Sunday, January 22, 2012

City, nonprofits at odds over legal liability at 14 restart schools

"Restart", "Turnaround", "EPO", "UFO".... any normal person listening to, or reading about, the many meaningless terms meant to convey "Hey, we want control over the money and the data and we are going to get it or else" could be a little confused over all of this, which I guess is the whole point, right Mike and Dennis?

Posted By Geoff Decker On December 19, 2011, Gotham Schools

LINK

In Memory of Stuyvesant High School Teacher Richard Geller

From Betsy Combier: Two of my four daughters were lucky to have been students of extraordinary teacher Richard Geller at Stuyvesant High School and before they got in, as students in his SSHAT tutoring group. Notice that I dont write "extraordinary MATH teacher".

I dont put math in my description of Mr. Geller, not because he wasnt a terrific math teacher, ( I believe that he was exceptional at teaching math), but because he was a terrific teacher. And that's what I remember.

Rest in Peace, Mr. Geller.

Richard Geller

Stuyvesant High School's Richard Geller in the New York Times Magazine:
"The Lives They Lived"
LINK

When Richard Geller died, students put his catch phrase, “Math is #1,” all over Stuyvesant High School, in New York City, where he had taught. It was taped onto lockers. It was drawn on a couple of desks. It was handwritten on a T-shirt. In the classroom, Geller was passionate and intense and demanding. One student remembered her math grade was the lowest one on her report card, “but it was a Geller grade, and it was the one I was most proud of.” Geller could have retired a decade before he died, but he didn’t want to. He was a math teacher through and through.

This is an edited and condensed version of a speech Geller delivered at Stuyvesant’s graduation in June 2011. He died four months later.

I would like to thank the graduating class for having chosen me as your faculty speaker.

I wondered: Why me? I have been teaching math at Stuyvesant for 29 years and was never chosen before. By the way, 29 is a prime number. There are exactly two factors for 29: 1 and 29.

Maybe I was chosen for the approximately 5 basketballs that I confiscated from students during your four years at Stuyvesant. Or the 17 Frisbees I took away. Or the 113 decks of playing cards. Or the 257 cellphones I took away and brought to Miss Damesek’s office. In case you haven’t figured it out, all those numbers are prime numbers.

No, I don’t think so. I think that you heard three months ago that I have metastasized melanoma cancer in my lungs and that you wanted to honor me for my passion for teaching math. Thank you for honoring me.

Even through all my problems, the best part of my day is teaching math. I have been teaching math for 43 years — another prime number — and still love it. I got lucky. I found a career that I really love.

I have been to many junior-high-school and high-school graduations as a teacher. However, the most important graduations for me were my children’s graduations. Yes, I am a parent of a son and a daughter. Teachers do it, too, you know.

Only when I attended my own children’s graduations did I realize how special parents find graduation. So give your parents a break today. Thank them for everything they have done for you. Let them take lots of pictures. Spend time with them. Let them enjoy it. In fact, please stand up, turn around, face your parents.

I have some homework for you. Assignment No. 1: Volunteer. Tutor for free. Volunteer to help a political candidate. Help your parents. Make dinner, baby-sit, say thank you. Give up your subway seat to someone who is elderly or disabled. Think of others.

Assignment No. 2: Find a career that you enjoy as much as I enjoy teaching math. You will be much happier with your life if you enjoy your job. And if your parents don’t like what you choose, that is their problem, not yours. When they see you happy in your life and career, they will be happy for you, too.

Assignment No. 3: Is 2011 a prime number?

I have loved being part of your four years of Stuyvesant. I have enjoyed watching you grow — physically, mentally and mathematically. I leave you with the following words:

Math is #1.

At 2 a.m. on the day he died, Richard Geller woke from a deep sleep and opened his eyes and began to speak. His son, Jason, was spending the night in the hospital and tried to make out what his father was saying. These would turn out to be the last words Richard Geller ever spoke, and Jason says it was hard to understand him. “Then I realized he was saying: ‘Take one and pass it down, take one and pass it down. Are there any questions?’”

