Vassilev v NYC DOE (NY Supreme Court, 2013): Petitioner Denied a Complete Chancellor's Committee Report

It seems strange to me that the NYC DOE does not give Chancellor Committee Reports to educators appealing their end-of-year ratings, in a timely fashion.

In the Vassilev case, Judge Cynthia Kern wrote that they must make a decision  but they dont have to give it to Mr. Vassilev:

" In the present case, petitioner is entitled to the relief he seeks as the Chancellor's Committee's issuance of a final determination is a ministerial, not a discretionary, act. The Committee's hearing was held in March 2012 yet no final determination has been made thus far. This court is not advising the Committee on what decision to render but only that the Committee must issue a final determination regarding petitioner's "U-rating" for the 2009-2010 school year as expeditiously as possible.

Finally, petitioner's request for a complete and unredacted copy of the Chancellor's Committee's report is denied. In an Article 78 proceeding, "a petitioner is not entitled to discovery as of right." 

Betsy Combier

betsy.combier@gmail.com

Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org

Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

2013 NY Slip Op 31788(U)

In the Matter of the Application of ANTON VASSILEV, Petitioner,
For an Order Pursuant to Article 78 of the Civil Practice Law and Rules,
v.
CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, DENNIS WALCOTT, Chancellor of the New York City Department of Education, Respondents.

Docket No. 100526/13, Sequence No. 001.

Supreme Court, New York County.

August 2, 2013.

Filed August 6, 2013.

DECISION/ORDER

CYNTHIA S. KERN, Judge.

It is ordered that this motion is decided in accordance with the annexed decision.

Petitioner Anton Vassilev brings the instant petition pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR") (1) challenging respondent the New York City Department of Education's (the "DOE") determination sustaining (a) his Unsatisfactory end-of-year rating ("U-rating") for the 2009-2010 school year and the denial of completion of probation; and (b) the discontinuance of employment and termination as a teacher for the DOE; (2) seeking an Order mandating that respondents reinstate petitioner nunc pro tunc to his employment as of September 9, 2010 with all backpay and other lost benefits and emoluments of employment, including granting him tenure; (3) ordering respondents to immediately turn over to petitioner a complete and unredacted copy of the Chancellor's Committee report pursuant to CPLR § 408; and (4) compelling respondents to issue a final determination regarding his "U-rating." Respondents cross-move for an Order pursuant to CPLR § 7804(f) and 3211(a)(5) dismissing the petition on the grounds that it is time-barred and that petitioner has failed to exhaust his administrative remedies and seeking costs, fees and disbursements. For the reasons set forth below, the petition is granted in part and denied in part.

The relevant facts are as follows. Petitioner was appointed as a probationary mathematics teacher with the DOE in or around September 2006 at Junior High School 291 ("J.H.S. 291") in Brooklyn, New York. For the 2006-2007, 2007-2008 and 2008-2009 school years, petitioner received "Satisfactory" ratings on his end-of-year evaluations. Petitioner alleges that he was tenured by estoppel at the conclusion of the 2008-2009 school year as he had received three consecutive "Satisfactory" end-of-year ratings. During the 2009-2010 school year, petitioner alleges that his class lessons were observed three times by Assistant Principal Noel Moses ("AP Moses") and that all of those observations were rated satisfactory but that Principal Sean Walsh ("Principal Walsh") rated petitioner's overall performance for the 2009-2010 school year "Unsatisfactory."

Due to the "U-rating," by letter dated July 9, 2010, petitioner received notice that his probationary employment was terminated and petitioner was denied tenure allegedly pursuant to an Extension of Probation Agreement (the "Agreement"), dated December 7, 2009. The Agreement states that petitioner "agrees to serve, an additional one year probationary period commencing December 7, 2009, and concluding on December 8, 2010 in the tenure area of 762B Mathematics" and that "[n]o later than December 8, 2010, [petitioner] shall either be granted tenure upon satisfactory completion of the additional probationary period or denied completion of probation and/or discontinued prior thereto." Further, the Agreement states that "[t]he parties agree that the decision to either grant tenure to [petitioner] at a date no later than December 8, 2010, shall be based upon an evaluation of [petitioner's] probationary service during the additional one year of probationary service herein granted and also upon an evaluation of [petitioner's] probationary service rendered prior to December 7, 2009." Finally, the Agreement states that "[petitioner] waives any possible rights, claims or causes of action for tenure as a Mathematics Teacher arising on or prior to December 7, 2009."

