters of Proposition 8, a ballot initiative meant to ban gay marriage in the state of California, fell on a lucky break: video of first graders whose class parents had arranged for them a trip to city hall, where they celebrated their female teacher’s marriage to another woman, a ceremony over which the mayor of San Francisco presided. Gay-marriage opponents cried indoctrination, and the ensuing controversy provoked so much outrage that it has been considered important in squashing opposition to the ban. (The California Supreme Court is currently weighing the constitutionality of the proposition.)



In Harlem a week ago, a 32-year-old math teacher handed out slips of paper inviting the entire seventh grade of Columbia Secondary School to his upcoming ceremony, where, the names on the invitation made clear, he’d be celebrating his commitment to another man. The teacher, Chance Nalley, (pictured above) rarely wastes an instructional opportunity but said that, in this particular instance, he wasn’t trying to make an educational statement.

“They kept asking if they were invited,” he said of his students at Columbia, a selective public school that specializes in math, science and engineering. “Originally, I said no. But when I found a venue that turned out to be big enough I said, ‘O.K., you can come.’ I invited their parents, too.”

A famously strict teacher — his boss says he is regarded by students with a mixture of “love and fear” — Mr. Nalley kept his sexual orientation to himself at the previous public school where he taught, the Riverdale/Kingsbridge Academy in the Bronx. “They respected my authority, and I’d have hated for their prejudices to interfere with my working relationship with them,” he explained.

But Columbia Secondary, which operates in a partnership between the Department of Education and Columbia University, is a much smaller school, whose mission statement includes a commitment to diversity (more than half the students are black or Hispanic, 45 percent qualify for free or reduced-price lunches).

With his principal’s support, Mr. Nalley, who started at the school when it opened in 2007, felt comfortable coming out to students during a diversity workshop that fall.

“A lot of the students were shocked at the time,” said the principal, Jose Maldonado-Rivera, (pictured below) “shocked that he said it, and shocked that it was true. For many students, it was a huge eye-opener — it was the last thing they would have thought about Chance.”



Two parents told the principal that they didn’t want Mr. Nalley teaching their children. Dr. Maldonado-Rivera explained that since the school had only one math teacher at the time, if they wanted their children to take math, they didn’t have a choice. The children stayed, and since then, neither Dr. Maldonado-Rivera nor Mr. Nalley has heard a word from them.

More recently, two other parents sent e-mail messages to Dr. Maldonado-Rivera to complain about Mr. Nalley’s invitation. Dr. Maldonado-Rivera explained to them that he saw the school as an extended family and that the invitation was in that spirit. And that was the end of the controversy, such as it was.

There have, however, been some questions. One student asked about the legality of two men marrying. Mr. Nalley explained that New York State does not, in fact, allow it, but that he was thinking of the ceremony as a wedding celebration, if not a legal contract. When another student asked why gay marriage was not legal in New York, Mr. Nalley responded, “I really don’t know.”

He is expecting about two-thirds of the school’s 96 seventh graders at the ceremony, on April 4 at St. Paul’s Chapel on Columbia University’s campus (he had to hire an extra security guard because so many children were coming). Four seventh graders, approached at random on Friday, said they planned to be there.

Were they surprised to learn he was gay?



“He’s not gay,” said Japhet Guzman, 12.

“No,” agreed a lanky 13-year-old who walked with a bit of a tough-guy swagger, “he’s not gay. He’s bisexual. Why don’t you ask him?” (Mr. Nalley confirmed this.)

Within hours of that diversity workshop last fall, the kids said, the whole school had heard the news about Mr. Nalley.

“I was really surprised,” recalled the 13-year old boy. “It didn’t change anything about what we thought about him, though.”

Raven Franklyn, another student, added, “It showed he trusts us.”

And they apparently trust him: Mr. Nalley said six students have come out to him this year.

Every once in a while, Mr. Nalley does catch an earful of the homophobia that’s obviously rampant in seventh-grade boys trying to prove their machismo. For example, he said, seventh grade is the age when kids start saying everything is “so gay.”

“When I hear that, I just say to them, ‘What exactly do you mean by that?’ ” said Mr. Nalley.

After that, he doesn’t hear it again.

E-mail: susan.dominus@nytimes.com

2008: Math Citation
A Global Take on Mathematics
Chance Nalley brings an international flair to the classroom
LINK

Middle school students are notorious for their short attention spans—a trait science teacher Chance Nalley is lucky to share.

“I have an attention span about the same as a small child, so if I’m not interested, I don’t expect kids to be interested,” Nalley said. “I make sure I’m interested in the material and the kids are interested by default. I always think about if I were in that seat, how I would want to learn.”

Nalley, who teaches 6th grade at Columbia Secondary School for Math, Science and Engineering, has booked some mileage trying to figure out how kids learn best. Traveling the world in a comparative analysis of education, Nalley has made trips to Cambodia, Mexico, Russia, Singapore and Vietnam to understand the differences in mathematics education across the globe and find ways to integrate international techniques into his own teaching.

“Every time I go on one of these trips, I sift through the things that I see and determine what we can use and what we can’t,” he said.

As a founding member of the math department at the start-up school, Nalley has the freedom to implement his ideas immediately, so his teaching style is a cultural hybrid. His curriculum focuses not on grades, but rather on mastering individual skills—163 of them, to be exact—which he has identified as the necessary precursors to the study of algebra. Each student is given a checklist and must check a box each time they build up proficiency in one of the building-block skills.

“It keeps the kids enthusiastic to really be able to measure their learning,” Nalley said.

“For the kids, it’s not about a grade—I have to give them grades—but their learning is about how many of those skills they have mastered.”

Aside from his impressive record of research and a laundry list of awards, parents and students agree that Nalley’s most impressive feat is making the classroom fun, day after day.

“They’re in 6th grade doing 7th grade math and they really understand it,” said parent Candy Gulko. “I think it’s because this is his life’s work. He keeps the class mesmerized. These kids are glued to the edge of their seats, listening to him the way they would be watching a movie.”

Nalley’s students often stay after class or come in before school to show him that they are ready to check a new box, and the teacher is eager to spend the extra time with them.

“He has an incredible dedication to middle school children,” Gulko said. “He really understands them developmentally. He understands what makes them tick. And he bends over backward to motivate them.”
Nalley’s short attention span has led him to jobs in construction and engineering, so he has plenty of experience to enrich his lessons.

“I’m a real-life context person,” he said. “I don’t like the contrived problems that books come up with, so we talk about where things really do apply.”

— Carolyn Braff

Prof. Nalley Rakes in Two Prestigious Teaching Awards!
It is with great pleasure and much pride that we announce that Prof. Chance Nalley, CSS-MSE Professor of Math-Coordinator of Afterschool Programs, and 7th grade Faculty Team Leader, has won the Math for America - Master Teacher award as well as the 2008 Blackboard Outstanding Math Teacher Award!

