Judge Fineman wants Plaintiffs to go to the NYS Commissioner first:
"It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute."
Betsy Combier
Steglich v Board of Educ. of the City School Dist. of the City of N .Y.
2011 NY Slip Op 21282
Decided on August 12, 2011
Supreme Court, New York County
Feinman, J.
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 printed Official Reports.
Lisa Steglich, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMAR BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian to HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBIN and GERALDINE LOPEZ, individually ans as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Plaintiffs,
against
The Board of Education of the City School District of the City of New York a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of theCity School District of the City of New York, Defendants. UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of THOMAS MOREY and CLAIRE MOREY, MARTIN AARES, individually and as parent and natural guardian of in- fant SABINE BALOU-AARES, GABRIEL BAEZ, individually and asparent and natural guardian of in- fant of CHRISTOPHER BAEZ, LISBETH DELOSSANTOS, individually and as parent and natural guardian of infant MIYAH MUZO, ELANA KILKENNY, individually and as parent and natural guardian of infant LIAM KILKENNY, ELISSA KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and as parent and natural guardian of infant ROBERT MAXWELL KUHAR, LATISHA SINGLETARY, individually and as parent and natural guardian of in- fant RANIYA GARRETT-WELLS, MICHAEL SUCHANEK, individually and as parent and natural guardian of infants SALLY SUCHANEK and AMELIA SUCHANEK, and DAVID TURNOFF, individually and as parent and natural guardian of in- fant HUNTER KIM-TURNOFF, Intervenor-Defendants.
107173/11
Plaintiffs
Phillips Nizer LLP
By: Jon Schuyler Brooks, Esq.
Marc Andrew Landis, Esq.
Elizabeth A. Adinolfi, Esq.
Paul A. Victor, Esq.
Chryssa V. Valletta, Esq.
666 Fifth Avenue
New York NY 10103
(212) 977-9700
Defendants
Michael A. Cardozo, Esq.
Corporation Counsel of the City of New York
By: Chlarens Orsland, Esq.
Emily Sweet, Esq.
100 Church Street
New York NY 10007
(212) 788-0904, 1171
Intervenor-Defendants
Arnold & Porter LLP
By: Stewart D. Aaron, Esq.
Emily A. Kim, Esq.
Mary Sylvester, Esq.
399 Park Avenue
New York NY 10022
(212) 715-1000
Paul G. Feinman, J.
Papers considered on plaintiffs' motion for partial summary judgment: PapersE-Filing Document No.
Notice of Motion for Partial Summary Judgment [FN1]84, 94 (Ret. for correction)
Memorandum of Law in Support of Plaintiffs' Motion85
Plaintiffs' Statement of Uncontested Facts86
Defendants' Responses to Plaintiffs' Statement of Uncontested Facts90
Rouhanifard Aff. in Opposition91
Defendants' Memorandum of Law in Opposition92
Defendants' Verified Answer & Rouhanifard Aff.97, 97-1
Intervenor-Defendants' Response to Plaintiffs' Statement of Uncontested Facts93
Kim Aff. in Opposition93-1 through 93-16
Intervenor-Defendants' Memorandum of Law in Opposition93-17, 95
Intervenor-Defendants' Verified Answer96
Reply Memorandum of Law in Support of Plaintiffs' Motion98
Appendix to Plaintiffs' Reply Memorandum99
Plaintiffs in this action are concerned parents of school-age children who attend one of the public schools currently located at the Brandeis Educational Campus (Brandeis Campus). Defendants are the Chancellor of the New York City public school system as well as the executive branch agency charged with overseeing educational policy for the City of New York. Intervenor-defendant Success Academy Charter School (Success Academy) is a charter school which is intended to serve kindergarten and elementary school children. In this lawsuit, plaintiffs seek, among other things, to prevent the co-location of Success Academy at the Brandeis Campus during the 2011-2012 school year. Brandeis Campus currently houses five public high schools.[FN2] The court previously denied plaintiffs' application for a temporary restraining order and motion [*2]for a preliminary injunction. The plaintiffs now seek partial summary judgment. Upon a search of the record, the court denies plaintiffs' motion and dismisses the action in its entirety.
I. Background and Arguments
The first attempt to halt this proposed co-location was made in response to a vote of the Panel for Educational Policy (PEP) made on February 2, 2011 (February PEP vote), approving the co-location. On April 8, 2011, plaintiffs brought an Article 78 proceeding against defendants challenging the co-location, entitled Steglich v Board of Education, Index No. 104300/11 (Steglich 1). Defendants opposed the challenge.
On June 1, 2011, defendants abandoned the original PEP vote, and provided, in the same month, a new notice of the proposed co-location, with a revised Educational Impact Statement (EIS), and revised Building Utilization Proposal (BUP). On June 27, 2011, after public hearings were duly held on the revised proposal, PEP again voted to approve the co-location (June PEP vote).
Following these revisions, and before the June PEP vote, plaintiffs commenced the present action. On June 30, 2011, plaintiffs filed an amended complaint, seeking to have the June PEP vote declared a nullity.[FN3]
Plaintiffs argue that (1) the Department of Education (DOE) lacked the authority to revise the EIS and BUP after the February PEP vote, in that the February PEP vote was a final determination of the issue on the administrative level; (2) the revised EIS and BUP are improper, because, under the Education Law (EL), they are untimely, having been brought less than six months before the start of the school year; (3) the revised EIS impermissibly includes a school not mentioned or addressed in the original EIS; and (4) defendants did not comply with EL notice requirements prior to the June PEP vote, by providing a notice of hearing in English only, and then, purportedly in an untimely manner, published the notice in Spanish. On this motion, plaintiffs seek partial summary judgment voiding the June PEP vote.
In response, defendants, and intervenor-defendants (all parents of school-age children who are slated to attend Success Academy, and who, as a result, support the co-location), argue that the Success Academy would be placed in an under-utilized space within Brandeis, and so cause no harm to the existing schools. For example, some of the rooms allocated to Success Academy are currently being used to store file cabinets and extra furniture. They maintain that this court lacks jurisdiction over plaintiffs' action and the present motion, because (1) the Commissioner of the State Education Department (SED) has exclusive, original jurisdiction over the issue; (2) plaintiffs have failed to exhaust their administrative remedies, in that they did not refer their grievance with the PEP vote to the Commissioner, in derogation of the EL; or (3) that the court should defer to the Commissioner as a matter of primary jurisdiction.
On the merits, defendants argue that (1) they had the right to revise the EIS and BUP after the February PEP vote; (2) the revised EIS and BUP were timely brought; (3) the revised EIS did not include a new school, as the Young Adult Borough Center (YABC) is a "program" not a "school"; and (4) defendants complied with all statutory notice requirements, in that the notice of hearing concerning the revised EIS and BUP was timely, despite the fact that a Spanish version appeared later than the original notice. [*3]
II. Discussion
In a recent decision of this court (Mulgrew v Board of Education, ___Misc 3d___, 2011 NY Slip Op 21252 [Sup Ct, NY County 2011]) (Mulgrew), this court found that it had concurrent jurisdiction with the Commissioner to address the validity of a PEP vote, despite language in EL §§ 2853 (3) (a-5) and 310, citing that a dispute under these sections "may" be directed to the Commissioner.
In a totally different lawsuit between the same parties, concerning class size, Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]) [Mulgrew 2), the Appellate Division, First Department, very recently released a decision which makes findings and reaches conclusions which necessarily require this court to reconsider its earlier interpretation of the EL provisions concerning the SED Commissioner's jurisdiction. This court's earlier analysis was conducted without benefit of controlling or persuasive appellate authority interpreting the relevant EL provisions.
In Mulgrew 2, the Appellate Division found that an action brought to decide a dispute involving Education Law § 211-d should have been brought before the Commissioner before it was brought before the court. The language of the statute was extremely specific as to this point, and so, the Court's determination is not surprising.
EL § 211-d, denominated the Contract for Excellence, is concerned with the allocation of funds to the goal of reducing class sizes in New York City. Reduction of class size was to be accomplished "through creation or construction of more classrooms and school buildings, placement of more than one teacher per classroom, or by other means (Education Law § 211-d [2] [b] [ii])." Mulgrew 2, 2011 NY Slip Op 06088, at *2. The statute provides that "the sole and exclusive remedy' for violation of this paragraph would be a petition to the State Education Department Commissioner, whose decision would be final and unreviewable.'" Id., citing EL § 211-d (2) (b) (ii).
Inasmuch as this is not the section of the EL at issue in the present case, were this all the Appellate Division had held, this court would have no more guidance as to how to proceed in this action than it did previously. However, the Court went on to determine that the plaintiffs in the Mulgrew 2 class size case had also failed to exhaust their administrative remedies in approaching the court in the first instance, even if EL § 211-d (2) (b) (ii) did not apply, because under EL § 310 (7), a statute which lists the issues which "may" be brought to the attention of the Commissioner, the matter was particularly within the expertise of the Commissioner. The Court reflected that EL § 310 (7) "does not provide for exclusive or original jurisdiction," but that, it would be "consistent with the statute's scheme to require those petitioner-organizations whose complaints do not fall under section 211-d (7) to exhaust their remedies under Education Law § 310 (7) before proceeding to court." Id. at *6.
The Court reasoned that:
the issue raised by petitioners is whether the Board of Education improperly utilized funds allocated for the particular purpose of reducing class size to make up for reductions from its other funding sources. Determination of this point falls squarely within the purview of the State Education Department, as it will require review and comparison of budgets, expenditures and funding allocations.
*4]Id.
In the present action, the court is faced with issues regarding how the Department of Education allocates its resources for the purpose of placing new schools within already existing schools, with emphasis on fairness of the allocations. Although, as this court previously found, and the Appellate Division clarifies, there is indeed concurrent jurisdiction over these issues, the determination in Mulgrew 2 appears to show a decided reluctance on the part of the higher Court to take on disputes of this nature. In other words, the Appellate Division's decision makes clear that, in the first instance, disputes of this nature should be heard by the executive branch agency with the relevant expertise, here the State Education Department Commissioner. In short, it appears that the issues raised by the co-location of Success Academy in the Brandeis Campus should be heard in the first instance by the Commissioner, and not by the court. If aggrieved by the Commissioner's final determination, the parties have appropriate remedies at that juncture to seek judicial review of his actions.
III. Conclusion
For the reasons explained above, plaintiffs' motion must be denied, and upon a search of the record pursuant to CPLR 3212(b), intervenor-defendants' informal request for summary judgment granted, and the action dismissed. It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute.
Accordingly, it is
ORDERED that the Motion Support Office and the Clerk of Court are directed to accept the Notice of Motion e-filed as Document No. 84 as properly filed and to assign this motion an appropriate motion sequence number forthwith and to then file this decision and order as resolving said motion; and it is further
ORDERED that the motion for partial summary judgment brought by plaintiffs is denied; and it is further
ORDERED that, pursuant to CPLR 3212 (b), summary judgment dismissing the complaint is granted to defendants and intervenor-defendants; and it is further
ORDERED that the complaint is dismissed with costs and disbursements to be accorded to defendants and intervenor-defendants as taxed by the Clerk of the Court, upon presentation of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated: August 12, 2011_______________________________________
J.S.C.
Footnotes
Footnote 1: Apparently the Motion Support Office has rejected the Notice of Motion. Because of time exigencies, and because all parties were desirous of a prompt resolution of the issues raised, the court agreed to hear oral argument on the motion on the papers filed before it left on vacation on July 21, 2011 notwithstanding the Motion Support Office's rejection of the Notice of Motion and the lack of a motion sequence number being assigned. Because all parties were fully heard on the motion and the court has had an opportunity to review all the enumerated papers, the Clerk of Court is directed to accept the Notice of Motion e-filed as Document No. 84 and to assign this motion an appropriate sequence number forthwith and accept this decision and order as resolving said motion.
Footnote 2:There is a dispute as to whether the Young Adult Borough Center, which is housed at Brandeis, is a "school" or a "program," as discussed infra.
Footnote 3:All parties agree that Steglich 1 has been abandoned as moot.
Monday, August 15, 2011
Sanctioning Misconduct
See below for this quote: "...the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment."
If what I'm saying, as well as all the other blogs and websites out there, that the finding of guilt is often based upon false or at least undefined misconduct at 3020-a and in the Courts, then what we are dealing with is the Sanctioning of Misconduct.
Betsy Combier
Sanctioning misconduct
The Public Defender
LINK
In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment.
I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.
But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.
But I digress.