Saturday, January 21, 2012

Bernie Gassaway, Principal of Boys and Girls High School, Was Appointed To Close The School

Before Mr Gassaway was appointed Principal of Boys and Girls High School, he told me that he believes the NYC Department of Education is a very successful agency, whose policy is to close NYC public schools. Then he put this policy into effect at Boys and Girls. The latest grade for his school: F

Principal Bernard Gassaway, right

Gassaway on City's New Plan for Failing Schools: "I'm Not Worried"

LINK

State Education Commissioner John King signs off on mayor's new Turnaround plan, which includes firing hundreds of teachers and some principals at 33 struggling schools

By C. Zawadi Morris
Email the author
January 19, 2012

Mayor Bloomberg has found a way around the months-long impasse in negotiations between his administration and the United Federation of Teachers that has held up State Improvement Grant (SIG) funding for struggling schools.

The city’s plan, which Bloomberg announced in his State of the City address last week, would make federal monies once again available, but it would result in the removal of half of the teachers from 33 previously designated low-performing schools.

For months, the State has patiently awaited a final agreement between the mayor and the United Federation of Teachers, regarding how to best implement teacher evaluations – ratings that ultimately will impact how teachers are hired and fired.

The State Education Department made clear that the city and the UFT must agree by January 1, 2012, on how to implement a comprehensive teacher evaluation system in New York City's Transformation and Restart schools if they expect to receive any of the SIG funding. But the deadline came and went, and still no agreement.

The mayor’s new approach, known as Article 18-D, is a lesser-known plan that, ironically, is written right into the union’s contract. It is another type of Turnaround model that gives the city permission to close and immediately re-open schools, but under a new name and new identification number.

Additionally, this Turnaround approach does not require teacher evaluations be in place, and therefore reinstates eligibility for SIG funding. On Tuesday, State Education Commissioner John King gave the new plan his blessing to move forward.

Bernard Gassaway, principal of Boys and Girls High School – which for the last two years was placed on and then narrowly escaped the DOE's closure list – has been an outspoken proponent of the Turnaround model for his school.

So, this new Turnaround model should be good news for Gassaway. The only problem is, under the mayor’s new-new Turnaround model as stated, Gassaway becomes one of those principals who would likely have to be removed.

But Gassaway says he’s not worried.

“The latest decision to close the schools does not include Boys and Girls High School; and there’s definitely not a concern on my part, with regards to losing my job,” said Gassaway. “I’ve been in communication with DOE officials, and we’re not being tapped for any technical or lesser known Turnaround provision at this time.

“Right now, we have a plan in place, and we want to see if it works. In addition, there’s experienced leadership in place. So it wouldn’t make sense to remove the leadership if it shows a track record of success, and that is the case at this time,” said Gassaway.

Gassaway added, he has no problem with the new Turnaround provision, and he agrees with the decision by the mayor and the commissioner to move forward, despite failed negotiations surrounding teacher evaluations. In fact, he said that he still believes a sizable number of his own teaching staff needs to be replaced.

“If the teachers are ineffective, you have to remove the teachers—and the same for principals,” said Gassaway. “The DOE has decided not to close BGHS because they wanted to give us a chance to see if our plan works.

“If it turns out that what we’re doing now with our students, staff and parents does not show improvement after all, then… we would have to consider what’s on the table.”

Is the UFT Really Negotiating Teacher Evaluations?

