NYC Department of Education's "NIOO" Policy

The NYC Department of Education is hiring "Newbies" (new, as in not tenured, younger employees) to replace "Oldies" (senior, tenured personnel of any age) and I have a new term for this: "NIOO" which stands for "Newbies In, Oldies Out".

After school staff are removed for any reason, Probable Without Cause Hearings are held and many (not all) employees are found guilty by Hearing Officer Martin Scheinman, and tenured personnel are fired without Just Cause, the Department keeps their hiring office open for anyone to apply who has not yet been the target of false claims (or valid claims, but the potential employee already has secretly been hired because he/she "knows" someone).

Here are some options:
Periodic Assessment Associate

Tracking Code

8500

Job Description

Note: This grant funded assignment is for one (1) year with the possibility of renewal for up to three (3) years. 

Position Summary: The New York City school system is the largest in the country, composed of approximately 1.1 million students and 90,000 teachers in over 1,600 schools. In January 2003, the Department of Education (DOE) launched Children First: A New Agenda for Public Schools in New York City, a multi-year reform effort aimed at significantly improving student achievement through effective teaching and learning . 

Accountability is an essential element of New York City’s education reform effort.   This effort is led by the Division of Academics, Performance, and Support (DAPS).  The Periodic Assessment program provides accountability through data on student understanding that enables educators to analyze student performance and curriculum relative to high learning expectations for students, including the skills embedded in the New York State Standards and the Common Core Learning Standards.  These formative assessments provide educators with the ongoing and timely information they need in order to differentiate instructional support for students, better target classroom instruction, plan their curriculum, implement professional development, and monitor student learning and progress over time.   

The Periodic Assessment Associate is critical to the success of the program, including supporting ov erall program objectives and responsibility for day-to-day, detailed management of implementation activities for ECAM (Early Childhood Assessment in Mathematics), Performance Series and English Language Learner (ELL) Assessments.  The Periodic Assessment Associate will also partner with the Achievement Support Initiatives team to create and implement a plan to support educators and network staff.  Working closely with the other members of the Periodic Assessment team, the Periodic Assessment Associate will be responsible for ensuring programs are implemented effectively, including the assessment tools for educators.  Performs related work. 

Reports to:  K-2 Program Manager 

Direct Reports:  Monitor work of external vendors.

Key Relationships:  Will work closely with other Periodic Assessment Team members including the Director of Periodic Assessment and other Program Managers.  The Periodic Assessment Associate will also work closely with educators using the Periodic Assessment tools at their respective schools, other Department of Education groups, including the ARIS team, the Test Design and Development Team, the Office of ELLs, Data Management Team, and Children’s First Intensive, as well as managing relationships with external assessment vendors. 

RESPONSIBILITIES

• Develops and executes program plans to make Early Childhood Assessment in Mathematics (ECAM) available to schools citywide by 2013-14.
• Works with vendors to develop materials to build capacity centrally and within networks to support schools in strengthening elementary mathematics assessment literacy and educational practice-including the use of ECAM.
• Works with vendors to revise ECAM, where appropriate, to align with citywide instructional expectations and initiatives.
• Partners with the Achievement Support Initiatives team to create and implement a plan to support educators and network staff in the use of Periodic Assessment resources and guide the creation of professional development modules to help participants effectively administer assessments, access and interpret results and use the information to inform practice in context of citywide instructional expectations.
• Monitors and encourages usage and identifies support needed by schools to effectively administer assessments, access and interpret results, and use the information to inform instructional practices.
• Directs the work of professional developers to support usage of student results among a wide va riety of teachers, coaches, and administrators.  Gathers feedback from professional development participants to inform future enhancements to products and implementation. 
• Manages day-to-day implementation and administration of the Performance Series Computer Adaptive English, literacy and reading and mathematics assessments and the ELL Periodic Assessments in up to 1400+ schools citywide.
• Oversees Performance Series and ELL program plans, including activities such as coordinating and monitoring delivery and collection of assessment materials.
• Works closely with professional developers to support usage of reporting platform among a wide variety of teachers, coaches, and administrators to retrieve and interpret student results.
• Coordinates data uploads of student demographic data class roster files and student assessment results.
• Monitors and encourages usage, and identify support needed by schools to effectively administer assessments, access and interpret results, and use the information to inform instructional practices.
• Manages incoming and outgoing student/staff data files by ensuring the data received from internal and external sources are accurate.
• Serves as an information resource to address questions and support educators and other system users on the implementation and administration of Periodic Assessments.
• Supports development of communication materials for educators, e.g., administrator manuals, website materials, parent communications and other Periodic Assessment initiatives.
• Assists educators, administrators, technology representatives, and other DOE offices to implement the Periodic Assessments a nd overall program effectively.
• Coordinates with Director and other Periodic Assessment team members to help ensure coherence across multiple assessment tools, share lessons learned, and provide support for educators/users. Collaborates with other Periodic Assessment Team members on all activities related to strategic planning for and communication of the Periodic Assessment vision and assessment portfolio. 