As if this coddling and protection of prosecutors wasn’t infuriating enough, the laissez faire attitude toward such impropriety gets even worse with the complete failure of any entity to impose sanctions on that prosecutor. It is a common refrain heard around the criminal justice system that prosecutors are rarely – if ever – held accountable for their “extremely troubling” acts of misconduct. I mean, c’mon, if a court isn’t even going to name them, then do you think there’s ever be any sanctions imposed?
That’s the subject of a powerful article in the CT Law Tribune by former Chief Disciplinary Counsel Mark Dubois, who comments on Lenarz and the failure of courts to correct this misbehavior:
One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.
Professor (I took one of his classes once, so he’ll always be “Professor” to me) Dubois then points out something that I was unaware of, that’s rather surprising:
Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.
Here’s the relevant Practice Book section:
(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:
(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:
(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;
Prof. Dubois interprets that to mean that once a court has found misconduct and imposed no sanction, the Grievance Committee must not take further action against the prosecutor. But I don’t see where in the rule it says that the Committee cannot proceed with disciplinary proceedings against the prosecutor based on the record created by the appellate decision. I’m assuming the professor knows more than I do in this area, so I invite him to correct my mistake.
Even if that is the case, it certainly does not divest the court of its authority to refer the matter to the Grievance Committee for disciplinary proceedings. And we all know that never happens:
A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.
This indifference approach to ethical violations in the most grievous of settings is another symptom of a system that places finality above all else, that condones the erosion of individual rights and liberties in favor of a more authoritarian society. With the legislature unable to act, it will be up to the Courts – well populated with former prosecutors – to bring accountability in an impartial way. If the Chief Justice is indeed serious about restoring faith and integrity in our justice system, she might want to go further than characterizing the conduct as “extremely troubl[ing]” and actually hold those people who undermine that same integrity responsible.
Don’t hold your breath.
If what I'm saying, as well as all the other blogs and websites out there, that the finding of guilt is often based upon false or at least undefined misconduct at 3020-a and in the Courts, then what we are dealing with is the Sanctioning of Misconduct.
Betsy Combier
Sanctioning misconduct
The Public Defender
LINK
In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment.
I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.
But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.
But I digress.
As if this coddling and protection of prosecutors wasn’t infuriating enough, the laissez faire attitude toward such impropriety gets even worse with the complete failure of any entity to impose sanctions on that prosecutor. It is a common refrain heard around the criminal justice system that prosecutors are rarely – if ever – held accountable for their “extremely troubling” acts of misconduct. I mean, c’mon, if a court isn’t even going to name them, then do you think there’s ever be any sanctions imposed?
That’s the subject of a powerful article in the CT Law Tribune by former Chief Disciplinary Counsel Mark Dubois, who comments on Lenarz and the failure of courts to correct this misbehavior:
One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.
Professor (I took one of his classes once, so he’ll always be “Professor” to me) Dubois then points out something that I was unaware of, that’s rather surprising:
Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.
Here’s the relevant Practice Book section:
(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:
(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:
(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;
Prof. Dubois interprets that to mean that once a court has found misconduct and imposed no sanction, the Grievance Committee must not take further action against the prosecutor. But I don’t see where in the rule it says that the Committee cannot proceed with disciplinary proceedings against the prosecutor based on the record created by the appellate decision. I’m assuming the professor knows more than I do in this area, so I invite him to correct my mistake.
Even if that is the case, it certainly does not divest the court of its authority to refer the matter to the Grievance Committee for disciplinary proceedings. And we all know that never happens:
A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.
This indifference approach to ethical violations in the most grievous of settings is another symptom of a system that places finality above all else, that condones the erosion of individual rights and liberties in favor of a more authoritarian society. With the legislature unable to act, it will be up to the Courts – well populated with former prosecutors – to bring accountability in an impartial way. If the Chief Justice is indeed serious about restoring faith and integrity in our justice system, she might want to go further than characterizing the conduct as “extremely troubl[ing]” and actually hold those people who undermine that same integrity responsible.
Don’t hold your breath.
Tuesday, August 9, 2011
Washington D.C.'s Mr. Teachbad: Why I Believe I was Really Fired
Peter Gwynn, a D.C. public school teacher who was one of 206 teachers fired this month under the IMPACT evaluation system, writes here about why he believes he was really let go. The fired teachers, my colleague Bill Turque reported, amount to 5 percent of the 4,100 teachers in the system. IMPACT was first implemented under the chancellorship of Michelle Rhee, who quit last October and was succeeded by her deputy, Kaya Henderson. IMPACT has been criticized on a range of issues, with critics calling it arbitrary and punitive and primarily a way to fire veteran teachers. D.C. schools officials reject the criticism.
By Peter Gwynn
Ambiguity can be a friend or an enemy. If you are a D.C. Public Schools teacher, it might just depend on who gets to measure the difference between words like sometimes and frequently.
I was one of the 200-plus DCPS teachers fired last week due to poor evaluations. I believe, though I cannot prove, that I was fired from DCPS, the Columbia Heights Education Campus (CHEC) in particular, because of the opinions and ideas expressed in my blog. Given the facts, this is simply what makes the most sense to me. But the more important point is that the system’s teacher evaluation system, IMPACT,is riddled with ambiguity and imprecise language such that administrators could easily manipulate teacher scores to punish or reward as suits their ends.
For most teachers, IMPACT is composed primarily of five, half-hour observations throughout the year. Three observations come from school-based administrators; two from a District master educator.
In each observation the evaluator uses a rubric to judge the teacher in nine separate performance categories. In each category, the teacher is scored a 1, 2, 3 or 4. These are averaged to produce an observation score of 1-4. The five separate observations are then averaged to produce an overall yearly score of 1-4.
The magic number is 2.5. If you score at or above this mark, you areeffective or highly effective and your job is safe. Scoring below 2.5 defines you as ineffective or minimally effective and your job is lost or in jeopardy. I scored below 2.5 for two consecutive years and was fired.
I believe that my administrators wanted to get rid of me and that I was punished for my writing. In the blog I never reference people or places by name — and my name is not on it — though I do recount events from my school truthfully and in detail. It is satirical, vulgar, bombastic, and critical. If I worked for myself, I would want to fire me. Many people have expressed disapproval of the blog. That is their right, as it is my right to write it.
I believe I was targeted by the administration because that is where the evidence points.
Over two years of IMPACT, my master educator scores averaged 2.75, comfortably effective (your job is job safe). Over the same two years, my in-house evaluations averaged 2.06, comfortably minimally effective(your job is in danger). The difference is 0.69; fairly large on a scale that runs only from 1 to 4.
But the timeline is what draws my attention most. My first school-basedIMPACT observation was in November 2009. I was scored effective. I started the blog one month later in December. By the end of January 2010, I had been informed that the administration was aware of my blog and reading it. This was confirmed by another source shortly after. Strategically, I suspect, the administration has never asked or confronted me about the blog.
Henceforth, my school-based evaluators scored me, without exception,minimally effective or ineffective. Meanwhile, the master educators continued to score me effective. One master educator this year noted how much I had improved since last year.
So, how could this happen?
Ambiguity in the language of IMPACT invites the capricious, perhaps subconscious, punishment or reward of teachers by administrators. Though it is cloaked in the false precision of a rubric, it is infinitely subtle and subject to manipulation. For example, in a single half-hour observation, while simultaneously monitoring and scoring eight other performance measures, an evaluator is expected to be sure if a lesson is:
Accessible and challenging to all students (score 4)
Accessible and challenging to almost all students (score 3)
Accessible and challenging to most students (score 2); or
Not accessible and not challenging to most students (score 1).
Most teachers live in the 2-3 range. If I was an administrator and I wanted to get rid of somebody, I would shade to the 2. Nobody could stop me. Nobody else was there to witness what happened. Nobody is able to check if I am consistent between teachers. It is up to me to decide what almost all means and how I will measure it in that half hour.
IMPACT is littered with language like this; subjective and inviting manipulation.
I don’t know for certain that I was targeted and that the ambiguity of IMPACT was used to illegally punish my speech. But the language of IMPACT, my IMPACT data, and the CHEC administration’s well-earned reputation for tolerating no dissent give me specific cause to suspect it.
If IMPACT is to be taken seriously in the future, this should be fixed.-0-
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More than 200 D.C. teachers fired
UPDATE 4:05 p.m. This item has been updated to reflect a new count of the total number of teachers fired for poor ratings--206, not 227. Also, the tally of teachers fired in 2010 for poor ratings is now given as 75, not 126.
The District fired 206 teachers for poor performance Friday, the second year in a row it has dismissed significant numbers of educators for sub-par work in the classroom.
Those fired amount to 5 percent of the 4,100 teachers in the city school system.
They were dismissed for poor scores on the evaluation system known as IMPACT, which grades teachers on five 30-minute classroom observations and their compliance with nine broad standards. These include ability to express course content clearly, teach students with differing skill levels and manage time effectively. For some teachers, half of their appraisal is contingent on whether students meet predicted growth targets on standardized tests.
The evaluation system, one of the nation’s most rigorous and closely watched, is a legacy of Michelle A. Rhee’s tenure as city schools chancellor. Rhee, who resigned in October, was succeeded by her deputy, Kaya Henderson.
Of the 206 fired, officials said 65 were rated ineffective this year and 141 were judged minimally effective for the second consecutive year. Others were let go for licensure problems or other issues.
Four teachers who were rated minimally effective two years in a row received waivers from Henderson, enabling them to continue to teach in the city, based on the recommendation of principals who said they still had potential for improvement.
Another 663 teachers (16 percent) were rated highly effective, making them eligible for performance bonuses of up to $25,000. The vast majority were rated effective.
Last year, IMPACT’s first in operation, 75 teachers were let go for poor scores.
“Great teachers are critical to our success,” Henderson said in a statement. “We are delighted to be able to shine a spotlight on our top performers. We also remain committed to moving out our lowest performers in an effort to ensure that every child has access to an outstanding education.”
Large-scale dismissals of teachers for job performance is still a rarity in big city schools, experts say. Collective bargaining agreements and often-cumbersome appeals processes, combined with a reluctance on the part of officials to confront politically potent unions, have limited firings.
“The only people who typically lose their jobs in districts are people who are guilty of a crime,” said Kate Walsh, president of the National Council on Teacher Quality, an organization that studies and promotes methods to improve instruction in schools. “It’s rare that there are any significant numbers of teachers who lose their jobs because they are not good at teaching their subjects.”
D.C. public schools and other school systems have had annual evaluation systems for many years. But they have typically been pro forma affairs, with the overwhelming majority of educators receiving satisfactory ratings.
Rhee, citing research that showed teacher quality is the largest in-school factor driving academic growth, revamped evaluations. Her effort was buoyed by an unusual feature of District law, which unlike many other cities, exempts evaluation systems from collective bargaining. That meant Rhee enjoyed broad latitude in designing IMPACT.
Union leaders and many teachers have assailed the system as arbitrary and punitive. They call it a vehicle for Rhee, and now Henderson, to push older veterans out of the system. They assert that IMPACT does little to help develop them professionally and makes little allowance for school or classroom conditions that hinder instruction and lead to lower evaluation ratings. Union leaders are fighting IMPACT in the courtroom and in discussions with Henderson and members of the D.C. Council.
In the 2009-10 school year, when IMPACT debuted, almost 70 percent of teachers (2,892) scored in the “effective” range. About 16 percent (663) were rated “highly effective,” making them eligible for performance bonuses of up to $25,000. Less than 2 percent (72) were deemed “ineffective” and dismissed. Another 13 percent (568) were found to be ”minimally effective.” Of those, a small number had their jobs eliminated last year for budget or enrollment reasons. The rest are subject to termination this month if they receive the same rating.
Monday, August 8, 2011
New York City Department/Board of Education: Administrators Needed
Are you a "network innovation manager"? Do you have experience managing/staffing an office for "central innovation"? If so, then run over to the nearest CFN (Children's First Network) and give out your resume with these important buzz words in there somewhere. Maybe you got a college degree in cup-cake creation. That definitely could go under "innovation manager" - every cupcake is unique, right? The frosting is swirled left on one, right on another, etc., etc. Just leave out the part about the cupcake.
Betsy Combier
Educrats win Race to the Top
By YOAV GONEN Education Reporter, Last Updated: 10:09 AM, August 8, 2011
LINK
The city's plan for more than $255 million in federal Race to the Top funds has something for everyone -- especially educrats, data analysts and consultants, a Post review has found.
The 32-page document calls for creating dozens of positions for midlevel managers at a tab of $28 million -- including $5 million to hire "network innovation managers" and "central innovation staff" to create personalized learning programs at just 25 schools.
Another $3.3 million will go toward hiring such experts as operations analysts, to oversee "talent management," which essentially means supporting the staffers who support the schools.