Teacher evaluations in 33 schools subject of intensive negotiations

UFT: We won’t agree to a bad dealhttp://www.uft.org/news-stories/teacher-evaluations-33-schools-subject-intensive-negotiations
by Maisie McAdoo | published December 22, 2011

The UFT and the Department of Education have been in intensive negotiations for the past two months over the details of a new teacher evaluation system for schools designated for the “restart” and “transformation” federal intervention models only. With a Dec. 31 deadline looming for finalizing an agreement, both sides are meeting in subcommittees and going back and forth on key issues.
Though it will only be used in these 33 “restart” and “transformation” schools, UFT Secretary Michael Mendel stressed that an evaluation system that treats teachers unfairly or allows administrators to scapegoat their staffs will not see the light of day.
“We are negotiating in good faith, but we won’t agree to a bad deal,” Mendel said.
Mendel said that the evaluation system must be fair, objective, carried out in a safe, collaborative environment and provide for professional growth at the same time that it is being used for evaluation.

Chancellor Dennis Walcott told the press in early November that he would give up $60 million in federal School Improvement Grants rather than come to a bad decision on the program.
“At the end of the day if we have to return money, I will be willing to do that. I’m not going to be beholden to money as determining a decision,” he said.

Mendel said that he agreed wholeheartedly with the chancellor’s position. “We also will not do what we think is wrong just to get the money,” he said.

The DOE will receive up to $2 million per year per school over the next three years from the federal government if the 33 schools enact broad reforms, including a new evaluation system that goes beyond the simple U or S — unsatisfactory or satisfactory — ratings that are used now.

Though the specifics of negotiations are not public, the issues the two parties must resolve are no secret. Nor are they easy.

Measures of student learning will make up 20 percent of middle and high school teachers’ evaluations. So one major task will be negotiating what will be measured and how.

In addition, for middle schools only, math and English language arts teachers will have a second measure, worth an additional 20 percent, created by the state based on a statewide “growth” metric.

Negotiators must also work out how classroom observations — which make up the other 60 to 80 percent of the evaluation — will be carried out.
In addition, if the evaluations are to be helpful rather than used simply to label teachers, the law requires a teacher improvement plan be in place for teachers rated ineffective or developing. And there must be a negotiated appeals process.

"We hope it will be a good thing, and we hope to learn from it,” Mendel said of the evaluation system being negotiated for the 33 schools.
The issues are complex and potentially far-reaching.
“Prudence and thoughtful decision-making are called for,” Mendel said.

Meet Mulgrew, the new power broker you probably don’t know

Posted By Anna Phillips On June 24, 2009
LINK

Mulgrew trying to save a teacher stipend used to purchase school supplies in May of this year. Full NY1 report here ^[1].

The man who is on the brink of becoming one of the city’s top power brokers nearly got lost in a crowd earlier this week.

Michael Mulgrew is the designated successor to teachers union president Randi Weingarten, who will announce her departure from the union today. If union leaders select him to fill her shoes, as is expected, he will become the president of America’s largest union local and one of the most influential labor unions in the state.

On Monday afternoon, at a press conference where Mayor Bloomberg announced the city’s rising graduation rates with a pack of advocates, the mayor ticked off every one of their names in gratitude but one.

Schools Chancellor Joel Klein leaned in to Bloomberg’s ear. “And Michael Mulgrew,” he reminded the mayor.

The tall, bald man with a bouncer’s build hardly registered the oversight.

Bloomberg can be forgiven for not remembering Mulgrew’s name. Unlike other top brass at the teachers union, Mulgrew is a relative newcomer. Just four years ago he was teaching English and filmmaking to high school students in Staten Island. He was not seen as a possible successor to Weingarten inside the union until she abruptly vaulted him into the limelight last year, making him one of three candidates in a dramatic internal run-off race.

Even now that he’s on good terms with deputy mayors and had his photograph pasted across the pages of the union’s most recent newspapers, Mulgrew remains obscure. He would be the first non-Jewish president of a union that over the years has been stereotyped as a Jewish haven. A trained electrician and carpenter who ran a contracting business on the side for several years, he would also be the first vocational teacher to become interim president of the UFT. (Vocational teachers represent just a small fraction of the union.)

All this makes him a far cry from the stature of the woman whose shoes he’ll fill.

“Anybody who thinks that they can just walk into New York City and become the next Randi Weingarten is smoking something,” Weingarten warned last year, amid speculation about her successor.