Qualification Requirements: 

Minimum 

1. Graduation from an accredited college with a baccalaureate degree and three (3) years of full-time, paid experience in education administration in one or more of the following areas: special education, career and occupational education, curriculum development, evaluation and testing, educational planning and educational statistics, one  (1) year of which must hav e been in a supervisory/consultative capacity; or
2. High school graduation or evidence of having passed an examination for a high school equivalency diploma plus seven (7)  years of full-time, paid experience in education administration or in one or more of the areas listed in  '1' above, one (1) year of which must have been in a supervisory/consultative capacity; or
3. A combination of education and/or experience which is equivalent to the requirements in '1” and '2” above.  However, all candidates must have a minimum of two (2) years of appropriate, relevant experience in one or more of the areas listed in '1' above. Teaching experience will be accepted towards meeting the requirement for experience in one or more of the areas listed in '1' above. However, all candidates must have the required one (1) year of experience in a supervisory/consultative capacity.  

Preferred 

• Strong project management skills and the ability to analyze data from various sources and prepare updates/reports.
• Strong analytical skills to understand, breakdown, and address complex problems.
• Excellent oral and written communication skills.
• Strong customer-service and problem-solving approach.
• Ability to build strong working relationships with constituents and represent DAPS both internally and externally.
• Ability to lead teams.
• Ability to prepare written reports and make oral presentations clearly and concisely.
• Experience working in the K-12 education field, with classroom experience.
• Experience with content work at the early childhood, elementary, middle and high school levels or grades K-12 in one or more of the following areas: English Language Arts, Mathematics, Science, Social Studies and tests for English Language Learners, Gifted and Talented students and cognitively disabled students.
• Experience working on the fundamentals of test administration, evaluation and interpretation.
• Knowledge of the specific rules, regulations, mandates and policies affecting testing and assessment, including federal, state and city mandates and other funding source mandates.
• Familiarity with early childhood pedagogical practice, assessment, and research.
• Understanding of cognitive development in youn g children.
• Experience providing professional development for teachers in the area of early childhood mathematics. 

Salary: $75,828+

Applications will be accepted through October 28, 2011.

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible.

NOTE: The filling of all positions is subject to budget availability and/or grant funding.

AN EQUAL OPPORTUNITY EMPLOYER

It is the policy of the Department of Education of the City of New York to provide educational and employment opportunities without regard to race, color, religion, creed, national origin, alienage and citizenship status, age, marital status, disability, prior record of arrest or conviction (except as provided by law), sexual orientation, gender (sex), and to maintain an environment free of discriminatory harassment, including sexual harassment, or retaliation as required by civil rights law. Inquiries regarding compliance with this equal opportunity policy may be directed to: Office of Equal Opportunity, 65 Court Street, Room 923, Brooklyn, New York 11201, or visit the OEO website at http://schools.nyc.gov/OEO

Job Location

Tweed (52 Chambers Street) (TWEED)

Position Type

Full-Time/Regular

New Posting

Yes

 

 

Job Details

Office of Special Investigations (OSI) Attorney

Tracking Code 7052

Position Summary: Under the supervision of the Director of the Office of Special Investigations, with latitude for independent action, performs reviews of investigative reports related to highly confidential and sensitive investigations concerning the corruption, misconduct, or other illegal, unethical, or improper activities of agency officials or employees, and the development and implementation of plans and programs for the control, tracking and prevention of such corruption, misconduct, or other illegal, unethical or improper practices. Performs related work.

Reports to: Director of the Office of Special Investigations

RESPONSIBILITIES 

·         Reviews investigative reports, both substantiated and unsubstantiated, to ensure that all allegations have been addressed, all necessary witnesses have been interviewed, and that the investigation was thoroughly conducted.

·         Reviews investigative files to ensure that all necessary documentation has been filed in accordance with Office of Special Investigations (OSI) investigative policies and procedures.

·         Provides guidance to investigative staff regarding report quality and content.

·         Conducts comprehensive searches of the OSI database.

·         Confers with Department of Education (DOE) subject matter specialists, technical experts, and administrative trial attorneys.

·         Conducts research and prepares legal briefs and memoranda on education law issues. 

·         Reviews complex, important, or highly technical laws, rules or regulations. 

·         Acts as liaison with executives within the DOE and with other City agencies.

Applications will only be accepted through the New York City Department of Education Career Opportunities website at:

http://tinyurl.com/4tzwne

Applicants must submit a cover letter and resume to be considered for this position.

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible.

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

Requirements

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 

·         Overall knowledge of the NYC school system and ability to advise and render legal opinions on educational policies and practices.

·         Demonstrated written and verbal communication capabilities and interpersonal skills.

·         Highly organized.

AN EQUAL OPPORTUNITY EMPLOYER

It is the policy of the Department of Education of the City of New York to provide educational and employment opportunities without regard to race, color, religion, creed, national origin, alienage and citizenship status, age, marital status, disability, prior record of arrest or conviction (except as provided by law), sexual orientation, gender (sex), and to maintain an environment free of discriminatory harassment, including sexual harassment, or retaliation as required by civil rights law. Inquiries regarding compliance with this equal opportunity policy may be directed to: Office of Equal Opportunity, 65 Court Street, Room 923, Brooklyn, New York 11201, or visit the OEO website at http://schools.nyc.gov/OEO

 Job Location - 65 Court Street

Position Type Full-Time/Regular

Salary $75,962+ US Dollar (USD)

New York State Testing: Scam, Sham, Thank You Ma'am

Will NY get real on test cheating?

Regent Merryl Tisch

By FRED SMITH, NYPOST

Last Updated:12:03 PM, October 21, 2011

Posted:10:06 PM, October 20, 2011

LINK

On Tuesday, the state Board of Regents approved measures to address long-obvious weaknesses in test administration and scoring procedures and to thwart the rigging of results. Yet only one of the steps, at best, deals with cheating -- and that, vaguely and indirectly: a review of how the state Education Department has handled allegations and investigations of improprieties.