Nearly $6 million in funding is also earmarked for hiring external consultants to analyze, strategize and design several of the new initiatives.
"I see a lot of money going to figuring out how to measure things . . . I don't see anything in here that's for kids," United Federation of Teachers President Michael Mulgrew said.
The money is part of New York's $696 million share of the $4 billion pot of last year's Race to the Top funds.
City Department of Education officials said federal guidelines dictate that the money be spent in just four categories: standards and assessments, data systems that support instruction, great teachers and principals and turning around low-performing schools.
The guidelines also require 25 percent of the district's funds to be spent on new teacher- and principal-evaluation systems.
Of the $47 million the city has earmarked for developing new assessments and online tests, $32.2 million is needed for tests that are aligned with a new Core Curriculum the state is adopting. The UFT’s parent union has even sued the state to ensure that districts have tests other than the current annual state tests for evaluating teachers.
DOE officials said the goal of Race to the Top wasn’t to introduce a program here or a program there, but to make deeper changes that reform teaching and learning across the board.
Since much of that effort involves training teachers and principals on using new systems or initiatives, as much as $78 million will go toward bulking up staff at networks that directly support schools – including $22.8 million dedicated to special education instruction and data analysis work.
yoav.gonen@nypost.com
Making grade
By CHUCK BENNETT, NYPOST, July 16, 2011
LINK
Nothing like a $65 million federal grant to get the city Department of Education and teachers union to come together to fix struggling schools.
The two sides announced a deal yesterday to institute wide-ranging reforms on how teachers are evaluated and compensated at 33 low-performing high and intermediate schools to meet the terms of the grant.
Under the agreement, teachers at the 33 schools -- all considered "lowest achieving" -- will use a new state-approved system that rates teachers by four categories: highly effective; effective; developing; and ineffective.
Currently, teachers are ranked only satisfactory or unsatisfactory.
Teachers with two years of ineffective ratings could be removed.
United Federation of Teachers President Michael Mulgrew praised the deal, but noted that the new ratings won't spread to other schools.
"Does this mean because of the agreement we are moving towards schoolwide agreement? No, it does not mean that," Mulgrew told The Post.
Sources told The Post that state education officials pressured both sides to reach an agreement to avoid losing the grant.
Yesterday's deal involves other major changes. as well.
The schools will have four models or plans of improvement to follow.
Under those plans, principals of the failing schools will generally be replaced while skilled teachers who take on more responsibility in the schools will get paid more.
"With this agreement, we will be able to bring millions of dollars in federal funding to these struggling schools," Schools Chancellor Dennis Walcott said.
For instance, "master teachers" are eligible for a 30 percent bump in pay if they mentor other teachers and work an additional 100 hours a year. And nonprofits will consult with schools to boost student achievement.
Granted Under the deal:
* City gets $65 million federal grant to fix 33 low-performing schools.
* Pays for higher teacher salaries, nonprofit consultants.
* Union agrees to a more rigorous teacher-evaluation system.
* Principals can be replaced with new leadership.
Betsy Combier
Educrats win Race to the Top
By YOAV GONEN Education Reporter, Last Updated: 10:09 AM, August 8, 2011
LINK
The city's plan for more than $255 million in federal Race to the Top funds has something for everyone -- especially educrats, data analysts and consultants, a Post review has found.
The 32-page document calls for creating dozens of positions for midlevel managers at a tab of $28 million -- including $5 million to hire "network innovation managers" and "central innovation staff" to create personalized learning programs at just 25 schools.
Another $3.3 million will go toward hiring such experts as operations analysts, to oversee "talent management," which essentially means supporting the staffers who support the schools.
Nearly $6 million in funding is also earmarked for hiring external consultants to analyze, strategize and design several of the new initiatives.
"I see a lot of money going to figuring out how to measure things . . . I don't see anything in here that's for kids," United Federation of Teachers President Michael Mulgrew said.
The money is part of New York's $696 million share of the $4 billion pot of last year's Race to the Top funds.
City Department of Education officials said federal guidelines dictate that the money be spent in just four categories: standards and assessments, data systems that support instruction, great teachers and principals and turning around low-performing schools.
The guidelines also require 25 percent of the district's funds to be spent on new teacher- and principal-evaluation systems.
Of the $47 million the city has earmarked for developing new assessments and online tests, $32.2 million is needed for tests that are aligned with a new Core Curriculum the state is adopting. The UFT’s parent union has even sued the state to ensure that districts have tests other than the current annual state tests for evaluating teachers.
DOE officials said the goal of Race to the Top wasn’t to introduce a program here or a program there, but to make deeper changes that reform teaching and learning across the board.
Since much of that effort involves training teachers and principals on using new systems or initiatives, as much as $78 million will go toward bulking up staff at networks that directly support schools – including $22.8 million dedicated to special education instruction and data analysis work.
yoav.gonen@nypost.com
Making grade
By CHUCK BENNETT, NYPOST, July 16, 2011
LINK
Nothing like a $65 million federal grant to get the city Department of Education and teachers union to come together to fix struggling schools.
The two sides announced a deal yesterday to institute wide-ranging reforms on how teachers are evaluated and compensated at 33 low-performing high and intermediate schools to meet the terms of the grant.
Under the agreement, teachers at the 33 schools -- all considered "lowest achieving" -- will use a new state-approved system that rates teachers by four categories: highly effective; effective; developing; and ineffective.
Currently, teachers are ranked only satisfactory or unsatisfactory.
Teachers with two years of ineffective ratings could be removed.
United Federation of Teachers President Michael Mulgrew praised the deal, but noted that the new ratings won't spread to other schools.
"Does this mean because of the agreement we are moving towards schoolwide agreement? No, it does not mean that," Mulgrew told The Post.
Sources told The Post that state education officials pressured both sides to reach an agreement to avoid losing the grant.
Yesterday's deal involves other major changes. as well.
The schools will have four models or plans of improvement to follow.
Under those plans, principals of the failing schools will generally be replaced while skilled teachers who take on more responsibility in the schools will get paid more.
"With this agreement, we will be able to bring millions of dollars in federal funding to these struggling schools," Schools Chancellor Dennis Walcott said.
For instance, "master teachers" are eligible for a 30 percent bump in pay if they mentor other teachers and work an additional 100 hours a year. And nonprofits will consult with schools to boost student achievement.
Granted Under the deal:
* City gets $65 million federal grant to fix 33 low-performing schools.
* Pays for higher teacher salaries, nonprofit consultants.
* Union agrees to a more rigorous teacher-evaluation system.
* Principals can be replaced with new leadership.
Haunting Words to Inspire Every Teacher
By Marilyn Rhames on August 2, 2011 10:48 AM
LINK
Back in the days when I had no idea of what was actually required to be a good teacher, back when I was in grad school studying education theory and making foolish assumptions about how to manage students, I walked in on a conversation in a teacher's lounge that would change my life.
I had recently fled—yes I said fled—an elementary school on the West Side of Chicago. My year of student teaching had begun with the principal telling her staff that she hired us because we were physically attractive and that she loved the "green stuff" (gesturing money with her fingertips) and thus would have no problem firing any of us to save her job. She frequently used the P.A. system to spread her tyranny. Once she announced basketball try-outs and bluntly added that students who weren't skilled at the game should not show up. "I like to win," she said.
I shared a class with a mentor teacher who passed out worksheets all day and once responded to an insult from a student by saying, "You're talking about yo' mama." Some days I felt more like a bouncer than a resident teacher because I had to break up fights in the hallways and shout at the top of my lungs to get students' attention in class. I knew that if I were to gain any positive teaching tools, I'd have to go to another school. So after six months, I fled. The split was so messy that I didn't get a chance to say good-bye to my students. I ended up finishing my training at a progressive public school on a different side of the city.
That's when I stumbled in on that life-changing conversation in the teacher's lounge. The chatter was animated. A few teachers were reminiscing about their classroom horror stories at other schools: John dashed out of the classroom ... Sarah threatened to jump out the window, again ... Angel knocked over bookshelves in a fit of rage .... And in my desire to fit in and one-up the last tale, I began to share about the unbelievable dysfunction at my old school. Even though I hadn't yet earned my teaching certificate, I felt like I had earned some stripes. I was persevering to educate the youth despite the insanity within the urban public school system. I was the heroine of the story, fearless and unafraid.
"It happened to them," were the four words that shut me and the other teachers up. "It happened to them, not to you. You tell the stories like it's some kind of entertainment, but it happened to them—the kids. They are the ones who 30 years from now will remember these stories with tears in their eyes."
It was the middle school social studies teacher. He was a demur white man in his late 30s who often wore cardigans like Mr. Rogers. Until then he had kept silent, even as each story gave rise to a higher level of ridiculousness. He went on to explain that he, too, used to complain and feel like the victim until another teacher rebuked him with those words. He felt compelled to pass that wisdom on.
It happened to them: This truth has haunted me for the past eight years I've been teaching. I am only glad that I got set straight early in my teaching career. Some teachers never seem to get it. You know this when their debates about education reform are centered around teacher rights, and not student rights. Teachers' needs are important—I have a mortgage; I have a family; I would like to retire one day—but they are not the core issue. The mission is bigger than us. Educators and policymakers must boil the chatter down to two essential questions: To what degree will this policy enhance student learning and how will we know?
My children attend the school where I teach so I am all the more aware that "it"—whatever "it" is in a school, good or bad—is happening to them. I have to continually raise my expectations for myself, as a practitioner and as a parent. I must think deeply about what I believe, and then advocate for it. I can no longer rely on the teachers' union (if I were still in one) to represent my views and values about education. I must be like that social studies teacher who took a risk and spoke up for what was right. That is the only way anyone has ever changed the world. And that's why I am "Charting My Own Course."
Back in the days when I had no idea of what was actually required to be a good teacher, back when I was in grad school studying education theory and making foolish assumptions about how to manage students, I walked in on a conversation in a teacher's lounge that would change my life.
I had recently fled—yes I said fled—an elementary school on the West Side of Chicago. My year of student teaching had begun with the principal telling her staff that she hired us because we were physically attractive and that she loved the "green stuff" (gesturing money with her fingertips) and thus would have no problem firing any of us to save her job. She frequently used the P.A. system to spread her tyranny. Once she announced basketball try-outs and bluntly added that students who weren't skilled at the game should not show up. "I like to win," she said.
I shared a class with a mentor teacher who passed out worksheets all day and once responded to an insult from a student by saying, "You're talking about yo' mama." Some days I felt more like a bouncer than a resident teacher because I had to break up fights in the hallways and shout at the top of my lungs to get students' attention in class. I knew that if I were to gain any positive teaching tools, I'd have to go to another school. So after six months, I fled. The split was so messy that I didn't get a chance to say good-bye to my students. I ended up finishing my training at a progressive public school on a different side of the city.
That's when I stumbled in on that life-changing conversation in the teacher's lounge. The chatter was animated. A few teachers were reminiscing about their classroom horror stories at other schools: John dashed out of the classroom ... Sarah threatened to jump out the window, again ... Angel knocked over bookshelves in a fit of rage .... And in my desire to fit in and one-up the last tale, I began to share about the unbelievable dysfunction at my old school. Even though I hadn't yet earned my teaching certificate, I felt like I had earned some stripes. I was persevering to educate the youth despite the insanity within the urban public school system. I was the heroine of the story, fearless and unafraid.
"It happened to them," were the four words that shut me and the other teachers up. "It happened to them, not to you. You tell the stories like it's some kind of entertainment, but it happened to them—the kids. They are the ones who 30 years from now will remember these stories with tears in their eyes."
It was the middle school social studies teacher. He was a demur white man in his late 30s who often wore cardigans like Mr. Rogers. Until then he had kept silent, even as each story gave rise to a higher level of ridiculousness. He went on to explain that he, too, used to complain and feel like the victim until another teacher rebuked him with those words. He felt compelled to pass that wisdom on.
It happened to them: This truth has haunted me for the past eight years I've been teaching. I am only glad that I got set straight early in my teaching career. Some teachers never seem to get it. You know this when their debates about education reform are centered around teacher rights, and not student rights. Teachers' needs are important—I have a mortgage; I have a family; I would like to retire one day—but they are not the core issue. The mission is bigger than us. Educators and policymakers must boil the chatter down to two essential questions: To what degree will this policy enhance student learning and how will we know?
My children attend the school where I teach so I am all the more aware that "it"—whatever "it" is in a school, good or bad—is happening to them. I have to continually raise my expectations for myself, as a practitioner and as a parent. I must think deeply about what I believe, and then advocate for it. I can no longer rely on the teachers' union (if I were still in one) to represent my views and values about education. I must be like that social studies teacher who took a risk and spoke up for what was right. That is the only way anyone has ever changed the world. And that's why I am "Charting My Own Course."
