Harris Lirtzman, Whistleblower, Wins His Career Back After His Claims Are Found To Be True

All whistleblowers must stay on course and fight for right.

Stay the course. I wrote about Mr. Harris Lirtzman in 2012, and now give him our well-known "A For Accountability Award"

Parentadvocates.org awards him the "A For Accountability Award" for 2012

Betsy Combier

Harris Lirtzman

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July 6, 2012

On Special Education, Spurned Teacher Is Vindicated

By MICHAEL POWELL, 

LINK

Perhaps it pays to heed Harris Lirtzman.

A passionate fellow, this teacher warned his principal last fall that their Bronx public high school was routinely violating the rights of the most vulnerable children, those in need of special education.

For speaking up, Mr. Lirtzman — who served as a deputy New York State comptroller before turning at age 53 to public-school teaching — saw his career ground to dust. He was denied tenure, and the principal, Grismaldy Laboy-Wilson, asked him to leave immediately. When he took his worries to the investigative arm of New York City’s Education Department, the investigators opened a file on him instead.

I wrote of Mr. Lirtzman’s struggle in May. His vindication arrived in the mail in June.

The State Education Department investigated his charges and sent him a copy of its report. It sustained Mr. Lirtzman’s allegations, one violation of state regulations after another.

High school administrators at the Felisa Rincón de Gautier Institute for Law and Public Policy in the Bronx had put unqualified teachers in charge of special education classes. They pushed these students into classes crowded with general education students.

And most egregiously, when faced with teaching vacancies, the administrators brought in a conga line of substitute teachers on “rotating” one-week stints to teach special education classes. That treads perilously close to educational malpractice.

It’s hard to scrape a usable quote from the state report, which is written in Haute Bureaucratese. Perhaps better to leave the talking to Mr. Lirtzman.

“There are a lot of gray areas in teaching special education in a big city,” he says. “But a fair amount is black and white: A kid is either getting the services required by federal law or not.”

This is not quite the end of the story. The city’s Education Department evinced little interest in Mr. Lirtzman’s allegations in May. Now a spokeswoman says it has commenced its own investigation.

The Council of School Supervisors and Administrators, which represents principals, argues that the fault lies with the city’s Education Department, which imposes budget cuts and ever more demands on principals. Higher-ups, they say, approved Ms. Laboy-Wilson’s decisions, including placing substitute teachers in special education classrooms on a rotating basis.

The principal, they say, is not at fault.

“You’re going to find that the mistakes they make up above are landing on the heads of my members,” said Ernest A. Logan, the council’s president. “This is a case in point.”

The council added in a written statement that history shows that the city and the state often have “inconsistent special education guidelines.”

Let’s posit, as it is true, that Mr. Logan and his staff are intelligent advocates who often stand at the forefront of fighting the most unreasonable aspects of the Bloomberg Education Revolution. They offer a properly stout defense of their members. And they passed along internal department memos that indeed show education officials have turned a blind eye to special education violations, and have directed principals to make do in ways that skirt these regulations..

It’s also true that the city’s Education Department shoulders a heavy burden. It dedicates 18,000 teachers to special education. Each student is required by law to have an individual educational plan.

But those words — “inconsistent special education guidelines” — are a not-so-lovely euphemism for violating the rights of underserved children.

I asked the State Education Department if it is unfair to blame a principal for failing special education children.

“Kids are supposed to get an education, and they are supposed to get it from properly qualified teachers,” said Tom Dunn, a department spokesman. “We said there are violations. They should fix it now.”

All of which brings us back to Mr. Lirtzman. He went to that high school in the Bronx for a job interview just before school began in 2009. The principal hired him on the spot, and a few days later, he was teaching a special education math class.

He had a wild toboggan ride of a time and came to love his students. Several parents said he was one of the best teachers their children ever had.

But when the department denied him tenure and the principal forced him out, he had enough. He retired.

His coda arrived a few days ago, again in the mail. The principal, Ms. Laboy-Wilson, filled out his final evaluation, in accordance with regulations. She rated him satisfactory over all.

On a long list, she listed him as unsatisfactory in just two areas: He did not keep a professional attitude and maintain good relations with supervisors.

