All Members of the PEP are Violating Open Meetings Law

On tuesday June 23, 2009, I attended the monthly meeting of the New York City Board of Education "school board" commonly known as the Panel For Educational Policy. Every month I marvel at the show of 17 professional, intelligent people scrambling to please our "pretend" Chancellor Joel Klein. All members of the Panel do whatever Joel Klein wants, except Patrick Sullivan, who is the single independent thinker in the group, but who sadly goes along with breaking the law. Last week we in NYC were shocked to hear that the PEP members quickly assembled in a secret session to vote on the $22 billion budget, with approximately 54 minutes of notice to the public. Actually, there is a long list of laws that this sad group of power-wannabees are breaking: Open Meetings Law; Title VII; Civil Rights Act;Voter Rights Act; Whistleblower; Education Law 2590...to name a few. If I were any of these Panel members I would immediately resign, and thus divert possible implication in any summons and complaints that may be coming in the future.

Simply by accepting a position on the Panel, a person enters the realm of "I hope I fool the public". As our revered President Abraham Lincoln said:

“You may fool all the people some of the time, you can even fool some of the people all of the time, but you cannot fool all of the people all the time.”

Let me tell you, dear Panel members, you cant fool New York City public school parents into valuing your words or thoughts. The room last night at Tweed headquarters was, as usual, more than half empty. However, there is something that you are doing that is serious, in terms of public trust and confidence.

The PEP members are all in violation of Open Meetings Law Section 105. None of the members have ever protested the Executive Session held BEFORE the public meeting begins, and they are, therefore, willingly and even more importantly knowingly violating the Section in Open Meetings Law that requires the public meeting to begin, and THEN a vote to be taken on going into an Executive Session. Joel of course told me that my reading of the law is incorrect, but I have the support on this issue of none other than Robert Freeman, Director of the Committee on Open Government, who has many advisory opinions on this issue available on his website.

Mike Best rolled his eyes when I brought this up, so please go to my blog and see how he ripped two pages out of my pad when I was invited to review the Ross Global Charter application at Tweed. Actually, Garth Harries' then boss Mashea Ashton ripped the pages out, then Mike told me he would have to redact a personal address. See the story I wrote about that incident.

The PEP members also violate the Bylaws of the PEP, which in Section 1.5 requires that there be a Secretary, and a person must take notes. (See Section 1.6 too). There are no minutes. I think that Michael Best is extremely embarrassed by this, as he supposedly is the "Secretary", I heard when I reviewed the Bylaws at Tweed in 2005. I filed a freedom of information request two years ago to get the minutes, and the Office of Legal Services central records access person, Christine Kicinski, sent me the agenda for the General Public meeting of the PEP, with an altered Agenda at that!! They re-wrote the agenda to make it look like from 2002-2007 that the Executive Sessions had occurred AFTER the public meeting began. Luckily, in 2007 I downloaded from the NYC BOE website all the meeting agendas with Executive Sessions, and they all have a listing that says the meeting started AFTER the ES.

I contacted someone at Tweed for months, and asked her to have Mr. Best stop the funny business, and simply have him put in writing that there are no minutes to the Executive Sessions or the PEP meetings. I define "minutes" in the classic way - notes on everyone who speaks, what was proposed, etc. About two weeks ago I received the acknowledgment I requested that there are no minutes - from Best.

Even more atrocious, I believe, was the agenda (sent out twice in the last two days) which clearly states that an Executive Session will take place "prior to the 6p.m public start time" for "Matters Pertaining to Employee Discipline: Inquest on Employee Termination."

On my blog, NYC Rubber Room Reporter, I have an article on the "Gotcha Squad" that shows how secret TAC memos are created and then brought to the Executive Session to vote on the termination of a teacher, without the teacher being there. of course. The PEP has been, is, and will be sued for this practice (two such cases: Norgrove v NYC Bd. of Educ. (see below); Hipolito Colon v City of NY, NYC BOE, Liza Caraballo).

It was brought up at the PEP meeting that ARIS was now available to "ALL" parents. (What about parents without computers?). I got home at about 9:30PM to find my notice of ARIS for my daughter in the mail! My question for the NYC is: what about parents without computers and no Parent Coordinator in the school, or no notice from the Parent Coordinator and no information about the new P311 (???) that Mr. Lieberman said last night was being set up?