Friday, August 5, 2011
New Agreement Leads To New Titles "Master" and "Turnaround" Teachers
Ok, maybe its me, but I'm constantly looking at new "agreements" made between the UFT and DOE as reason for concern, as far as individual teacher welfare is concerned,
I'd like very much to hear from any teachers who fall under this agreement as to whether or not the terms are complied with.
Thanks!
Betsy Combier
UFT, DOE reach agreement on 33 struggling schools
by Micah Landau | published August 4, 2011
After intense negotiations, the UFT and the city’s Department of Education reached a groundbreaking agreement on July 15 that will spare 33 city schools on the state’s “persistently lowest achieving” list from possible closure while securing additional state funding to provide resources to help them improve. [Read the agreement here [1].]
Under the agreement, which President Michael Mulgrew described to the schools’ chapter leaders in an email that day, the schools will implement either the “restart” or “transformation” models for school improvement at the start of the new school year in September. Those two models are the least punitive of the four federally approved school intervention models, which also include “turnaround” and “closure.”
The agreement means that none of these 33 schools will face immediate closure and that the staff in each school will stay intact, Mulgrew explained to the chapter leaders, noting that under the harsher “turnaround” model 50 percent of the schools’ staffs would have been excessed. The union contract remains in effect.
It also means that educators in these schools may have a meaningful chance to help students that have been simply left behind by the DOE’s policy of closing schools in recent years. “This agreement helps lay the groundwork,” said Mulgrew in a joint press release with the DOE. “Now we have to focus on providing the resources these struggling schools need to make a real difference in the lives of their students.”
Negotiations with the DOE on the transformation model broke down earlier this spring when the DOE refused to require that a principal meet with a teacher who requests a meeting after a negative evaluation on an informal observation (even though they admitted that this is a best practice). In the end, the best practice was implemented and the DOE has written to principals telling them that such a meeting is required.
The DOE will receive up to $2 million per year per school over the next three years — or as much as $65 million annually — in federal School Improvement Grants, a U.S. Department of Education program that provides funding to help transform struggling schools nationwide, to support the schools.
Each of the 33 schools will participate in a teacher evaluation system that is aligned with the state’s new teacher evaluation law and is based on a four-category rating system of highly effective, effective, developing and ineffective, instead of the current system that simply gives teachers a rating of satisfactory or unsatisfactory. The new evaluation system will go into effect for all teachers once local negotiations have concluded.
The 33 schools will have the opportunity to hire “master” or “turnaround” teachers, depending on the schools’ individual funding situations and the choices of their principals. Master teachers earn 30 percent above their base salary and are expected to serve as mentors for other teachers in their schools, working an additional 100 hours per year. Turnaround teachers earn an additional 15 percent and must open their classrooms to other teachers to learn best practices, working an additional 30 hours per year. To remain eligible for either position, teachers must maintain a rating of “highly effective.”
The UFT has long advocated for a career ladder for teachers, and these two positions are a start in the direction of creating a true career ladder, Mulgrew noted.
Restart
Under the agreement, which President Michael Mulgrew described to the schools’ chapter leaders in an email that day, the schools will implement either the “restart” or “transformation” models for school improvement at the start of the new school year in September. Those two models are the least punitive of the four federally approved school intervention models, which also include “turnaround” and “closure.”
The agreement means that none of these 33 schools will face immediate closure and that the staff in each school will stay intact, Mulgrew explained to the chapter leaders, noting that under the harsher “turnaround” model 50 percent of the schools’ staffs would have been excessed. The union contract remains in effect.
It also means that educators in these schools may have a meaningful chance to help students that have been simply left behind by the DOE’s policy of closing schools in recent years. “This agreement helps lay the groundwork,” said Mulgrew in a joint press release with the DOE. “Now we have to focus on providing the resources these struggling schools need to make a real difference in the lives of their students.”
Negotiations with the DOE on the transformation model broke down earlier this spring when the DOE refused to require that a principal meet with a teacher who requests a meeting after a negative evaluation on an informal observation (even though they admitted that this is a best practice). In the end, the best practice was implemented and the DOE has written to principals telling them that such a meeting is required.
The DOE will receive up to $2 million per year per school over the next three years — or as much as $65 million annually — in federal School Improvement Grants, a U.S. Department of Education program that provides funding to help transform struggling schools nationwide, to support the schools.
Each of the 33 schools will participate in a teacher evaluation system that is aligned with the state’s new teacher evaluation law and is based on a four-category rating system of highly effective, effective, developing and ineffective, instead of the current system that simply gives teachers a rating of satisfactory or unsatisfactory. The new evaluation system will go into effect for all teachers once local negotiations have concluded.
The 33 schools will have the opportunity to hire “master” or “turnaround” teachers, depending on the schools’ individual funding situations and the choices of their principals. Master teachers earn 30 percent above their base salary and are expected to serve as mentors for other teachers in their schools, working an additional 100 hours per year. Turnaround teachers earn an additional 15 percent and must open their classrooms to other teachers to learn best practices, working an additional 30 hours per year. To remain eligible for either position, teachers must maintain a rating of “highly effective.”
The UFT has long advocated for a career ladder for teachers, and these two positions are a start in the direction of creating a true career ladder, Mulgrew noted.
Restart
- Bread & Roses Integrated Arts HS
- Automotive HS
- Bronx HS of Business
- JHS 80 Mosholu Parkway
- IS 136 Charles O. Dewey
- JHS 166 George Gershwin
- John Dewey HS
- Sheepshead Bay HS
- Newtown HS
- Grover Cleveland HS
- August Martin HS
- Richmond Hill HS
- John Adams HS
- Bushwick Comm HS
Transformation
- Unity Center for Urban Technologies
- Chelsea Career and Technical Education HS
- School for Global Studies
- Cobble Hill School of American Studies
- Franklin D. Roosevelt HS
- William E. Grady Vocational HS
- Queens Vocational and Technical HS
- Flushing HS
- Long Island City HS
- Washington Irving HS
- Herbert H. Lehman HS
- JHS 22 Jordan L. Mott
- MS 391
- Grace H. Dodge Career and Technical HS
- John Ericsson Middle School 126
- Boys and Girls HS
- William Cullen Bryant HS
Still to be decided
- Banana Kelly HS
- IS 339
Wednesday, August 3, 2011
Paul Karrer: Obama, NEA Hosed Teachers
The National Education Association's warm corpse has gone rigid. Any hint of a pulse has dissipated with its needless and early endorsement of President Barack Obama. If ever there was a time to negotiate against No Child Left Behind or Race To The Top, this would have been it, more than a year before the presidential election.
The NEA has given its 3.2million members a knee to the groin and has shown that its feeble leadership is too wimpy to negotiate for what is right for kids what is good for public education.
Rarely has a teachers' union endorsed a candidate so early. A candidate who in words and expression seems to do so much for teachers, but who in reality has done actual harm to public education.
Obama undermined public education with his own destructive Race To The Top federal contest of financial grants given to some states if they comply with the obscene No Child Left Behind law, a law that frames the impossible measure of 100 percent proficiency as the goal and punishes all schools that don't reach this trap. It is a law every bit as wrong as Prohibition or the Dred Scott decision.
Race To The Top has four evil elements:
1. The continued condemnation of poor schools and its pretense that poverty and social conditions have nothing to do with outcomes.
2. The punitive actions taken against low-performing schools, such as transferring of principals, closing of schools, moving of teachers, etc.
3. Teacher evaluations based on Standardized tests, paying no heed to conditions of the real world, e.g. student mental illness, poverty concentrations, gang contact, lack of parents, parental incarceration, transience, second language learners, "special education realities," huge classes, unemployment, low reading levels at home, absenteeism, etc.
4. Ultimately, the wholesale sellout of a social contract between society and public education replaced with an outrageous new focus on profitability and a market-based outcomes. This plays itself out with the privatization of "for profit" charter schools and the undermining of the public good with vouchers for private schools.
The NEA should have held its cards a little closer to the chest and "negotiated" the end of No Child Left Behind, declaring the 100percent proficiency law a statistically unachievable abomination. It should have insisted on ending Race To The Top. Obama needs to admit that poverty is the issue. He needs to help and actually assist teachers and kids in poor communities — not pillory them. Even Education Secretary Arne Duncan had a brief moment of clarity with his revelation that 82percent of public schools will be failing by 2014.
Think about it. Can 82percent of the teachers in public schools be that bad? Of course not. The measurement of their failure is wrong. It is called No Child Left Behind, with its love affair with the publishing/ testing industry and the gold rush of money to be made with standardized testing.
The NEA may have endorsed Obama but it is very unlikely that large numbers of teachers will. He hosed us and so did the NEA.
Paul Karrer teaches in Castroville and writes about education issues for this page.
The NEA has given its 3.2million members a knee to the groin and has shown that its feeble leadership is too wimpy to negotiate for what is right for kids what is good for public education.
Rarely has a teachers' union endorsed a candidate so early. A candidate who in words and expression seems to do so much for teachers, but who in reality has done actual harm to public education.
Obama undermined public education with his own destructive Race To The Top federal contest of financial grants given to some states if they comply with the obscene No Child Left Behind law, a law that frames the impossible measure of 100 percent proficiency as the goal and punishes all schools that don't reach this trap. It is a law every bit as wrong as Prohibition or the Dred Scott decision.
Race To The Top has four evil elements:
1. The continued condemnation of poor schools and its pretense that poverty and social conditions have nothing to do with outcomes.
2. The punitive actions taken against low-performing schools, such as transferring of principals, closing of schools, moving of teachers, etc.
3. Teacher evaluations based on Standardized tests, paying no heed to conditions of the real world, e.g. student mental illness, poverty concentrations, gang contact, lack of parents, parental incarceration, transience, second language learners, "special education realities," huge classes, unemployment, low reading levels at home, absenteeism, etc.
4. Ultimately, the wholesale sellout of a social contract between society and public education replaced with an outrageous new focus on profitability and a market-based outcomes. This plays itself out with the privatization of "for profit" charter schools and the undermining of the public good with vouchers for private schools.
The NEA should have held its cards a little closer to the chest and "negotiated" the end of No Child Left Behind, declaring the 100percent proficiency law a statistically unachievable abomination. It should have insisted on ending Race To The Top. Obama needs to admit that poverty is the issue. He needs to help and actually assist teachers and kids in poor communities — not pillory them. Even Education Secretary Arne Duncan had a brief moment of clarity with his revelation that 82percent of public schools will be failing by 2014.
Think about it. Can 82percent of the teachers in public schools be that bad? Of course not. The measurement of their failure is wrong. It is called No Child Left Behind, with its love affair with the publishing/ testing industry and the gold rush of money to be made with standardized testing.
The NEA may have endorsed Obama but it is very unlikely that large numbers of teachers will. He hosed us and so did the NEA.
Paul Karrer teaches in Castroville and writes about education issues for this page.
Saturday, July 30, 2011
New Hires Replace Senior Teachers In Memphis, Tennessee
 |
| Memphis schools celebrate $90 million Grant From Bill Gates |
Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, NYCourts - New York Court Corruption
New Memphis City Schools teachers finding seniority:
Many displaced educators being put on surplus list
By Jane Roberts, The Commercial Appeal, Friday, July 29, 2011
LINK
The teachers union in the city schools has agreed to let new hires, many of them transplants to Memphis with Teach for America, displace senior teachers.
But union officials are not happy about it.
Keith Williams, president of the Memphis Education Association, says the idea that outsiders are better suited to teach in Memphis City Schools "shows a disdain for the intellect of this community."
"This district had 15,000 applicants that were not even considered," he said. "This makes it impossible for a person to teach in Memphis City Schools unless they come through Teach for America."
Starting this week, principals filling last-minute openings are seeing only two kinds of applicants: experienced teachers displaced from city school classrooms or new teachers coming through TFA or the city schools' own alternative licensure program, Memphis Teaching Fellows.
As of July 15, the district had 101 teacher vacancies and 133 candidates between TFA and its own residency program, plus 210 "surplus" or displaced teachers.
By Thursday, the district said all 100 Teach for America candidates would be placed and ready to report to work Monday.
The strategy is part of a plan to get "high potential" teachers in the classroom.
"Past practice would dictate that the most senior of these teachers would be placed in remaining vacancies," Deputy Supt. Irving Hamer wrote in a memo dated July18. "However, in this climate of cuts, the district has boldly decided to approach this challenge as an opportunity to provide a much-needed academic lift to the kids in its schools."