If that’s the price of dissent, suffice it to say Mr. Lirtzman can live with that.

E-mail: powellm@nytimes.com

May 21, 2012

Helping Special Education Students, and Paying With His Career

By MICHAEL POWELL, NYTIMES

LINK

There was no particular moment when Harris Lirtzman decided to blow the whistle, and so close the door on his teaching career.

A former deputy state comptroller, he had decided to give public school teaching a midcareer whirl. In 2009, he landed a job as a special education math teacher at the Gautier Institute for Law and Public Policy, a Bronx high school.

He describes that first year as a cross between a hurricane and a tornado, learning his craft in one of the city’s poorest neighborhoods. He came to love his work.

But in September 2011, school administrators placed uncertified teachers — and a conga line of unemployed teachers who came for one-week stints — in classrooms filled with special education students, which is to say those children most in need of expert help.

This violated federal regulations.

Mr. Lirtzman, 56, decided to speak up. As he was not yet tenured, he stepped gingerly.

“I am NOT trying to cause problems,” he wrote in an e-mail to his assistant principal, but, he added, “we’re violating” court-mandated educational plans for students.

Mr. Lirtzman, unwittingly, became sand in the school’s gears.

He had received nothing but satisfactory evaluations. But in December, he said, the principal, Grismaldy Laboy-Wilson, said that she would not recommend him for tenure. The next day, she told him to leave immediately.

Mr. Lirtzman took his allegations to the Office of Special Investigations, an in-house unit at the Department of Education. An investigator asked for proof.

Mr. Lirtzman handed over 20 student programs, all of which showed that administrators placed students in classrooms with uncertified teachers. The investigator informed Mr. Lirtzman that these were confidential documents.

Now I am opening an investigation of you, she told him. It would be enough to bring a smile to the lips of Kafka.

“These are the most vulnerable kids, the ones no one really looks out for,” Mr. Lirtzman said. “This wasn’t a gray legal area. This was black and white, and the Department of Education decided that I was the problem.”

The Department of Education portrays Mr. Lirtzman as disgruntled at his failure to get tenure, and the principal declined to comment on his allegations.

New York City does not shoulder an easy burden trying to care for its tens of thousands of special education students. More than 18,000 teachers are dedicated to special education. Each student is required by law to have an individual educational plan, or I.E.P.

It’s also true that the city, over many administrations, has failed many of these students. Therapy is in too short supply; students — who wrestle with emotional and learning disabilities — are crammed in classrooms that are too large; and administrators sometimes conspire to push out troubled children. Graduation rates for these students are vanishingly low.

As Kim Sweet, executive director of the nonprofit Advocates for Children of New York, said: “We see cases of schools violating I.E.P.’s all the time. Our phones ring off the hook.”

Mr. Lirtzman acquired a crash course in these multiple neglects. And, although he does not phrase it so grandly, he also helped rescue a few of these children.

One such teenager, Derek Chestnut Jr., had more or less thrived in middle school, but ran upon the academic shoals at Gautier, where he was stuck in classes with a changing cast of uncertified teachers. One day, Mr. Lirtzman talked to the student’s father, Derek Chestnut Sr.

“He kept hinting something was wrong, and finally he told me there were rotating aides and teachers,” Mr. Chestnut recalled about their conversation. “The administrators told me otherwise, and I really didn’t appreciate when they tried to pull the wool over my eyes.”

Mr. Chestnut took his case to the upper reaches of the education bureaucracy. Quickly, without the usual resistance, he obtained an unusual legal letter that entitled him to place his son in a private school for special education children, all paid for by the city.

“They admitted off the bat that my son’s I.E.P. was being violated,” he said. “I owe this to one honest man, Mr. Lirtzman. He became an advocate not just for my son, but for all special education students in that school.”

Mr. Lirtzman acknowledges that he burns hot. The Department of Education now says Ms. Laboy-Wilson filed a harassment charge against him after he sent her several particularly heated e-mails. Mr. Lirtzman, who showed me dozens of his e-mails, insists his correspondence included no threat.

He has worked at high levels in city and state government. He was not intent on career suicide.

“I wanted to be a teacher; I wanted to get tenure,” he said. “I wasn’t trying to commit kamikaze so that I would feel good about myself.”

