Teacher Evaluations: Should Student Feedback Be Included?

Student surveys seen as unlikely evaluations element, for now

by Geoff Decker, at 8:12 pm

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Inspired by a 2010 study that found that students’ feedback about their teachers helped predict how well the teachers’ students performed on state tests, New York City asked some schools last year to test out a student survey that could become part of new teacher evaluations.

But if the city and its teachers union agree on a new evaluation system this year, student surveys are unlikely to play a role, according to people on both sides of the negotiating table.

The Gates Foundation-funded Measures of Effective Teaching study found that student feedback and teacher observations combined were more closely correlated with teacher effectiveness than observations alone, or any number of other attributes of teachers.

The city participated in that study and adapted the survey used in it, called Tripod, for use last year in 10 of the 108 schools in the Teacher Effectiveness Pilot, meant to test possible components of overhauled teacher evaluations.

Under the state’s new evaluation law, 60 percent of teachers’ ratings must come from subjective measures such as principal observations and peer reviews. The State Education Department has said student surveys can play a role, too, if districts and their unions agree.

The head of the state’s teachers union says student feedback could be a useful element of evaluations. But city union officials say they are staunchly opposed to incorporating student feedback in teacher evaluations.

UFT Secretary Michael Mendel said the union’s position is that it is inappropriate to ask students to make high-stakes decisions about their teachers, because it puts the students under pressure and also could encourage teachers to put student approval ahead of student learning.

“Could you imagine if you were a teacher and you were ineffective by a point or two because you were rated ineffective by the children?” Mendel asked.

Even though city Department of Education officials say they would like to see student surveys play a role in evaluations in the future, they dropped the surveys from the pilot program this year.

“I think it’s something that we have to introduce into the process, initially with low stakes, so that teachers can see what the data looks like and see what they think of it and begin to trust it,” said Chief Academic Officer Shael Polakow-Suransky.

The Tripod survey, which the state has approved for use in evaluations, asks students to mark how much they agree with statements about their teacher and classroom. Items are broken down under “seven C’s”: care, control (of the classroom), clarify, challenge, captivate, confer, and consolidate. Statements include “Student behavior in this class is under control”; “My teacher knows when the class understands, and when we do not”; and “My teacher really tries to understand how students feel about things.”

Issues like those are ones that only students can speak to, said Kara Kreisberg, a Spanish teacher at West Bronx Academy for the Future.

“They’re the ones that are in the room,” she said. “As many walkthroughs [by administrators] as you have, the students are the ones who see it all.”

But students don’t understand other important components of what it means to be a good teacher, such as planning lessons or using feedback to improve, according to Joseph Vincente, a chemistry teacher at East Side Community High School.

“Student feedback is important but it’s also limited,” he said. “They don’t get to see the behind-the-scenes work.”

So far, Syracuse is the only large district in New York State that has agreed to use surves in new evaluations. The district’s chief academic officer, Laura Kelley, said Syracuse schools will use surveys at all grade levels.

“We just felt the student perspective would be a valuable perspective,” Kelley said.

Richard Iannuzzi (l.) — seen here with Education Secretary Arne Duncan — reportedly got a big raise while many taxpayers and teachers struggled

Dick Ianuzzi, the president of the state teachers union, said he supported evaluation plans that included multiple measures. Validated student surveys such as those used in the Tripod Project, he said, could be one measure.

“Student surveys, just like self-reflection, are all pieces that when you add them together you get the multiple measures that give you a sound evaluation,” Ianuzzi said.

CUNY Faculty Protest The Imposition of "Pathways" Curriculum

Dear all,

Although the following petition focuses on higher ed rather than K-12, it should be of interest to this list; CUNY is part of New York's public education system, many graduates attend, and we train a large share of the city's teachers.  The new Pathways curriculum is being imposed on faculty by central administration, in the face of many protests, despite by-laws that assign curricular development to faculty governance. The letter that follows is from the president of CUNY's faculty union and the chair of the faculty senate.  Please sign!

Tanya Pollard
Brooklyn College and the Graduate Center

Dear Colleagues,

Please click here to sign a petition calling for a moratorium on the implementation of an austerity curriculum at CUNY. And please forward this message widely to your professional networks throughout the nation and the world.

