NYSUT Attorney Claude Hersh: "Trust Us"

Last week, NYSUT Associate Director Claude Hersh is still at it, telling people that whoever opposes the determination of probable cause by a Superintendent or principal  "doesn't know what he/she is doing...Trust us[NYSUT]". Thanks so much, Claude, for continuing to validate what NYSUT, not me, is doing wrong. And, you have never answered my question: what am I doing that I dont know what I am doing?"

Many UFT members who are going or have gone to 3020-a arbitration know that I sat in hearings as a member of the public (when the Respondents asked me to be there, and had an open and public hearing) from about 2004-2011. I took notes on everything said, and educated myself on what the Attorneys did, as well as who the arbitrators were, both as people and as "judges" in this random process. Now I am a paralegal at 3020-a and, with the Attorney also hired, am part of the legal team and thus intricately involved in all aspects of the process.If an innocent person is being charged with anything that is false, this legal team will "play hardball" in a professional, nice, warm and fuzzy way.

Leroy Barr, Judy Gerowitz, Bill Di Blasio

People who now contact me to work on their cases as a paralegal know that one of the biggest issues which the current NYSUT/DOE partnership tries to ignore is the improper determination of probable cause by a Superintendent and/or principal. Everyone who receives charges gets a packet of documents which have been created either by an Attorney at the ATU Gotcha Squad or the TPU Gotcha Squad. The first, ATU, does the frame up for the DOE to find a person who is charged with misconduct of some kind, and the second Gotcha Squad, TPU,  frames people according to the lie that he or she is incompetent. The ATU Gotcha Squad is under the direction of Laura Brantley, and the TPU Gotcha Squad's Director is Naeemah Lamont and her sidekick Dennis Da Costa.

The papers in the charging packet are built upon the TAC memos which are created by these teams to produce "proof" of guilt on the part of the future 3020-s Respondent. Papers are removed and/or stuck inside the personnel file to create what the Gotcha Squad attorneys hope will be a foregone conclusion, that the Respondent is terminated, removed, gone from payroll or, even better, paying a "fine" for something the member didnt do.

Back to NYSUT. Claude and his allies at the 3020-a never bring up the conflict between Education Law Section 3020-a(2)(a), which states that probable cause must be determined by a vote of the school board in Executive Session, and Ed Law Section 2590-j(7) which says that a Superintendent and/or a principal can pass the determination of probable cause around like a football. I dont think so.
Im willing to be shut up, just prove to me, Claude, that 2590-j trumps 3020-a and there is no conflict, (and I'll still insist that the 3020-a process in NYC is a mess, and NYSUT does not help members by not addressing this issue).


3020-a arbitration (Taylor Law) is compulsory and guarantees that tenured teachers may not be disciplined without a hearing unless Respondent intentionally waives his/her rights to such a hearing.
The requirement to arbitrate arises through a statutory mandate, thus the arbitrator's actions are subject to judicial scrutiny under CPLR §7511. Without a proper determination of probable cause the Arbitrator does not have subject matter jurisdiction and cannot rule on the charges nor proceed.

New York City tenured personnel are not carved out of the protections given under §3030-a, although this is a common argument of the Department, who often cites Section 2590-h(19) and (38) as controlling law on the issue of a vote on probable cause as well as on the delegation of the powers of the employing board ("chancellor"). These clauses give powers to Community Education Councils but not a vote on probable cause, for 3020-a hearings, according to their duties and responsibilities on their website:

http://www.learndoe.org/face/files/2012/10/CCEC-ROLES-AND-RESPONSIBILITIES-webinar.pdf

In fact, CECs have "no administrative or executive function". While there is a reference to 3020-a, there in fact is no specific role or responsibility which the CECs have to charge, find, or impact the charges filed under 3020-a after a vote in Executive Session.

Either the state legislature neglected to make certain that the vote on probable cause by a school board was included in the CEC Roles and Responsibilities, or the omission of the board's responsibility under 3020-a(2)(a) was deliberate, and the state legislature did not intend for the CEC members to vote on probable cause in an Executive Session on 3020-a charges. Even if the neglect/omission can be excused, which I argue it cannot be, then there must be proper Notice of the public meeting at which the Executive Session took place, along with questions such as who voted, when, with what information, etc.