Mulgrew, 44, also couldn’t be more different from Weingarten. Tall and apple-cheeked, he has the physical presence of Mr. Clean (both shave their heads) and a quiet charm. “Women seem to like him,” noted one union member.

Still, he’s often bullish and he gained renown in the union for being one of a small number of people to stand up to Weingarten. At a City Council hearing on mayoral control in early June, Mulgrew barked his testimony. Weingarten’s critics, who sometimes criticize her for favoring the middle ground, like Mulgrew’s puggishness.

“He comes across as a non-waffler,” said union activist Norm Scott. “For people who despise Weingarten, there’s already a sense of, ‘Oh, maybe Mulgrew will be better.’ But while this change in style will work for him for a while, it is a change in style not substance.”

Mulgrew grew up on Staten Island and still lives there, a fact he can hold responsible for his heavy New York accent. He graduated from St. Peters High School, an all-boys Catholic school, and then went to the College of Staten Island, the borough’s CUNY school.

In 1990, while doing construction work as a member of the carpenter’s union, he began working as a substitute teacher at the William E. Grady Career and Technical Education High School in Brooklyn. After several years, he began working full time, teaching English and then an audio-visual class for at-risk students. He taught how to use recording equipment and computers to write, produce, and edit films.

Colleagues from his teaching years describe Mulgrew as a natural leader who has found himself reluctantly thrust into power by virtue of being in the right place at the right time.

Tom Dorso, a social studies teacher and the current UFT chapter leader at Grady High School, shared a classroom with Mulgrew. They became such close friends that Mulgrew built Dorso’s kitchen cabinets for him.

According to Dorso, Mulgrew was hesitant to run for chapter leader, a position he won in 1999. “He went in kicking and screaming,” Dorso said. “He took the chapter leader’s position because no one was really running. We had a principal at the time who was trying to get away with some stuff and Michael said, ‘I just won’t allow it.’”

From then on, Mulgrew was “relentless,” Dorso said. He took a “divide and conquer” approach to the school’s new principal and the assistant principals, playing them off each other to his benefit.

“Whenever one of the suits was coming into the building, Michael would always make sure he was well dressed, and would barge into the meeting and introduce himself. He was very proactive,” Dorso said.

“When Mr. Mulgrew ran for chapter leader and won, the staff embraced him,” said Christopher Manos, a shop teacher at Grady High School who took over as chapter leader when Mulgrew became a vice president in 2005. “Everybody knew that he was very smart, he was articulate, and very personable.”

While serving as chapter leader, Mulgrew established himself as one of the more vocal members of the delegate assembly. “He made himself noticed,” Dorso said, and he soon attracted the attention of Frank Carucci, then vice president for vocational and technical high schools. Mulgrew began working for Carucci after school, stuffing envelopes, answering phone calls, and running errands. Following the UFT tradition of naming a successor before the members vote, when Carucci decided to retire, he endorsed Mulgrew as interim vice president.

Once again, Mulgrew wasn’t certain he wanted the job, but he ran after others egged him on, and he “won big,” Dorso said.

As vice president, Mulgrew also quickly crashed meetings with men in suits. When Klein seemed uninterested in his passion for “career and technical education” — next-generation vocational schools that emphasize academic rigor — Mulgrew took his case directly to then-Deputy Mayor Dan Doctoroff. Soon, Mayor Bloomberg was announcing a new initiative to expand career and technical education.

A question Mulgrew and those watching his ascent face is whether he’ll be able to hold his own against Weingarten.

Supporters have characterized Mulgrew as having an independent mind and a forceful personality, but critics suggest that he rose through the ranks by being a loyal foot soldier to the party that supports Weingarten, the UNITY caucus. They say he will not stray from party line.

“He’s demonstrated his total loyalty to her and that’s what you get when you’re loyal,” said Jeff Kaufman, a member of ICE’s steering committee. “He’s going to sit there and give a couple of sound bites and the heavy lifting is still going to be done by Randi.”