The district is able to circumvent seniority rights under a clause in the teacher contract that says curriculum needs allow it to hire outside the surplus pool.
It was caught flat-footed this year after it spent $2.5 million getting high-quality teachers from around the nation interested in Memphis but could hire few of them because it had displaced hundreds of its own and owed those teachers first choice.
While Hamer notes that 400 of 570 teachers from the surplus pool have since found jobs in the system, the aim is to reduce "the dance of the lemons," Supt. Kriner Cash's description of the process of moving poor teachers from school to school because they are protected by union seniority rules.
Of the 210 teachers on the surplus list in mid-July, at least 25 percent were among the district's poorest teachers, based on an analysis the district ran on their students' achievement.
Williams is glad to have union jobs reinstated but is furious that the district puts such a premium on outside talent.
"It's a complete disregard for the intellect of this community. You are completely disregarding those candidates this district has produced, that local universities have produced. None of those people are able to secure these jobs."
Under the four-year contract Teach For America signed in 2009, MCS is obligated to hire a total of 350 TFA corpsmen through 2012-13.
This year, it also must place an additional 75 TFA members whose salaries are being paid for from the state's Race to the Top fund.
The newest openings are at Mitchell High and Coleman and Brookemeade elementaries, where district officials this week moved 15 teachers to the surplus list. At Fairley High, eight will be replaced.
"The process is not over," Hamer said. "There will still be some more teachers put on the surplus list."
-- Jane Roberts: (901) 529-2512
Friday, July 29, 2011
Chris Lobo, Another Victim of Peer Intervention Plus (PIP+) Loses His Article 7511 in Supreme Court
The decision below reflects once again the power of RMC as the vendor that was hired by the NYC BOE to do observations of "incompetent" teachers" under the PIP+ program. The PIP+ program is a red flag that you must be terminated. The process is pursued through the principal of a school, and the observations of the PIP+ observer are given to the principal, whose opinion of the employee determines what is written. Arbitrators are told by the Gotcha Squad not to overrule the conclusions given as to the employee's performance and I know of only three cases where a teacher/employee was not terminated by the arbitrator at 3020-a, and no cases where the Supreme Court overturned this termination on Appeal.
Why the UFT would continue to push members into this program is my question, not only because of its obvious purpose, but also because the observers violate the UFTcontract (Article 8J) and Teaching In The 21st Century by not doing pre-observations.
NEW YORK COUNTY
Schools and Education
Hearing Officer's Decision to Terminate Teacher Found Not Shocking to Conscience
07-29-2011
Justice Lobis
High school science teacher, Lobo, sought to annul an arbitration's decision to terminate his employment. A hearing on misconduct charges was held after the Department of Education (DOE) preferred charges, including incompetence, against Lobo. Hearing Officer Henderson found Lobo's testimony consisted of general denials or excuses for his "shortcomings." Henderson found the DOE established that on the seven occasions administrators observed Lobo's class over two years, he delivered unsatisfactory lessons. He concluded that given the resources available to help Lobo, and his failure to improve and reluctance to admit deficiencies, it was unlikely Lobo would ever improve, ruling termination appropriate. Lobo claimed the termination was shocking to the conscience and should be vacated. The court disagreed, noting in light of Henderson's findings that Lobo was under-performing for two straight years, and even after being provided resources to assist him, Lobo could not argue the penalty of termination was unwarranted. The court ruled as Lobo failed to sufficiently allege cognizable causes of action, the DOE's cross-motion for dismissal was granted.
Profile of Judge Joan B. Lobis:
Part Rules
Individual Judges' Rules Non Commercial Division
Recent decisions
Matter of Colon v. Kelly, 117992/09
Decided: May 13, 2010 (Published 5/27/2010 Administrative Law)
Capparelli v. NYC Dept of Housing Preservation & Development, 117308/09
Decided: April 2, 2010 (Published 5/12/2010 Landlord/Tenant Law)
Sweeten v. Teperman, 100425/06
Decided: February 4, 2010 (Published 3/2/2010 Civil Practice)
Matter of Costigan v. Kelly, 109718/09
Decided: February 11, 2010 (Published 3/1/2010 Government)
Tribeca Community Assoc. v. NYC Dept. of Sanitation, 101498/09
Decided: January 11, 2010 (Published 1/28/2010 Civil Practice)
Matter of Press v. Kelly, 107020/09
Decided: January 8, 2010 (Published 1/26/2010 Administrative Law)
Torres v. Terence Cardinal Cooke Health Care Center, 109359/08
Decided: December 4, 2009 (Published 12/24/2009 Criminal Practice)
Matter of Kinard v. New York City Housing Authority, 401041/09
Decided: October 30, 2009 (Published 11/25/2009 Landlord/Tenant Law)
Franklin v. Beth Israel Medical Center, 108022/09
Decided: October 22, 2009 (Published 11/18/2009 Civil Practice)
Matter of Douce v. New York City Housing Authority
106638/09, Decided: October 22, 2009 (Published 11/12/2009 Landlord/Tenant Law)
Yakkey v. Ascher, 105463/05
Decided: October 26, 2009 (Published 11/9/2009 Torts)
Matter of Local No. 1 v. Thompson, 111072/08
Decided: March 2, 2009 (Published 3/23/2009 Labor Law)
Matter of Brown v. Hernandez, 401918/08
Decided: October 16, 2008 (Published 11/12/2008 Landlord/Tenant Law)
C. v. C., 350571/06
Decided: July 24, 2008 (Published 8/26/2008 Family Law)
Matter of Riches v. New York City Council, 106898/08
Decided: July 16, 2008 (Published 7/29/2008 Government)
J.H.W. v. J.H.W. (Published 2/10/2006 Civil Practice)
Appellate decisions (The Appellate Decisions below were originally ruled on by this judge in a lower court.)
Matter of Duryea v New York City Hous. Auth. (2011 NY Slip Op 05554) (Date Decided 6/28/2011)
Kettaneh v Board of Stds. & Appeals of the City of New York (2011 NY Slip Op 05410) (Date Decided 6/23/2011)
Fernandez v Moskowitz (2011 NY Slip Op 05344) (Date Decided 6/21/2011)
Matter of Block v Gatling (2011 NY Slip Op 03672) (Date Decided 5/3/2011)
Rose v Frankel (2011 NY Slip Op 03339) (Date Decided 4/28/2011)
Tribeca Community Assn. v New York City Dept. of Sanitation (2011 NY Slip Op 02959) (Date Decided 4/14/2011)
Matter of Gibbs v New York City Hous. Auth. (2011 NY Slip Op 01529) (Date Decided 3/1/2011)
Imperato v Mount Sinai Med. Ctr. (2011 NY Slip Op 01532) (Date Decided 3/1/2011)
Matter of Bautista v City of New York (2011 NY Slip Op 00784) (Date Decided 2/10/2011)
Cunningham v Newman (2011 NY Slip Op 00628) (Date Decided 2/3/2011)
Bustos v Lenox Hill Hosp. (2011 NY Slip Op 00432) (Date Decided 1/27/2011)
Matter of Zartoshti v Columbia Univ. (2010 NY Slip Op 09003) (Date Decided 12/7/2010)
Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C. (2010 NY Slip Op 07111) (Date Decided 10/7/2010)
Mulgrew v Board of Educ. of the City School Dist. of the City of New York (2010 NY Slip Op 05863) (Date Decided 7/1/2010)
Matter of Girigorie v New York City Dept. of Hous. Preserv. & Dev. (2010 NY Slip Op 05880) (Date Decided 7/1/2010)
Nimkoff v Nimkoff (2010 NY Slip Op 04633) (Date Decided 6/1/2010)
Suckishvili v Visiting Nurse Serv. of N.Y. (2010 NY Slip Op 04647) (Date Decided 6/1/2010)
Matter of Days Impex Ltd. v Solomon Blum Heymann & Stich LLP (2010 NY Slip Op 04441) (Date Decided 5/25/2010)
Popowich v Korman (2010 NY Slip Op 04104) (Date Decided 5/13/2010)
Torres v Terence Cardinal Cooke Health Care Ctr. (2010 NY Slip Op 03379) (Date Decided 4/27/2010)
Matter of Riches v New York City Council (2010 NY Slip Op 03046) (Date Decided 4/15/2010)
Matter of Rodriguez v City of New York (2010 NY Slip Op 02020) (Date Decided 3/16/2010)
White v White (2010 NY Slip Op 01880) (Date Decided 3/11/2010)
Carter v Isabella Geriatric Ctr., Inc. (2010 NY Slip Op 01745) (Date Decided 3/4/2010)
Zak v Mintz (2010 NY Slip Op 00207) (Date Decided 1/12/2010)
Wyser-Pratte v Wyser-Pratte (2009 NY Slip Op 09531) (Date Decided 12/22/2009)
Septimus v Matos (2009 NY Slip Op 09166) (Date Decided 12/10/2009)
Matter of DeMartino v New York City Dept. of Transp. (2009 NY Slip Op 08073) (Date Decided 11/10/2009)
Ban Do Constr., Inc. v Connolly (2009 NY Slip Op 07161) (Date Decided 10/6/2009)
Matter of AJK Café, Inc. v New York State Liq. Auth. (2009 NY Slip Op 06648) (Date Decided 9/24/2009)
Matter of Grasso v New York City Tr. Auth. (2009 NY Slip Op 04274) (Date Decided 6/2/2009)
Gliber v Choi (2009 NY Slip Op 03930) (Date Decided 5/19/2009)
Ansour v Ansour (2009 NY Slip Op 03030) (Date Decided 4/21/2009)
Brockman v Brockman (Date Decided 2/24/2009)
Lusk v Lusk (2008 NY Slip Op 07969) (Date Decided 10/21/2008)
Belmore-Gaillard v Gaillard (2008 NY Slip Op 04795) (Date Decided 5/29/2008)
Kinberg v Kinberg (2008 NY Slip Op 03696) (Date Decided 4/24/2008)
Camaiore v Farance (2008 NY Slip Op 03390) (Date Decided 4/17/2008)
Carter v Carter (2008 NY Slip Op 02635) (Date Decided 3/20/2008)
Evans v Evans (2008 NY Slip Op 01602) (Date Decided 2/21/2008)
Stots v Daniels (2008 NY Slip Op 01070) (Date Decided 2/7/2008)
Karas-Abraham v Abraham (2007 NY Slip Op 09686) (Date Decided 12/6/2007)
Trexler v Kahanovitz (2007 NY Slip Op 05138) (Date Decided 6/12/2007)
Kesten v Weingarten (2007 NY Slip Op 04576) (Date Decided 5/31/2007)
Gross v Gross (2007 NY Slip Op 04362) (Date Decided 5/22/2007)
Nimkoff v Nimkoff (2007 NY Slip Op 00376) (Date Decided 1/18/2007)
Bianco v Bianco (2007 NY Slip Op 00244) (Date Decided 1/16/2007)
A.C. v D.R. (2007 NY Slip Op 00216) (Date Decided 1/11/2007)
Muslin v Passer-Muslin (2006 NYSlipOp 10136) (Date Decided 12/28/2006)
Eun Lee v Solimano (2006 NYSlipOp 08185) (Date Decided 11/14/2006)
Crane v Crane (2006 NYSlipOp 07833) (Date Decided 10/31/2006)
St. Clement v Casale (2006 NYSlipOp 03697) (Date Decided 5/11/2006)
Church v McCabe (2006 NYSlipOp 00309) (Date Decided 1/19/2006)
Murphy v Murphy (2005 NYSlipOp 10201) (Date Decided 12/29/2005)
Filippatos v Filippatos (2005 NYSlipOp 07590) (Date Decided 10/13/2005)
Ritz v Ritz (2005 NYSlipOp 06375) (Date Decided 8/11/2005)
Haynes v Haynes (2005 NYSlipOp 04501) (Date Decided 6/7/2005)
Spector v Spector (2005 NYSlipOp 04315) (Date Decided 5/26/2005)
Weinstein v Weinstein (2005 NYSlipOp 03778) (Date Decided 5/10/2005)
Hale v Hale (2005 NYSlipOp 01997) (Date Decided 3/17/2005)
IBE Trade Corp. v Litvinenko (2005 NYSlipOp 01624) (Date Decided 3/3/2005)
Sygrove v Sygrove (2005 NYSlipOp 01277) (Date Decided 2/22/2005)
Sygrove v Sygrove (2005 NYSlipOp 01278) (Date Decided 2/22/2005)
Bartha v Bartha (2005 NY Slip Op 00450) (Date Decided 1/27/2005)
Mitnick v Rosenthal (2005 NYSlipOp 00357) (Date Decided 1/25/2005)
Matter of Dier (2004 NYSlipOp 09227) (Date Decided 12/14/2004)
Lewittes v Blume (2004 NYSlipOp 09016) (Date Decided 12/7/2004)
Cahen-Vorburger v Vorburger (2004 NYSlipOp 08599) (Date Decided 11/23/2004)
Lewittes v Lewittes (2004 NYSlipOp 08148) (Date Decided 11/16/2004)
McCarthy v McCarthy (2004 NYSlipOp 07775) (Date Decided 10/28/2004)
Racz v Racz (2004 NYSlipOp 07446) (Date Decided 10/19/2004)
St. Clement v Londa (2004 NYSlipOp 04863) (Date Decided 6/10/2004)
Haynes v Haynes (2004 NYSlipOp 01711) (Date Decided 3/16/2004)
Ligreci v Ligreci (2004 NYSlipOp 01680) (Date Decided 3/11/2004)
J.A. v S.A. (2004 NYSlipOp 01217) (Date Decided 2/24/2004)
Caffrey v Caffrey (2003 NYSlipOp 19802) (Date Decided 12/23/2003)
Lewittes v Lewittes (2003 NYSlipOp 19669) (Date Decided 12/18/2003)
Rubin v Rubin (2003 NYSlipOp 18414) (Date Decided 11/18/2003)
Tzo Kao Chang v Wei Qing Liu (2003 NYSlipOp 18336) (Date Decided 11/13/2003)
Why the UFT would continue to push members into this program is my question, not only because of its obvious purpose, but also because the observers violate the UFTcontract (Article 8J) and Teaching In The 21st Century by not doing pre-observations.