In N.Y. CVS. LAW § 200 : NY Code - Section 200: Statement of policy:

"The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government."

Public policy is not, therefore, intended to violate existing laws and confound Plaintiff, Defendants, and policymakers with inconsistencies and denial of protections especially those given by the Taylor Law pursuant to Section 3020-a(1) and (2)(a).  

In fact, in 2008 I was asking these same questions, so Ellie Engler, Leroy Barr, Gary Sprung called me into a meeting at which they told me that attending 3020-a was a "liability"for them and I had to stop. They also told me to take down my blog, even though Randi Weingarten had told me to continue doing my outside advocacy. Randi won. Thanks Randi!!

UFT Co-staff Director Leroy Barr

Below is Ellie Engler's apology (spelling and grammatical errors are hers):

From: Ellie Engler
Sent: Tuesday, October 14, 2008 4:45 PM
To: Betsy Combier
Cc: Randi Weingarten
Subject: RE: schedule Oct.6-10

Dear Betsy,

Please allow me to apologize to you.  I am knew to all of this...I spoke
with Randi at great length and she assured me that you could go to the
hearings if the members requested and that the members were more than
pleased with your advocacy.

I wrote the email to you prematurely and without investigating the issue
fully.  Therefore, I would be happy to meet with you again, but carry on
as they say and thank you for all of your good work.

I am so sorry for the mistake.

ellie

-----Original Message-----
From: Betsy Combier
Sent: Tuesday, October 14, 2008 4:32 PM
To: Ellie Engler; Garry Sprung; LeRoy Barr
Cc: Randi Weingarten; Betsy Combier
Subject: RE: schedule Oct.6-10

Dear Ellie,

I am quite confused. At the meeting to which I was called with you, Gary
and Leroy, the subject of my attendance at hearings was brought up by me
as part of what I thought was my very successful work helping members
who have been re-assigned. I have no recollection at all of any
agreement about anything to do with my going or not to the 3020-a
hearings at 51 Chambers Street. Gary said that he thought it might incur
some kind of liability, but Adam said that he did not think that it did.
I agree that everything must and should be discussed so that we are all
on the same path towards helping every member as much as possible,
however as I know of no agreement, I am somewhat saddened by what seems
to be a confrontation coming, something that I do not feel is warranted,
given that I try at all times to accommodate your requests. I have not
in the past, nor do I intend to in the future, violate "agreements", and
I offer that I am not aware of one - or any mention of one - at this
time.

I just called Angela to set up an appointment to meet once again.

Betsy

-----Original Message-----
From: Ellie Engler
Sent: Friday, October 10, 2008 7:29 PM
To: Betsy Combier; Garry Sprung; LeRoy Barr
Cc: Randi Weingarten
Subject: RE: schedule Oct.6-10

Thank you for the email. I understand all the points you raise in your
email however it contradicts the agreement we reached at our last
meeting. Agreements That you participated in. We have concernS about
your representatioN at the hearings and after our meeting last week I
thought we were all on the same page.

However this email makes it clear that your role at the trc is not one
we all agree upon. Betsy we are all on the same page about advocacy for
our members. The problem is that the roles we each play are not clearly
defined.

I would appreciate it if you could call angela berry to set up another
appointment for us to meet. Have a great weekend. Ellie

Sent from my GoodLink synchronized handheld (www.good.com)

 -----Original Message-----
From:   Betsy Combier
Sent:   Friday, October 10, 2008 05:39 PM Eastern Standard Time
To:     Garry Sprung; Ellie Engler; LeRoy Barr
Cc:     Betsy Combier
Subject:        RE: schedule Oct.6-10

Dear Gary, Ellie, and Leroy,

Several weeks ago I was asked by a member at the 333 7th
Avenue TRC, to attend her 3020a hearing on October 6, 2008, as an
observer. She had requested an open and public hearing prior to asking
me if I could attend. Members in the TRCs know that I provide this
advocacy work to people in need here in New York City, and have attended
open and public 3020a hearings for teachers for many years as an
observer. I attended all the hearings of a teacher in 2005 by the name
of David Pakter, at his request. I was fascinated by the process.