There’s still no sign the Regents are ready to go after cheaters and punish them -- from the top down.

Here’s a challenge: If the state wants to show it’s serious about this issue, it ought to probe the results of 4th graders in New York City on this year’s English Language Arts exams.

I’ve found unusual increases in the Grade 4 ELA results -- the kind that often signal problems inherent in exams or their conduct and scoring.

On these tests, the city went up 5.4 points -- an exceptional improvement in one year, considering 70,000 students are involved. It’s even more surprising when you realize that the rest of the state went down 3 points.

This swing of 8.4 points is particularly suspect because the city contains two-thirds of all Limited English Proficient students in the state.

In two of the city’s school districts, results jumped over 10 percent. These large gains cry out for objective investigation and explanation, especially coming against claims the 2011 exams were more challenging.

I believe the surge was due to lenient teacher scoring of open-ended student responses. Investigators should compare scores on the ELA’s 4th grade multiple-choice items against grades on its essay and short-answer questions. Atypical higher-than-average scores for bilingual-education students and other English Language Learners could also be a tip-off that something odd occurred.

Expect the city to resist scrutiny. In July, when State Education Commissioner John King formed a panel “to review all aspects of the [testing] program,” Chancellor Dennis Walcott’s reaction was that the city went beyond the call of duty to safeguard tests. In fact, the city stopped checking answer sheets for evidence of tampering just when Mayor Bloomberg took office.

Nor did Walcott address a city comptroller’s audit charging that DoE lacks adequate controls over testing -- exposing exams to manipulation.

Last month, the city issued this year’s progress reports, assigning letter grades to schools -- 85 percent of which are based on test scores.

Schools can be closed because of low grades. This creates more pressure to cheat and greater urgency for a monitor to delve into peculiar results.

Instead of spending the summer deliberating about “test forensics,” the Regents should have already engaged an outside testing expert to ferret out strange patterns.

Now the Regents want to bar teachers from grading their own students’ tests -- not this year, but next year, eventually closing this score-raising barn door. Why wait?

Regents Chancellor Merryl Tisch said last month, “We need to be absolutely certain that our system is beyond reproach . . . that our tests are not compromised in any way.”

For starters, Albany can back up its rhetoric by supporting an immediate independent investigation of the city’s Grade 4 ELA results.

Fred Smith, a retired Board of Education senior analyst, worked for the city public-school system in test research and development.

Amid Cheating Complaints, Regents Move to Improve Test Security

By SHARON OTTERMAN, NY TIMES, September 12, 2011

ALBANY — Acknowledging that New York lags behind the best practices for detecting and deterring cheating by educators on high-stakes standardized tests, a Board of Regents committee on Monday authorized an independent investigator to look at how the State Education Department handles complaints of cheating.

But several experts on testing said New York still had a long way to go to be in line with what leading states are doing to prevent educators from tampering with tests. Additional improvements, including some items recommended last week by a state panel, like centralizing scoring in one place and conducting analyses of results, would help, but some local officials worry they could be prohibitively expensive.

“The steps they are suggesting are nothing out of the ordinary,” Gregory Cizek, a test security expert from the University of North Carolina, said of the panel’s recommendations. “They would pretty much get them in line with the ordinary.” He added that New York’s current test-security practices put it “near the bottom” of states nationally.

The Regents on Monday began the process of addressing that, giving state officials approval to explore an additional series of steps that would put the state in control of scoring, a significant shift from the localized systems now in place, which appears to be unique among states.
       
Scoring all the tests in one place, education officials said, would allow the state to do systemwide checks for cheating, like detecting suspicious patterns of erasures or sudden leaps in scores. For essay questions, state officials will explore a relatively new technology called distributive scoring, in which answer sheets are scanned and uploaded onto computers, and graded by other educators across the state.
       
“We administer six million assessments a year,” said John B. King Jr., the state education commissioner. “That’s a lot of tests, and that creates a lot of opportunity for things to go wrong.”

The heightened emphasis on test security comes after a spate of cheating scandals, in Atlanta, New Jersey, Philadelphia and Washington. In June, the federal education secretary, Arne Duncan, sent a letter to all state education commissioners urging them to make “assessment security a high priority” by considering additional steps like more monitoring on testing day.

On Monday, the Regents also gave the go-ahead for the state to consider banning teachers from grading or proctoring their own students’ exams, though several members expressed concern that younger students might get too nervous with an unfamiliar adult showing up on test day.

During a half-hour debate, many board members appeared more hesitant than enthusiastic about the scope of the changes. Some worried that a renewed emphasis on preventing cheating might make teachers feel unfairly accused. Others wondered how the state, which canceled some high school exams this year after falling $8 million short in its testing budget, could afford sweeping changes.

“We would not want to set up an apparatus that is so expensive and costly that we distract from our original goal: teaching and learning,” said James O. Jackson, who represents Albany and the surrounding region on the 17-member board.

New York State currently spends about $38 million a year on testing, much of it paid for by the federal government. State officials did not provide a cost estimate for centralizing scoring, saying they would arrive at one in the coming months.

As a general guide, a 2011 report by the Congressional Research Service estimated that scoring of multiple-choice questions alone costs about 15 percent of a state’s testing program (that would be about $6 million in New York). Adding short-answer and essay questions, which the state’s tests have a lot of, would double that cost.
       