The Master Teacher award is one of the most highly sought after in the nation, as it comes with a 4 year supplementary stipend worth $57,500, to support the selected teacher's commitment to teaching in urban schools. Prof. Nalley intends to use the stipend to support the completion of his PhD in Math Education at our partner institution,Teachers College-Columbia University.

The United States suffers from a serious shortage of quality math and science teachers and this is affecting our nation's ability to train future scientists, mathematicians and engineers. At CSS-MSE we are honored to have been able to attract a stellar core faculty Professors Dominguez, Hill, Jones, Cota, Thompson, and Stillman. Prof. Nalley's MfA award recognizes the excellence and passion for teaching that make Columbia Secondary an extraordinary place of learning.

The Blackbloard Award recognizes "fantastic teaching" in New York City. The Blackboard Awardees are nominated by students, parents or teachers and a panel of judges makes the final selection. We are proud of Professor Nalley's work, and ask that you join us in congratulating him!

The "Gotcha Squad" and the New York City Rubber Rooms

Joel Klein

The New York City Rubber Room Anti-Teacher Charging Process Shows How Corrupt the Carmen Farina-Bill De Blasio Department of Education Really Is. by Betsy Combier

Dennis Walcott

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room by Betsy Combier

The Administrative Trials Unit (ATU) has hired a team of lawyers who work in a new ATU subgroup called "Teacher Performance Unit". In the Office of Legal Services' newsletter  "On The Legal Side" from 2000 you can read about the people involved. On page 4 you will find a picture of Theresa Europe, the current Director of the ATU. Randi Weingarten, President of the United Federation of Teachers and American Federation of Teachers, calls them the "Teacher Gotcha Squad". The use of TAC (Technical Assistance Conference) memos (the Office of Labor Relations has a 2007 version of the Principal's 'How To Get Rid Of A Teacher" Manual) in the preparation of charges to prefer against allegedly incompetent teachers was published in 2004, as Labor FAQs from the Office of Labor Relations. The New York State School Boards Association has published a report with recommendations to reform this expensive process.


Carmen Farina

We all must defend our right to know who is saying what to whom. In New York City today, however, the NYC BOE's secret disciplinary process is unfair and this process of pursuing false claims as fact must be changed. The word "incompetency" cannot be arbitrarily given to anyone at the whim of a principal, it must be applied according to a set standard so there can be a pre-determined penalty for the level of "misconduct" now labelled as "unsatisfactory performance". Otherwise, there is mayhem, terror, and chaos.

Mecca Santana

A partner office, OEO, is also a problem. Teachers are going to the "new" Office of Equal Opportunity to resolve issues of whistleblower retaliation, discrimination, and other such complaints, but OEO is a wholly-owned subsidiary of the New York City Department of Education and is not neutral in it's determination of probable cause.OEO's new Director, Mecca Santana (pictured above), denies complaints without explanation, siding with the NYC DOE on every issue.
In New York City, tenured teachers are being removed from their classrooms and positions by Principals and administrators suddenly and, in many cases, without probable cause. In fact, the entire structure of the New York City Department/Board of Education is intertwined with the General Counsel and the lawyers working in the Office of Legal Services. It's hard to separate the two, and this is one of the biggest problems with Mayoral control as it now stands in New York City. The New York City Board of Education ("NYC BOE") keeps all documents and information secret under the description "Attorney Client Privilege".

The entire process is fueled, edited, created, guided, and managed, by the lawyers at the Office of General Counsel, or the group that I call "The Gotcha Squad". A peek into this highly secret world wherein a person is framed and set up to be terminated can be seen in the documents of a teacher in Staten Island, found in his file. He has given me permission to use these documents as they are so explosive, and show the fraud that is known as charging teachers in NYC. A principal, here James McKeon, supposedly finds "Just Cause" when indeed it is not his finding at all, but that of the attorneys at 51 Chambers Street, the Gotcha Squad. See on p. 4 that McKeon is NOT supposed to discuss any of the making up of the charges by Theresa Europe and her crew.
 The end result of the secret exchanges can be seen by clicking this sentence.
The reason for Joel Klein's lack of contract as Chancellor (See my article "The Who Are You Kidding?? Award Goes To: Joel Klein, New York City Board of Education Pretender") is to pursue secrecy within the NYC BOE by establishing him as the Attorney for the NYC BOE, not the Chancellor. Thus he has the ability to refrain from handing over documents if he deems these papers "Attorney Client Work Product" (see here as well). Federal laws take second place to secrecy. Also, the Corporation Counsel prevents any Plaintiffs from deposing Joel Klein if he is sued officially and individually on the grounds that he is the Attorney for the Board of Education.


It is obvious that the Mayor has total control over every part of the public school governance structure. A tenured teacher has no rights at all, and can be removed as easily as a non-tenured teacher or any employee. The tenured teachers have holding pens called temporary re-assignment centers or "rubber rooms". There are currently 7 such places located throughout New York City. A teacher may end up re-assigned because a principal may decide that he/she doesnt like him/her, must remove a him/her because he/she is talking about crimes being committed in the school, or must remove a him/her because he/she is earning a salary that is very high due to more than 20 years in the system, etc. The real reason may be that the teacher is too old, too fat, too short, wears red, doesn't wear red, and other such nonsense.

The principal makes the decision who stays and who goes, and this decision-making is done secretly with emails to/from the principal and the TPU, and the teacher being placed on the ineligible/inquiry list. To start, read the letter sent by Florrie Chapin, Director of the Teacher Performance Unit. You can see that a Principal is the driving force behind a teacher's termination, and the documentation that the TPU gets is based upon what the Principal sends to the Unit. Ask yourself this question: if a teacher has received commendations and satisfactory ratings, what is there in the process that could stop a Principal from discarding these positive reviews, or simply not sending them to a TPU attorney? Records tampering is rampant throughout the NYC DOE.
A freedom of information request was filed to obtain the TAC memos that were emailed to/from the TPU lawyers, Elizabeth "Betsy" Arons (NOT me) and Florie Chapin, Director of the TPU, and received 79 pages of emails as well as the names of the TPU lawyers (the "Gotcha Squad") was received .  The way the process works is this: after a principal requests a TAC, the charges are prepared, and the teacher is declared "incompetent" without his/her knowing anything about it. The TAC is considered privileged information and the teacher, about whom the TAC is about, will not be able to obtain these memos.

Tenured teachers who have been given more than one U (unsatisfactory) rating and have not "improved" according to random standards of the administration, are declared incompetent, and then they become the focus of the Teacher Performance Unit or TPU. The TPU is a group of lawyers who work in the Administrative Trials Unit (ATU) of the New York City Board of Education.

The ATU is described below on the NYC BOE website:

The Administrative Trials Unit is responsible for the prosecution of disciplinary cases.

ATU is available for trainings and advice on how to discipline a tenured employee or permanent civil servant and also to review documentation as it relates to the discipline process. If appropriate, ATU may draft charges under Education Law, Section 3020-a or Section 75 of the Civil Service Law against the subject employee. This process entails a joint effort by the principal and/or supervisor along with the ATU attorney to litigate a case against the employee either for the purposes of progressive discipline or to seek the employee's termination. Should you seek charges, you must schedule a Technical Assistance Conference (TAC) with ATU for a complete review of the employee's personnel file and any related discussions.