NEW YORK COUNTY
Schools and Education
Hearing Officer's Decision to Terminate Teacher Found Not Shocking to Conscience
07-29-2011
Justice Lobis
High school science teacher, Lobo, sought to annul an arbitration's decision to terminate his employment. A hearing on misconduct charges was held after the Department of Education (DOE) preferred charges, including incompetence, against Lobo. Hearing Officer Henderson found Lobo's testimony consisted of general denials or excuses for his "shortcomings." Henderson found the DOE established that on the seven occasions administrators observed Lobo's class over two years, he delivered unsatisfactory lessons. He concluded that given the resources available to help Lobo, and his failure to improve and reluctance to admit deficiencies, it was unlikely Lobo would ever improve, ruling termination appropriate. Lobo claimed the termination was shocking to the conscience and should be vacated. The court disagreed, noting in light of Henderson's findings that Lobo was under-performing for two straight years, and even after being provided resources to assist him, Lobo could not argue the penalty of termination was unwarranted. The court ruled as Lobo failed to sufficiently allege cognizable causes of action, the DOE's cross-motion for dismissal was granted.
Profile of Judge Joan B. Lobis:
Part Rules
Individual Judges' Rules Non Commercial Division
Recent decisions
Matter of Colon v. Kelly, 117992/09
Decided: May 13, 2010 (Published 5/27/2010 Administrative Law)
Capparelli v. NYC Dept of Housing Preservation & Development, 117308/09
Decided: April 2, 2010 (Published 5/12/2010 Landlord/Tenant Law)
Sweeten v. Teperman, 100425/06
Decided: February 4, 2010 (Published 3/2/2010 Civil Practice)
Matter of Costigan v. Kelly, 109718/09
Decided: February 11, 2010 (Published 3/1/2010 Government)
Tribeca Community Assoc. v. NYC Dept. of Sanitation, 101498/09
Decided: January 11, 2010 (Published 1/28/2010 Civil Practice)
Matter of Press v. Kelly, 107020/09
Decided: January 8, 2010 (Published 1/26/2010 Administrative Law)
Torres v. Terence Cardinal Cooke Health Care Center, 109359/08
Decided: December 4, 2009 (Published 12/24/2009 Criminal Practice)
Matter of Kinard v. New York City Housing Authority, 401041/09
Decided: October 30, 2009 (Published 11/25/2009 Landlord/Tenant Law)
Franklin v. Beth Israel Medical Center, 108022/09
Decided: October 22, 2009 (Published 11/18/2009 Civil Practice)
Matter of Douce v. New York City Housing Authority
106638/09, Decided: October 22, 2009 (Published 11/12/2009 Landlord/Tenant Law)
Yakkey v. Ascher, 105463/05
Decided: October 26, 2009 (Published 11/9/2009 Torts)
Matter of Local No. 1 v. Thompson, 111072/08
Decided: March 2, 2009 (Published 3/23/2009 Labor Law)
Matter of Brown v. Hernandez, 401918/08
Decided: October 16, 2008 (Published 11/12/2008 Landlord/Tenant Law)
C. v. C., 350571/06
Decided: July 24, 2008 (Published 8/26/2008 Family Law)
Matter of Riches v. New York City Council, 106898/08
Decided: July 16, 2008 (Published 7/29/2008 Government)
J.H.W. v. J.H.W. (Published 2/10/2006 Civil Practice)
Appellate decisions (The Appellate Decisions below were originally ruled on by this judge in a lower court.)
Matter of Duryea v New York City Hous. Auth. (2011 NY Slip Op 05554) (Date Decided 6/28/2011)
Kettaneh v Board of Stds. & Appeals of the City of New York (2011 NY Slip Op 05410) (Date Decided 6/23/2011)
Fernandez v Moskowitz (2011 NY Slip Op 05344) (Date Decided 6/21/2011)
Matter of Block v Gatling (2011 NY Slip Op 03672) (Date Decided 5/3/2011)
Rose v Frankel (2011 NY Slip Op 03339) (Date Decided 4/28/2011)
Tribeca Community Assn. v New York City Dept. of Sanitation (2011 NY Slip Op 02959) (Date Decided 4/14/2011)
Matter of Gibbs v New York City Hous. Auth. (2011 NY Slip Op 01529) (Date Decided 3/1/2011)
Imperato v Mount Sinai Med. Ctr. (2011 NY Slip Op 01532) (Date Decided 3/1/2011)
Matter of Bautista v City of New York (2011 NY Slip Op 00784) (Date Decided 2/10/2011)
Cunningham v Newman (2011 NY Slip Op 00628) (Date Decided 2/3/2011)
Bustos v Lenox Hill Hosp. (2011 NY Slip Op 00432) (Date Decided 1/27/2011)
Matter of Zartoshti v Columbia Univ. (2010 NY Slip Op 09003) (Date Decided 12/7/2010)
Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C. (2010 NY Slip Op 07111) (Date Decided 10/7/2010)
Mulgrew v Board of Educ. of the City School Dist. of the City of New York (2010 NY Slip Op 05863) (Date Decided 7/1/2010)
Matter of Girigorie v New York City Dept. of Hous. Preserv. & Dev. (2010 NY Slip Op 05880) (Date Decided 7/1/2010)
Nimkoff v Nimkoff (2010 NY Slip Op 04633) (Date Decided 6/1/2010)
Suckishvili v Visiting Nurse Serv. of N.Y. (2010 NY Slip Op 04647) (Date Decided 6/1/2010)
Matter of Days Impex Ltd. v Solomon Blum Heymann & Stich LLP (2010 NY Slip Op 04441) (Date Decided 5/25/2010)
Popowich v Korman (2010 NY Slip Op 04104) (Date Decided 5/13/2010)
Torres v Terence Cardinal Cooke Health Care Ctr. (2010 NY Slip Op 03379) (Date Decided 4/27/2010)
Matter of Riches v New York City Council (2010 NY Slip Op 03046) (Date Decided 4/15/2010)
Matter of Rodriguez v City of New York (2010 NY Slip Op 02020) (Date Decided 3/16/2010)
White v White (2010 NY Slip Op 01880) (Date Decided 3/11/2010)
Carter v Isabella Geriatric Ctr., Inc. (2010 NY Slip Op 01745) (Date Decided 3/4/2010)
Zak v Mintz (2010 NY Slip Op 00207) (Date Decided 1/12/2010)
Wyser-Pratte v Wyser-Pratte (2009 NY Slip Op 09531) (Date Decided 12/22/2009)
Septimus v Matos (2009 NY Slip Op 09166) (Date Decided 12/10/2009)
Matter of DeMartino v New York City Dept. of Transp. (2009 NY Slip Op 08073) (Date Decided 11/10/2009)
Ban Do Constr., Inc. v Connolly (2009 NY Slip Op 07161) (Date Decided 10/6/2009)
Matter of AJK Café, Inc. v New York State Liq. Auth. (2009 NY Slip Op 06648) (Date Decided 9/24/2009)
Matter of Grasso v New York City Tr. Auth. (2009 NY Slip Op 04274) (Date Decided 6/2/2009)
Gliber v Choi (2009 NY Slip Op 03930) (Date Decided 5/19/2009)
Ansour v Ansour (2009 NY Slip Op 03030) (Date Decided 4/21/2009)
Brockman v Brockman (Date Decided 2/24/2009)
Lusk v Lusk (2008 NY Slip Op 07969) (Date Decided 10/21/2008)
Belmore-Gaillard v Gaillard (2008 NY Slip Op 04795) (Date Decided 5/29/2008)
Kinberg v Kinberg (2008 NY Slip Op 03696) (Date Decided 4/24/2008)
Camaiore v Farance (2008 NY Slip Op 03390) (Date Decided 4/17/2008)
Carter v Carter (2008 NY Slip Op 02635) (Date Decided 3/20/2008)
Evans v Evans (2008 NY Slip Op 01602) (Date Decided 2/21/2008)
Stots v Daniels (2008 NY Slip Op 01070) (Date Decided 2/7/2008)
Karas-Abraham v Abraham (2007 NY Slip Op 09686) (Date Decided 12/6/2007)
Trexler v Kahanovitz (2007 NY Slip Op 05138) (Date Decided 6/12/2007)
Kesten v Weingarten (2007 NY Slip Op 04576) (Date Decided 5/31/2007)
Gross v Gross (2007 NY Slip Op 04362) (Date Decided 5/22/2007)
Nimkoff v Nimkoff (2007 NY Slip Op 00376) (Date Decided 1/18/2007)
Bianco v Bianco (2007 NY Slip Op 00244) (Date Decided 1/16/2007)
A.C. v D.R. (2007 NY Slip Op 00216) (Date Decided 1/11/2007)
Muslin v Passer-Muslin (2006 NYSlipOp 10136) (Date Decided 12/28/2006)
Eun Lee v Solimano (2006 NYSlipOp 08185) (Date Decided 11/14/2006)
Crane v Crane (2006 NYSlipOp 07833) (Date Decided 10/31/2006)
St. Clement v Casale (2006 NYSlipOp 03697) (Date Decided 5/11/2006)
Church v McCabe (2006 NYSlipOp 00309) (Date Decided 1/19/2006)
Murphy v Murphy (2005 NYSlipOp 10201) (Date Decided 12/29/2005)
Filippatos v Filippatos (2005 NYSlipOp 07590) (Date Decided 10/13/2005)
Ritz v Ritz (2005 NYSlipOp 06375) (Date Decided 8/11/2005)
Haynes v Haynes (2005 NYSlipOp 04501) (Date Decided 6/7/2005)
Spector v Spector (2005 NYSlipOp 04315) (Date Decided 5/26/2005)
Weinstein v Weinstein (2005 NYSlipOp 03778) (Date Decided 5/10/2005)
Hale v Hale (2005 NYSlipOp 01997) (Date Decided 3/17/2005)
IBE Trade Corp. v Litvinenko (2005 NYSlipOp 01624) (Date Decided 3/3/2005)
Sygrove v Sygrove (2005 NYSlipOp 01277) (Date Decided 2/22/2005)
Sygrove v Sygrove (2005 NYSlipOp 01278) (Date Decided 2/22/2005)
Bartha v Bartha (2005 NY Slip Op 00450) (Date Decided 1/27/2005)
Mitnick v Rosenthal (2005 NYSlipOp 00357) (Date Decided 1/25/2005)
Matter of Dier (2004 NYSlipOp 09227) (Date Decided 12/14/2004)
Lewittes v Blume (2004 NYSlipOp 09016) (Date Decided 12/7/2004)
Cahen-Vorburger v Vorburger (2004 NYSlipOp 08599) (Date Decided 11/23/2004)
Lewittes v Lewittes (2004 NYSlipOp 08148) (Date Decided 11/16/2004)
McCarthy v McCarthy (2004 NYSlipOp 07775) (Date Decided 10/28/2004)
Racz v Racz (2004 NYSlipOp 07446) (Date Decided 10/19/2004)
St. Clement v Londa (2004 NYSlipOp 04863) (Date Decided 6/10/2004)
Haynes v Haynes (2004 NYSlipOp 01711) (Date Decided 3/16/2004)
Ligreci v Ligreci (2004 NYSlipOp 01680) (Date Decided 3/11/2004)
J.A. v S.A. (2004 NYSlipOp 01217) (Date Decided 2/24/2004)
Caffrey v Caffrey (2003 NYSlipOp 19802) (Date Decided 12/23/2003)
Lewittes v Lewittes (2003 NYSlipOp 19669) (Date Decided 12/18/2003)
Rubin v Rubin (2003 NYSlipOp 18414) (Date Decided 11/18/2003)
Tzo Kao Chang v Wei Qing Liu (2003 NYSlipOp 18336) (Date Decided 11/13/2003)
Discipline For Police and Fire Department Members Circa 2005
In the Matter of Thomas Von Essen, as Fire Commissioner of the City of New York, et al., Respondents, v. New York City Civil Service Commission, Respondent, and Robert Joel, Appellant.