Award of Attorney's Fees under the Open Meetings Law
LINK

An amendment to §107(1) of the Open Meetings Law recently approved is intended to improve compliance and to ensure that public business is discussed in public as required by that law. Effective August 5, 2008, the new provision states that when it is found by a court that a public body voted in private “in material violation” of the law “or that substantial deliberations occurred in private” that should have occurred in public, the court “shall award costs and reasonable attorney’s fees” to the person or entity that initiated the lawsuit.

The mandatory award of attorney’s fees would apply only when secrecy is the issue. In other instances, those in which the matter involves compliance with other aspects of the Open Meetings Law, such as a failure to fully comply with notice requirements, the sufficiency of a motion for entry into executive session, or the preparation of minutes in a timely manner, the award of attorney’s fees by a court would remain, as it has since 1977, discretionary.

The intent of the amendment is not to encourage litigation. On the contrary, it is intended to enhance compliance and to encourage members of public bodies and those who serve them to be more knowledgeable regarding their duty to abide by the Open Meetings Law.

Thursday, January 29, 2009
Due process requires good faith effort to serve disciplinary charges on employee
Due process requires good faith effort to serve disciplinary charges on employee
Matter of Norgrove v Board of Educ. of City School Dist. of City of N.Y., 2009 NY Slip Op 29034, decided on January 13, 2009, Supreme Court, New York County, Justice Joan A. Madden

Lesleigh B. Norgrove was terminated from his position as a tenured mathematics teacher after he failed to seek a disciplinary hearing.

Norgrove contended that he never received copies of the disciplinary charges nor notice of his right to file an objection and seek a hearing as provided by Section 3020-a of the Education Law because the notices were sent to an incorrect mailing address.

The Board argued that had served the disciplinary charges on Norgrove by hand and, in addition, by both regular and certified mail sent to his address of record, “428 Worthman Avenue, Apt. No.1, Brooklyn, New York, 11207 … because that was the address BOE [Board of Education] had in its HRS [Human Resource System] for the petitioner in May of 2007." The letters sent Certified Mail was returned to the Board as “unclaimed;” the letters sent regular mail were never returned to the Board.

In rebuttal, Norgrove admitted he had received some documents that were hand delivered but pointed out that he had moved in 2003 and the Board of Education did not dispute his claim that its Office of Salary Services listed his new, and correct, address as 22 Covert Street, 3R, Brooklyn, New York and thus had notice of his correct address “as early as October 2006.”

In essence Norgrove argued that since he was not provided with notice as to his right to request a hearing on the charges, the Board of Education's "unilateral determination to terminate [his] employment without the due process hearing as provided for under Education Law §3020-a deprives [him] of property rights in his tenured position without due process of law, and is arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of the rights guaranteed to Petitioner under the due process clause of the New York State Constitution."

Justice Madden agreed, ruling that:

1. Education Law §3020 recognizes that a tenured teacher has a constitutionally protected property interest in his or her right to continued employment which cannot be deprived without due process.”

2. Contrary to the Board of Education's assertion, the First Notice that was personally delivered by hand to Norgrove on May 11, 2007, did not satisfy the substantive requirements of Section 3020-a(2)(a) as it did not include certain essential information such as details of the charges, nor did it advised Norgrove of his right to a hearing and the maximum penalty if he did not request a hearing within 10 days, as required under section 3020-a(2)(a).

3. “Due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

4. In Jones v. Flowers, 547 US 220 the United States Supreme Court held that when the government becomes aware that its attempt at notice has failed, due process requires the government to "take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so."

In this instance, the return of the certified mail marked unclaimed meant the Board “had good reason to suspect when the notice was returned that [Norgrove] was no better off than if the notice had never been sent.”

This triggered an obligation on the Board of Education's part to take additional steps to effect notice, such as redelivering a second notice to Norgrove personally at his place of work. Such an effort would have constituted an additional reasonable and practical step to effect notice, “which was clearly available to the Board of Education, since the Board of Education employed [Norgrove] at all times, had direct first-hand knowledge of his work location, and had previously effectuated service on petitioner by such means.”