Theresa Europe , Director
(212) 374-6749
TEurope@schools.nyc.gov


Patria Frias-Colon , Deputy Director
(212) 374-6754
pfrias@schools.nyc.gov
Patria, (pictured above) originally from the Dominican Republic, is a proud wife and mother of three children. Patria serves as the Assistant Deputy Counsel to the Chancellor at the New York City Department of Education, an organization that services 1.1 million children. She holds a Bachelors Degree from the University of Rochester and a Law Degree from Hofstra University. In addition to working for City government, Patria is also an adjunct professor at St. John's University School of Education where she teaches a course on the legal aspects of school administration.

want to work there? Here is the personnel ad:

Teacher Performance Unit Litigation Attorney
Tracking Code 6036
Job Description

Position Summary: Under the direction of the Office of the General Counsel, with wide latitude for independent action, the Teacher Performance Unit Litigation Attorney serves as a legal representative of the Chancellor, performing sophisticated legal work on disciplinary matters under the Children First reforms and providing training and counsel to school leaders. This team of attorneys will be assigned to handle special disciplinary proceedings as part of a teacher quality initiative and will have the opportunity to work on key policy initiatives in conjunction with the Office of Labor Policy.

Reports to: Executive Deputy Counsel

RESPONSIBILITIES

* Handles legal issues and cases including recommendations concerning determining the soundness of charges, preparing specification of charges, coordinating the gathering of evidence, and briefing witnesses.
* Manages legal cases that are complex and high-profile in nature.
* Represents the New York City Department in Education on Law 3020a proceedings and hearings pursuant to Section 75 of the Civil Service Law.
* As part of a team of attorneys, helps devise strategies for providing improved support and training to school leaders around evaluation and discipline, and for spurring the improvement or removal of poor performers.
* Provides support to school leaders, counsel and training to Superintendents, Principals, and their designees on disciplinary procedures with an emphasis on documenting incompetence and poor performance.
* Acts as liaison to executives within the Department and to members of other City agencies.

QUALIFICATIONS

Minimum Requirements

Admission to the New York State Bar AND three (3) years of progressively responsible United Sates legal experience subsequent to admission to any state bar.

NOTE: Selected candidates must remain members of the New York State Bar in good standing for the duration of their employment.

Preferred

* Litigation experience.
* Excellent research, analytic and communication skills.
* Ability to rapidly understand provisions of applicable law and regulations.
* Ability to write clearly and concisely.

Salary: $75,962+

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible. Applicants must submit a cover letter and resume to be considered for this position.

NOTE: The filling of all positions is subject to budget availability.

The New York City Board of Education (NYC BOE) has this description on the website:

Teacher Performance Unit

This letter and the accompanying materials are to familiarize you with the New York City Department of Education’s new Teacher Performance and Labor Support Units.

The Teacher Performance Unit(“TPU”) is a new unit comprised of experienced attorneys who will litigate incompetence cases against ineffective tenured pedagogues. This unit will provide counsel to principals and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges involving allegations of incompetence. (See LEXIS/NEXUS for a detailed overview). TPU’s goal is to help principals improve teacher quality in their schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

The Labor Support Unit (“LSU”) is comprised of education consultants who will work in partnership with TPU to provide direct support to principals who are confronted with ineffective tenured pedagogues. The goal of LSU is to work with the principal to help them design support plans for ineffective tenured pedagogues, to provide guidance and general assistance to the principal; to assist the principal in organizing the documentation; to conduct additional observations upon request of the principal; and to coordinate with the Peer Intervention-Plus (PIP+) Program and Teacher Performance Unit.

To greater assist your understanding of the process I have included a brief summary of TPU’s procedures and policies:

First, if you wish to discuss the case either formally or informally with a representative of TPU, please contact the Teacher Performance Unit at the Office of the General Counsel. To schedule a Technical Assistance Conference (“TAC” or “case conference”) please submit, by fax or email a completed TAC request form. (The TAC Request Form is included in this packet of supporting documents.)

Once a TAC has been scheduled, the principal or another school official should submit to TPU a completed TPU principal checklist (also included in the packet) along with the requested supporting documentation. To expedite the process, please ensure all the documentation has been forwarded to TPU prior to the date of the case conference. The pedagogue’s entire personnel file, all rating sheets (including any which document satisfactory ratings), along with the accompanying letters to the file, and the observation reports to support the unsatisfactory rating are key pieces of evidence. In addition, all the materials demonstrating the Department’s efforts at remediation and offers of professional development should be included in the packet (a sample is included in the packet).

During the case conference, the TPU Director and staff attorneys will meet with the principal to discuss the relevant documentation, and provide advice and guidance. After the case has been carefully reviewed a determination will be made by TPU in consultation with the principal whether to commence the 3020-a process at that time. If TPU decides to accept the case a letter will be sent to the principal indicating that the tenured pedagogue will be charged. At such time, TPU will recommend that the teacher be removed from the classroom and assigned to administrative duties. If a principal requests that a pedagogue be removed for incompetence prior to a TAC with TPU, that request must be approved by the TPU Director, and such requests will be reviewed on an expedited basis.

Alternatively, if a determination is made that the case should not proceed forward, a letter will be sent to the principal indicating the reasons and advising the principal on what action should be taken next. In such instances, TPU and LSU will continue to offer high quality and responsive support to the principal, which will include providing ineffective tenured teachers with quality professional development.

On behalf of TPU, I look forward to working with each of you in the future. Should you have any questions about the materials provided in this packet, the TAC process, or if you have other questions, please feel free to contact me. Sincerely,
Florrie Chapin
Director, Teacher Performance Unit

A New Effort to Remove Bad Teachers
By ELISSA GOOTMAN, NY TIMES, Nov. 15, 2007




The Bloomberg administration is beginning a drive to remove unsatisfactory teachers, hiring new teams of lawyers and consultants who will help principals build cases against tenured teachers who they believe are not up to the job. It is also urging principals to get rid of sub-par novices before they earn tenure.

At the center of the effort is a new Teacher Performance Unit of five lawyers, headed by a former prosecutor fresh from convicting a former private school principal who had a sexual relationship with a student.

A separate team of five consultants, including former principals, will work with principals to improve struggling teachers’ performance. In cases where the teachers fail to get better, the consultants will help amass the documentation necessary to oust them.

The plans, at a cost of $1 million a year, are described in a memo and an accompanying letter to principals from Schools Chancellor Joel I. Klein. In the letter, he urged principals to help teachers improve but added, “When action must be taken, the disciplinary system for tenured teachers is so time-consuming and burdensome that what is already a stressful task becomes so onerous that relatively few principals are willing to tackle it. As a result, in a typical year only about one-hundredth of 1 percent of tenured teachers are removed for ineffective performance.