Currently, local districts pay for grading; New York City alone spends about $20 million.
While Dr. King said centralizing scoring would most likely save money over all, there was still concern that districts would end up bearing the burden.

“We’ve been through three financially rough years,” said Bob Lowry, executive director of the New York State Council of School Superintendents. “It’s not a bad idea, but who is going to pay for setting up the system?”

In an interview, Dr. King said part of his work in the coming months would be to convince the governor’s office and the State Legislature that the centralized scoring, and the additional security it could bring through system checks for suspicious erasures, among other matters, would be worth the investment.

The governor’s office did not respond to a request for comment on Monday.
       
For now, state officials are looking for someone to investigate shortcomings in how the state handles cheating accusations, preferably someone with impeccable credentials who would be willing to take on the project pro bono.

Steps Urged to Cut Cheating in Test Grading

By SHARON OTTERMAN, NY TIMES, Sept 8, 2011

 

Citing heightened concerns about educators’ cheating that have emerged after recent scandals in Atlanta and Philadelphia, a New York State panel has recommended an overhaul in how the state administers and grades its standardized tests.

Some recommendations issued on Tuesday by the panel, which was convened by the state’s Department of Education in July, will take effect immediately; others require approval of the Board of Regents, the state education policy board.

Among those that take effect right away: All state tests must now begin on the same day in districts throughout the state, to heighten test security. Also, all educators who proctor or grade state exams will be required to certify that they were trained and followed security procedures.       

In outlining the recommendations, John B. King Jr., the state education commissioner, and Valerie Grey, the executive deputy commissioner, wrote in a memorandum to the Board of Regents that not enough was being done to detect and deter cheating by teachers and principals, given the rising stakes of tests.

“Here in New York, as standardized test scores are increasingly utilized for school and district accountability” and in teacher and principal evaluations, they wrote, “it is imperative that those tests are not compromised.”

Some of the deeper changes recommended by the panel would need approval from the Board of Regents. One option is to bar teachers from grading or proctoring their own students’ exams, which has been an accepted practice across the state for decades. The group also recommended that the Board of Regents authorize the state to begin searching for an independent investigator to examine how it currently handles cheating complaints.
The panel said it appeared that New York was the only state that graded its standardized tests locally, a practice that is against federal recommendations. As a result, it directed officials to investigate switching to a statewide system for scoring multiple-choice questions that would include a computer analysis of erasure marks to detect cheating.
       
For essay questions, the panel recommended that state officials consider a rotation system that would permit all questions to be scored outside the schools in which they are given. To aid in investigations, it recommended that the state consider keeping test answer sheets for longer than a year before destroying them.

Center: Shael Polakow-Suransky (white shirt) and Former Chancellor Harold Levy

Shael Polakow-Suransky, New York City’s chief academic officer, said on Thursday that he agreed with the recommendations. “Their proposals make a lot of sense,” he said, “provided the costs are not passed on to districts like New York City, where we now spend more than $20 million a year to score state exams."

Enough Is Enough: UFT Looking For Good Press And Not Helping a Single Member in Need

Sometimes I get really riled up. When I saw the headline below, I know that the UFT is using their press to look like they care about what's happening in Zuccoti Park.

Believe me, they dont, except to look for a way to make themselves look good while they turn their backs to all the members.

If they didnt want me to tell you what goes on behind the large glass doors at 52 Broadway, they shoulda kept me there.

Betsy Combier

Tens of thousands of students, union members and unemployed or underemployed youth gather at Foley Square for an Oct. 5 community-labor rally against Wall Street greed. The vast crowd covered the entire square, spilling over onto the steps of the nearby New York State Supreme Courthouse. UFT Bronx Borough Representative Jose Vargas (center, with cap) was among the many UFT members present.

‘Enough is enough!’: UFT, other unions join protest, march against Wall Street greed

by Micah Landau | published October 13, 2011

LINK

Teachers, transit workers, health care workers and other working New Yorkers joined forces with the young people from Occupy Wall Street, an anti-Wall Street protest encampment that has occupied Lower Manhattan’s Zuccotti Park since mid-September, for a spirited rally and march of tens of thousands on Oct. 5.
“This country is a great country and we want it to stay a great country, and in order to do that we need to speak truth to power,” UFT President Michael Mulgrew thundered from the podium at Foley Square in a nod to the Wall Street protesters whose effort to call attention to corporate greed and the inequitable economic system through their encampment has captured global attention.
“We have to tax the rich, we have to close the loopholes and we need to hold the financial institutions accountable,” Mulgrew told the gathered students and workers, including hundreds of UFT members, before leading them in a rousing chant of “Enough is enough!”
Also addressing the crowd, Hector Figueroa, the secretary-treasurer of SEIU’s powerful Local 32BJ, placed the union movement’s support of the Wall Street occupiers in context.
“We are the ones who do the work of New York and the world, but we are under attack,” Figueroa said. “We have one enemy that is attacking us: corporate America. Brothers and sisters, the time is now to unite and fight.”
Transport Workers Union Local 100 President John Samuelson, facing difficult contract negotiations with the city, thanked the youths for “sparking the labor movement,” before kicking off the march, which stretched as far as the eye could see.
Snaking its tumultuous way past both City Hall and the Department of Education en route to the encampment at Zuccotti Park, the march was a sea of vibrant humanity, all ages and colors, with creative expressions of both anger and hope captured in countless handmade signs, scores of marching bands and thunderous chants.
“Banks got bailed out, we got sold out,” “This is what democracy looks like,” and the new movement’s signature chant, “We are the 99 percent,” all could be heard for blocks.
One sign, scrawled on the back of a pizza box, captured the excitement of many there: “Believe in change.”
It was just that sentiment that motivated retired chapter leader Donald Nobles, who said he had come out to the protest and to the encampment several times in the preceding days because the cause was right.
“The class war is from the top down,” Nobles said, noting that unions and working people are not doing anything to provoke it.
“The issue is money,” he continued. “Our school system, when you take out poverty, is one of the best in the world. The whole system fails because they don’t fund the poor.”
John Bartley, a science teacher and the chapter leader at PS 79 in Queens, said he came out because, “We’ve got to send the politicians the message that we need a millionaire’s tax.”
Also joining the demonstration, 2nd-grade teacher Ana Delgado, from Manhattan’s PS 1, said she supports the Wall Street occupiers because she sees the connection between financial institutions run amok and the support staff layoffs and rising class sizes in her school.
Her solution?
“The rich need to pay their fair share of taxes,” she said.
Michael Hirsch contributed to this story.
View more photos >> [1]
Video: We are the 99%: New York unites with Occupy Wall Street >> [2]