E-mail: powellm@nytimes.com

New York Exonerates Sped Teacher Fired For Reporting Legal Violations

Emails Concerning The Hiring of Cathie Black To The NYC DOE Must Be Released

City loses battle to keep e-mails about hiring of failed schools chancellor Cathie Black secret

By JULIA MARSH, NYPOST

Last Updated:5:58 AM, February 8, 2013

LINK

Cathie Black

  The city was dealt another blow in its attempts to keep secret a series of e-mails surrounding the selection of failed schools chancellor Cathie Black.

The Bloomberg administration was denied its request that the state’s highest court reconsider the ordered release of the information.

Black moved from head of Heart Publishing to head of New York City’s schools for a brief, tumultuous stint before her ouster in April 2011.

Sergio Hernandez, 23, a former reporter for the Village Voice, had tried to get access to e-mails between Black, the mayor and his office, using the state’s Freedom of Information Law in 2010.

Hernandez told The Post he was “gratified” by the most recent decision.

He suspects the e-mails will reveal public-relations strategy over Black’s controversial appointment, given that she had no background in education.

The city said the e-mails were private, and Hernandez turned to the courts for access. Two lower courts ruled in his favor last November.

“We are still reviewing our potential next steps,” a city Law Department spokesman said, adding that releasing a public servant’s e-mails could discourage others from public service.

OSI Investigator Dennis Boyles Needs To Be Investigated.

Many years ago I was asked by two parents to help them with the suspensions of their daughters after both girls were beaten by a school aide who worked in the school office.

Both girls attended Sheepshead Bay HS, and both went to the program office to have their schedules changed. They were talking, and suddenly a man ran out of the office and started hitting one of the girls on her chest. He ripped her shirt, and continued hitting her. The other girl tried to get him to stop and both girls dropped their backpacks on the floor. He realized that the hallway was videotaped, so he grabbed both girls' backbacks and ran with them into the office where there was no video. In the office he continued to hit one of the girls while the security guards entered and tried to stop him. The second girl tried to grab his arm, and he took both of his hands, picked her up and flung her into a nearby desk. He then started walking toward girl2 as if he was going to start hitting her. She
saw a small pink plastic ruler on the desk right above her (she was now on the floor), and she threw it at him. The ruler bounced off of his forehead.

The school aide was ushered out of the office, and both girls were sent to the hospital in an ambulance.

That's when the parents were called and told to meet their daughters in the emergency room, and one of the parents called me when she found out that her daughter was being suspended. I sat with both parents and we obtained a copy of the video. Both parents had taken pictures of their daughters' injuries. Both girls lost their suspension hearings and were suspended for a year.

Stunned, I went to the police department, and was given the file on the man who beat the girls. It was moderately large, with a conviction for vebral harassment by a woman several months earlier. I called the DOE and a person told me that he was the cousin of the Superintendent. I then made an appointment for both girls to speak with an investigator at the Office of Special Investigations (OSI). We met with a short, gray-haired stocky man named Dennis Boyles. "Investigator" Boyles is the same man who created the report on Glenn Storman.

Mr. Boyles met with each girl separately, but I stayed in the room the entire time. After the
first girl was interviewed, Boyles told her to get her friend. She left the room to get her friend. Boyles told me that when his daughter was in trouble when she was 15, it only cost him $5000 to get her 'out of trouble'.

I told him, forget it, I was not going to give him $5000 or $10,000 and I was positive that neither parent would pay him, either. He shrugged his shoulders and said ok. After the second girl's interview we all left. Dennis Boyles found both girls' testimony not credible, and submitted his findings to OSI which said that the school aide had been physically assaulted by these two girls.

Betsy Combier

The Arrogance of Mayor Bloomberg is His Legacy

NYC Mayor Mike Bloomberg

  February 4, 2013

Explaining, or Maybe Not, Failure in Talks With Teachers

By MICHAEL POWELL, NYTIMES

LINK

 

Our mayor being true to himself, Michael R. Bloomberg journeyed to Albany last week to lecture state legislators on his decision to blow up negotiations with our teachers union and so lose $240 million for New York City schools.

In his telling, his was a courageous act of self-destruction.