“This issue simply must be tackled,” he wrote.

In the memo, Dan Weisberg, the Education Department’s chief executive for labor policy and implementation, wrote that the Teacher Performance Unit “represents a significant infusion of resources that will ensure we have the capacity to seek the removal of all ineffective tenured teachers who, in spite of receiving the time and support sufficient to allow them to substantially improve, won’t or can’t do it.”

The unit, Mr. Weisberg wrote, “will also allow us to seek discipline where appropriate in a wider range of cases than before.” The unit is being run by Florence Chapin, a former Manhattan assistant district attorney.

Randi Weingarten, the president of the city’s teachers union, the United Federation of Teachers, called the lawyers a “teacher gotcha unit” and said she found it “disgusting” that the Education Department would issue such a memo after the release of new school report cards that bluntly grade schools A through F.

“We’ve always been concerned that the first thing that would happen after somebody put out progress reports would be principals would go after teachers,” Ms. Weingarten said. “Basically, it’s signaling to principals that rather than working to support teachers, the school system is going to give you a way to try to get rid of teachers.”

New York City has roughly 80,000 public school teachers, and once they receive tenure it is notoriously difficult to remove them, because of the union contract and state labor law, which guards the rights of tenured public employees with an elaborate process of hearings and appeals.

Only about 10 to 15 tenured teachers a year leave the system after being charged with incompetence. Other teachers are removed for outright misconduct.

More than 700 school employees, mostly teachers, are now assigned to centers known as “rubber rooms,” after having been removed from the classroom. While school officials say those employees are under investigation or at some stage in the disciplinary process, teachers’ union officials say that many have had no charges filed against them.

Mr. Klein has long spoken out against three poles of the civil service system for teachers — seniority rights, lifetime tenure and lock-step pay.

The city and Ms. Weingarten recently agreed on a plan to reward teachers for outstanding performance by allowing successful schools to compete for bonuses that would allow them to dole out extra pay to teachers.

The push to remove bad teachers represents the flip side of the equation and comes as the city is less than a year into an effort to get principals to more rigorously review probationary teachers who are up for tenure.

Mr. Weisberg said in an interview that he did not know how many tenured teachers would be removed. He said there “probably will be an increase” in incompetence charges.

“I believe very strongly that the number of these struggling tenured teachers is very small compared to the total number of teachers, but even if it is 1 percent, even if it is half of 1 percent, we have to address it,” he said.

Since the mayor earlier this year announced a more rigorous tenure review process for probationary teachers, the numbers denied tenure at the end of the three-year probationary period has increased modestly.

Since late March, when the new system started, 66 probationary teachers were denied tenure , or 1.3 percent of those eligible. In the previous school year tenure was denied to 25 teachers, or .5 percent of those eligible.

In addition, 115 teachers had their probationary period extended this year, up from 30 in the previous year.

Mr. Weisberg’s memo also described a new program, agreed to by the teachers union, under which principals can call upon teachers from outside the school system to spend three months observing tenured teachers in danger of being disciplined for incompetence.

The memo said that while the outside teachers may help floundering teachers, their written evaluations would also “likely carry a great deal of weight in disciplinary proceedings seeking the teacher’s termination.”

New Monastic Individuals

Thursday, November 15, 2007
The Teacher Performance Unit
By Roger Conway (pictured at left)

Here we go again. Yet again another game plan has been offered to cure the ills of American education, especially urban education. New York City's Bloomberg administration is implementing the the Teacher performance Unit to help principals "build cases against tenured teachers who they believe are not up to the job." This seems like old hash warmed over, but the new ingredient is that they are bringing in "teams" of lawyers and "consultants" (including former principals!) to worm their way around the state and federal work laws so they can "improve" everything. This quantitative approach will also apply to those teachers applying for tenure whose applications languish in bureaucratic limbo, because they, too, have been deemed not ("quite", I guess) "up to the job." And what is the bottom line for this panacea? $1,000,000 per year.

A definition is in order. Here it is from the mule's mouth: The Teacher Performance Unit "represents a significant infusion of resources that will ensure we have the capacity to seek the removal of all ineffective teachers who, in spite of receiving the time and support sufficient to allow them to substantially improve, won't or can't do it." I guess the composer of this statement had trouble with split infinitives and the basics of syntax in middle school English. Or a demon not-up-to-the-job teacher short-changed him or her.

Let's forget all the obvious stuff that's been harangued over forever, like using the system to settle in-house political differences, using it for personal punitive reasons, using it for blackmail, using it against burned out teachers, etc. Let's do something these government administration people have not yet thought about. Let's try to understand the elements of a school's culture that have a direct impact on teacher performance.
1. The culture of the community that the school serves. What are the behavioral norms of the community? What are the community's expectations of the schools responsibilities beyond effective learning of subject matter (such as providing meals, contraceptives, psychological counseling, warehousing of non- and reluctant learners, etc.)?
2. The culture of the school. (This is the one nobody, especially those with degrees in "educational leadership", including "former principals" want to talk about.) What is the learning milieu of the school building? (Sorry, sometimes French is all that will do.) Do the students, teachers and administrators have the same reasons for being there, namely that education is the only important thing that goes on there? Is anything less important ruled out of final decisions? Do teachers understand that each has special value and that that value can be shared uncompromisingly with their colleagues, teachers and administrators alike? Are experiments in teaching techniques encouraged? Are they facilitated financially and structurally? Is each student considered a learner or merely an integer?
3. $1 million for "the removal of ineffective teachers" speaks volumes. Please understand. As both student and teacher, I know about ineffective teachers, But I also know that learning to be effective requires both #1 and #2. I began my career in an inner city system. It offered only negative guidance; do this or else, and don't do that. The following year I went to a suburban school and worked 2 years in a specialized program, which involved me doing the verbal skills academic support of a vocational training program. My job: Get the students to articulate clearly in English. I had free rein to experiment. From there I went to a more exclusive suburb (i.e., more $$$ per family) and worked as part of a team to build a K-12 writing program (the community gave financial and structural support, and it expected competitive learning to occur at all grade levels to get its children into the highest competitive colleges…case closed, any questions?). That experience was inspiring, and the teachers, with full encouragement and support from administrators, gave their full energies to make it work.

The Teacher Performance Unit scheme also includes bonuses to reward schools and to allow them "to dole out" (what a revealing choice of word!) extra pay to teachers. That's the old toss of the bone, so typical of the quantitative approach. And I think bonuses are OK. Once you figure out how to distinguish among good, better and best teachers, you can go ahead and implement them. But first, let's take care of numbers 1, 2 and 3. Use the cool million to deal with the really tough stuff about excellence in learning.

And finally, regarding No Child Left Behind, has anyone figured out where the ones who are not left behind are going? Are they all going to college? The students I had in the vocational ed. program couldn't wait to get into the auto repair and auto body shops. If we're preparing students to be all that they can be, let's remember those students.