Randi asked me to provide advocacy at the UFT in August, 2007. I was
asked to help members, and have, I believe, done so by listening to all
members and putting members in touch with the borough offices and other
UFT staff who can file a grievance, correct a certificate, or do
whatever is necessary to resolve a problem. All last year I brought to
Leroy's attention pending issues that needed immediate attention for TRC
members. I am not an attorney and do not give legal advice.

I have been asked by members to attend open and public 3020a hearings
(after he/she decides, on his/her own volition, to have observers at the
hearing) and this attendance is very important to the members for
psychological support. I knew, from already attending hearings and
speaking with teachers in the New York City public school system before
August 2007, (three of my four daughters were attending NYC public
schools and one still is in the system in NYC) what many of the concerns
were. A major issue with newly re-assigned teachers is, as you well
know, the emotional trauma that seems to overpower members when removed
from their school, suddenly. I help the member who is feeling despair by
listening to all their concerns, and helping them understand what the
process is, in a very general way. I have, over the past year, gained
the trust of many of the members at all of the TRCs.

The 3020a hearing is frightening to all members, even those who have
been through the experience before. The member who wants an open and
public hearing wants someone there to just be "there" for him/her. I
never speak, never contribute "evidence", never testify, and never add
my opinion or give a judgment about a case. Members ask me to be at
their hearings because they are scared, and gradually realize that
indeed the UFT is "there" for them, throughout the process. There are
many members out there who say that the only way to win a hearing is to
have an open hearing. I do not ever say that. There are never any
guarantees of anything. If asked to attend a hearing, I do because it is
important to the member. There is no liability as I never contribute any
information that could be harmful or disrupt the process in any way.

By the way, perhaps I should add a little bit of my background in this
area. For thirty-three years I have been a TV News producer, reporter,
and journalist; for thirty years I have been an advocate. In 1978 I went
to Egypt to help villagers "talk" with the government and get the
appropriate goods and services needed to not only survive, but create
businesses, obtain an education, and realize their dreams, by setting up
solar-powered video and letting the villagers "speak" through this
media.

I worked on this project while producing news for ABC - TV, NBC, and
CBS, in Egypt, Israel and Jordan. I obtained a grant in 1983 for $84,000
and left Egypt after setting up the solar-powered video as a tool in
assisting the villagers. I wrote my Masters thesis on this topic for New
York University's Interactive Telecommunications Masters Program. This
form of advocacy work combines information forensics, reporting and
assistance in reaching a resolution to a problem for a person in need.

I hope that this addresses your question.

Betsy

-----Original Message-----
From: Garry Sprung
Sent: Saturday, October 04, 2008 3:27 AM
To: Betsy Combier; Ellie Engler; LeRoy Barr
Cc: Adam Ross
Subject: RE: schedule Oct.6-10

Can you explain to us what hearing you are attending and under whose
authorization on Monday at Chambers Street
Thank you

Failing NYC School Principals Are Rarely Fired

• By SUSAN EDELMAN and KATE BRIQUELET, NYPOST
• Posted: 1:19 AM, June 16, 2013

LINK

They dole out discipline to teachers and students, but city school principals rarely get a taste of their own medicine.
In the past three years, just two of 14 principals formally accused of misconduct have been fired — and not a single boss in the city’s 1,600 schools was charged with incompetence, officials told The Post.
The disciplinary deficiency raises questions when 217 elementary and middle schools received grades of F, D or consecutive C’s on the city’s latest report cards, and 31 high schools rated D or F.
“The numbers don’t add up to the Bloomberg administration’s goal to hold everybody accountable,” a veteran teacher said.

ON THE JOB: Darlene Miller (above) of the NYC Museum School is still safe in her position after facing a DWI charge, and Anissa Chalmers (below) of PS 32 is another troubled principal who has not faced disciplinary action.

 

From Betsy Combier: read my articles on these two:

 

Principal From Hell: Darlene Miller, Museum School, DWI

Anissa Chalmers, Gangsta Principal of PS 132, Stars in XXXX Rated Movies

The principals union agrees that the Department of Education fails to adequately monitor principals, who are paid up to $150,000 a year, to either help or weed out poor performers.
“They haven’t been in the schools observing,” said Robert Reich, director of grievances for the Council of Supervisors and Administrators.

The superintendents, stripped of real authority, often “rubber-stamp” decisions from above, he said. “If no one’s ever told a principal that he or she isn’t doing something right, how can you justify removing them?”