If only school officials throughout the state were as principled as he, he suggested, they would admit that teachers unions are fundamentally incapable of agreeing to measure their members honestly. And they too would blow up their negotiations and forfeit many hundreds of millions of dollars in state aid.

“Everybody is just interested in getting money and committing what I would call a fraud,” he told legislators.

Assemblywoman Catherine Nolan of Queens is a ferocious advocate for the city’s schools. She leaned forward and squinted at the mayor, as though convinced either that he was daft or that she was deaf. “Maybe I’m losing my hearing a little,” she said. “Don’t you feel some responsibility for this disaster? And it is a disaster.”

The mayor pursed his lips and wagged his head. “Money,” he explained a bit later, “is not the answer to everything.”

As it is relatively rare for a mayor to lose $240 million in one sitting, the past few weeks have been consumed by competing explanations of how Mr. Bloomberg and the union, the United Federation of Teachers, could have allowed that to happen. Listening to their accounts, it’s as though the Education Department and the union sat not in a single negotiating room, but on far sides of the moon from each other. (The Council of School Supervisors and Administrators also saw the mayor dissolve their seemingly successful negotiations in a late-night puff of smoke, although it might be seen as collateral damage in his feud with the teachers.)

In the mayor’s telling, the union — which in truth has crafty and tough negotiators — tossed down one barrier after another, much as a movie villain tosses darts in the path of pursuing police cars. He has drawn huzzahs from the editorial pages of The Daily News and The New York Post, where the perceived duplicity of the teachers union passes for religious conviction.

In particular, the mayor insisted that a deal on an evaluation system must extend for perpetuity. The teachers union, he says, pushed a two-year agreement, in hopes of sabotaging reform.

This narrative, however, falls on harder times as you cast around. John B. King Jr., state education commissioner, who was once a middle school principal and perhaps as a result seems preternaturally calm in dealing with the feuding parties, said that city negotiators had signaled that they had intended to sign off on a short-term plan.

Dr. King also gave city officials a failing grade in homework. They had failed to properly train principals and teachers in the event that a new evaluation system was put in place.

There is also the matter of handshakes. Michael Mulgrew, the union president, has described shaking on a deal with education officials at an early morning hour. Ernest Logan, president of the Council of School Supervisors and Administrators, has described a similar scene in his negotiation.

A little later, in these accounts, Dennis M. Walcott, schools chancellor, called back and said: The boss, which is to say the mayor, says no deal.

Mediation, too, was tried. One of the more experienced mediators in New York talked with the union, and the city’s lawyers and labor commissioner.

This mediator, those on both sides say, saw a proposed path to a settlement, in which teachers rated unsatisfactory could be let go under the expired agreement. The day of the mediation, Bloomberg officials canceled.

The mayor likes to note he gave teachers a generous contract in 2005. He neglects to note that the same union generously declined to endorse his mayoral opponent that year. And his bedside manner is lacking. If you want to persuade tenured, unionized teachers to accept a rigorous new evaluation system, you might frame those efforts in terms of helping teachers to improve. The mayor prefers to oil his guillotine.

THE mayor, finally, makes for a diffident diplomat. His journeys to Albany feature elbow shots at the governor and legislators. Last week, he offered a seminar in how to turn off friends and fail to influence enemies. At one point, State Senator John A. DeFrancisco of Syracuse cast him a wry look. Our districts have negotiated agreements, often with lots of work. Yet you make insulting statements. ...

The mayor shrugged again. “If you take a look, Senator, in this state, the city school kids are doing a lot better than the rest of the state. It’s a big problem.”

No doubt it is, although city schools might get the resulting headache.