The entire ATU/TPU/TAC process infuriated the UFT leadership. The UFT voted to condemn the TPU.



The problem is, well...one of the problems is: what does "incompetence" mean? Who defines whether or not a teacher is, really, "incompetent"? The No Child Left Behind legislation requires that every classroom have a highly qualified teacher in every classroom. The problem with this is, what does the term “highly qualified” mean? A person with one or more advanced degrees? What about if this teacher is certified to teach french, but the Principal places him/her in a biology class?

Who is a “good” teacher and who is a “bad” teacher? Anyone with children knows a good teacher from a bad teacher. I have four children and to me, a "good" teacher is a person who makes the curriculum interesting, understandable, and encourages my daughters to seek information about the subject as well as to work hard and do their personal best. 'Good teaching' is always a subjective opinion which can only be judged by someone who sits inside the classroom, and incompetence cannot be proven by one person at an administrative trial nor can it be determined by one person - a principal or AP - in one visit or with an agenda (i.e. to get rid of the teacher).

We have no ‘American standard’ to help us define what it means to be a “good” teacher, other than to record the scores on standardized tests of students in each class. There are thousands of reports on how this happens, but in the end, defining a “good” performance is always a subjective judgment.

The parents of public school children and the teachers of the public schools in NYC know that Mayor Bloomberg and NYC BOE CEO Joel Klein dont want anyone to have any power over educational policy decisions except them, and their people. Read my article "Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man" So they designed a process which I call the "rubberization" process to remove anyone from his or her job for any reason, at any time. Mr. Klein, not an educator, was brought in to be CEO (he is not chancellor because he has no contract) in order to be the Attorney for the NYC Department of Education and squash any and all efforts to make the DOE transparent or accountable to the public. Teachers who sue Mr. Klein individually and officially never get to depose him because the NY State Supreme Court says that he is the Attorney for the DOE/BOE ( the name New York City Board of Education was never changed legally) and therefore information must be kept confidential between Principals, administrators, and the Corporation Counsel, Office of Legal Services, as well as the ATU.

Thus, the reason for the Technical Assistance Conference or TAC, in which the employee is not involved.

UFT
Know your rights
Disciplinary action and false accusations
LINK
Feb 19, 2009 10:17 AM

Despite many attempts to undercut it, section 3020-a of the State Education Law provides for due process before a tenured pedagogue can be disciplined, including termination for charges such as incompetence, insubordination, corporal punishment or sexual misconduct.

If the New York City Department of Education serves you with disciplinary charges pursuant to Education Law Section 3020-a, you should immediately contact your UFT borough office. The UFT will assist you in filing the necessary forms and arrange, if you choose, for you to be assigned legal counsel from the New York State United Teachers. A Hearing Officer jointly agreed upon by the UFT and DOE will conduct a hearing. If the hearing officer finds you guilty of any of the charges, discipline can be imposed. The discipline may range from a written reprimand, monetary fine or suspension without pay to the loss of your job. If you are terminated, you will also lose your New York City teaching license(s). However, your permanent state certifications cannot be revoked without another hearing.



In some cases, teachers awaiting charges are removed from their schools and assigned to Temporary Reassignment Centers until the investigations are complete or their cases are adjudicated in a 3020-a proceeding. A recent agreement between the UFT and DOE states that, absent unusual circumstances, allegations being investigated by principals will not result in an employee being removed from his or her school. The agreement also requires that an employee be notified of the grounds for his or her reassignment or that an employee is being investigated by the special commissioner of investigation (SCI). In the agreement, the DOE states that it will diligently attempt to complete all investigations by the chancellor’s Office of Special Investigations within 90 days. Further, you must be formally charged within six months from being reassigned or returned to your school unless you are being investigated by the SCI or your case involves criminal charges. If you are returned to your school after six months, the DOE may still bring disciplinary charges against you.

You are paid while you are reassigned except if you were found guilty or pled guilt to any felony. Also, the DOE can request a special hearing to determine whether there is sufficient evidence that you engaged in serious misconduct such as any actions that would constitute: 1. a felony involving a controlled substance; 2. a crime involving physical abuse of a student or minor; 3. a felony committed on school property or while performing duties; 4. a felony involving a firearm; or 5. serious sexual misconduct with a student or a minor such as sexual touching, verbal abuse of a sexual nature, solicitation of a relationship and possession of child pornography. If a specially appointed arbitrator determines there is sufficient evidence that you engaged in such conduct, you can be suspended without pay for up to two or three months.

Bring a union representative to any interrogation

If you are summoned for an interview by your principal or another DOE employee that may lead to disciplinary action, you are entitled to be accompanied by a union representative (or a representative employed by the school system). These are called “Weingarten Rights” (no relation to the UFT president). An interview that is not held in accordance with these procedures cannot be made part of your DOE personnel or school file, and any statements you make at such an interview cannot be used against you in any DOE proceeding.

Aside from the principal, the chancellor’s Office of Special Investigations and the special commissioner of investigation regularly seek to interview educators. The allegations investigated by the SCI usually involve potential criminal activity, financial fraud and other serious matters. Sometimes, the chancellor’s Office of Personnel Investigations (OPI) or Office of Equal Opportunity (OEO) will ask a member for a statement and, occasionally, even the police will go to a school. Regardless of who has summoned you to appear, the UFT generally recommends that you not answer any questions that could lead to disciplinary or legal action being taken without proper representation. If you are summoned to an investigatory interview, you should immediately ask your chapter leader and UFT district representative for assistance. If you are summoned to OSI, OPI or OEO, your UFT district representative or borough office will provide a representative to attend the interview with you. If you are summoned by SCI, your UFT district representative or borough office will arrange for a criminal attorney to attend the interview with you. If OPI asks for a written statement, your UFT district representative or borough office will arrange for an attorney to assist you in writing it.

Corporal punishment

State Education Department regulations and Chancellor’s Regulation A-420 prohibit the use of physical force against students. Some staffers have been charged with that offense for having physical contact with a student, such as when breaking up a fight. In general, you should attempt to defuse a student altercation by using verbal, rather than physical, means. However, you may use physical force in self-defense or to protect a person or school property. If you are accused of corporal punishment, speak with your chapter leader or district representative immediately and ask for union help.

Many of the allegations of corporal punishment are investigated by the employee’s supervisor. We strongly recommend that you do not speak to the principal and/or any investigator without a union representative present, even if the allegation is false.

False accusations

If you are accused of sexual misconduct or physical abuse involving students and it is determined that the allegations were knowingly false when they were made, the DOE must remove all references to the allegations from your DOE personnel file, restore any lost pay with interest, and permanently reassign the student from your class absent compelling and extraordinary circumstances. The agreement makes clear that the disciplinary process should never be used to retaliate against whistle-blowers or for any other illegal reason. It goes on to state that all employees who make a knowingly false allegation shall be subject to discipline.

Verbal abuse

Chancellor’s regulations prohibit verbal abuse of students, which includes using language that causes fear or physical or mental distress; using language that denotes race, ethnicity, religion, gender, disability or sexual orientation which tends to cause fear or mental distress; threatening physical harm; or belittling or ridiculing students.