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Source URL: http://www.uft.org/news-stories/enough-enough-uft-other-unions-join-protest-march-against-wall-street-greed

Probationary Teacher Petitions Appellate Division To Vacate His U Ratings and Wins

Matter of Kolmel v City of New York

2011 NY Slip Op 07265

Decided on October 18, 2011

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 18, 2011 
Mazzarelli, J.P., Moskowitz, Acosta, Renwick, DeGrasse, JJ.

5724 114665/09 

[*1]In re William Kolmel Petitioner-Appellant, 
v
City of New York, et al., Respondents-Respondents.

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for 
appellant. 
Michael A. Cardozo, Corporation Counsel, New York (Edward 
F. X. Hart of counsel), for respondents. 

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-09 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-09 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

"[A]...probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law" (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). "Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith" (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a "U" rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283[2008]).

Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner's manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).

However, petitioner submitted evidence that the principal who made the determination to award the 2008-09 U-rating did not observe petitioner's teaching during either of his final two years at the school. This was in violation of DOE's rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner's assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner's employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]).

THIS CONSTITUTES THE DECISION AND ORDER 
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2011

CLERK

A Sign of The Times: Firing Teachers For Facebook Comments: Extreme Lawlessness, Or Denial of Rights?

Should a Facebook post be grounds for firing?

NLRB settlement suggests employee Facebook posts are protected

02/08/2011
LINK

The controversy began last year when a Connecticut ambulance company fired a worker who complained about her supervisor on Facebook. the employee posted a comment about her boss on her Facebook page: “Love how the company allows a [psychiatric patient] to be a supervisor.” She used several vulgar words to communicate how she felt about her supervisor. Other co-workers joined the online boss-bashing.


The company fired the woman, pointing to its policy that prohibits employees from depicting the company “in any way” on social media sites.

The NLRB stepped in and filed an unfair labor practice complaint against the company. It was the first case in which the NLRB argued that workers’ criticisms on social networking sites are “protected concerted activity.”

Usually, protected concerted activity refers to employee efforts to unionize, but the National Labor Relations Act (NLRA) also protects the rights of all workers to discuss the pay, benefits and other conditions of their employment with co-workers and others, even in a nonunion workplace. It doesn’t matter, the NLRB says, whether those discussions occur in-person or online.

When it filed the complaint, the NLRB noted that, "Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions...and they have the right to do that."

The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting and communications between employees.

Under the terms of the settlement, the company agreed to revise its electronic communication rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. The employee and company reached a separate, private agreement to settle her unlawful termination complaint.

This week’s settlement “sends a message about what the NLRB views the law to be,” said the NLRB regional director who approved the settlement. (NLRB, Case 34-CA-12576, Region 34)

Translation: Review your social media policies to make sure they only restrict communications about things you can legitimately restrict, like disclosure of confidential information. If your policies are overly broad, you may be liable for interfering with employees’ rights to engage in concerted protected activity in violation of the NLRA. Consider training employees on proper use of social media.

Can you fire an employee if she ridicules her boss on a social networking site? What seems like a simple “yes” answer isn’t so simple anymore.

In another example of the complex interplay between social media and HR, the National Labor Relations Board (NLRB) reached a settlement on Feb. 7, 2011, in the closely watched “Facebook Firing” case.

The message for employers: Think twice before you try to restrict or punish employees for trashing their bosses (or the organization) on Facebook or other social networking sites. Employees now have more power to claim that such criticisms are “protected activity” under federal law.

First "Facebook Firing" Case Decided by NLRB Administrative Law Judge

Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts

Chief FOIA Report

NLRB and Facebook

Hot Doggin’ on Facebook: Relish the Lessons

by Mindy Chapman, Esq., Mindy Chapman & Associates on October 13, 2011 11:45am
LINK

Are you scratching your head over all the new Facebook litigation? Who knows which employee comments are considered “protected concerted activity” or when you can legally fire workers who socially slam your company. Well, here’s a new Facebook case that involves hot dogs. The courts are on a roll, so relish these new lessons …

Case in Point: Robert Becker worked as a BMW car salesman in a Chicago suburb. The dealership decided to host a promotional party to introduce a new vehicle. However, Becker and other co-workers expressed concerns that management planned to provide lame food at the party, including hot dogs and chips. Privately, the BMW salesmen complained the cheap spread would hurt their ability to earn commissions. Management ignored the objections and served up the dogs.