This is a watershed moment for higher education.  The “reform” agenda that brought relentless testing and widespread privatization to K-12 schools has surfaced in higher education.  Forty years of public policy focused on access to college is being replaced by a single-minded demand for increased graduation rates—whatever the cost in academic quality. 

The battle for educational quality is being fought hard by faculty and staff at The City University of New York (CUNY), long a focal point in struggles for educational justice.

CUNY’s educational mission is under attack.  Chancellor Matthew Goldstein and the CUNY Board of Trustees, led by Benno Schmidt, Jr., are trying to impose a diluted system of general education, “Pathways,” that seeks to save money at the expense of students’ learning.  Facing intense faculty resistance, the CUNY administration has resorted to threats and intimidation.  Under the pretext of easing student transfer and increasing graduation rates, Pathways will deliver a minimal curriculum for CUNY’s working-class students: it removes science lab requirements, limits foreign language requirements, and cuts back on faculty time with students in English classes. Pathways is an attempt to move students through the system more quickly even as budgets are cut—by reducing academic requirements. Pathways is austerity education for an austerity economy.

With your help, we can defeat Pathways and achieve a victory for educational quality that could have national implications.  Please add your voice to ours and take a stand for the integrity of higher education. 

 

Barbara Bowen

President, Professional Staff Congress/CUNY

 

Terrence Martell

Chair, University Faculty Senate

Los Angeles Now Has Its Own Rubber Room Problem

New York City isn’t the only district to employ so-called “rubber rooms.” The Los Angeles Daily News reports that nearly 300 Los Angeles Unified School District teachers now spend their days in administrative offices where they wait for outcomes of their disciplinary hearings, meanwhile doing nothing but blogging, texting or reading. These teachers can’t be [...]

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New York City isn’t the only district to employ so-called “rubber rooms.” The Los Angeles Daily News reports that nearly 300 Los Angeles Unified School District teachers now spend their days in administrative offices where they wait for outcomes of their disciplinary hearings, meanwhile doing nothing but blogging, texting or reading. These teachers can’t be returned to the classroom until their cases are settled, yet they continue to collect their paychecks from the district.

The cost to maintain these “rubber rooms” – commonly called “teacher jails” in LA – is substantial. The salary costs alone run up to $1.4 million per month, which doesn’t include the nearly $900,000 the district pays the substitutes who fill in to teach in the classrooms previously fronted by those “jailed.”

Los Angeles Unified officials insist the cost is worth it – the price the district has to pay for years of downplaying or ignoring suspected abuse. That practice exploded into a major scandal in February with revelations of longtime patterns of misconduct by teachers at Telfair Elementary in Pacoima and Miramonte Elementary in South L.A. | Read “Where the Miramonte, Telfair abuse cases stand” Now, under a new zero-tolerance policy, scores of educators accused of misconduct have been pulled from classrooms and are facing dismissal. The number of housed teachers has more than doubled in the last 18 months.

The stricter enforcement means that until the district takes steps to decrease the time it takes to carry the disciplinary process to completion, the number of teachers who are being paid to do essentially nothing will continue to grow. And that will inevitably include a certain number of teachers who have been cleared of the charges against them, but who will not go back to teaching in a classroom because district officials think they are unfit.

The policy used by the LAUSD to resolve disciplinary matters is being analyzed by the California State Auditor’s office, which is set to release its report – compiled at the request of Assemblyman Ricardo Lara, D-South Gate – this week.

The audit is likely to address LAUSD’s more aggressive approach to pulling educators from the classroom – so many, in fact, that housed teachers are split into morning and afternoon shifts, with the balance of their “workday” spent at home. Teachers union leaders say they certainly want to rid their ranks of abusers, but they believe the district is overreacting to the scandal and wasting precious resources by failing to differentiate between an inadvertent touch and predatory behavior.

However, district officials resent the implication that they’re pulling the trigger too early when it comes to taking teachers out of the classroom, as current guidelines call for teachers to be removed only in the cases where “credible allegations” are lodged against them.

Yet this doesn’t seem to be the impression formed in the minds of those who are sentenced to teacher jails. An overwhelming majority of those interviewed believed that the system is set up to deny them due process and keep them out of the classroom for an extended period of time.

Employees complain that they have to sign in and out, even to use the restroom, and that they’re not allowed to visit with their fellow teachers in adjoining cubicles. While the district policy says teachers should be required to perform “duties within their job classification,” housed teachers say there’s no real work for them to do, so they spend their time reading, blogging or talking.