Under a new evaluation plan imposed by the state this month, principals will be judged 20 percent on school test scores, 20 percent on city report cards and 60 percent on visits by a superintendent or designee.

Some principals stay in place despite serious problems.

Darlene Miller, chief of the NYC Museum School in Chelsea, was busted in December 2011 on DWI charges in Rockland County, when her speeding Hyundai smashed into the rear of a parked police car. She failed to report the arrest as required.

But the DOE will not discipline Miller until her criminal case is resolved, if at all. She has won delays in the DWI case, which remains open.

Anissa Chalmers of PS 32 in Morrisania, the target of staff and parent complaints, has been under DOE investigation for an undisclosed matter for more than a year. Last June, an 8-year-old pupil slashed a 9-year-old classmate’s neck with a razor at the school. Chalmers is also an actress and starred in a bloody B-flick, “Gang Girl,” as a killer thug, but did not tell the DOE about the content.

“Some administrators worked at schools that weren’t doing so well, but that doesn’t mean they’re not highly effective administrators,” said Deputy Chancellor David Weiner. “It just means they’re in a school that’s struggling.”

In a case of wrongdoing rewarded, Janet Saraceno, then-principal of Lehman HS in The Bronx, improperly changed student grades and gave credits to students who failed classes, a probe concluded. She quit Lehman in August 2011, but the DOE kept her on to advise principals and teachers on curriculum and other matters as an “achievement coach.”

The DOE denies it lets principals slide. “There are many ways we hold principals accountable,” said spokesman David Pena. “Not only are bonuses based on their school’s progress report cards, but tenure decisions are also based on performance. We work with struggling principals, and where the problems persist many of those principals opt to resign.”

Additional reporting by Yoav Gonen
susan.edelman@nypost.com

Think the Job Performance of the NYC DOE Chief Officer Dennis Walcott Stinks?

Too bad.

No one who works at Tweed (or City Hall, we hear) has a contract and no one is evaluated. That's how Bloomberg works, and how public money is spent.

Below is the final response to my FOIL for the evaluations of the leaders of our public school system. There are none.

Betsy Combier

From Parentadvocates.org:

Think the Job Performance of the NYC DOE Chief Officer Dennis Walcott Stinks?
Too bad. No one who works at Tweed (or City Hall, we hear) has a contract and no one is evaluated. That's how Bloomberg works, and how public money is spent. From the desk of Betsy Combier, Editor.
          

Mike Bloomberg

Below is the final response to my FOIL for the evaluations of the leaders of our public school system.

There are none.

Betsy Combier

Betsy Combier and Harvey Elentuck File FOIL Requests For DOE Performance Evaluations

My very good friend Harvey Elentuck, the "Elentuck" of the case "Elentuck v Green" in which the New York State Supreme Court and the Appellate Division both told Harvey that there are no facts in observations and observations are not final (so he could not FOIL observation reports), filed a FOIL request for performance evaluations of the DOE "leadership". Judge Cynthia Kern used "Elentuck" in her decision to grant the DOE release of teacher evaluations, and Bob (Freeman) has issued an opinion about Harvey's case. The UFT used "Elentuck v Green" in the Memorandum of Law filed at the First Department Appellate Division (Attorney Charles Moerdler is on the Attorney Departmental Disciplinary Committee for the 1st Dept. and was the Attorney hired to defend Randi Weingarten and me in the Teachers4Action lawsuit filed in 2008 by former Attorney Edward Fagan....evidently Fagan owes Moerdler more than $340,000 in judgments).

I filed a FOIL request as well, but I put in the following paragraph:

"As you know, I have filed a Notice of Claim against Mr. Joseph Baranello, Chief Records Access Officer of the New York City Department of Education, for consistently delaying my FOIL requests beyond the time available by Law, and I have had my 50-H deposition. Any and all delay in receiving the information I request herein will be pursued pursuant to all relevant laws and statutes. I also posted Baranello's Facebook comments on my blog, and I will consider any and all delay in receiving the information I request in this FOIL request or any other as retaliation and unlawful action by a public employee.