At the party, Becker took pictures of the hot dog stand. He posted the photos on his Facebook page with comments ridiculing the event.

In a separate event a few days later, Becker posted pictures of a car accident that took place during a test drive at a nearby Land Rover dealership (owned by the same employer). Becker added inflammatory statements, such as, ”This is your car, this is your car on drugs.”

A week later, Becker was fired for the postings. The National Labor Relations Board (NLRB) sued the dealership, saying Becker’s online comments counted as “concerted protected activity” because they related to his terms of employment and they involved other co-workers. The dealership argued that Becker was terminated for his “bad attitude” in violation of an employee conduct policy.

What happened next and what lessons can be learned?

An administrative law judge (ALJ) ruled that one posting was protected but the other was not.

Specifically, it said Becker was engaged in protected concerted activity when he posted the hot dog photos and comments because the company’s marketing strategy was related, in part, to his compensation. Thus, the posting was related to the “terms and conditions” of his employment.

But the judge reversed the NLRB and ruled that posting pictures of the test-drive accident was not engaging in protected concerted activity. Reason: Becker posted the photo and comments, “apparently as a lark without any discussion with any other employee … and had no connection to any of the employees’ terms and conditions of employment.” (Karl Knauz Motors Inc., NLRB ALJ, 9/28/11)

3 Lessons Learned … Without Going to Court

1. Fire cautiously. In this case, the judge determined the company’s main reason for firing Becker was based on his postings of the car accident, not the hot dog posts.

2. Analyze closely. Don’t fire an employee for engaging in activities related to compensation, which may include voicing opinions about company marketing strategies.

3. Monitor carefully. The court said the company handbook’s conduct policy was reason enough to terminate an employee as long as the identified conduct isn’t protected by the NLRA. Also, remember to enforce all policies fairly and consistently to avoid discrimination claims, too.
 
NLRB ruling revisited: Can employees really trash you on Facebook?

by Jonathan Hyman,  on April 27, 2011
in Career Management,Employment Law,Management Training,People Management
LINK

It was only a matter of time before the National Labor Relations Board (NLRB) inserted itself into the burgeoning intersection of social media and employment relations. After all, it has its own Twitter account, Facebook page, and YouTube channel.

It recently redesigned its web site to highlight this newly discovered social interactivity.

And, last November it issued its first complaint challenging an employer’s social networking policy as a violation of the National Labor Relations Act’s (NLRA) protections of employees’ concerted activities.

Facebook ‘rant’ case

The NLRB issued a complaint against a company that fired an employee after she posted negative comments about her supervisor on her personal Facebook page. The NLRB not only alleged that the employer illegally fired the employee for the posting, but that the company maintained and enforced an overly broad blogging and Internet posting policy.

An NLRB investigation concluded that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions. One barred employees from making disparaging remarks when discussing the company or supervisors. Another prohibited employees from depicting the company in any way over the Internet without company permission.

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.

Misportrayed in the media

Many pundits (including me) were carefully watching this case, hoping the NLRB would provide some guidance on the scope of lawful social media policies. In early February, however, the NLRB dashed those hopes by announcing it had reached a settlement with the employer.

According to the NLRB’s press release:

“Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

What troubles me about this story is how it has been misportrayed both by the news media and in popular culture.

On the night of the settlement, Cleveland’s NBC affiliate teased its coverage of the story with the following: “Tune in at 11 to find out what you’re allowed to say about your boss on Facebook.”

That misstated the effect of the NLRB’s settlement. Despite this settlement, employees don’t receive a free pass on social media posts.

The NLRA grants employees (unionized or not) the right to engage in protected concerted activity, which includes the right to discuss wages, benefits and other terms and conditions of employment. Neither this case nor any other will give employees carte blanche to trash their employers on Facebook, Twitter, in the press or at a Saturday night cocktail party.

Despite their NLRA rights, employees don’t have license to defame, disparage or otherwise trash their company, management, product or co-workers.

Don’t read too much into this recent foray by the NLRB into the brave new world of social media. Until the NLRB says otherwise, employers shouldn’t treat social media any differently than any other form of employee communications.

Regulating social networking at work

Thinking about establishing or revising a policy on social networking at work? Keeping in mind that more and more employers find there’s marketing value in social media such as Facebook and Twitter, consider these questions:

1. How closely do you want to regulate social networking? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking. Further, a blanket ban is also hard to monitor and enforce.

2. If you limit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites or monitoring employees’ use and disciplining offenders are all possibilities. Do you want to go there?

3. If you permit social networking, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.

4. How do you define “appropriate business behavior"? Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. If they are posting from work, anything in cyberspace can be used as grounds to discipline an employee.

5. How will social networking intersect with other policies on harassment, technology and confidentiality? Employment policies do not work in a vacuum. Employees’ online presence—depending on what they are posting—can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies.

"Lynda" Posts on NYCTeacher: Administrators Gone Wild

From "Lynda" (who left the NYC school system as there is no accountability for Principals, and the DOE and UFT do nothing to help):

"After began to apply for leaving South Shore High School, I thought I would never teach again.  I even began to apply for non teaching jobs.

Then Middle School 180, formerly of the Rockaways, came calling.  I started there just after New year's in 2002.