Petitioner appealed both his "U-rating" and termination to the DOE's Office of Appeals and Reviews ("OAR") and a Chancellor's Committee hearing was held on March 26, 2012. Principal Walsh died before the hearing so petitioner was unable to question him. At the hearing, Debra Poulos, petitioner's union representative, asserted that there was no evidence to support petitioner's "U-rating" and that petitioner should be tenured by estoppel as the December 7, 2009 Agreement was never signed by petitioner and that the signature on the Agreement was forged. Ms. Poulos asserted that when confronted with the Agreement, she contacted the DOE's Special Commissioner of Investigations ("SCI") to investigate whether the Agreement was a forgery but that SCI closed the investigation, allegedly due to Principal Walsh's death. At the hearing, the Chancellor's representative noted certain irregularities on several documents and stated that he was not "one hundred percent convinced that probationer did sign [the Agreement]." Petitioner has not yet received a final determination affirming or overturning his denial of completion of probation and his "U-rating." Petitioner commenced the instant Article 78 proceeding seeking, inter alia, to challenge the "U-rating" he received for the 2009-2010 school year and his termination.

As an initial matter, the City of New York must be dismissed from this case as it is an improper party. It is well-settled that "[the DOE] is not a department of the [C]ity of New York" but rather a separate and distinct entity. Ragsdale v. Board of Education, 282 N.Y.323 (1940), citing Divisich v. Marshall, 281 N.Y. 170 (1939); see also Perez v. City of New York, 41 A.D.3d 378 (1st Dept 2007) (holding that "the City and the [DOE] remain separate legal entities.") As the City of New York did not make the determination petitioner seeks to challenge and is a separate entity from the DOE, it must be dismissed.

Further, that portion of the petition which seeks to challenge petitioner's termination is denied on the ground that it is time-barred. There is a four month statute of limitations to bring an Article 78 proceeding. See CPLR § 217. "The Statute of Limitations runs from the date the administrative determination becomes final and binding." Matter of De Milio v. Borghard, 55 N.Y.2d 216, 219 (1982). "A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination" as "[t]he time to commence such a proceeding is not extended by the ... pursuit of administrative remedies." Kahn v. New York City Dept. of Educ., 79 A.D.3d 521 (1st Dept 2010), aff'd 18 N.Y.3d 457 (2012). In the instant action, petitioner was notified of his termination on July 9, 2010. However, petitioner did not commence the instant Article 78 proceeding challenging such termination until March 29, 2013, more than two and a half years later. The fact that petitioner appealed his termination to the OAR and had it reviewed by the Chancellor's Committee is without merit as such review did not toll petitioner's time to commence this proceeding. Additionally, petitioner's assertion that he was entitled to a hearing pursuant to Education Law § 3020-a is also time-barred. If petitioner desired a § 3020-a hearing, it was necessary for petitioner to demand one and await a refusal before commencing an Article 78 proceeding. However, petitioner may not extend indefinitely the statute of limitations period by waiting to make such a demand. See Austin v. Bd. of Higher Educ., 5 N.Y.2d 430 (1959).

Additionally, that portion of the petition which seeks to challenge petitioner's "U-rating" for the 2009-2010 school year is dismissed on the ground that petitioner has failed to exhaust administrative remedies. Appeals of unsatisfactory ratings are governed by section 4.3.1 of the DOE by-laws, which specify that a "U-rating" is not final until the Chancellor renders a decision. See Kahn v. Dep't of Educ., 18 N.Y.3d 457 (2012); see also Bonilla v. Bd. of Educ., 285 A.D.2d 548 (2d Dept 2011). In the instant proceeding, petitioner has yet to receive a final determination from the Chancellor regarding whether his "U-rating" for the 2009-2010 school year will be sustained. As no final determination has been made, petitioner's challenge to the "U-rating" is premature and must be dismissed. However, to the extent petitioner seeks relief in the nature of mandamus to compel respondent to issue a final determination regarding the "U-rating" so that petitioner may commence an Article 78 proceeding challenging such determination, such request is granted. Under New York law, "mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought." Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16 (1981). Mandamus does not lie to compel acts that "are entrusted to the respondent official's discretion. Mandamus is available only where the petitioner's right to performance is so clear as to admit of no doubt or controversy." Coastal Oil New York Inc. v. Newton, 231 A.D.2d 55, 57 (1st Dep't 1997). In the present case, petitioner is entitled to the relief he seeks as the Chancellor's Committee's issuance of a final determination is a ministerial, not a discretionary, act. The Committee's hearing was held in March 2012 yet no final determination has been made thus far. This court is not advising the Committee on what decision to render but only that the Committee must issue a final determination regarding petitioner's "U-rating" for the 2009-2010 school year as expeditiously as possible.