If you are accused of verbal abuse, you should immediately notify your chapter leader or district representative. Consult Chancellor’s Regulation A-421 for additional information. Among other things, the regulation requires your principal to inform the staff about what constitutes verbal abuse. If accusations of verbal abuse are found to be unsubstantiated, all references to the accusations must be removed from your DOE file.

Robert Freeman, Director of the NYS Committee On Open Government, Refuses to Address the Illegal Activities of the PEP

The Panel For Educational Policy is not a "school board", has appointed members only, and terminates teachers at Executive Sessions before the "public meeting" begins. The PEP also does not publish an agenda for the public, nor do they post the minutes of the meetings. The public should attend the PEP meetings, because this is the moment at which anyone can see Joel Klein's disdain and dislike for the people of New York City.

The New York Times could not have been more wrong about the new policy panel (Anemona has never gone against the powerful New York City administration, even to the extent of covering up the corruption of not only the education fraud, but New York City judicial corruption in State Supreme, Manhattan Surrogate, And the Appellate Courts):

July 19, 2002
Politics Absent As Mayor Picks School Panelists
By ANEMONA HARTOCOLLIS, NY TIMES

"Mayor Michael R. Bloomberg revealed his appointees to a new educational policy panel yesterday that is a central element of mayoral control of the New York City schools, selecting a group that is distinctly less political than the old Board of Education.

Mr. Bloomberg immediately sought to ensure that they would not indulge in the infighting and grandstanding of the past by instructing them to keep a low profile. He said the panel's job was to serve as a ''sounding board'' for the chancellor.

''I do not expect to see their names -- ever -- in the press answering a question either on the record or off the record,'' Mr. Bloomberg said. ''That's exactly what's wrong with the current system.'' If it happened, he said, ''I would not tolerate it for 30 seconds.''

Pressed to elaborate, he said, ''They don't have to speak, and they don't have to serve. That's what serving 'at the pleasure' means.''

All seven mayoral appointees, while not household names, are well-regarded in the fields of business, culture, academia and health. They are the kind of accomplished people Mr. Bloomberg might invite to a soiree at his Upper East Side townhouse.

Mr. Bloomberg trumpeted the panel's diversity. There is one white male, and one white female; there is a black male and a black female; there are two Hispanic women, one Dominican and one Puerto Rican; and there is an Asian man.

As the appointees stood behind Mr. Bloomberg in the Blue Room of City Hall, he said a few friendly remarks about each one of what he called ''seven distinguished New Yorkers.'' He stumbled over the name of Augusta Souza Kappner, president of Bank Street College of Education, reddening as he blurted that to her friends she is known as Gussie.

It was a marked shift from the often adversarial tone of the relationship between mayors, chancellors and Boards of Education in the past. But it did lead some people in the audience to wonder whether constructive voices of dissent would be suppressed.

''The policy board has a public responsibility,'' said Randi Weingarten, president of the United Federation of Teachers, who watched the announcement of the appointments from the audience. ''That means,'' Ms. Weingarten continued, ''that they are accountable to the public.'' She said, however, that she thought the mayor's intention was to avoid the political machinations of the past.

None of the panelists appear to be in Mr. Bloomberg's political debt. Mr. Bloomberg jocularly noted that one of them, Richard L. Menschel, a senior director of Goldman Sachs, had offered the future mayor his first job when he moved to New York. Mr. Bloomberg did not take the job.

The panelists are sharply different from past members of the Board of Education, which was often made up of political allies appointed by the borough presidents and the mayor.

For instance, Mayor Rudolph W. Giuliani appointed his deputy mayor, Ninfa Segarra, to be a board member, in what was widely perceived as a blatantly political combination, and then helped engineer her ascension to president. Now, however, the new state law giving Mr. Bloomberg control of the schools forbids city employees to serve on the panel.

''He obviously wanted people who didn't need the stipend that the old board had, and who would be people who are for the most part too busy to come to a lot of meetings,'' said Diane Ravitch, the education historian.

''I just don't know just what they do,'' she added.

Three panelists have had children in the public schools: Mr. Menschel, whose wife, Ronay, was a deputy mayor in the Koch administration; Dr. Kappner, mother of recent graduate of Urban Academy, a progressive high school on the Upper East Side; and Ramona Hernandez, director of the Dominican Studies Institute at the City University of New York, whose son graduated from Stuyvesant High School.

The powers of the new 13-member Panel for Educational Policy, as it has been renamed, are somewhat vague. It can advise on policy; it must meet 12 time a year, and it can vote on the school system's budget.

As Mr. Bloomberg relished pointing out yesterday, they are all volunteers, stripped of the $15,000 stipends, offices, cars, drivers, personal assistants and other perks that the old board received.

And they serve at the pleasure of the mayor, which means they can be dismissed at any time.

It was not clear yesterday, city officials said, whether with nine current members -- including chancellor Harold O. Levy -- the board had a legal quorum to meet and function. Staten Island has appointed a member, Joan McKeever-Thomas, a parent leader in the public schools there, but the other four borough presidents have not.

But Mr. Bloomberg said he had a room ready for them anytime in the Tweed Courthouse behind City Hall, which he intends to convert into the headquarters for the school system.

Several panelists did linger to talk. Dr. Kappner said she thought Mr. Bloomberg was trying to instill team spirit and morale, but added, ''I don't feel that in any way inhibits me from speaking out on education.''

Correction: July 20, 2002, Saturday A grouping of biographical sketches yesterday for Mayor Michael R. Bloomberg's appointees to a new educational policy panel misstated a former title of one appointee, Dr. Augusta Souza Kappner. She was an assistant federal education secretary, not an assistant housing secretary. The sketches also misstated the location of El Museo del Barrio, where another appointee, Susana Torruella Leval, is director emeritus. It is in East Harlem, not the Bronx. The sketches also referred incorrectly to the tenure of Philip A. Berry, another appointee, as a trustee on the City University of New York Construction Fund. He still serves there."

Here is the page on the NYC BOE website labelled "olddefault". Oh, by the way, none of the described duties and responsibilities are factual, and Michael Best has written to me and others that the PEP has "no executive or administrative function":

olddefault
The Mayor appoints eight of the members of the Panel for Educational Policy, including the Chancellor. Five other members are appointed by the borough presidents and must be parents of children in the New York City public schools. The panel’s responsibilities include approving standards, policies, objectives, and regulations that are directly related to educational achievement and student performance, as well as certain contracts, an estimated annual operating budget, and the DOE capital plan.

The panel holds a public meeting every month, which always includes a public comment section. Every parent can attend the monthly meeting to learn about DOE policies and express his or her opinion to the Chancellor and the other members of the panel.