E-mail: powellm@nytimes.com

Twitter: @powellnyt

COMMENTS

Canty v Board of Education

CANTY v. BOARD OF EDUCATION, CITY OF NEW YORK 312 F.Supp. 254 (1970) Leslie CANTY, Jr., Plaintiff,v.The BOARD OF EDUCATION, CITY OF NEW YORK, Defendant. No. 70 Civ. 303. United States District Court, S. D. New York. May 4, 1970. Leslie Canty, Jr., pro se. J. Lee Rankin, Corp. Counsel, New York City, for defendant; Charles D. Maurer, Asst. Corp. Counsel, of counsel. OPINION MacMAHON, District Judge. Plaintiff moves for a preliminary injunction under Rule 65, Fed.R.Civ.P., which would direct defendant, the Board of Education of the City of New York, to reinstate him as a teacher in Junior High School 136 and to pay him the entire amount of his salary that has not been paid since his dismissal on October 10, 1969. This action is erroneously brought under the Civil Rights Act of 1968, Title I, Section 2B, a statute concerned with fair housing, riots and civil obedience. In substance, however, the complaint charges a denial of the constitutional right to due process and presumably seeks money damages and a permanent injunction directing defendant to reinstate plaintiff. The action is, therefore, cognizable under 42 U.S.C. § 1983 and jurisdiction is based on 28 U. S.C. § 1343. Plaintiff's present motion for the extraordinary remedy of a preliminary injunction is directed to the sound discretion of the court. The court's exercise of discretion usually turns on four factors: (1) the probability of success on the merits; (2) the immediate and irreparable harm to plaintiff if the preliminary injunction is denied; (3) the injury to defendant if the preliminary injunction is granted; and, if applicable, (4) the affect the decision will have on the public.1 The party seeking the motion for a preliminary injunction has the burden of establishing a likelihood of success on the merits, that is, of raising "questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation."2 The latter three criteria are satisfied if the moving party can demonstrate that the harm inflicted by denying the injunction is immediate and irreparable and outweighs the harm that will be caused by denying the injunction. We turn, now, to consider if plaintiff has made a sufficient showing of a likelihood of ultimate success. Plaintiff's claim in this action is rather narrow. He does not allege that the dismissal procedures or any applicable state statutes or local ordinances per se violate due process. Nor does he allege an irrational classification under the equal protection clause. Rather he limits his claim to the allegation that his dismissal was arbitrary and capricious [ 312 F.Supp. 256 ] and hence violated his right to due process. The terms "arbitrary" and "capricious" embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision.3 Thus, in order for plaintiff to establish a likelihood of success on the merits, he must be able to demonstrate to the extent, at least, of a reasonable probability that the decision to dismiss him was without evidentiary support. The affidavits and exhibits presented by defendant, however, indicate that there was substantial, if not overwhelming, evidentiary support for the Board's dismissal. Plaintiff was a substitute teacher from early September 1969 to October 10, 1969 at Junior High School 136 in Manhattan. He was dismissed on October 10, 1969, and the school principal, in a letter sent to plaintiff dated October 14, 1969, explained the reasons for the dismissal. According to the principal, there were complaints from parents protesting plaintiff's holding children in class after hours and claiming that he physically abused one particular young girl. The principal, himself, on complaints from certain of plaintiff's pupils, attempted to observe plaintiff's class-room conduct on September 17, 1969. Plaintiff was not, however, in the class and was instead found sleeping in the teachers' room. Plaintiff was also absent on October 6 and 7, 1969 without giving any prior notice or subsequent explanation. The crucial event occurred on October 10, 1969 when some of plaintiff's pupils brought to the principal's office a young girl in tears, the same one who previously complained of being physically abused by plaintiff. The young girl now claimed that plaintiff pushed her and consequently injured her. The other youngsters corroborated her claim. The principal then went to plaintiff's classroom, which he found to be in total disorder, and relieved plaintiff of his duties. Plaintiff, after being informed of the