Finally, petitioner's request for a complete and unredacted copy of the Chancellor's Committee's report is denied. In an Article 78 proceeding, "a petitioner is not entitled to discovery as of right." Town of Pleasant Valley v. New York State Bd. of Real Prop. Servs., 253 A.D.2d 8, 15-16 (2d Dept 1999). In a special proceeding, discovery will be permitted only where a petitioner first "demonstrate[s] that there is need for such relief." Id. at 15. In the instant action, petitioner seeks discovery in the form of the Chancellor's Committee's report because "such reports have been routinely turned over or compelled to be turned over to teachers in similar proceedings." However, petitioner fails to demonstrate his individualized need for the report, which is necessary to obtain discovery. See Town of Pleasant Valley,253 A.D.2d at 15. Further, the Chancellor's Committee's report is a predecisional report that is advisory, not binding, in nature.

To the extent respondents seek costs, fees and disbursements in this action, such request is denied as respondents have failed to provide a basis for such relief.

Accordingly, the petition is granted only to the extent that respondents are hereby compelled to issue a final determination regarding petitioner's "U-rating" for the 2009-2010 school year as expeditiously as possible. If respondents are unable to issue a final determination within four months of the date of this decision, the parties shall appear for a Compliance Conference on December 10, 2013 at 11:00 a.m. at 60 Centre Street, Room 432. This constitutes the decision and order of the court.

Tyee Chin, Principal of Flushing High School Tries To Fraudulently Boost Graduation Rates. He failed To Get Away With This.

Principal Tyee Chin

Principal allegedly faked geometry classes for students who failed algebra exam​

By Susan Edelman

This principal didn’t do his math.

Tyee Chin of Flushing HS — a cornerstone of Mayor de Blasio’s limping Renewal Schools program — demands that teachers aim to pass 75 percent of their students, or else.

But his crackdown backfired. Hundreds of kids who passed their algebra classes flunked the Regents algebra exam required for graduation.

So Chin and a math assistant principal, in a “blatant disregard” of city and state rules, ordered that 254 students who had been bumped up into geometry classes be taught the algebra they didn’t learn the prior year, teachers alleged.

“They gave us these classes called geometry, but we were told to teach algebra,” an outraged teacher told The Post.

Students who did not learn geometry received geometry credits on their transcripts, staffers said.

“We believe that this is a deliberate attempt . . . to fraudulently boost graduation rates and meet the Renewal school benchmarks,” five teachers wrote last December to Special Commissioner of Investigation Richard Condon. A copy was sent to Chancellor Carmen Fariña.

Condon referred the complaint to the Department of Education. A DOE investigation of Chin for “academic misconduct” is ongoing, officials said Friday. Chin declined to comment.

Flushing students are struggling. Of 586 who took the Regents algebra exam in January, only 31 percent passed, requiring 404 kids to try again.

While five math teachers taught algebra in classes labeled geometry, Chin and the assistant principal for math also ignored their duties to visit the classes to evaluate the instruction.

“They covered themselves. They never came to observe us,” a staffer said.

Chin, 41, who has led Flushing HS for two years, was recently reprimanded for violating a “code of ethics” for the DOE’s teacher surveys, officials revealed.

Last March, he ​warned his Flushing staff against making negative comments in the survey — which is meant to help rate the school — lest enrollment drop and teachers lose jobs. That fate​, Chin claimed,​ befell Wadleigh Secondary School for the Performing & Visual Arts in Harlem​, another Renewal school​, when he was principal.

Now Chin wants to jump ship. This month, he applied to become principal of Townsend Harris HS — one of the city’s highest-performing schools — where student reporters spotted him emerging from an interview.

The Flushing fraud investigation and survey tampering came out after The Post reported that high-profile Renewal principal Santiago Taveras was stripped of his post at DeWitt Clinton HS in The Bronx after Condon found he improperly fixed grades.