No. 16
COURT OF APPEALS OF NEW YORK
4 N.Y.3d 220; 825 N.E.2d 128; 791 N.Y.S.2d 887; 2005 N.Y. LEXIS 224
January 11, 2005, Argued
February 22, 2005, Decided
PRIOR HISTORY: Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 23, 2003. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Joan Madden, J.), entered in a proceeding pursuant to CPLR article 78, which had denied the petition and dismissed the proceeding; (2) granted the petition; and (3) annulled the determination of the New York City Civil Service Commission that it had subject matter jurisdiction to hear the appeal of respondent firefighter from the Fire Commissioner's order dismissing him from the force for misconduct.
Matter of Von Essen v. New York City Civ. Serv. Commn, 3 A.D.3d 115, 769 N.Y.S.2d 260, 2003 N.Y. App. Div. LEXIS 13677 (1st Dept, 2003), affirmed.
DISPOSITION: Order of the appellate division affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellants, the New York City Civil Service Commission and a city firefighter, challenged a decision by a court in the Appellate Division (New York), which reversed a decision dismissing a N.Y. C.P.L.R. art. 78 proceeding initiated by respondent city fire department commissioner, who sought to annul the commission's determination that it had jurisdiction over the firefighter's appeal of his termination.
OVERVIEW: The firefighter was charged with violating fire department regulations by calling in two false alarms. At a hearing before an administrative law judge, the firefighter admitted his guilt and the judge recommended that he be terminated. The commissioner adopted the recommendation and ordered termination. The firefighter sought an appeal to the commission. The commission ordered the parties to brief the issue of whether it had jurisdiction over the appeal. After the commission ruled that it had jurisdiction, the commissioner initiated an N.Y. C.P.L.R. art. 78 proceeding to annul the commission's determination. The supreme court dismissed the art. 78 proceeding, but the appellate division reversed that decision. The commission and the firefighter appealed. The court found that fire department discipline, like police department discipline, was outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and was, thus, not subject to the commission's jurisdiction. New York City, N.Y., Charter § 487(a) gave the fire department sole and exclusive power over its own management and New York City, N.Y., Admin. Code § 15-113, gave the commissioner discretion to discipline offending firefighters.
OUTCOME: The court affirmed the appellate division's decision.
CORE TERMS: discipline, fire department, firefighters, disciplined, charter, punish, police officers, offending, repeal, modify, punishment imposed, exclusive power, saving clause, disciplinary, counterpart, cognizance, removal Administrative Law > Separation of Powers > Jurisdiction Governments > State & Territorial Governments > Employees & Officials
N.Y. Civ. Serv. Law § 76 (1) permits an appeal to the Civil Service Commission from punishment imposed pursuant to the provisions of N.Y. Civ. Serv. Law § 75.
Governments > State & Territorial Governments > Employees & Officials
See New York City, N.Y., Charter § 487(a).
Governments > State & Territorial Governments > Employees & Officials
The New York City Administrative Code section governing fire department discipline is New York City, N.Y., Admin. Code § 15-113, which says that the commissioner of the fire department shall have power in his or her discretion to punish the offending party.
Governments > Legislation > Interpretation
The saving clause of N.Y. Civ. Serv. Law § 76 (4) provides that neither N.Y. Civ. Serv. Law § 75 nor N.Y. Civ. Serv. Law § 76 shall be construed to repeal or modify other laws.
Administrative Law > Separation of Powers > Jurisdiction
Governments > State & Territorial Governments > Employees & Officials
New York City Fire Department discipline, like New York ity Police Department discipline, is outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and, thus, is not subject to the jurisdiction of the Civil Service Commission.
HEADNOTES
Civil Service -- Firefighters -- Appeal of Disciplinary Determination
Firefighters disciplined pursuant to section 15-113 of the Administrative Code of the City of New York may not appeal their discipline to the New York City Civil Service Commission. Although Civil Service Law § 76 (1) permits an appeal to the Commission from punishment imposed pursuant to Civil Service Law § 75, firefighters are not disciplined pursuant to that section. The Fire Commissioner's "sole and exclusive power" to make final disciplinary determinations with regard to members of the Fire Department (NY City Charter § 487 [a]) and power to punish the offending party (Administrative Code § 15-113) is subject only to review by the courts under CPLR article 78. Since the Charter and Code provisions governing Fire Department discipline were in existence before Civil Service Law §§ 75 and 76, the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable. Fire Department discipline is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.
COUNSEL: Sullivan Papain Block McGrath & Cannavo, P.C., New York City (Michael N. Block and Stephen C. Glasser of counsel), for appellant. The Appellate Division erred as a matter of law in holding that the New York City Civil Service Commission has no subject matter jurisdiction under Civil Service Law § 76 to review a penalty of dismissal imposed by the Fire Commissioner of the City of New York against a firefighter for misconduct where, when viewed within the context of Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]): (i) Civil Service Law §§ 75 and 76 authorize such review generally as to all civil servants; and (ii) in contrast to the situation presented when police officers are disciplined under Administrative Code of the City of New York §§ 14-115 and 14-116--which specifically restrict review of disciplinary penalties of police officers to a CPLR article 78 proceeding--Administrative Code § 15-113, governing discipline of New York City firefighters, is silent with regard to the procedure to use to review such penalty decisions. (Elliot v Green Bus Lines, 58 N.Y.2d 76, 445 N.E.2d 1098, 459 N.Y.S.2d 419; People v Walker, 81 N.Y.2d 661, 623 N.E.2d 1, 603 N.Y.S.2d 280; Pajak v Pajak, 56 N.Y.2d 394, 437 N.E.2d 1138, 452 N.Y.S.2d 381; People v Tychanski, 78 N.Y.2d 909, 577 N.E.2d 1046, 573 N.Y.S.2d 454; Matter of Smithwick v Levitt, 154 A.D.2d 240, 546 N.Y.S.2d 346; People ex rel. Sibley v Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420; Matter of Rockland County Patrolmen's Benevolent Assn. v Town of Clarkstown, 149 A.D.2d 516, 539 N.Y.S.2d 993; Matter of Wein v City of New York, 56 N.Y.2d 758, 437 N.E.2d 275, 452 N.Y.S.2d 16; Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d 318, 579 N.E.2d 1385, 574 N.Y.S.2d 664.)
Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for Thomas Von Essen and another, respondents. The Appellate Division majority correctly held that a disciplined firefighter may not appeal to the New York City Civil Service Commission, because the Commission does not have subject matter jurisdiction to review such matters. Rather, a firefighter may only bring a CPLR article 78 proceeding. This Court's 1999 unanimous decision in Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]), which pertained to the identical issue as here but with respect to police officer disciplinary determinations, is dispositive. (Matter of Finegan v Cohen, 275 N.Y. 432, 10 N.E.2d 795; Burke v Kern, 287 N.Y. 203, 38 N.E.2d 500; Matter of City of New York v MacDonald, 201 A.D.2d 258, 607 N.Y.S.2d 24; 83 N.Y.2d 759, 639 N.E.2d 417, 615 N.Y.S.2d 876; Ferrin v New York State Dept. of Correctional Servs., 71 N.Y.2d 42, 517 N.E.2d 1370, 523 N.Y.S.2d 485; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 N.Y.2d 205, 359 N.E.2d 1338, 391 N.Y.S.2d 544; Rangolan v County of Nassau, 96 N.Y.2d 42, 749 N.E.2d 178, 725 N.Y.S.2d 611; Riley v County of Broome, 95 N.Y.2d 455, 742 N.E.2d 98, 719 N.Y.S.2d 623; People v Brancoccio, 83 N.Y.2d 638, 634 N.E.2d 954, 612 N.Y.S.2d 353; Matter of Tucker v Board of Educ., 82 N.Y.2d 274, 624 N.E.2d 643, 604 N.Y.S.2d 506; Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 525 N.E.2d 454, 529 N.Y.S.2d 732.)
JUDGES: Opinion by Judge R.S. Smith. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
OPINION BY: R.S. Smith
OPINION
[*222] [***887] [**128] R.S. Smith, J.
In Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]) we held that uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York could not appeal their discipline to the New York City Civil Service Commission. We hold today that the same rule applies to firefighters disciplined pursuant to section 15-113 of the Administrative Code.
Procedural History
Firefighter Robert Joel was charged with violating Fire Department regulations by calling in two false alarms. At a hearing before an administrative law judge, Joel admitted his guilt and the judge recommended that he be terminated from his position with the department. The Fire Commissioner adopted the recommendation, and ordered termination.
Joel sought to appeal this ruling to the New York City Civil Service Commission. The Civil Service Commission ordered the parties to brief the question of whether it had jurisdiction over the appeal, and after receiving the briefs determined that it did. The Fire Commissioner then filed the present CPLR article 78 proceeding, seeking to annul the Civil Service Commission's determination. Supreme Court upheld the Civil Service Commission's [*223] jurisdiction, and dismissed the article 78 proceeding. The Appellate Division reversed, holding in a thorough and well-reasoned opinion that Montella was controlling. [***888] [**129] We agree with the Appellate Division and affirm.
Discussion
The Civil Service Commission claims jurisdiction here pursuant to HN1Go to this Headnote in the case.Civil Service Law § 76 (1), which permits an appeal to that Commission from punishment "imposed pursuant to the provisions of section seventy-five of this chapter." Thus the dispositive issue is whether Joel was disciplined pursuant to Civil Service Law § 75, which prescribes certain procedures for the removal or penalizing of civil servants charged with "incompetency or misconduct."
We held in Montella that Civil Service Law §§ 75 and 76 did not apply to Police Department discipline because we found in provisions of the New York City Charter and Administrative Code a legislative direction that such discipline be left to the discretion of the Police Commissioner, subject only to review by the courts under article 78. Specifically, we relied on NY City Charter § 434 (a), which provides that the Police Commissioner "shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department"; and on Administrative Code § 14-115 (a), providing that the Police Commissioner "shall have power, in his or her discretion . . . to punish the offending party" in specified ways. Since these provisions were in existence before Civil Service Law §§ 75 and 76 were enacted, and since Civil Service Law § 76 (4) provides that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees . . . ," we concluded that the Civil Service Law sections did not affect the Police Commissioner's power to discipline police officers.
The Charter and Administrative Code provisions applicable to Fire Department discipline closely parallel those on which we relied in Montella. The relevant Charter provision, section 487 (a), is even more strongly worded than NY City Charter § 434 (a). While the latter provision, governing Police Department discipline, refers to "cognizance and control," HN2Go to this Headnote in the case.section 487 (a) provides that the Fire Commissioner "shall have sole and exclusive power and perform all duties for the government, discipline, [*224] management, maintenance and direction of the fire department." HN3Go to this Headnote in the case.The Administrative Code section governing Fire Department discipline is section 15-113, which uses the same words quoted above from Administrative Code § 14-115. Section 15-113, like its counterpart applicable to the police, says that the Commissioner "shall have power, in his or her discretion . . . to punish the offending party."
Since the Charter and Code provisions governing Fire Department discipline, like those governing Police Department discipline, were in existence before Civil Service Law §§ 75 and 76 were enacted, HN4Go to this Headnote in the case.the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable here as it was in Montella. HN5Go to this Headnote in the case.Fire Department discipline, like Police Department discipline, is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.