Common Good, a clone of Proskauer Rose, had this to say (click into the link at the end for more information and you will get an "error":

Panel For Educational Policy Directives and Resolutions

The Panel for Educational Policy (formerly the Board of Education) has the statutory authority to review and approve all standards, policies, objectives and regulations of the Chancellor directly related to educational achievement and student performance, and to approve contracts and litigation settlements "that would significantly impact the provision of educational services or programming within the district." Despite recent reforms substantially expanding the power of the Chancellor, while reducing the authority of the Panel, the Panel retains authority over city-wide educational policies. (§§ 2590-g(1, 4-6))

The Panel has passed recent resolutions relating to:

* Continuing the policy that minors must attend school from age 6 until the end of the school year in which the child turns 17. (This policy is allowed under NYEL § 3205(3))
* Continuing authorization of all licenses issued by the Chancellor (in accordance with NYEL § 2590-g(2).
* Adjusting the structure of the retirement board. The adjusted structure was submitted to the retirement board for approval.
* Extending the high school day by 20 minutes, to be used exclusively for instructional purposes.
* Approval of the Chancellor's Comprehensive Instructional Approach for instruction in reading, writing and math, which involves the assignment of reading and math coaches to each school, a requirement that high schools devote 90 minutes per day to reading and writing, and other requirements for various grade levels.
* Authorizing the Chancellor to implement a system-wide instructional strategy for children with special learning needs.
* Approval of amendments to the five-year educational facilities capital plan (drafted by the chancellor pursuant to § 2590-p).

Read more about the Panel for Educational Policy.

On Google you can get the email addresses of the original cast:

New York City Panel for Educational Policy
Email contact information
LINK

Panel for Education Policy (Mayoral appointees have an * next to their names:

*Mr. Joel I. Klein, Chancellor, email: JKlein@nycboe.net, phone: 212-374-5110.
Ms. Evita Belmonte, Queens representative, email: ebelmonte@queensbp.org, phone: 718-286-2625.
Ms. Natalie Gomez-Velez, Bronx representative, email: ngomez@courts.state.ny.us, phone: 914-997-7594.
Ms. Martine Guerrier, Brooklyn representative, email: MGuerrier@brooklynbp.org
Ms. Jacquelyn Kamin, Manhattan representative, email: jkamin@manhattanbp.org, phone: 212-669-8166.
Ms. Joan Correale, Staten Island representative.
* Mr. Alan D. Aviles.
*Mr. Philip A. Berry, VP, Colgate Palmolive, email: philip_berry@COLPAL.com, phone: 212-310-2947.
*Dr. David C. Chang, President, Brooklyn Polytechnic Univ., email: chang@poly.edu, phone: 718-260-3500.
*Mr. Tino Hernandez.
*Dr. Augusta Souza Kappner, President of Bank St. College, email: ask@bnkst.edu
*Mr. Richard L. Menschel, Senior Director of Goldman Sachs, email: richard.menschel@gs.com, phone: 212-902-8133.
*Ms. Marita Regan, former D22 administrator (phone and email unavailable).

(Last updated: March 18, 2004)

All the members of the PEP, past and present, withhold information from the public (Patrick Sullivan announced this at a September 18, 2008 meeting with Liz Krueger), and all are knowingly violating Open Meetings Law. Why no one says anything is anyone's guess. (If you have any insight into why all these people would want to violate their integrity, please email me at betsy.combier@gmail.com, anonymously if you prefer).


Joel Klein arrogantly flaunts his illegal set up, and Robert Freeman, Director of the Committee on Open Government, has refused my request for advice on the violation of Open Meetings Law.

Below is a series of emails I sent pursuant to FOIL. I have not heard back from Mr. Freeman about an advisory opinion on the Executive Session issue. It has now been 5 months since I asked him for an opinion. My guess is he does not want to give one, which would be that Joel Klein and Mike Bloomberg are violating open meetings law. Luckily he has given his opinion xecutive Sessions in other cases see also 2403; 2408; 2418; 2426; 2928; 3339.

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Tuesday, October 10, 2006 4:36 PM
To: 'SHoltzm@nycboe.net'; 'Michael Best'; 'JKlein@schools.nyc.gov'
Cc: 'RFreeman@dos.state.ny.us'; 'MFeinbe@schools.nyc.gov'; 'jrusso@schools.nyc.gov'; 'AbGolden@law.nyc.gov'; 'LKoerner@law.nyc.gov'; 'Longoria Carragher Arlene'; 'betsy@parentadvocates.org'; 'TCrane@law.nyc.gov'; 'MFeinbe@schools.nyc.gov'; 'jrusso@schools.nyc.gov'
Subject: Press FOIL Request from the E-Accountability Foundation

The E-Accountability Foundation
Parentadvocates.org

Betsy Combier, President
betsy@parentadvocates.org
VIA E-MAIL

October 10, 2006
Ms. Susan Holtzman, Mr. Michael Best, Chancellor Joel Klein
New York City Department of Education
52 Chambers Street
New York, NY 10007

Dear Ms.Holtzman, Mr. Best, and Chancellor Klein,

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request records or portions thereof pertaining to:

1) all resolutions, regulations, memoranda, policy bulletins, etc., on the distribution of tapes recorded during a Panel For Educational policy meeting
2) all resolutions, regulations, memoranda, policy bulletins, etc., describing the nature of the work carried out by the Panel For Educational Policy
3) all statutes referring to the legitimacy of holding Executive Session of The Panel For Educational Policy before the PEP meeting begins, as occurred on September 19, 2006
4) All resolutions, memoranda, statutes and policy giving members of the PEP the legal standing to vote on the termination of employment of a member of the UFT, without a hearing on the charges he/she was charged with, and without the UFT member present at the discussion during the Executive Session before the PEP meeting begins;

If there are any fees for copying the records requested, please inform me before filling the request.

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

Sincerely,
Betsy Combier

From: Freeman, Robert (DOS) [mailto:Robert.Freeman@dos.state.ny.us]
Sent: Monday, September 29, 2008 9:43 AM
To: Betsy
Subject: RE: Appeal of FOIL 5411

An opinion will be prepared. It is advised, however, that we have a substantial backlog of requests for opinions and that it may be several weeks before a response can be drafted.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: www.dos.state.ny.us/coog/coogwww.html

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Monday, September 29, 2008 8:31 AM
To: Freeman, Robert (DOS)
Cc: 'Betsy'; betsy.combier@gmail.com
Subject: FW: Appeal of FOIL 5411

Betsy Combier
Editor, Parentadvocates.org
September 29, 2008

Mr. Robert Freeman
Committee on Open Government

Dear Mr. Freeman,

I would like you to give me an advisory opinion on the two-year delay of the New York City Board of Education and Central Records Access Director Christine Kicinski concerning giving me the public documents requested from the Panel For Educational Policy, FOIL #5411.

Several years ago you told me that you did not know what the PEP was, and I can now tell you that the NYC BOE has set this panel up as a public entity, with public meetings. I have asked for the tapes of the meetings and have paid $5 after giving the NYCBOE a freedom of information request, which they have honored. Therefore, the PEP is a public meeting, subject to FOIL and Open Meetings Laws, and under your jurisdiction. Mr. Klein has said publicly that the PEP is the NYC “school board” and is a public meeting.