The principal who hired me was warm and very supportive.  He wopuldn't even let the district move to fire me when I got sick and had to be hospitalized for eighteen days in December 2002.  He also saw to it that I could borrow sick days and encouraged colleagues to donate days to my sick bank.  He really bent over backwards for me and for that I will be forever grateful.

The district used political games to force him out in May 2004, when he left to take a positioin in Amityville.  Then they brought in John Comer, Jr., a recent graduate of the mayor's vaunted Leadership Academy.  He was also the Regional Superintendent's nephew-in-law (he married her niece).  Can we say nepotism?

Anyway, he called me down for my first preobservation conference on October 14 and the first words out of his mouth were "I know all about you."

I inquired as to what he meant by that.  He explained briefly that he thought my being supported by the former principal was a lucky break, but he really mneant something else entirely.

He was going to use my Chron's desease against me in more ways than one.  He knew exactly when I had been diagnosed- all of those details.  How could he possibly know that?  I didn't tell anyone.

John Comer Jr. is the son of John Comer, Sr., former superintendent of District 22 in Brooklyn.  My father, who had been a teacher for the DOE for thirty one years, had a rather nasty run-in with him when I was sixteen.  My dad refused to be returned to District 13, where he wanted to transfer from.  He was charged with insubordination and could have lost his job.  John Comer, Sr. was leading the charge. 

My father simply wanted to be closer to home to care for my mother, who was getting sicker at the time.  Unknown to us, she had a virulent form of Parkinson's disease that was diagnosed a few years later that robbed her of her life on March 28, 1995, only six weeks before my graudation from college.

Anyway, because of the defense of a good union rep and my father's seniority, he ultimagtely won his battle against John Comer, Sr. and returned to his former school in District 13 until the 1991 buyout, when he retired.  When I became a full-time employee of the DOE in 2000, it was the day before my wedding in 2000, so I was hired under my maiden name.  I couldn't switch to my married name until I had the marriage license.

Therefore, it would not have taken much work to find out what my maiden name was and that the man his father tried to fire and me were father and daughter.  This wasn't about his feeling that I was an idiot.  This was pure and simple payback.

This payback got even stronger at the end of October in 2004.  Two of my studentds came in the room and said there was a ruckus in the hallway.  I gave my lesson plan to one of them,. who had excellent handwriting, and instructed her to finish writing the do now on the board.  I asked the other student to go around and make sure the attendance form was filled out and I would check her work.  Then I peeked my head outside of the room to see what was going on.

John Comer Jr. was physically pulling the teacher in room 306 out of her room and throwing her into the wall.  Some of my students were behind me and witnessed the assault.  When one student said that we should go back into the room before he did that to me, I thanked him and instructed them to follow me back in.  Rather than complete the lesson, we ended up having what I would call a "teachable moment" and discussed what we had just witnessed: why it is wrong to assault someone, why people do that, and our feelings about the concept of personal space.  That was a lesson where they all paid attention and participated, like the ones every new teacher dreams of.

Three weeks later, on the Monday before Thanksgiving, a classmate of theirs, Emani, was killed by a speeding van on Rockaway Beach Boulevard.  Everyone in my classes either knew her or was related to her in some way- Emani came from a big family.  Thge whole school was shaken by her death- so shaken that the former principal, the man who had been so good to me, came back for her funeral.

What happened next sealed my fate.  Normally, the principal would be the school liason to the grieving family.  Emani's mother made it clear that she did not want to deal with Mr. Comer.  Emani already had several run-ins with Mr.Comer and didn't like him.  She asked Mr. Comer that I be appointed liason between the school and the family since Emani and I had established a relationship through her being in my class the previous school year.  Emani came around to visit every so often during lunch time and I enjoyed hearing about what she wanted to do with her life.  She wanted to try out for the Olympic track team and be a teacher.  She had often said that I inspired her.  I agreed because Emani was a genuinely good kid that I knew.  I almost fell apart when her mother asked me to give a eulogy at Emani's funeral. 

Six weeks later, I decided I had enough if the abuse and left.  I studied and got my certificate to teach in New Jersey, where I still teach. 

I could see that the mayor was sticking with his BS Leadership Academy to produce new principals.  If any of them were like Mr. Comer, I wanted no part of it."

Here is the article that I posted on my website in 2004 about the incident with Melissa Gianninoto:

John Comer, new MS 180 (Queens, NY) Principal, is Accused of Manhandling a Teacher; Staff and Union Attempt Coverup 

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The book on the falsification of records by the NYC DOE adds another page, as staff and union representatives at MS 180 in Queens NY try to cover up teacher abuse to protect new Principal John Comer.