Carol Burris: The "New" Teacher Evaluation Process is Nonsense

Sunday, December 2, 2012

The newest rhetoric on teacher evaluation — and why it is nonsense

Posted by Valerie Strauss on November 13, 2012 at 6:00 am

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Carol Burris is the award-winning principal of South Side High School in Rockville Centre, New York, and a frequent Answer Sheet blogger. She just underwent an ordeal as a result of Hurricane Sandy. Here’s what she wrote:

(Mike Stobe/AFP/Getty Images)

Physically we are fine…we evacuated. I am one mile from the bay, but when it surged, about 6 feet entered my home.  All in the finished basement.  Lost a lot–heating system for the house, hot water and we have no electric. Walls and staircase have to come down.  House smells awful.  Lost lots of furniture, but also pictures, my husband’s Lionel train set from his Dad and all my research from my dissertation. Stuff you can’t get back. Some leaks, a fence down but because we left we did not lose our cars.  We are pretty lucky compared with others.

 Yet even while dealing with all of this Carol Burris still keeps writing about the negative effects of school reform. Here she looks at the newest popular rhetoric on teacher evaluation — and explains why it is nonsense. Burris is theco-author of the New York Principals letter of concern regarding the evaluation of teachers by student test scores, which has been signed by more than 1,500 New York principals and more than 5,400 teachers, parents, professors, administrators and citizens. You can read the letter by clicking here.

 By Carol Burris

As a high school principal, it is my job to evaluate teachers. I take this responsibility very seriously — it helps ensure that our students receive the rich opportunities to learn that they deserve. With strong teachers, evaluation may entail reaffirming good practice, supporting innovative practice and facilitating ways for them to share their expertise with their colleagues. For novices or those who struggle, we work to improve their practice and, when necessary, to counsel them out or let them go.

  It is because instruction is so important that the sweeping generalizations and false assumptions that have fueled recent teacher evaluation policies are of such concern to teachers and school leaders alike.  The waves of misinformation about evaluation undermine confidence in our schools and result in “solutions” based on opinion and gut-level hunches, not research evidence. The recent Phi Delta Kappan opinion piece, entitled “Million Dollar Baby,” is an example of the misguided critiques that appear all too often.

Let me begin by saying that I have always been a fan of the Kappan, which skillfully takes scholarly research and makes it accessible to educators who do not have time to pore over academic journals. Despite that fine track record, the generalizations that form the argument in this month’s editor’s note cannot go unaddressed.   It is time to get the record straight and address three common fallacies that dominate the new rhetoric on teacher evaluation:

            1. Every former teacher evaluation system was the same and that unitary system was terrible. To quote from the opinion piece, “Unfortunately educators must bear the bulk of the blame for allowing such a lousy system to exist.” In reality, there was never one evaluation system nor was every system “lousy.” Rather, each school district has had its own system of teacher evaluation, and some of those have been better than others. That doesn’t mean, of course, that we don’t have substantial room for improvement. But it does mean that it’s ridiculous to start a reform discussion with the contention that all districts should abandon their evaluation system regardless of its track record. I would wager, for instance, that Kappan’s editor would agree that theMontgomery County Maryland School System has a nationally acclaimed system, and that Cincinnati Schools had a system, before Race to the Top, that has been shown to not only improve the craft of teachers but to increase student achievement. Neither system incorporated test scores. In the small districts on Long Island, most of us did an excellent job evaluating teachers—dismissing probationers who do not merit tenure, helping teachers continue to develop, working with and counseling those who needed to improve or to leave the profession, and building on the strength of even our most expert practitioners.  Among Long Island principals, you will find few fans of New York State’s new evaluation systems, based on APPR.

       2. Tenure is the problem. It is a job for life and it is unique to teaching. The Kappan editorial states that tenure is one of the “unique privileges that teachers enjoy.” But in truth due process before dismissal (tenure) is not unique to teaching. In fact, it is more difficult for a principal to dismiss a custodian due to civil service protection than it is to dismiss a teacher. Civil servants enjoy seniority rights, probation periods, salary schedules, and due process rights for dismissal just like teachers. Civil servants, who are broadly defined as those who work for government, include librarians, police officers, firefighters, transit workers,  secretaries, and accountants.  Due process should not be understood or practiced as a “job for life,” but it should remove the threat of political or arbitrary dismissals.