specific reasons for his dismissal, initiated grievance proceedings pursuant to the applicable collective bargaining agreement. At the hearing, held on November 7, 1969, plaintiff claimed that he should not have been immediately dismissed because the situation was not an emergency. The principal, in response to a question by a teacher representing plaintiff at the hearing, stated that he considered the situation an emergency because of the complaints of physical abuse and the disorder he personally observed in plaintiff's classroom. The young girl who charged plaintiff with physical abuse testified and the statements of the two pupils who accompanied her to the principal's office were read. The principal, on November 10, 1969, mailed plaintiff a memorandum in which he summarized the evidence presented at the hearing and decided that the claim of "no emergency" was unjustified. The principal also notified plaintiff that he now had a right to appeal to the local Deputy Superintendent. Plaintiff, then, took such an appeal and another hearing was held on November 18, 1969, before Edwin J. Haas, the Acting District Superintendent. Mr. Haas, in a letter dated November 21, 1969, informed plaintiff that he upheld the dismissal particularly because of the [ 312 F.Supp. 257 ] evidence as to plaintiff's "difficulty in maintaining class control." He did not, however, completely agree that an emergency existed and therefore awarded plaintiff ten days' additional salary. The record is unclear as to whether or not plaintiff presently has a right to appeal to the Superintendent of Schools, but for the purpose of this motion, we will assume that he does not and that he has, therefore, exhausted all available administrative remedies. Considering the foregoing reasons defendant presents and particularizes for dismissing plaintiff, it is highly unlikely that plaintiff can prove that his dismissal was so irrational and so lacking in evidentiary support as to be arbitrary and capricious. Plaintiff's rambling and at times rather unintelligible statement, and a fellow teacher's equally confusing letter submitted in support of the motion do not offer a sufficient basis for finding that it is reasonably probable that plaintiff can establish that his dismissal violated constitutionally guaranteed due process. Since plaintiff has failed to meet his burden of establishing a likelihood of success on the merits,4 his motion for a preliminary injunction is properly denied without having to balance the harm inflicted on plaintiff by denying the injunction against the harm inflicted on defendant and on the public by granting the motion. Were we to weigh the potential harm to both sides, however, it is far from clear that the scale would tip in plaintiff's favor. Plaintiff claims a denial of federal constitutional rights and this has often been held to establish automatically immediate and irreparable harm.5 This is offset, however, by the potential harm to defendant and to plaintiff's pupils if we were to reinstate plaintiff pending the outcome of this action. The equitable balance leans even further in defendant's favor when we consider that plaintiff is seeking mandatory relief on this motion, almost identical with the ultimate relief he would obtain if he were to prove his case on the merits, namely, reinstatement and back pay. Finally, plaintiff, if he does eventually succeed in establishing his claim will be reinstated and obtain money damages reflecting his entire loss of earnings, and thus is not irreparably injured, at least in a professional and financial sense, by denial of this motion. The foregoing constitutes the court's findings of fact and conclusions of law, as required by Rule 52(a), Fed.R.Civ.P. Accordingly, plaintiff's motion for a preliminary injunction is denied. So ordered. Footnotes 1. See Unicon Management Corp. v. Koppers Company, 366 F.2d 199, 204-205 (2d Cir. 1966); Hosey v. Club Van Cortlandt, 299 F.Supp. 501, 503 (S.D.N.Y. 1969). Back to Reference 2. Unicon Management Corp. v. Koppers Company, supra; Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). Back to Reference 3. O'Boyle v. Coe, 155 F.Supp. 581, 584 (D.C.Dist.1957); East Tex. Motor Freight Lines v. United States, 96 F.Supp. 424, 427 (N.D.Tex.1951); Ford Motor Co. (Delaware) v. United States, 97 Ct.Cl. 370, 47 F.Supp. 259 (1942). Back to Reference 4. Brass v. Hoberman, 295 F.Supp. 358 (S.D.N.Y.1968). Back to Reference 5. Henry v. Greenville Airport Comm'n, 284 F.2d 631 (4th Cir. 1960); Brass v. Hoberman, supra, 295 F.Supp. at 361.