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E-Accountability OPINION:

There are two very interesting items in the story below about the alleged manhandling of a teacher by a Principal: first, she was 'advised' not to report the incident by colleagues and union officials. This makes us wonder how many other incidents there may be, left hidden by the staff at the administration's - or union's - request; second, she was asked to sign an observation report without reading it, and when she decided to read it, saw there was a false and misleading statement made. This falsification of records is endemic at the DOE, and leaves both the DOE and the Office of Legal Services open to penalties and damages, if they are sued. We are holding them accountable.
Betsy Combier
MS 180 Principal Accused Of Manhandling Teacher 
By Howard Schwach, The WAVE, November 18, 2004
LINK
A female teacher has accused John Comer, the new principal of Middle School 180 in Rockaway Beach, of manhandling her when she failed to stand in the school's hallway during the change of class one day earlier this month. 
Melissa Gianninoto says that she was stunned when Comer pulled her from her classroom and flung her into a wall in the hallway. 
"I stepped from the hallway for a moment to quiet my class down and get them started on their lesson," she told The Wave this week. "The principal came by and placed his hands on me. He pulled me out of the room and into the hallway." 
School rules require that teachers be in the hallway during "passing" to monitor students moving to their next class. 
Gianninoto, who is a licensed Social Studies teacher and is assigned to teach Language Arts, said that she was ready to go to the 100 Precinct to file charges against Comer, but was dissuaded by colleagues and union officials who warned her that she would only cause herself more problems with the principal and would then be open to have her job terminated. 
New teachers can be fired for small violations of DOE regulations under Department of Education guidelines. In fact, a guidebook on how to fire teachers was recently released secretly to all principals in the public school system. 
Gianninoto did file an incident report with the school's union representative, however and spoke to a union representative from another local school as well. 
And, while no other adults were present to corroborate her story, a number of students witnessed the incident and told other teachers in the building about what had happened. Those teachers did corroborate the fact that witnesses supported her story. 
Union officials also corroborated the fact that the incident report was filed on the day of the alleged incident. 
When contacted for comment on the allegation, Region Five officials issued a prepared statement that read, "It is the policy of school that teachers remain in the hallways during passing." 
That statement did not address the question of the principal placing his hands on the teacher, something that is not allowed under Department of Education guidelines. 
Gianninoto admitted that she had stepped into the classroom against rules to quiet her class. 
She also admitted that she has had problems with the administration of the school in the past. 
"I was observed a few weeks ago by the principal and we never had a post-observation conference as required by our contract," she said. "Today, a secretary came to my room and asked me to sign the observation without reading it. She was in a hurry and told me not to read it, I did. The bottom of the observation noted that there had been a post-observation conference." 
Shortly after the alleged incident with Gianninoto, Comer issued a memo to all teachers and staff. 
"Be aware no one is to call 911 without the permission of the principal or the principal's designee," the memo said, although Department of Education rules require teachers to report certain abuse and criminal activities to the police immediately. 
Gianninoto told The Wave she believes that the principal is harassing her. She said that the union was working out a deal for her to be transferred to another school, but Department of Education officials deny that such a deal is in the works. 
Comer declined to take phone calls for comment and did not return messages left with his secretary.
Previous WAVE articles about Comer:
Comer Appointed MS 180 Principal
By Howard Schwach, The WAVE, June 11, 2004
LINK
John Comer, a newcomer to District 27, has been appointed principal of Middle School 180 in Rockaway Beach, effective immediately.
The position became vacant last month when long-time principal George Giberti left to take a middle school principal's position in Nassau County.
Assistant Principal Monica Murphy has been in charge of the building since Giberti left. It was unclear at the Wave's press time as to what her role would be in the building for the remainder of the school year.
The school is in the process of being phased out as a traditional zoned middle school. 
Beginning with the 2005 school year, the building will house the "Scholar's Academy," a gifted school for all peninsula students. At that time it will contain only a traditional eighth graded – the terminal grade for the school.
It is widely speculated that PS 114 principal Brian O'Connell would then become the principal of the gifted school and that Comer would perhaps move to PS 114 in his place.
A Region Five source, who asked not to be identified because there had been no permission to talk with The Wave from the Department of Education said however, "This is an indication that, even though the school will change next year, we are not leaving the students suspended this year. We are committed to every school and we expect that the new MS 180 principal will continue to move that school forward."
Cashin: New Principal 'A Take Charge Guy'
The WAVE, Front Page June 18, 2004 
LINK 
Despite the fact that the newly-appointed principal of Middle School 180, John Comer, has only eight years of experience in the school system and only one as an acting assistant principal (at Middle School 226), Regional Superintendent Kathleen Cashin told The Wave recently that she is sure that Comer will be an excellent administrator for the often-troubled building.
"He is a real take-charge guy," Cashin says of Comer. "He demonstrated excellent skills as an assistant principal and took over the Region Five Science Fair his first year as an administrator."
Comer was the administrator for the seventh grade at the much-larger MS 226 in Ozone Park, Cashin pointed out.
"He supervises more children now on the seventh grade than he will next year at MS 180 administrating the entire building."
Cashin says that she is not deterred by the fact that Comer has only one year as an acting assistant principal, pointing out that she went straight from teacher to principal with no intermediate step to assistant principal.
"I promise the MS 180 community that they are getting a good guy with Comer, one who will be dedicated to the school," Cashin said. "It's good to have experience, but many people with more experience do not necessarily do a good job. There are other aspects than experience to look at in any candidate."
A number of parents have contacted The Wave this week to complain that the region was placing an "inexperienced young man" in the principal's position while demoting acting principal Monica Murphy, who has been an assistant principal at the school for many years.
A new assistant principal, chosen by Comer from two candidates, will come to the school with the new principal because, Cashin says, "We want him to come in with an AP of his choice."
Cashin says that Murphy will be given a position at another, undisclosed school in the region.
There has been some conjecture reported in the pages of The Wave that PS 114 principal Brian O'Connell would be transferred from the elementary school to MS 180 as principal once the "Scholar's Academy" is in place.
A supervisor at the regional office, who asked not to be identified, said, however, "We have an entire year to make those kinds of decisions. A lot could happen in a year and we have not yet made any decisions about moving anybody at this time.