Mayor de Blasio is pouring an extra $754 million into the Renewal program, which started
in 2014 with 96 schools, but after closings will continue with 78 in the fall.

Flushing HS Principal Investigated By DOE

on: Queens Tribune, April 06, 2017

BY JAMES FARRELL
Staff Writer

The city is investigating the principal of Flushing High School following allegations that he instructed teachers to teach algebra to their students, rather than geometry, to boost graduation rates while they were taking classes that earned them geometry credits.

The city Department of Education confirmed that Principal Tyee Chin is currently under investigation by the Office of Special Investigation following a referral in December. Chin declined to comment until the investigation was complete.

A report in the New York Post outlines the allegations at the school, which is part of Mayor Bill de Blasio’s “Renewal Schools Program” that aims to improve failing schools. That program has received scrutiny regarding efficacy and consequences.

According to the Post, Chin demanded that teachers aim to pass 75 percent of their students. But hundreds of kids who passed their algebra classes failed their Regents algebra exam—a requirement for graduation. According to the Post, five teachers alleged in a letter to the DOE’s Special Commissioner of Investigation Richard Condon that Chin ordered that 254 students who had advanced to geometry be taught algebra during their assigned geometry classes.

“We believe that this is a deliberate attempt…to fraudulently boost graduation rates and meet the Renewal School benchmarks,” the teachers wrote in the letter.

“Ensuring academic integrity at our schools is critical and we investigate any allegation of academic misconduct,” said DOE spokesman Michael Aciman.

Chin’s investigation reverberated in another Flushing school this week—Townsend Harris High School, where students, parents and teachers have waged an ongoing battle to remove its interim-acting principal, Rosemarie Jahoda.

While principal candidates are typically kept confidential during the C-30 principal-selection process, student reporters at Townsend Harris’ school newspaper, The Classic, identified Chin as one of four candidates selected from a pool of 38 to receive interviews for the position. Chin is now the second of those four to be under investigation by the DOE at some point during the school’s principal-selection process. Jahoda, per a Classic report, was previously under investigation for allegations that she denied students mandated services during her tenure as assistant principal of mathematics at the Bronx High School of Science.

That particular investigation into Jahoda, however, has been closed, with no charges, said Aciman, who would not clarify whether any other investigations were being conducted on candidates for Townsend Harris, other than Chin.

There is no specific regulation precluding an applicant under investigation from being in the principal candidate pool, which the superintendent selects from a larger applicant pool for “Level 1” interviews with members of the school community. The superintendent makes the final appointment based on Level 1 recommendations. Before that final appointment, candidates’ names must be “submitted to the Office of Special Investigations, the Office of the Special Commissioner of Investigation and the Office of Personnel Investigations for clearance,” per DOE rules.

Franco Scardino, a social studies teacher and United Federation of Teachers representative at Townsend Harris, serves on the Level 1 Committee. He could not speak about Chin or Jahoda directly, since Level 1 members are bound by confidentiality. But he shared general concerns about the process and argued that the DOE does not disclose investigations unless inquiries are made about specific allegations.

“It would seem to me that the system could have a mechanism where it can be reported to the superintendent that an investigation is open and ongoing,” he said. “You don’t have to reveal the nature of the investigation, but I think as soon as we know that being investigated ultimately disqualifies you from being appointed, why even consider someone who you may not be able to appoint?”

Elaine Lindsey, Townsend Harris’ superintendent, did not respond to a request for comment.

Parents and Staff of Central Park East 1 Want Principal Monika Garg Removed. Now.

Monika Garg, Principal of Central Park East 1

The outrage of parents and staff against Monika Garg has reached a boiling point and the NYC DOE has still not done anything to resolve the anger directed at "the worst principal in New York City".

One of the things that I dislike about Carmen Farina is that she HATES being told what to do. Hates it. Trust me, I know. And she HATES being told that someone she relied on is no good. hates that. She goes after the messengers. All of them, teachers, parents, staff.

The latest update from Norm Scott, well-known teacher advocate:

April 7, 2017: 2PM

I'm just back from spending the day so far at CPE1 for the rally and the emerging by the people who spent the night in the auditorium. (See my earlier report --Parents Occupy Auditorium - Central Park East 1 Update: Rally, SLT Meeting and Overnight Stay Surrounded by Police)

I got there at 8:30 and there was a rally in front of the school. They ended occupation and came out for a press conference at around 9:30. I am putting up some brief video excerpts on my FB timeline. Go check them out. 