 There are excellent reasons for such protections. The civil service was established in the late 1800s because prior to its establishment, government jobs were given to political supporters as spoils. The protections were put into place to make sure that public employees were hired on merit and could not be dismissed on the whims of the incoming administration. This remains a concern. Public schools are run by politicians—in some cases by mayors, in other cases by elected boards of education.

 As an alternative to tenure, the Kappan editorial suggests that teachers “should receive a contract for a limited period of time, say three or five years”.  Although this may sound reasonable, consider the clear consequences. Without the protection of tenure, educators could be dismissed for not pleasing the interests of powerful parents. They could be dismissed in order to bring in friends and relatives of newly elected mayors or board members.  Teachers could be pressured to pass students who did not deserve to pass a class or be pressured to not discipline a student when warranted. Presently, there is one person in every district who works on a renewable contract: the superintendent. Nationally, the average time that a superintendent stays in a district is seven years. For an urban superintendent it is fewer than three years. And the constant turnover of superintendents does not serve students or schools well.  Tenure promotes stability and community in our schools.  Teacher turnover, even when it is the less effective teachers who leave, has a negative effect on student achievement. Likewise it has been found that churn in the principalship is not good for schools. Such instability does not  promote excellence and the courage to make the tough decisions that are not politically popular but serve the best interests of students. Again, this isn’t an argument against pursuing ways to streamline the dismissal process; it’s an argument against poorly thought through changes.

        3. High-stakes evaluations are fine as long as they do not rely on a single measure.  This is the new popular rhetoric. It is a partial acknowledgement of the many problems associated with using students’ test scores and growth models in teacher evaluations, problems that have been repeatedly documented. And yet the Kappan editor and others still insist on the inclusion of students’ test scores in teacher evaluation. Multiple measures are indeed wise, but the effects of including any given measure need to be understood. Current policies do in fact place test scores in a prominent role, one for which they are not valid or reliable and because of which school districts can expect to be (justifiably) challenged in court by dismissed teachers (as explained in another article in the same November issue of the Kappan). The troubling reality is that these policies will promote teaching to standardized tests and a narrowing of the curriculum

 The editorial suggests that we also include other untested ingredients, such as student surveys, in the evaluation mix. We should do this, apparently, even though there is as of yet no reliable research base to support the idea. As a high school principal, I thoroughly enjoy working with teenagers. I find their opinions to be frank and refreshing. But I do not think it is fair or wise to give 14 year olds a formal role in teacher evaluation. It is bad enough that we are undermining the student-teacher relationship by basing evaluations on those students test scores.

 The magazine’s editor concludes by asserting that “every classroom should have excellent teaching every hour of every day.” I would add that every child should also have an excellent parent who serves them excellent food and provides them with an excellent home in an excellent neighborhood. Let’s also add excellent healthcare and excellent supervision every hour of every day as well. If we could accomplish all of that, we would have the highest achieving students on earth. But the rhetoric itself accomplishes little. What we need are research-based policies supported by lawmakers willing to provide the necessary resources.

 In the meantime, while we wait for those wise lawmakers to emerge, perhaps we all could back off and allow teachers to enjoy the same humanity we seem to graciously grant to others. Teachers aren’t perfect, but I must tell you that nearly all of the teachers that I have met over the years are darn good at what they do. And the variation in their skill is no wider than the variation that I have observed in other professions whose evaluations we never seem to discuss. Let’s look to improve evaluation systems as well as other parts of our schools. But could we stay within reasonable bounds of critique based on fact and research? If we do not stop this constant drumbeat of criticism there will be no one left to evaluate with our new excellent-every-hour-every-day evaluation systems.

New teacher evaluations start to hurt students

By Valerie Strauss, The Answer Sheet

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Much of the discussion about the use of student standardized test scores to evaluate teachers has centered on how unfair the “value-added” method is to teachers because it is unreliable and can — and does — label effective teachers as ineffective too often. But there are consequences for the students too, and they are just starting to be seen. This is explained by in this post by Carol Burris, the award-winning principal of South Side High School in Rockville Centre, New York. She is the co-author of the New York Principals letter of concern regarding the evaluation of teachers by student test scores, which has been signed by more than 1,500 New York principals and more than 5,400 teachers, parents, professors, administrators and citizens. You can read the letter by clicking here.