Some of Mulgrew’s colleagues from his early days in the union saw him as an obvious choice for the UFT’s top job.
“I was calling him Mr. President about a year ago,” Dorso said. “I teach social studies, I know how politics works, he’s the fair-haired boy even though he shaves his head.”
Mulgrew declined to comment for this story.
“I think he’s a great person. I think he has a lot of guts,” Weingarten said. “He’s a great teacher, came up through the ranks. … He’s willing to break a lot of glass.”

Article printed from GothamSchools: http://gothamschools.org

URL to article: http://gothamschools.org/2009/06/24/meet-mulgrew-the-new-power-broker-you-probably-dont-know/

URLs in this post:

[1] here: http://www.ny1.com/content/news_beats/education/99037/classroom-stipend-cuts-fuel-brooklyn-rally/Default.aspx

The "Confidential Investigator" Scam at 3020-a

Every case brought to 3020-a has a point person around whom the New York City Department of Education builds the case against the tenured employee targeted for termination. A good defense - the only defense - against this person's conclusions (that the respondent is guilty of all specifications) is to prove that the work done by the "confidential investigator"makes no sense, is inconsistent, couldn't be valid, etc.
I have seen NYSUT Attorneys and private lawyers not even try to do this, and I have seen arbitrators make the point person (the SCI, OSI, OEO "investigator") an "expert witness" or "completely credible" during a hearing, and at that moment the case is lost for the tenured employee. For example, Arbitrator Alan Berg found "extremely credible" both an "expert witness" who was called into a school to 'help terminate' a special education teacher who was complaining about special education fraud at her school and who also filed many grievances against the Principal for racial discrimination, and anyone else in the school administration who said anything bad about the teacher. The "expert witness" had no official role at the school, and was not a PIP+ observer. She testified that she had no notes or anything written down about this teacher's classroom management, teaching performance, interaction with the children, or any other data that could justify her conclusion that this teacher should be terminated. Mr. Berg took her advice. Mr. Berg is the same arbitrator who told me that after he awarded complete exoneration to a Queens teacher accused of sexually abusing a student in his classroom, the Gotcha Squad at the ATU punished him for giving such an award in that case.
Typically, the "investigation" looks like this:
1. An incident is emailed to the EIC at the NYC DOE, targetting a certain employee as the
    perpetrator
2. The Principal or the agency - SCI, OSI, OEO, takes over the "investigation" and is delegated this
    responsibility
3. The Principal gets together any personnel at the school who can obtain the name of any child in
    the classroom of the targeted teacher who saw what happened, is in trouble of a suspension, or
    needs higher grades
4. The Principal brings the child or children/students into his/her office for the writing of the
    statement that will 'prove' what the Principal wants proven. Any versions of statements that do not
    support what the Principal wants is/are discarded and thrown away.
5. The "confidential investigator" is given these statements
6. The "confidential investigator" goes to the school where the students are, and sits with the
    Principal to find out exactly what the Principal wants 'proven'
7. The Principal tells the AP or another staff member to bring to the office the children/students
    whose statements have been accepted by the Principal and substantiate the charge he/she wants
8. The "confidential investigator" asks each child whether or not the statement he/she has in his/her
     hand is the statement written by the student.
9. The "confidential investigator" leaves with the statements now confirmed, and goes back to the
    office to write the substantiation of the original allegation(s), which is/are no longer an
    allegation(s), but now is a FACT.
If you read the transcripts of 3020-a hearings, as I do, you cannot fail to notice that the allegation(s) or specification(s) are written in such a way as to be conclusions, not allegations at all. Also, the specifications are followed by the page that says there is "Just Cause for termination".
So, how does the form letter concluding that the list of specifications become "JUST CAUSE"? How does this make sense?