There was some press there this morning - NBC, CBS, NY Times - Kate Taylor was there last night too. There was muttering by some over the disappointing reporting she has done on education in general and on her previous report on CPE1 - like having a link to the website of a principal supporter but not the savecpe1 site. So they don't expect much -- like if 20 people speak against Garg and 5 for she will include a quote from one on each side, thus inferring an equal split.

So it was interesting after the press conf when they went back into the school to meet with YAUDOES - Yet Another Useless DOE Slug -- that someone said to wait outside to speak to Leslie Brody from the Wall St Journal who is a good reporter. How interesting that people seem to mistrust the so-called liberal NY Times and have more faith in Rupert's WSJ. 

I'm more skeptical but when Leslie arrived I listened in to her questions and she was the only reporter who really seemed interested in what has made CPE a progressive school -- stuff came out that I wasn't aware of. Now the article she writes will be small and probably won't include much if any of what they said, but at least she asked.

She had already left when the people who spent the night without sleep came out from the meeting and packed up to go home and get some sleep.

I spoke at length to a guy named Bruce, who was a teacher at CPE1 and then the principal at CPE2 who filled me in on some remarkable stuff (his wife still teaches at CPE1). We are same gen and talked about the old days and found we knew lots of people -- he was in Teachers Action Caucus - TAC - which morphed into New Action and we know lots of people in common. He did look so familiar. And after he left I asked his last name and it is Bruce Kanze who I did really know back then. Bruce told me today the essence of the problem is that they just don't trust teachers and CPE1 did - until Monika Garg showed up as an agent from the DOE to destroy them. (I'll go more into this teacher trust issue, especially when I address the CPE2 principal support for Garg.)

A few parents went off to get some breakfast and invited me along. I got some education. One left after an hour. The other and I spent another hour or more talking about so much stuff my head is crammed. I learned so much about the real shit Monica pulled from day 1 and how betrayed parents like this, who moved into the area partially to get into CPE1, are -- also about the political and racial situation around East Harlem (she is white) and so much more beyond the CPE 1 story -- about immigrants and daily panic they feel every day when they wake up - if they can sleep at all- some too sensitive for me to get into.

Oh, the depths of this story. I feel like that reporter for This American Life - the people doing the Serial series - especially the latest must hear S-Town Podcast - shit town https://stownpodcast.org/

Yes, the DOE is Shit-Town in spades --Serial people, come calling if you are looking for a story for next time.

I may have more later tonight or tomorrow morning. I am going to head over to see my Unity slug pals at their little junket at the Hilton on 54th and 6th Ave. It is 3PM and I missed the Stronger Together meeting. Tomorrow I will meet up with Arthur and we will have some fun.

Norm Scott has followed this stories:

Parents Occupy Auditorium - Central Park East 1 Update: Rally, SLT Meeting and Overnight Stay Surrounded by Police

A Political Attack: Superintendent Alexandra Estrella Orders Chapter Leader Removal from 

Central Park East I - Sign the Petition

DOE/Legal Rushes to 3020a Kangaroo Court for Central Park East 1 Chapter Leader Starting 

Today: Parents to Rally Outside

Historic 3020a: Massive Parent Turn-Out to Support CPEI Chapter Leader on Few Hours Notice

Here is Eric Chazinoff's post: Chaz' School Daze

MORE Demands Immediate Support for CPE1 Chapter Leader and JHS 145

Reso to Support CPE1- Tabled by UFT Leadership

I had the good fortune to be on one of my 3020-a cases one of the days Marilyn and her friends - I'd say about 40 - filled the waiting room at 100 Gold Street, 3rd Floor, where 3020-a hearings are heard. 

Unfortunately as Marilyn did not request an open and public hearing, so none of these people were allowed to observe the hearing, but some stayed the entire day anyway in support of Marilyn.

Carmen, you must remove Garg. After she charged beloved Chapter Leader Marilyn Martinez there was no turning back.