The Civil Service Commission and Supreme Court found Montella to be distinguishable because in Montella we relied on two provisions of law that have no counterpart here: Civil Service Law § 75 (3-a), which specifically provides that the Police Commissioner "may punish [a] police officer [***889] [**130] pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York," and Administrative Code § 14-116, which authorizes the bringing of an Article 78 proceeding within four months to review discipline imposed by the Police Commissioner. But while section 75 (3-a) and section 14-116 supported our holding in Montella, they were not indispensable to it, for the reasons explained by the Appellate Division opinion in the present case. In Montella, Sections 75 (3-a) and 14-116 provided confirmation of what other legislative provisions also made clear: that Police Department discipline was not subject to Civil Service Commission review. Even without corresponding confirmatory evidence, we reach the same conclusion with respect to the Fire Department.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
DISPOSITION: Order of the appellate division affirmed.
No. 16
COURT OF APPEALS OF NEW YORK
4 N.Y.3d 220; 825 N.E.2d 128; 791 N.Y.S.2d 887; 2005 N.Y. LEXIS 224
January 11, 2005, Argued
February 22, 2005, Decided
PRIOR HISTORY: Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 23, 2003. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Joan Madden, J.), entered in a proceeding pursuant to CPLR article 78, which had denied the petition and dismissed the proceeding; (2) granted the petition; and (3) annulled the determination of the New York City Civil Service Commission that it had subject matter jurisdiction to hear the appeal of respondent firefighter from the Fire Commissioner's order dismissing him from the force for misconduct.
Matter of Von Essen v. New York City Civ. Serv. Commn, 3 A.D.3d 115, 769 N.Y.S.2d 260, 2003 N.Y. App. Div. LEXIS 13677 (1st Dept, 2003), affirmed.
DISPOSITION: Order of the appellate division affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellants, the New York City Civil Service Commission and a city firefighter, challenged a decision by a court in the Appellate Division (New York), which reversed a decision dismissing a N.Y. C.P.L.R. art. 78 proceeding initiated by respondent city fire department commissioner, who sought to annul the commission's determination that it had jurisdiction over the firefighter's appeal of his termination.
OVERVIEW: The firefighter was charged with violating fire department regulations by calling in two false alarms. At a hearing before an administrative law judge, the firefighter admitted his guilt and the judge recommended that he be terminated. The commissioner adopted the recommendation and ordered termination. The firefighter sought an appeal to the commission. The commission ordered the parties to brief the issue of whether it had jurisdiction over the appeal. After the commission ruled that it had jurisdiction, the commissioner initiated an N.Y. C.P.L.R. art. 78 proceeding to annul the commission's determination. The supreme court dismissed the art. 78 proceeding, but the appellate division reversed that decision. The commission and the firefighter appealed. The court found that fire department discipline, like police department discipline, was outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and was, thus, not subject to the commission's jurisdiction. New York City, N.Y., Charter § 487(a) gave the fire department sole and exclusive power over its own management and New York City, N.Y., Admin. Code § 15-113, gave the commissioner discretion to discipline offending firefighters.
OUTCOME: The court affirmed the appellate division's decision.
CORE TERMS: discipline, fire department, firefighters, disciplined, charter, punish, police officers, offending, repeal, modify, punishment imposed, exclusive power, saving clause, disciplinary, counterpart, cognizance, removal Administrative Law > Separation of Powers > Jurisdiction Governments > State & Territorial Governments > Employees & Officials
N.Y. Civ. Serv. Law § 76 (1) permits an appeal to the Civil Service Commission from punishment imposed pursuant to the provisions of N.Y. Civ. Serv. Law § 75.
Governments > State & Territorial Governments > Employees & Officials
See New York City, N.Y., Charter § 487(a).
Governments > State & Territorial Governments > Employees & Officials
The New York City Administrative Code section governing fire department discipline is New York City, N.Y., Admin. Code § 15-113, which says that the commissioner of the fire department shall have power in his or her discretion to punish the offending party.
Governments > Legislation > Interpretation
The saving clause of N.Y. Civ. Serv. Law § 76 (4) provides that neither N.Y. Civ. Serv. Law § 75 nor N.Y. Civ. Serv. Law § 76 shall be construed to repeal or modify other laws.
Administrative Law > Separation of Powers > Jurisdiction
Governments > State & Territorial Governments > Employees & Officials
New York City Fire Department discipline, like New York ity Police Department discipline, is outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and, thus, is not subject to the jurisdiction of the Civil Service Commission.
HEADNOTES
Civil Service -- Firefighters -- Appeal of Disciplinary Determination
Firefighters disciplined pursuant to section 15-113 of the Administrative Code of the City of New York may not appeal their discipline to the New York City Civil Service Commission. Although Civil Service Law § 76 (1) permits an appeal to the Commission from punishment imposed pursuant to Civil Service Law § 75, firefighters are not disciplined pursuant to that section. The Fire Commissioner's "sole and exclusive power" to make final disciplinary determinations with regard to members of the Fire Department (NY City Charter § 487 [a]) and power to punish the offending party (Administrative Code § 15-113) is subject only to review by the courts under CPLR article 78. Since the Charter and Code provisions governing Fire Department discipline were in existence before Civil Service Law §§ 75 and 76, the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable. Fire Department discipline is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.
COUNSEL: Sullivan Papain Block McGrath & Cannavo, P.C., New York City (Michael N. Block and Stephen C. Glasser of counsel), for appellant. The Appellate Division erred as a matter of law in holding that the New York City Civil Service Commission has no subject matter jurisdiction under Civil Service Law § 76 to review a penalty of dismissal imposed by the Fire Commissioner of the City of New York against a firefighter for misconduct where, when viewed within the context of Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]): (i) Civil Service Law §§ 75 and 76 authorize such review generally as to all civil servants; and (ii) in contrast to the situation presented when police officers are disciplined under Administrative Code of the City of New York §§ 14-115 and 14-116--which specifically restrict review of disciplinary penalties of police officers to a CPLR article 78 proceeding--Administrative Code § 15-113, governing discipline of New York City firefighters, is silent with regard to the procedure to use to review such penalty decisions. (Elliot v Green Bus Lines, 58 N.Y.2d 76, 445 N.E.2d 1098, 459 N.Y.S.2d 419; People v Walker, 81 N.Y.2d 661, 623 N.E.2d 1, 603 N.Y.S.2d 280; Pajak v Pajak, 56 N.Y.2d 394, 437 N.E.2d 1138, 452 N.Y.S.2d 381; People v Tychanski, 78 N.Y.2d 909, 577 N.E.2d 1046, 573 N.Y.S.2d 454; Matter of Smithwick v Levitt, 154 A.D.2d 240, 546 N.Y.S.2d 346; People ex rel. Sibley v Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420; Matter of Rockland County Patrolmen's Benevolent Assn. v Town of Clarkstown, 149 A.D.2d 516, 539 N.Y.S.2d 993; Matter of Wein v City of New York, 56 N.Y.2d 758, 437 N.E.2d 275, 452 N.Y.S.2d 16; Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d 318, 579 N.E.2d 1385, 574 N.Y.S.2d 664.)
Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for Thomas Von Essen and another, respondents. The Appellate Division majority correctly held that a disciplined firefighter may not appeal to the New York City Civil Service Commission, because the Commission does not have subject matter jurisdiction to review such matters. Rather, a firefighter may only bring a CPLR article 78 proceeding. This Court's 1999 unanimous decision in Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]), which pertained to the identical issue as here but with respect to police officer disciplinary determinations, is dispositive. (Matter of Finegan v Cohen, 275 N.Y. 432, 10 N.E.2d 795; Burke v Kern, 287 N.Y. 203, 38 N.E.2d 500; Matter of City of New York v MacDonald, 201 A.D.2d 258, 607 N.Y.S.2d 24; 83 N.Y.2d 759, 639 N.E.2d 417, 615 N.Y.S.2d 876; Ferrin v New York State Dept. of Correctional Servs., 71 N.Y.2d 42, 517 N.E.2d 1370, 523 N.Y.S.2d 485; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 N.Y.2d 205, 359 N.E.2d 1338, 391 N.Y.S.2d 544; Rangolan v County of Nassau, 96 N.Y.2d 42, 749 N.E.2d 178, 725 N.Y.S.2d 611; Riley v County of Broome, 95 N.Y.2d 455, 742 N.E.2d 98, 719 N.Y.S.2d 623; People v Brancoccio, 83 N.Y.2d 638, 634 N.E.2d 954, 612 N.Y.S.2d 353; Matter of Tucker v Board of Educ., 82 N.Y.2d 274, 624 N.E.2d 643, 604 N.Y.S.2d 506; Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 525 N.E.2d 454, 529 N.Y.S.2d 732.)
JUDGES: Opinion by Judge R.S. Smith. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
OPINION BY: R.S. Smith
OPINION
[*222] [***887] [**128] R.S. Smith, J.
In Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]) we held that uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York could not appeal their discipline to the New York City Civil Service Commission. We hold today that the same rule applies to firefighters disciplined pursuant to section 15-113 of the Administrative Code.
Procedural History
Firefighter Robert Joel was charged with violating Fire Department regulations by calling in two false alarms. At a hearing before an administrative law judge, Joel admitted his guilt and the judge recommended that he be terminated from his position with the department. The Fire Commissioner adopted the recommendation, and ordered termination.
Joel sought to appeal this ruling to the New York City Civil Service Commission. The Civil Service Commission ordered the parties to brief the question of whether it had jurisdiction over the appeal, and after receiving the briefs determined that it did. The Fire Commissioner then filed the present CPLR article 78 proceeding, seeking to annul the Civil Service Commission's determination. Supreme Court upheld the Civil Service Commission's [*223] jurisdiction, and dismissed the article 78 proceeding. The Appellate Division reversed, holding in a thorough and well-reasoned opinion that Montella was controlling. [***888] [**129] We agree with the Appellate Division and affirm.
Discussion
The Civil Service Commission claims jurisdiction here pursuant to HN1Go to this Headnote in the case.Civil Service Law § 76 (1), which permits an appeal to that Commission from punishment "imposed pursuant to the provisions of section seventy-five of this chapter." Thus the dispositive issue is whether Joel was disciplined pursuant to Civil Service Law § 75, which prescribes certain procedures for the removal or penalizing of civil servants charged with "incompetency or misconduct."
We held in Montella that Civil Service Law §§ 75 and 76 did not apply to Police Department discipline because we found in provisions of the New York City Charter and Administrative Code a legislative direction that such discipline be left to the discretion of the Police Commissioner, subject only to review by the courts under article 78. Specifically, we relied on NY City Charter § 434 (a), which provides that the Police Commissioner "shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department"; and on Administrative Code § 14-115 (a), providing that the Police Commissioner "shall have power, in his or her discretion . . . to punish the offending party" in specified ways. Since these provisions were in existence before Civil Service Law §§ 75 and 76 were enacted, and since Civil Service Law § 76 (4) provides that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees . . . ," we concluded that the Civil Service Law sections did not affect the Police Commissioner's power to discipline police officers.
The Charter and Administrative Code provisions applicable to Fire Department discipline closely parallel those on which we relied in Montella. The relevant Charter provision, section 487 (a), is even more strongly worded than NY City Charter § 434 (a). While the latter provision, governing Police Department discipline, refers to "cognizance and control," HN2Go to this Headnote in the case.section 487 (a) provides that the Fire Commissioner "shall have sole and exclusive power and perform all duties for the government, discipline, [*224] management, maintenance and direction of the fire department." HN3Go to this Headnote in the case.The Administrative Code section governing Fire Department discipline is section 15-113, which uses the same words quoted above from Administrative Code § 14-115. Section 15-113, like its counterpart applicable to the police, says that the Commissioner "shall have power, in his or her discretion . . . to punish the offending party."
Since the Charter and Code provisions governing Fire Department discipline, like those governing Police Department discipline, were in existence before Civil Service Law §§ 75 and 76 were enacted, HN4Go to this Headnote in the case.the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable here as it was in Montella. HN5Go to this Headnote in the case.Fire Department discipline, like Police Department discipline, is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.
The Civil Service Commission and Supreme Court found Montella to be distinguishable because in Montella we relied on two provisions of law that have no counterpart here: Civil Service Law § 75 (3-a), which specifically provides that the Police Commissioner "may punish [a] police officer [***889] [**130] pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York," and Administrative Code § 14-116, which authorizes the bringing of an Article 78 proceeding within four months to review discipline imposed by the Police Commissioner. But while section 75 (3-a) and section 14-116 supported our holding in Montella, they were not indispensable to it, for the reasons explained by the Appellate Division opinion in the present case. In Montella, Sections 75 (3-a) and 14-116 provided confirmation of what other legislative provisions also made clear: that Police Department discipline was not subject to Civil Service Commission review. Even without corresponding confirmatory evidence, we reach the same conclusion with respect to the Fire Department.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
DISPOSITION: Order of the appellate division affirmed.
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