It does, of course, to NYSUT Attorneys and DOE Attorneys who force the teachers/DOE employees brought to 3020-a to resign, retire, or pay fines in order to get their jobs back, or to move on (preferably the latter). JUST CAUSE is a term that covers seven tests:

1. (i) NOTICE

2. (ii) REASONABLE RULE OR ORDER

3. (iii) INVESTIGATION

4. (iv) FAIR INVESTIGATION

5. (v)PROOF

6. ( vi)EQUAL TREATMENT
PENALTY

Thus when a 3020-a hearing begins, the alleged misconduct or incompetency has already changed into a fact, and the teacher/DOE employee charged has the secret burden of dis-proving the lie rather than proving his/her innocence.

No matter who the Arbitrators are, their "boss" when they do 3020-a cases in New York City is the New York State Education Department and the NYC Department of Education. I heard yesterday that the arbitrators are still not getting paid, but State Ed says thay "will", so they continue to make decisions. But many see no reason to abide by the guidelines last issued on April 15, 2011, mandating decisions within 30 days of the close of the hearing. In fact, the provisions of this agreement between the UFT and the DOE are routinely ignored, depending upon the whim of the Arbitrator and the Department with the full knowledge and awareness of the NYSUT Attorney and sometimes the private attorney. It's truly a setup, a public policy that denies due process.

Mike Bloomberg: "Get Rid of Half of the Teachers"

I am re-posting His Honor's statements in February, because secret and strange things happen when Mike Bloomberg says anything: the education cartel, UFT, and the Courts, do exactly as he orders, despite any fake opposition to the contrary.

Betsy Combier

Teachers Union Furious As NYC Releases List Of Layoffs
Mayor Wants Albany To Let Him Pink Slip Based On Performance
February 28, 2011 11:30 PM
LINK

Bloomberg: If I Had It My Way I’d Dump Half Of NYC’s Teachers
Mayor Stuns Many At MIT Speech, Says He'd Greatly Enlarge Class Size, Too
December 1, 2011 11:59 PM
LINK
NEW YORK (CBSNewYork) — It’s a jaw-dropping prescription for fixing city schools.

“Professor” Michael Bloomberg said Thursday he would accomplish more with less by slashing the teaching staff in half — and that’s just the beginning, reports CBS 2’s Marcia Kramer.

He looked like he was from another planet when he dressed as a hippie for a political show, but the mayor’s blueprint for fixing city schools have some asking “what was he smoking?”

“Education is very much, I’ve always thought, just like the real estate business. Real estate business, there are three things that matter: location, location, location is the old joke,” Bloomberg said. “Well in education, it is: quality of teacher, quality of teacher, quality of teacher. And I would, if I had the ability - which nobody does really – to just design a system and say, ‘ex cathedra, this is what we’re going to do,’ you would cut the number of teachers in half, but you would double the compensation of them and you would weed out all the bad ones and just have good teachers. And double the class size with a better teacher is a good deal for the students.”

That’s right. The mayor told people at a Massachusetts Institute of Technology conference it would be far better to run city schools with way fewer people. And, by the way, on the billionaire’s perfect planet that would mean cramming more kids into each classroom.

Andrea Spencer is dean of the School of Education at Pace University.

“When I heard the statement I was really shocked,” Spencer said. “There is absolutely no evidence to suggest that half of the teachers in any system are ineffective. What there is evidence to support is the fact that larger classes really place detriments in the way of learning.”

But “Professor” Bloomberg is sticking to his views.

“The best thing you can do is put the best teacher you can possibly find and afford in front of the classroom and if you have to have fewer because there’s only a certain number of dollars to go around, I’m in favor of that,” Bloomberg said.

United Federation of Teachers President Michael Mulgrew said he put the mayor’s latest views on teaching in the same category of his decision to appoint a former magazine editor with no teaching experience to be schools chancellor.

“So the mayor thinks this is a good idea, in high schools to have class size in high schools of 70 kids. Clearly the mayor has never taught,” said United Federation of Teachers President Michael Mulgrew.

"And probably the mayor’s having another Cathie Black moment.”

You need to download the latest version of flash player to use this player

Need Help?