By Carol Burris

The first “growth scores” for the teachers of students in Grades 3-8 have arrived in New York State and they are even more problematic than expected. What is happening in New York is happening across our country. The question that those who love our public schools and their students must confront is what credence will we give them and how will we respond.

We know that of all of the many factors that account for the variance in student scores, the teacher is the greatest in-school factor — she contributes more for example, to student test scores than does the principal or the school size. However, factors other than the teacher account for roughly 85-90% of the variation in students’ test scores. Teachers account for only 10-15% of the variance in scores. Some researchers have argued that even that percentage is too high due to the conflation of teacher contribution with class size and peer effects. What that means is that the urban legend that three excellent teachers in a row will close the achievement gap is not grounded in research but rather in speculation.

The shortcomings of evaluating teachers by test scores were apparent in the recent report of the American Institute for Research (AIR), which developed the New York growth score model. AIR, in its BETA report, shows how as the percentage of students with disabilities and students of poverty in a class or school increases, the average teacher or principal growth score decreases. In short, the larger the share of such students, the more the teacher and principal are disadvantaged by the model. I predict that when the state results are made public, you will see a disproportionate amount of teachers of students with serious learning disabilities and teachers in schools with high levels of poverty labeled ineffective on scores. And that label will be unfair.

Likewise, in the model used this year, teachers who have students whose prior test scores were higher were advantaged, while teachers whose students have lower prior achievement were disadvantaged. This phenomenon, known as peer effects, has been observed in the literature since the 1980s. There is no control for peer effects in the model. We will see patterns of low scores for teachers of disadvantaged students. Over time, the students who need the best teachers and principals will see them leave their schools in order to escape the ‘ineffective’ label.

Perhaps the best critique of the model comes from AIR itself. The BETA report concludes that “the model selected to estimate growth scores for New York State represents a first effort to produce fair and accurate estimates of individual teacher and principal effectiveness based on a limited set of data” (p. 35). Not “our best attempt,” not even a “good first attempt,” but rather a “first effort” at fairness.

And yet, across the state, teachers and principals have received scores telling them that they are ineffective in producing student learning growth.

During the first two weeks of September, Principal Harry Leonadartis surveyed principals around the state to find out if the growth ratings they received for their teachers appeared to be an accurate reflection of their teachers’ skills. More than 500 New York principals responded.

Seventy three percent of respondents said that the “ineffective” label assigned to some of their teachers was either not a very accurate or an inaccurate reflection of that teacher based on their observations and the performance of that teacher’s students. A majority said that the scores overall were not a very accurate reflection of teacher ability. Regarding APPR, the state-imposed evaluation system, 81% regarded it as a tool of limited or no value for the evaluation of teachers. Only 19% had a positive attitude toward APPR with minimal concerns. Over 81% described themselves as either reluctant participants or opposed to APPR. More than 1510 New York principals have signed a letter of opposition to APPR which can be found here.

In the comments section of the survey, several principals reported having excellent special education teachers labeled as “ineffective.” One principal wrote: “Two excellent teachers who volunteer to take on my toughest students got an ineffective. Their hearts were broken. So was mine.” Another principal remarked, “The teachers who were identified as ineffective…have been teaching for more than 15 years, and have cared for students in ways that no test can measure.”

Other principals remarked that teachers who received poor ratings were teacher often praised by students and parents alike. Some principals stated that they would change their teacher’s assignment next year and assign them less needy students so that they could protect these excellent teachers from the ineffective rating. The unintended consequences to students are beginning.

How can an evaluation system in which the evaluators themselves have little faith possibly be productive? The question is, what will we collectively, and individually as school leaders do?

There are principals who are bravely standing up. One of them is Don Sternberg, the leader of the Wantagh Elementary School on Long Island. You can read his letter to parents here.

Don wrote:

Of additional concern to me is the relationship between children and their teacher as we move into an era where teacher job status is based upon student assessment scores. Guess what, some children will become more desirable than others to have in class! And, conversely, others will be less desirable. There, I wrote it! That concept is blasphemy in our school where teachers live to prepare children to be productive learners and members of society. Teachers state-wide are worried that their relationship with students might change when they are evaluated based upon their students’ test scores. Teachers want to educate students, not test prep them for job security.