Here is my FOIL request for DOE Performance Evaluations:

From: Betsy Combier
Date: Fri, Mar 2, 2012 at 8:45 AM
Subject: Freedom of Information Request For Records
To: FOIL@schools.nyc.gov, Baranello Joseph , Betsy Combier
Cc: FOIL@mail.nysed.gov, MBloomberg@cityhall.nyc.gov, THernandez5@schools.nyc.gov, RJackson@council.nyc.gov, SpeakerQuinn@council.nyc.gov, MBest@schools.nyc.gov, RGreenf@schools.nyc.gov

Records Access Officer
NYC Department of Education
52 Chambers Street, Room 308
New York, NY 10007
By email: FOIL@schools.nyc.gov

Dear Records Access Officer and/or Mr. Joseph Baranello:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request a copy of the following records or portions thereof:

(1) The final performance evaluations of all of the members of the Chancellor’s leadership team for 2008, 2009, 2010 and 2011, in the NYC Department of Education, including but not limited to every Deputy Chancellor, as well as the performance evaluation of the Chancellor himself.

Robert Freeman, Chair of the NYS Committee on Open Govt., has written that the performance evaluations of all public employees in NY State are available to the public through FOILs, except for police and correction officers and firefighters.
With respect to the Chancellor, he is the equivalent of a "Superintendent of Schools" and is, therefore, required to be evaluated annually by the Panel for Educational Policy, which is the equivalent of a "Board of Education."

Here is the full statement of §100.2(o)(1)(vi.) of the current Regulations of the Commissioner of Education:

Performance review of superintendent. The governing body of each school district shall annually review the performance of the superintendent of schools according to procedures developed by such body in consultation with the superintendent. Such procedures shall be filed in the district office and available for review by any individual no later than September 10th of each year.

These requested records are not exempt from disclosure under FOIL. To the extent that information contained in the requested records is protected please redact such information and provide me with the remaining information. In the event that all or part of this request is denied, please cite each specific applicable FOIL exemption and notify me of appeal procedures available under the law.

(2) records containing the policies and procedures for conducting the performance evaluations of each member of the Chancellor's Leadership Team (including the Chancellor) for each of the years from 2006 to 2012

(3) Names of the individuals who conduct the evaluations, with titles and years of service in the capacity cited.

To the extent that these records are readily available in an electronic format, we request that they be provided in that format. Please provide responsive records as they are identified, rather than waiting to gather all records. I request to be notified of any fees associated with this request of over $100.00.

The Freedom of Information Law requires agencies to respond within five (5) business days of a records request, therefore I expect a timely reply to my request in compliance with the Law, as well as a timely completion of this request with all documents. My email address is: betsy.combier@gmail.com.

As you know, I have filed a Notice of Claim against Mr. Joseph Baranello, Chief Records Access Officer of the New York City Department of Education, for consistently delaying my FOIL requests beyond the time available by Law, and I have had my 50-H deposition. Any and all delay in receiving the information I request herein will be pursued pursuant to all relevant laws and statutes. I also posted Mr. Baranello's Facebook comments on my blog, and I will consider any and all delay in receiving the information I request in this FOIL request or any other as retaliation and unlawful action by a public employee.

Relevant decisions:

Gould v. NYC Police Department (89 NY2d 267):
Blecher v. NYC Board of Education (NYLJ, 10/25/79).

The Leadership Team to which I refer and the members for whom I request records are:

Leadership Team
Chancellor
Dennis M. Walcott

Senior Advisor to the Chancellor
Courtenaye Jackson-Chase

Chief Operating Officer
Veronica Conforme

Chief Information Officer
Kemi Akinsanya-Rose

Division of Finance
Michael Tragale, Chief Financial Officer

Division of Academics, Performance, and Support
Shael Polakow-Suransky, Chief Academic Officer and Senior Deputy Chancellor
Division of Equity and Access
Dr. Dorita P. Gibson, Deputy Chancellor
Division of Portfolio Planning
Marc Sternberg, Deputy Chancellor

Division of Operations
Kathleen Grimm, Deputy Chancellor

Division of Talent, Labor and Innovation
David A. Weiner, Deputy Chancellor

Division for Students with Disabilities and English Language Learners
Laura Rodriguez, Deputy Chancellor

General Counsel and Legal Services
Michael Best, General Counsel to the Chancellor

Public Affairs
Lenny Speiller, Executive Director

Division of Family and Community Engagement
Jesse Mojica, Executive, Director
Strategic Partnerships
Elizabeth Larson, Managing Director

Thank you for your prompt reply.

Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice

CC:
Hon. Mayor Michael R. Bloomberg -- MBloomberg@cityhall.nyc.gov
Hon. PEP Chair Tino Hernandez -- THernandez5@schools.nyc.gov
Hon. City Council Member Robert Jackson -- RJackson@council.nyc.gov
Hon. City Council Speaker Christine C. Quinn -- SpeakerQuinn@council.nyc.gov
Michael Best, Esq. -- MBest@schools.nyc.gov
Robin S. Greenfield, Esq. –- RGreenf@schools.nyc.gov

Below is the FOIL I filed to obtain the evaluation of the performance of Joel Klein in 2007:

Sent: Sat 2/17/2007 11:42 PM
To: Holtzman Susan
Cc: Best Michael (Legal Services); MCardozo@law.nyc.gov; Longoria Carragher Arlene; betsy@parentadvocates.org; RFreeman@dos.state.ny.us; JFriedla@law.nyc.gov; AbGolden@law.nyc.gov; Greenfield Robin; CJobinDavis@dos.state.ny.us; Kicinski Christine J; Klein Joel I.; LKoerner@law.nyc.gov; Nathan Judy; Richardson Jacqueline;
Subject: Press FOIL Request from The E-Accountability Foundation
The E-Accountability Foundation

Betsy Combier, President and Campaign Sponsor


VIA E-MAIL

February 17, 2007

Ms. Susan W. Holtzman
Central Records Access Officer
Office of Legal Services
New York City Department of Education
52 Chambers Street
New York, NY 10007

SHoltzm@schools.nyc.gov

Dear Ms. Holtzman:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request to receive E-mailed copies of the following records, or inspect, copy, and receive letters, documents, or any written form with data pertaining to:

1) all written annual professional performance reviews of Chancellor Joel I. Klein that were generated by the Panel for Educational Policy (or any subcommittee thereof) in order to comply with §100.2(o)(2)(v) of the Regulations of the Commissioner of Education

2) all formal written procedures for evaluating the Chancellor developed by the Panel for Educational Policy (or the former Board of Education) in consultation with any Chancellor, and which formal written procedures are likely located in the Chancellor's Office, Office of the Secretary of the Panel for Educational Policy (Michael Best), Office of Legal Services, or offices of the individual members of the Panel for Educational Policy

I have quoted the aforementioned regulation below for your convenience:

"Performance review of superintendent. The governing body of each school district shall annually review the performance of the superintendent of schools according to procedures developed by such body in consultation with the superintendent. Such procedures shall be filed in the district office and available for review by any individual no later than September 10th of each year."

If the requested records cannot be E-mailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

If my request is too broad or does not reasonably describe the records, please contact me so that I may clarify my request. When appropriate, please inform me of the manner in which the records are filed, retrieved, or generated.

If any record has been redacted or denied, please identify which categories of information have been redacted or denied, and cite the relevant statutory exemption(s).

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, business address, and E-mail address of the person or body to whom an appeal should be directed.
Sincerely,
Betsy Combier
CC:

VIA E-MAIL

Mr. Michael Best
MBest2@schools.nyc.gov

Mr. Michael A. Cardozo
MCardozo@law.nyc.gov

Ms. Arlene Longoria Carragher
ALongor@schools.nyc.gov

The E-Accountability Foundation
betsy@parentadvocates.org

Mr. Robert J. Freeman
RFreeman@dos.state.ny.us

Mr. Jeffrey D. Friedlander
JFriedla@law.nyc.gov

Ms. Abigail Goldenberg
AbGolden@law.nyc.gov

Ms. Robin S. Greenfield
RGreenf@schools.nyc.gov

Ms. Camille S. Jobin-Davis
CJobinDavis@dos.state.ny.us

Ms. Christine J. Kicinski
CKicins@schools.nyc.gov

Chancellor Joel I. Klein
JKlein@schools.nyc.gov

Mr. Leonard Koerner
LKoerner@law.nyc.gov

Ms. Judy Nathan
JNathan@schools.nyc.gov

Ms. Jacqueline Richardson
JRichardson@schools.nyc.gov

The answer from the NYC DOE was: "there is no evaluation done of Chancellor Klein. He works at the pleasure of Mayor Mike Bloomberg."