The mayor also said he’s given teachers a 105 percent raise since he took office. Mulgrew said maybe the mayor should have stopped in at a math class while he was at MIT.

In lamenting the quality of teachers, the mayor claimed they come from the bottom 20 percent of their class and not the best schools.

NYC Teacher Julianne Polito Loses Her Article 75 Appeal In The Supreme Court

Parentadvocates.org
LINK

From Betsy Combier: the investigation into Ms. Polito's alleged misconduct evidently was flawed - the statements of the witnesses were written together, among other serious errors of due process.Yet the Hearing Officer at Polito's 3020-a arbitration was Melissa Biren, Esq., whose book (with Norman Brand, Esq.) "Discipline And Discharge In Arbitration" is a standard textbook for anyone who wants to learn more about labor relations and arbitration. It is clear that the arbitration hearing procedures in New York City violate tenured teachers' due process rights, and the New York State Unified Court System doesn't care. What a racket.

Application of Julianne Polito, Petitioner v. New York City Department of Education a/k/a The City School District of the City of New York, Respondent, 104919/11

Supreme Court, New York County, Part 32
104919/11

New York Law Journal
January 19, 2012
Cite as: Polito v. NYCDOE, 104919/11, NYLJ 1202538548936, at *1 (Sup., NY, Decided January 5, 2012)
Justice Carol E. Huff
Decided: January 5, 2012

For a Judgment Pursuant to Article 75 of the CPLR
Motions with sequence numbers 001, 002, 004 and 005 are consolidated for disposition.

In motion 001, pursuant to CPLR Article 75, petitioner, a special education teacher, seeks a judgment annulling or modifying the determination of respondent New York City Department of Education (DOE), dated April 7, 2011, which fined petitioner $7,500. DOE cross moves to dismiss the petition.

In motion 002, petitioner moves for an order for preliminary injunctive relief, staying imposition of the fine and for other relief related to the underlying determination.

In motion 004, petitioner moves for an order sealing the record of these proceedings.

In motion 005, petitioner moves for a stay of these proceedings pending the outcomes of investigations into the principal of petitioner's school and into the confidentiality of records submitted in this proceeding.

Petitioner has also submitted a letter application seeking judicial recognition of alleged facts contained in a New York Post article.

As a threshold matter, petitioner's motion (005) for a stay pending investigations is denied. The first investigation, regarding the conduct of the subject school's principal, was instigated by petitioner and was closed on June 24, 2011. See Affidavit of Jamel R. Boyer, Confidential Investigator employed by DOE's Office of Special Investigations, Ex. 3 to Affirmation of Celine Chan dated July 14, 2011. The second investigation, also initiated by petitioner, regarding the confidentiality of the records of this proceeding, does not bear on the merits of this proceeding. The issue of confidentiality is addressed in connection with petitioner's motion 004, below.

Further, petitioner's application for judicial notice of a New York Post article concerning the principal is denied. "A court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof." Carter v. Metro N. Assoc., 255 AD2d 251 (1st Dept 1998) (citations omitted). The newspaper article does not meet this standard.

Petitioner is a tenured teacher who has worked for DOE for eighteen years. Pursuant to Education Law §3020-a, with respect to alleged misconduct during the 2008-2009 and 2009-2010 school years, petitioner was charged with five specifications, and a hearing was scheduled. A pre-hearing conference was held on October 26, 2010. The hearing was conducted on November 9, 15, 22, and 30, 2010; December 1, 7, 13, 17 and 20, 2010; and January 5, 21, 24 and 25, 2011. Closing arguments were heard on February 17, 2011. DOE presented the testimony of three witnesses, and petitioner presented the testimony of ten witness, including herself.