Additionally, what should be shocking to you as a parent is that state and national databases are being created in order to analyze and store students’ test scores – your child’s assessment results and your child’s school attendance! Do you realize that the state has mandated that classroom teachers must take attendance during every math, ELA, social studies and science lesson – everyone, every day for the entire school year! Those records are sent to the state and become statistically part of the teacher evaluation process. It will no longer be enough that your child ‘was in school.’

Rather, if he or she was at a band lesson or out of the room for extra help in reading and a math lesson was taking place in class, he or she will be noted as absent from that instruction. That will be factored into the teacher evaluation….This is all part of the massive, multi-million tax-payer dollar teacher evaluation processes started by our Commissioner of Education, our governor, and our state legislators and fully supported by statisticians employed by the state and assessment-making companies. No one in Albany is selecting to see the end of the journey; that 98 percent of the students graduating from Wantagh Schools go on to two- and four-year colleges. Their myopic view is focused on the ‘parts’, not the whole. Who will eventually suffer? Your children!

Further upstate New York, an outstanding principal, John Mc Kenna, worked with the Niagara Regional PTA to create a resolution against high-stakes testing and teacher evaluation by test scores to be presented at the New York State PTA convention later this fall. You can read their resolution here:

Poverty matters. It does not seal the fate of a child, but if we are to overcome the disadvantages that it brings, we must level the playing field by providing effective supports to poor students and the teachers who serve them. The “no excuses” philosophy which seeks to blame teachers for the burden our entire society must bear is a cold and shameful response to our most disadvantaged students. The waste of billions of taxpayer dollars on testing, test security, test shredding, intrusive data systems and test-score teaching ratings is a violation of the public trust.

How many more brave educators and parents will stand up, speak and say “no more?”

Mike Bloomberg Loses In Sergio Hernandez' FOIL Case

Court rules against NYC over ex-chancellor emails

Published: November 27, 2012 8:26 PM
By The Associated Press  

NEW YORK - (AP) -- A court has upheld a judge's decision ordering Mayor Michael Bloomberg's administration to release emails between his office and former schools chancellor Cathie Black.

The emails were requested by an investigative journalist under the Freedom of Information Law. The city's Law Department contends the emails are exempt from the law.

Sergio Hernandez sued the administration, saying they refused a Nov. 19, 2011 request for emails leading up to Black's controversial hiring and short-lived tenure.

A judge ordered the city to release the emails to Hernandez. The City appealed and on Tuesday an Appellate Court upheld the judge's decision.

A City lawyer said the city is reviewing the decision and will ask the court permission to appeal.

Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Hernandez v Office of the Mayor of the City of New York

2012 NY Slip Op 08067

Decided on November 27, 2012

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 November 27, 2012 
Tom, J.P., Saxe, Richter, Abdus-Salaam, Feinman, JJ.
8623 106213/11 

[*1]In re Sergio Hernandez, Petitioner-Respondent, The 
v
Office of the Mayor of the City of New York, Respondent-Appellant.

Michael A. Cardozo, Corporation Counsel, New York (Susan 
Paulson of counsel), for appellant. 
Schlam Stone Dolan LLP, New York (Raffi Melkonian of 
counsel), for respondent. 

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered December 6, 2011, granting the petition brought pursuant to CPLR article 78 seeking to annul a determination of respondent Office of the Mayor of the City of New York, dated January 26, 2011, which denied petitioner's requests under the Freedom of Information Law (FOIL) for certain email messages sent from or received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor, or any email address ending with the domain name of the company that employed her, to the extent of directing respondent to produce redacted copies of such emails, and directing the parties to appear for a conference on the issue of attorney's fees and costs, unanimously affirmed, without costs.

The motion court properly directed respondent to disclose the redacted emails, which are not exempt from disclosure as inter- or intra-agency materials (Public Officers Law § 89[2][g]). Black was not an agent of the City since she had not yet been retained as Chancellor (cf. Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546 [2d Dept 1981]). Further, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City (see Matter of Tuck-It-Away Assoc., L.P. v Empire State Dev. Corp., 54 AD3d 154, 163 [1st Dept 2008]; see also Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652 [2012]; cf. Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 [1985]).

Costs and attorney's fees should be decided by the motion court in the first instance.

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

ENTERED: NOVEMBER 27, 2012 [*2]

CLERK