Betsy Combier

betsy.combier@gmail.com

Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org

Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Parents at 100 Gold Street 

***Breaking Update: Following a meeting of more than 100 parents, teachers and community members, families have been occupying their school at CPE1 since 6:30pm on Thursday, April 6th. The DOE has promised to send someone to meet with occupying families at 8am. Parents are asking Mayor  de Blasio to step in and resolve the crisis at CPE1 by removing Principal Garg immediately. Supporters and families will be holding a press conference and rally at 8:30am to explain their demands and next steps in their struggle.***

BREAKING NEWS RELEASE

CONTACT: Jen Roesch (917) 319-7008 or jenroesch@gmail.com

Kaliris Salas-Ramirez (718) 704-7387

Kenya Dilday, kdilday@gmail.com

Parents Sitting In at Central Park East 1 to Demand Principal’s Removal

Letter Sent to Mayor DeBlasio asking him to personally intervene after DOE’s failure to address long-standing issues

Majority of Families Want ‘Worst Principal’ in NYC Out; Retaliation Against Teachers, Abuse of Parents, Children Must Stop

Afternoon of April 6th, Central Park East 1 at 1573 Madison Avenue: Parents, including members of the Parents’ Association leadership and School Leadership Team, are currently refusing to leave their school until their principal, Monika Garg, either resigns or is removed. They say they represent a majority of parents who have signed a statement of “no confidence” in the principal. This letter was presented at the School Leadership Team immediately preceding the sit-in. Other parents and supporters are holding a solidarity rally outside.

Parents say they have appealed to the DOE for over a year about significant concerns but have not had their needs adequately addressed. Garg is statistically the WORST principal in NYC: she has had the greatest drop in ratings from parents and teachers on the 2016 DOE school survey of any principal in the city and oversaw the city’s largest drop in test scores after her traumatic first year at the helm (2016).  NYC has approximately 1800 public schools. They are refusing to leave until Mayor De Blasio intervenes. They cite his claim that his administration will make parent voice and building trust in our schools a top priority.

Parents cite serious concerns about Principal Garg’s leadership, including abuse of teachers, children and families. Two teachers have been removed from the school for investigations that parents consider retaliatory in nature. The investigations come in the wake of an open letter signed by tenured staff expressing concerns. Another third of the teaching staff left at the end of last year. All tenured teachers have faced investigations and disciplinary action under Garg’s tenure.

Parents say that children have been harmed as a result of these investigations. Garg interviewed very young children without parents’ knowledge or consent. Many only found out as a result of other parents whose children had told them. In one instance, a 7-year old child had documented emotional issues and was being assisted by the school guidance counselor. This child was interviewed without his parent or his guidance counselor being informed. He was asked about 2-year old incidents and told that his cooperation was necessary in order to keep his school safe. This parent failed to receive an answer to her concerns from either Garg or the DOE. More than 55 parents filed complaints with the DOE without any response. Children in the classes with teachers removed are suffering emotional and social distress and have not received proper support.

Since her appointment in 2015, which came via a questionable process, Garg has deliberately fomented division, mistrust and turmoil at the iconic public progressive elementary school. With the support of District 4 Superintendent Alexandra Estrella, Garg has harassed and retaliated against teachers, mistreated students and families, and undermined the school’s successful practices.

Kansas High School Students Expose Lies By Their Principal, Then the Principal Resigns

This is great news!

New York is mentioned as a state where the exposure of a principal's background would not be allowed by student journalists.

Let's change that!!! We need to have freedom of the press in our schools, or fear, hate, fraud and employment discrimination goes without notice or anyone doing something about it.

If you suspect a person who works at your school is not telling the truth about their licenses and certifications, go to Educator Lookup at New York State Education Department, put in the person's name, and see what you get. You can also get information by going to See Through NY, and plugging in Education Admin to the search box.

If you see something, say something.

Betsy Combier

Gina Mathew, Kali Poenitske, Maddie Baden, Trina Paul, Connor Balthazor and Patrick Sullivan at Pittsburg
High School in Pittsburg, Kan. CreditEmily Smith/Pittsburg High School

betsy.combier@gmail.com

Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org

Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

High School Journalists Land a Scoop, and the Principal Resigns

By CHRISTOPHER MELEAPRIL 5, 2017

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Four days after students at a high school newspaper in Kansas published an article that questioned the credentials of a recently hired principal, she resigned.

The episode, which unfolded at Pittsburg High School in Pittsburg, Kan., about 125 miles south of Kansas City, garnered news coverage and won praise from journalism organizations for investigative reporting by student journalists.