Mr. Patrick Sullivan, a member of the PEP appointed by Manhattan Borough Representative Scott Stringer, testified on September 18, 2008 at a conference with Senator Liz Krueger that he was told all the reports with numbers data on policies of the NYC BOE are being withheld until AFTER June 2009. He had a report with him, which he showed everyone. I will ask for the report as well as the transcript of his testimony in a few days.

My FOIL request dated October 10, 2006, has been given extensions approximately every several months (all the dates of extensions are given below in my September 1, 2008 email, corrected from the email sent last night:

“At this point due to the unethical multiple extentions of my original FOIL request, attached below, for PEP information #5411, I hereby appeal to Mr. Klein and Mr. Best, with a copy to Mr. Freeman, the constructive denial of public documents and documents that affect the public. Your extension emails are dated 4-23-07, 12-21-07, 1-29-08, 3-4-08, 4-3-08, 7-22-08, and 8-20-08 (not enclosed, as you must have copies).”

I request, therefore, your opinion on the two-year delay by the New York City Board of Education (alternatively, the New York City Department of Education) in providing me the documents that I requested under the Freedom of Information Law/Act.

Thank you for your consideration and response.

Betsy Combier
Editor, Parentadvocates.org
betsy@parentadvocates.org
--------------------------------------------------------------------------------

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Monday, September 29, 2008 12:03 AM
To: 'Klein Joel I.'; 'mbest2@schools.nyc.gov'; 'Kicinski Christine J'; 'Longoria Carragher Arlene'; 'RFreeman@dos.state.ny.us'
Subject: Appeal of FOIL 5411

Betsy Combier
Parentadvocates.org
betsy@parentadvocates.org
September 28, 2008

Chancellor Joel I. Klein
JKlein@schools.nyc.gov

Michael Best, Esq.
MBest2@schools.nyc.gov

Christine J. Kicinski, Esq
CKicins@schools.nyc.gov

Ms. Arlene Longoria Carragher
ALongor@schools.nyc.gov

Appeal of FOIL # 5411
Dear Chancellor Klein, Mr. Best, Ms. Kicinski, and Ms. Carragher:

I am appealing your agency’s constructive denial of access to the information and documents I requested on October 10, 2006, FOIL # 5411, which is copied below:

VIA E-MAIL

Mr. Michael A. Cardozo
MCardozo@law.nyc.gov

The E-Accountability Foundation
betsy@parentadvocates.org

Mr. Robert J. Freeman
RFreeman@dos.state.ny.us

The E-Accountability Foundation
Parentadvocates.org
Betsy Combier, President
betsy@parentadvocates.org

VIA E-MAIL

October 10, 2006
Ms. Susan Holtzman, Mr. Michael Best, Chancellor Joel Klein

New York City Department of Education
52 Chambers Street
New York, NY 10007

Dear Ms.Holtzman, Mr. Best, and Chancellor Klein,

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request records or portions thereof pertaining to:

1) all resolutions, regulations, memoranda, policy bulletins, etc., on the distribution of tapes recorded during a Panel For Educational policy meeting

2) all resolutions, regulations, memoranda, policy bulletins, etc., describing the nature of the work carried out by the Panel For Educational Policy

3) all statutes referring to the legitimacy of holding Executive Session of The Panel For Educational Policy before the PEP meeting begins, as occurred on September 19, 2006

4) All resolutions, memoranda, statutes and policy giving members of the PEP the legal standing to vote on the termination of employment of a member of the UFT, without a hearing on the charges he/she was charged with, and without the UFT member present at the discussion during the Executive Session before the PEP meeting begins;

If there are any fees for copying the records requested, please inform me before filling the request.

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

Additionally, please take note that you never responded to the email below sent on September 1, 2008:

The practice of repeatedly advancing anticipated response dates for New York Freedom of Information Law (FOIL) requests ("serial extension letters") by the Office of Legal Services is neither authorized by FOIL, nor by the Regulations of the NYS Committee on Open Government.

This ongoing practice by the NYC Department of Education is, therefore, obviously being taken in flagrant disregard of Public Officers Law and NYCRR. An agency may issue one, and only one, "extension letter," according to the rules that I have read.

Here is the full text of §89(3)(a) of FOIL:

3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.

Here is the full text of §89(4)(a) of FOIL:

4. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.

Here is the full text of §1401.5(c)(4) of the Regulations of the NYS Committee on Open Government:

(4) if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment stating the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.

From now on, when the Department of Education finds it necessary to issue an "extension letter," please ensure that the anticipated response date cited in that letter, is the "date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part." "Date certain," of course, means the date by which a substantive determination will be issued, and that there will be no further "serial extension letters" forthcoming.

If I'm not mistaken, the Council of School Supervisors & Administrators (CSA) previously informed the NYS Supreme Court of the Department of Education's fondness of issuing "serial extension letters," accompanied by the failure to determine appeals. I have the entire file of case #120488/03.

At this point, there are a number of options:

1) The Department of Education immediately ends the practice of issuing serial "extension letters" and adheres to the letter and spirit of FOIL.

2) Chancellor Klein, Mr. Best, Ms. Kicinski, and the FOIL Unit staff supervised by them, all ensure that FOIL's time limits are complied with.

3) Either Chancellor Klein or Mr. Best determines any FOIL appeal alleging a failure to meet an original anticipated response date, or, if applicable, the new date that was cited within a single "extension letter."

4) I file an Article 78 with the NYS Supreme Court alleging a pattern of intentional procedural and substantive violations of FOIL and NYCRR.

5) I file a grievance with the Departmental Disciplinary Committee requesting an investigation of the aforementioned pattern, especially in light of the fact that the CSA already brought it to the attention of the NYS Supreme Court.

6) I file investigation requests with Commissioner of Education Richard P. Mills, the Board of Regents, and the NYS Commission of Investigation seeking detailed investigations of the aforementioned pattern.

Please inform me by close of business September 5, 2008, whether you are interested in resolving these matters amicably, with an eye to reaching a mutually acceptable solution.

At this point due to the unethical multiple extentions of my original FOIL request, attached below, for PEP information #5411, I hereby appeal to Mr. Klein and Mr. Best, with a copy to Mr. Freeman, the constructive denial of public documents and documents that affect the public. Your extension emails are dated 4-23-07, 12-21-07, 1-29-08, 3-4-08, 4-3-08, 7-22-08, and 8-20-08 (not enclosed, as you must have copies).

I must hear from you with an appointment to review and copy the documents requested no later than September 12, 2008.

You have 10 business days to fully explain in writing the reasons for further denial of access or to provide access to the records. Copies of all appeals and the determinations thereon must be sent by the agency to the Committee on Open Government (section 89(4)(a)). This requirement will enable the committee to monitor compliance with law and intercede when a denial of access may be improper.

Thank you for your consideration.

Betsy Combier