This is why we have no say on anything that occurs in our city schools.
Betsy Combier

Once Again: The Emails Between Charter School Magnate Eva Moskowitz and Joel Klein Must Be Made Public

As we all know, the Freedom of Information Law, or FOIL, is available to members of the public and is a great way for all of us to see "behind the curtain" of the New York City Department of Education.

Over the past 10 years I have, with my dear friend Harvey Elentuck of Elentuck v Green, FOIL's hundreds of times, and I will be placing all of my recent requests on this blog. For now, let's re-read Robert Freeman's reply to Mr. Juan Gonzalez on the request to obtain the emails between Eva Moskowitz and Joel Klein.

FOIL-AO-17887

                                                                                                November 10, 2009

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

            As you are aware, I have received a copy of your letter of appeal addressed to Michael Best, General Counsel to the New York City Department of Education, concerning the denial by the Department’s records access officer of a request made pursuant to the Freedom of Information Law by Daily News writer, Juan Gonzalez.  In the letter you indicated that, through its receipt by this office, you are seeking an advisory opinion concerning the propriety of the Department’s response.

            In his request, Mr. Gonzalez sought the following:

“• copies of any correspondence, including email and blackberry messages, between Eva Moskowitz, CEO of both Harlem Success Academy and Success Charter Network, and Schools Chancellor Joel Klein, that specifically relate to requests from Moskowitz for DOE approval of or assistance to Harlem Success in expanding the number of students and/or schools operated by her organizations, and in promoting and marketing her schools to the general public, any an all written requests and/or proposals made by Moskowitz between January 1, 2006 and July 1, 2009 for additional physical space in public school buildings for her charter program.

• copies of any correspondence on the same subject matters, including email and blackberry messages, between Moskowitz and Michael Duffy, executive director of the office of charter schools, for the period of January 1, 2006 to July 1, 2009.

• copies of any correspondence on the same subject matters, including email and blackberry messages, between Moskowitz and John White, chief operating officer of Portfolio Development, for the period of January 1, 2006 to July 1, 2009.”

            The records access officer, Mr. Joseph A. Baranello, denied the request in its entirety, offering several grounds for denial appearing in §87(2) of the Freedom of Information Law.  He referred first to §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.”  In that regard, he cited the Family Educational Rights and Privacy Act, 20 USC §1232g (“FERPA”) concerning records identifiable to students and §§4503 and 3101 of the CPLR, which deal respectively with the attorney-client privilege and attorney work product.  Next, reference was made to §§87(2)(b) and 89(2), both of which permit an agency to deny access insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  And third, he cited §87(2)(g) concerning inter-agency and intra-agency materials.

            In consideration of the grounds for denial referenced by Mr. Baranello and my understanding of the nature of the records at issue, I offer the following comments.

            First, and significantly in consideration of the absence of any disclosure by the Department in response to the request, and as you know, the Freedom of Information Law is based upon a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].

            Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law.  In that case, the New York City Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), one of the exceptions cited in response to your columnist’s request.  The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports.  We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275).  The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).  If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox  Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

            In the context of the request, the Department engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate.  I am not suggesting that the records sought must be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.  As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

            Second, I agree that those portions of the records sought that include information that is personally identifiable to a student must be redacted to comply with FERPA. I do not believe, however, that the provisions of the CPLR cited in the response are applicable or, therefore, that they may properly be asserted.

            In brief, FERPA applies to all educational agencies or institutions in the United States that participate in federal funding or loan programs.  It generally provides parents of minor students rights of access to education records, a term broadly defined in federal regulations, 34 CFR §99.3, to parents of the students.  Concurrently, it generally prohibits disclosure of personally identifiable information pertaining to a student to the public, unless a parent consents to disclosure.  If portions of the records at issue include information that is personally identifiable to a student, those portions must, in my view, be withheld.  As emphasized earlier, only those portions of the records subject to FERPA may be redacted; the remainder must be disclosed, or conversely, may be withheld, in accordance with the provisions of the Freedom of Information Law. 