The story began to germinate on March 6, when the Pittsburg Community Schools announced it had hired Amy Robertson as the high school principal.

In a statement, it said her “diverse and extensive experience impressed district staff and leadership and repeatedly propelled her to the top” of the list of candidates. She had “decades of experience in education” and was the chief executive of a consulting firm that advised companies on education, the statement said.

Maddie Baden, a 17-year-old junior and a staff member of the student-run newspaper The Booster Redux, set out to write a profile. Emily Smith, a teacher and adviser to The Redux, said on Wednesday that she had not expected the reporting to lead to questions about Ms. Robertston’s credentials.

“We’re Midwesterners,” she said. “As soon as somebody puts something on paper, we think they’re honest about what they’re saying.”

But in multiple interviews over several days, Ms. Robertson provided details of her background that did not hold up, Ms. Smith said.

Then Ms. Robertson became increasingly evasive.

“She was asked direct questions,” Ms. Smith said. “She couldn’t give direct answers.”

Ms. Smith coached the students to press for clearer responses, pushing them to be more assertive with an adult in authority than they were accustomed.

The students questioned the legitimacy of Corllins University, an institution where Ms. Robertson said she got her master’s and doctorate degrees. It lists no physical address on its website and has been the subject of consumer complaints and warnings about its lack of accreditation. Her profile on LinkedIn, the professional networking site, did not identify where she had earned her master’s degree and Ph.D., listing only “N/A.”

Smaller details also aroused the students’ curiosity. For instance, Ms. Robertson said she had earned a bachelor’s of fine arts degree from the University of Tulsa, but when the students checked, they learned it does not confer that kind of degree, Ms. Smith said.

The students and Ms. Smith met with the school superintendent, Destry Brown, about their concerns, and he was “supportive and open,” she said. They kept reporting and “continued to write up to five minutes before it went to print,” she said.

On Friday, The Redux, a monthly broadsheet published 10 times a year, hit the newsstands with a front-page story, headlined “District Hires New Principal” and with the subheading, “Background called into question after discrepancies arise.”

On Tuesday night, the board of education met and announced that Ms. Robertson had resigned. “In light of the issues that arose” she felt it was in the district’s best interest, a board statement said.
Ms. Robertson, who was to assume the $93,000-a-year position starting on July 1, could not be immediately reached for comment on Wednesday.

Ms. Robertson, who lived in Dubai, United Arab Emirates, was the principal of the Dubai American Scientific School, and recently had her license temporarily suspended by education authorities there, The Gulf News reported. Immigration issues prevented her from getting needed permits, The News reported.

Mr. Brown praised the students for their persistence but acknowledged he felt a twinge of disappointment about how it unfolded. He said Ms. Robertson’s hiring was contingent on passing a background check and producing needed documentation. He said the details would have come out eventually, but the students’ work sped thing up.

“I believe strongly in our kids questioning things and not believing things just because an adult told them,” he said. “I have a little bit of heartburn over the whole article. I wasn’t going to stop that because I believe in that whole First Amendment thing.”

Journalism groups were also full of praise.

Tom Rosenstiel, executive director of the American Press Institute, a journalism research and training group, said his organization has seen outstanding work from college students working with professional journalists on investigations but said that what the high school students did “really stands out.”

At a time of shrinking resources in newsrooms, students are helping to fill gaps in coverage, he said, adding, “There’s a sense that significant journalistic investigations can come from anywhere now.”

Student journalists are routinely underestimated by those in positions of authority, Frank LoMonte, executive director of the Student Press Law Center, said on Wednesday. The students consulted with him about their reporting on the article.

The article might never have appeared had it not been for the Kansas Student Publications Act, which grants students independent control over their editorial content, including material that might paint a school in an unflattering light, he said. A 1988 Supreme Court ruling gave administrators the authority to censor the content of student journalists.

Ten states, including Kansas, passed laws giving students independent control, although administrators can still remove material that is obscene, defamatory or poses a danger to the school. Similar bills are pending in nine other states, Mr. LoMonte said.

“If that same situation happened in Texas, New York or Florida, that story would not have seen the light of day,” he said.

He credited school administrators for taking a hands-off approach and letting the students pursue the reporting.