On April 7, 2011, the hearing officer issued her forty-nine page determination, in which she exhaustively reviewed the evidence including the troubled atmosphere at the school and petitioner's allegations with respect to the principal's exacerbating behavior and bias toward petitioner. Based on her review of the evidence, she upheld specification 3(a) and partially upheld specification 3(b), finding that petitioner stated to a student, "Here Mr. Smarty Pants, let's see if you can read," and "tossed" a book. The hearing officer found this behavior to constitute a violation of Chancellor's Regulation A-421, stating: "It is clear that (petitioner) was intending to punish (the student) for disrupting the class and, further, that by tossing the book and suggesting that he read it, she intended to belittle, ridicule, and to embarrass or humiliate [the student]. "Determination at 34.

The hearing officer denied petitioner's request for attorney fees pursuant to Education Law §302-1(4)(c) and CPLR 8303-a, finding that the specifications either were dropped or were not frivolous. She denied DOE's demand for termination, finding instead: "Polito's misconduct on May 21, 2009, involving verbal abuse of a special education student, and conduct unbecoming, even in the very difficult environment in which she taught, requires a penalty that recognizes the seriousness of her actions." The penalty imposed was a $7,500 fine payable in equal installments over twelve months.

Appeals such as this from Education Law §3020-a hearings are made pursuant to CPLR 7511, governing arbitrations. However, when parties have submitted to compulsory arbitration, "the determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78." City School Dist. Of the City of New York v. McGraham, 75 AD3d 445, 450 (1st Dept 2010), quoting Lackow v. Department of Educ. Of City of New York, 51 AD3d 563, 567 (1st Dept 2008).

Accordingly, the DOE determination fining the petitioner will be upheld unless it is shown that the determination "was affected by an error of law…or was arbitrary and capricious or an abuse of discretion." CPLR 7803(3). The test is whether the determination is "without sound basis in reason and is generally taken without regard to the facts." Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, 231 (1974). An administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." Partnership 92 LP & Bld. Mgt. Co. Vv State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 429 (1st Dept 2007), aff'd 11 NY3d 859 (2008).

In arguing that the determination should be annulled, petitioner raises numerous issues concerning the weight of the evidence, and disagrees with procedural rulings by the hearing officer with respect to witness subpoenas, right to cross examine and discovery requests. These arguments, even in their totality, are not sufficient to demonstrate that the determination lacked reason or was taken without regard to the facts. Thirteen witnesses were heard over thirteen hearing dates, and the hearing officer in her lengthy determination reasonably considered the issues raised by petitioner.

With respect to the punishment, "a court may vacate the punishment only when it is so disproportionate to the offense…that it shocks one's sense of fairness…. Punishment is a subject of broad discussion and one open to disagreement…The board must be given latitude in determining the penalty to be imposed." Kinsella v. Board of Educ. of Cent. School Dist. No. 7, 64 AD2d 738, 740 (3d Dept 1978). Here, the $7,500 fine, spread over twelve months, is not disproportionate to the violation found by the hearing officer.

Also, petitioner is not entitled to attorney fees. The hearing officer considered and reasonably found that the specifications were not brought or continued "in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another." CPLR 8303-a(c)(ii).

Finally, petitioner's motion (004) to seal the records of this proceeding is denied. The determination, papers, transcripts and exhibits have all been redacted to prevent identification of the students, who are indicated only by their initials. Although she refers to an incident in a previous Article 78 proceeding, petitioner fails to specifically cite identifying information in this proceeding that requires a sealing order.

Accordingly, it is

ORDERED that the motion (002) for preliminary and other relief is denied; and it is further

ORDERED that the motion (004) for an order sealing the record of these proceedings is denied; and it is further

ORDERED that the motion (005) for a stay of these proceedings pending the outcomes of investigations into the principal of petitioner's school and into the confidentiality of records is denied; and it is further

ADJUDGED that the petition (001) is denied, the cross motion is granted, and the proceeding is dismissed.

Julianne Polito Article 75 Petition

Probationary teacher Edward Moore also filed a Petition to overturn his U rating, and he cites a cause of action as retaliation. The Judge in this case has not yet made a final determination.

NYC Rubber Room Reporter and ATR CONNECT