            As you are aware, §4503 of the CPLR is a codification of the attorney-client privilege, and §3101 creates an exemption from discovery regarding the work product of an attorney.  Section 3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..."  It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be.  In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents"  were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)].  It does not appear that the records at issue relate to litigation or that the intent of §3101(c) is pertinent in the context of your request.

            In another decision in which the ability to withhold records based on the assertion of the attorney-client privilege or that records reflect the work product of an attorney was discussed, it was found that:

"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983).  The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277).  The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].

            In a discussion of the parameters of the attorney-client relationship and the conditions precedent to its initiation, it has been held that:

"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399 NYS 2d 539, 540 (1977)].

            In short, based on the foregoing and in consideration of the nature of the content of the records at issue, I do not believe that they could be characterized as attorney work product.  Further, since it serves as a barrier to disclosure, it is emphasized that the courts have narrowly construed the exemption concerning attorney work product.  It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)].  Assuming that the records sought do not reflect the specialized skill that can be offered only by an attorney, I do not believe that they can be withheld based on a contention that they consist of attorney work product.  Similarly, based on their content, I do not believe that the records fall within the scope of the attorney-client privilege.  Ms. Moskowitz is not an officer of employee of the Department.  She is not the client of the Department’s attorneys, and to the best of my knowledge, the Department officials with whom she communicated are not attorneys or were not functioning as attorneys.  For the foregoing reasons, the records sought, in my opinion, would not be subject to the exemptions from disclosure conferred by §§3101 or 4503 of the CPLR.

            Next, with respect to the assertion of §§87(2)(b) and 89(2)(b) of the Freedom of the Freedom of Information Law concerning unwarranted invasions of personal privacy, I point out that several judicial decisions, both New York state and federal, pertain to records about individuals in those capacities and indicate that the records are not of a “personal nature.”  For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989).  In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons".  The court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence.  In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

            In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested.  Although the Department provided statistics relating to surgeons, it withheld their identities.  In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed.  The court agreed and cited the opinion rendered by this office.

            Like the New York Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy.  Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."  In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'.  Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973).  Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature.  Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4.  Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].

            In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that:  "The privacy exemption does not apply to information regarding professional or business activities.." (supra, 429).  Similarly in a case involving disclosure of the identities of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant.  The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'.  'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such as unethical behavior.  While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

            In short, in my opinion and as indicated in the decisions cited above, the exception concerning privacy does not apply to records identifying or pertaining to entities or individuals in relation to their business or professional capacities.  It does not appear, therefore, that either §87(2)(b) or §89(2)(b) may validly be asserted as a means of denying access to the records requested by Mr.Gonzalez.

            Lastly, the response referred to §87(2)(g), which may, depending on their content, permit an agency to withhold “inter-agency” or “intra-agency” materials.  It is my understanding that Ms. Moskowitz is the CEO of a corporation, the Success Charter Network, that operates a charter school in New York City. That entity, in my view, is not an agency, and if that is so, §87(2)(g) does not serve as a basis for denying access.

            Section 86(3) of the Freedom of Information Law defines the term “agency” to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Based on the definition of “agency”, “inter-agency” materials consist of communications between or among entities of state and local government in New York; “intra-agency” consist of communications within an agency, such as transmissions between the Chancellor and employees of the Department.  Because the communications at issue involved those between or among Ms. Moskowitz, the CEO of a corporation, which is not an agency, and officials at the Department, they could not, in my opinion, be characterized as either inter-agency or intra-agency materials.  If that is so, §87(2)(g) does not apply as a ground for denial.

            Even when that provision is applicable, it does not authorize a blanket denial of access.  Specifically, §87(2)(g) states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

            It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

            I note that in a case that reached the Court of Appeals, one of the contentions was that certain reports could be withheld because they were not final and because they related to incidents for which no final determination had been made.  The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]).  However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions.  Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].

            The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i).  In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)” (id., 276-277).

            In sum, with the exception of portions of the records sought that may be withheld pursuant to FERPA and, therefore, §87(2)(a), it appears that the records must be disclosed, for none of the remaining grounds for denial of access may justifiably be asserted.

            In an effort to enhance understanding of and compliance with the Freedom of Information Law, and to obviate the need for costly litigation, copies of this opinion will be sent to Department officials.

            I hope that I have been of assistance.

                                                                                                Sincerely,

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Michael Best
Joseph A. Baranello
Juan Gonzalez