“I hope it really emboldens young people to take on substantive news stories even if they are afraid of administrative censorship,” he said. “This story proves you can make positive changes in your community through journalism.”

A.C. v West Babylon Union Free School District: Second Department Denies For Leave To Serve A Late Notice of Claim

After you have been harmed/damaged by someone who works in a city agency or the Department/Board of Education,  you must file a notice of claim within 90 days in order to be able to sue in Court to recover any damages.

Matter of A.C. v West Babylon Union Free Sch. Dist.

2017 NY Slip Op 01351 [147 AD3d 1047]

February 22, 2017

Appellate Division, Second Department

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

As corrected through Wednesday, March 29, 2017

[*1]

In the Matter of A.C. et al., Respondents, v West Babylon Union Free School District, Appellant.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for appellant.

Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, NY (James R. Baez of counsel), for respondents.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, West Babylon Union Free School District appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated October 5, 2015, which granted the petition.

Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.

Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against a school district (see Education Law § 3813 [2]; General Municipal Law § 50-e [1] [a]; Matter of Doyle v Elwood Union Free School Dist., 39 AD3d 544, 545 [2007]). In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider whether (1) the school district acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the injured child was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]). The first of these factors, actual knowledge of the essential facts underlying the claim, is the most important (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 148). Actual knowledge of the essential facts underlying the claim means "knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves" (id.).

Here, the petitioners failed to show that the appellant obtained actual knowledge of the essential facts constituting the claim within 90 days after the incident or a reasonable time [*2]thereafter. While a medical claim form was prepared during the week of the incident and signed by the principal or a designated school authority, this form, which merely indicated that the infant petitioner was injured when another student collided into her during recess, did not provide the appellant with actual knowledge of the essential facts underlying the claim that the appellant, inter alia, failed to properly monitor and supervise the students during school recess (see Matter of Sparrow v Hewlett-Woodmere Union Free Sch. Dist. [#14], 110 AD3d 905, 907 [2013]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 149-150).

Moreover, the petitioners did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791 [2014]). While the injured person here is an infant, the failure to serve a timely notice of claim and the delay in seeking leave to serve a late notice of claim were not the product of the infant petitioner's infancy (see Matter of Sparrow v Hewlett-Woodmere Union Free Sch. Dist. [#14], 110 AD3d at 906). Furthermore, the infant petitioner's mother failed to submit any evidence to support her allegations that the delay was attributable to the fact that she was more concerned about dealing with her daughter's alleged injuries than with retaining an attorney (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d at 791).

Finally, as to the issue of substantial prejudice, the petitioners presented no "evidence or plausible argument" that their delay in serving a notice of claim did not substantially prejudice the appellant in defending on the merits (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]; see Matter of Sparrow v Hewlett-Woodmere Union Free Sch. Dist. [#14], 110 AD3d at 907; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152-153). The petitioners contend that the appellant has not been substantially prejudiced in its defense because the condition of the accident location has not changed. The condition of the accident location is irrelevant, however, to the petitioners' claim of negligence—that the appellant was negligent in its supervision of students during a noon recess—and, thus, to the issue of substantial prejudice as well. The petitioners also assert that there were no known witnesses to the incident and, therefore, their delay in filing a notice of claim did not substantially prejudice the appellant in its ability to investigate. This contention runs counter to the petitioners' allegation that the incident, a collision between the infant petitioner and another student, occurred during a group activity. Lastly, the petitioners contend that the availability of records as to the infant petitioner's injuries establishes a lack of substantial prejudice. The medical records, however relevant to the issue of damages, have little, if anything, to do with the appellant's ability to conduct an investigation as to its liability (see Matter of Sparrow v Hewlett-Woodmere Union Free Sch. Dist. [#14], 110 AD3d at 907; Matter of Castro v Clarkstown Cent. School Dist., 65 AD3d 1141, 1142 [2009]; cf. Matter of Allende v City of New York, 69 AD3d 931, 932-933 [2010]). Thus, their availability does not support the petitioners' argument that the appellant has not been substantially prejudiced. Inasmuch as the petitioners failed to present any evidence or plausible argument that the appellant has not been substantially prejudiced by the delay, the appellant never became required to make "a particularized evidentiary showing" that they were substantially prejudiced (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 467).

Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding. Balkin, J.P., Chambers, Roman, Duffy and Barros, JJ., concur.