Glenn Storman Wins Back Pay + Interest In His Complaint Against The False Allegations That Destroyed His Career

edlawfaqs

Is there a remedy for a teacher who obtained a reversal of a U rating to have all back pay restored and references erased from his personnel file?

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman's teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman's unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman's petition because "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.

The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a "clear and unequivocal mandate." See Storman v NYC Dep't of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.

Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that "By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman's personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal."

In the Matter of Glenn Storman, Petitioner, against New York City Department of Education, Respondent. 113652/2008, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 12; 2013 NY Slip Op 50007U, January 3, 2013, Decided

Glenn Storman Wins in Supreme Court 

Storman's Complaint

Judge Kornreich's 2009 decision

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room by Betsy Combier

May 28, 2009

Teacher Resists a Charge of Corporal Punishment

By JAVIER C. HERNANDEZ, NYTIMES

LINK

When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.

But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.

The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?

Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month a judge in Manhattan ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, Acting Supreme Court Justice Shirley Werner Kornreich, “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”

The Department of Education said last week that it was reviewing the decision and declined to comment further.

In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.

Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.

“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.

Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.

The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.

Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.

Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.

An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.

Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.

The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”

Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.

The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.

Justice Kornreich called the Department of Education’s actions “irrational.”

“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.

Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”

“This was a long hard, road,” he said, “and a costly one to me.”

How NYSUT Attorneys Fail: Cohn v New York City Department of Education

Richard Casagrande

 re-posted from Parentadvocates.org
Betsy Combier, Editor

In an effort to overturn a "U" rating for NYC teacher Mitchell Cohn, NYSUT, (New York State United Teachers) Attorneys did not mention the case of Elentuck v Green in the Article 78 petition. The Kings County Supreme Court and 2nd Department Appellate Division ruled that there are no facts in observations, and observations are not binding and nonfinal determinations.

In the case below, NYSUT defended teacher Mitchell Cohn when he asked the court to review the circumstances of his "U" rating.

NYSUT used the appropriate Collective Bargaining Agreement terms and other Union protections in their defense, but they never brought in, as far as I can see, the case Elentuck v Green. This case as ruled on by both the Kings' County Supreme Court and 2nd Department Appellate Division, and both courts substantiated the decision that:

"the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law § 87 (2) (g)). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law § 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law § 87 (2) (g) (see, Matter of McAulay v Board of Educ., 61 A.D.2d 1048, affd48 N.Y.2d 659; Matter of Herald Co. v School Dist., 104 Misc.2d 1041, 1046-1047).
The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law § 87 (2) (g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268)." 

NYSUT and the UFT did argue Elentuck when Mike Mulgrew tried to keep TDR's without names, in the Mulgrew Article 78:

"The UFT's reliance on Matter of Elentuck v Green (202 AD2d 425 [2d Dept 1994]), in which the Court held that it was proper to withhold lesson observation reports, is misplaced. The Court there held that lesson observation reports are not statistical or factual data as they consist solely of advice, criticisms, evaluations and recommendations prepared by the school's assistant principal. In the present case, unlike in Elentuck, the determination by the DOE that the TDRs are statistical data has a rational basis. Unlike lesson observation reports, which are individual opinions of a teacher's lesson, the unredacted TDRs are a compilation of data regarding students' performance."

Therefore, NYSUT's effort to defend Cohn only on procedural errors in violation of various rules held within the CBA, etc., and not going to the substance of the "U" ratings as nonfinal, not factual opinions, the court saw no reason to overturn the "U" and give the Petitioner, here Mitchell Cohn, a win.

I am not an attorney and I dont give legal advice, but this omission of Elentuck v Green in the petition makes no sense. I have not read the Memorandum of Law in this case, maybe it is there. But Judge Schlesinger did not bring up Elentuck in her decision.

Just Asking.

Betsy Combier

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y.
2013 NY Slip Op 00418
Decided on January 29, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on January 29, 2013
Andrias, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.

9078 110409/10
In re Mitchell Cohn, Petitioner-Appellant, —
v
Board of Education of the City School District of the City of New York, et al.,
Respondents-Respondents.

Richard E. Casagrande, New York (Ariana A. Gambella of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered October 27, 2011, which denied the petition seeking, inter alia, to annul the determination of respondents denying petitioner's appeal of an unsatisfactory rating (U-rating) for the 2006-2007 school year and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without
costs.

Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith. The detailed observations in reports prepared by the principal and two assistant principals, describing petitioner's poor performance in class management, engagement of students, and lesson planning,
provided a rational basis for the rating (see Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 (1st Dept 2011); Batyreva v New York City Dept. of Educ., 50 AD3d 283 (1st Dept 2008). While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or anysubstantial right (see Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 AD3d 486 (1st Dept 2011); Matter of Munoz v Vega, 303 AD2d 253, 254 (1st Dept 2003); compare Matter of Kolmel v City of New York, 88 AD3d 527 (1st Dept 2011). To the contrary, the record demonstrates that, after petitioner received a U-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 and, throughout the year, received professional support and had a series of classroom observations by the principal and two assistant principals, each one documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 29, 2013

Ineffective Assistance of Counsel - Wikipedia

LII Ineffective Assistance of Counsel