As to the Board’s argument that Norgrove was obligated to update his address and that he did not do so until after he was terminated, Justice Madden noted that “the identical argument was raised and rejected in Jones on the grounds that the government cannot be relieved of its constitutional obligation to provide adequate notice" even if the individual was required to provide a current address by statute.

As the Board conceded that its Office of Salary Services lists Lesleigh’s correct address at Covert Street prior to 2007, Justice Madden concluded that the Board of Education's determination to terminate his employment must be annulled for not complying with the requirements of due process, and that Norgrove is entitled to reinstatement with back salary and benefits.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29034.htm
By Public Employment Law Press on Thursday, January 29, 2009

Matter of Norgrove v Board of Educ. of City School Dist. of City of N.Y.
2009 NY Slip Op 29034 [23 Misc 3d 684], January 13, 2009
Madden, J.
Supreme Court, New York County
LINK

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 3, 2009
[*1]
In the Matter of Lesleigh B. Norgrove, Petitioner,
v
Board of Education of the City School District of the City of New York et al., Respondents.

Supreme Court, New York County, January 13, 2009

APPEARANCES OF COUNSEL

James R. Sander, New York City (Kathleen M. Kilduff of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York City, for respondents.

{**23 Misc 3d at 685} OPINION OF THE COURT

Joan A. Madden, J.

In this CPLR article 78 proceeding, petitioner, a tenured mathematics teacher of 28 years, seeks to annul the determination of respondents Board of Education of the City School District of the City of New York and Joel I. Klein (collectively the Board of Education) which terminated his employment; petitioner also seeks retroactive reinstatement with full back salary, including interest, and all benefits. For the reasons delineated below, the petition is granted.

The following facts are not disputed unless otherwise noted. By letters dated December 20 and 21, 2006, the Board of Education advised petitioner that "a serious allegation has been made against you," and "[p]ending the outcome of the investigation . . . you are reassigned" to "Region 8 Human Resources." These letters were hand-delivered to petitioner at work and neither letter has an address for petitioner.

On May 11, 2007, while petitioner was working at the Region 8 Human Resources Center (the reassignment center), he received by hand delivery from the Board of Education a document entitled "Notice of Charges" (first notice), which stated as follows:

"In view of your unprofessional conduct while a teacher at Automotive High School, an Empowerment School located in Brooklyn during 2005-2006 and 2006-2007 school years, the following charges are being preferred:

"1. Just Cause for disciplinary action under Education Law § 3020-a;

"2. Incompetent and inefficient service;

"3. Conduct unbecoming Respondent's position, or conduct prejudicial to the good order, efficiency or discipline of the service;

"4. Substantial cause rendering Respondent unfit to perform his obligations properly to the service;{**23 Misc 3d at 686}

"5. Violation of Chancellor's Regulation A-421;

[*2]

"6. Violation of Chancellor's Regulation A-420;

"7. Insubordination;

"8. Neglect of duty; and

"9. Just cause of termination.

"By this notice you are hereby informed of the nature of the complaint. I will be preferring and filing the above charges. You will be informed of the procedures involved in the Trial of Charges."

The Board of Education submits affidavits of service that the first notice was personally delivered to petitioner at work, and that it was also sent via certified and regular mail addressed to petitioner at "428 Worthman Avenue, Apt. No. 1, Brooklyn, New York, 11207." Petitioner concedes he received the hand-delivered copy, but denies receipt of the certified and regular mailed copies. He explains that he last resided at Worthman Avenue more than five years ago, and since 2003, he had resided at his current address, 22 Covert Street, Apt. 3R, Brooklyn, New York 11207. While petitioner asserts that the Board of Education's Office of Salary Services lists his correct address at 22 Covert Street, the Board of Education asserts that it used the Worthman Avenue address "because that was the address BOE [Board of Education] had in its HRS [human resource system] for the petitioner in May of 2007."

On May 16, 2007, the Board of Education issued a "Notice of Determination of Probable Cause on Charges Brought Against Tenured School District Employee, Section 3020-a Education Law" (second notice) addressed to petitioner at the Worthman Avenue address. The second notice advised that the Board of Education "has found there is probable cause on the attached charges preferred against you," and that "[w]ithin ten days of receipt of these charges, you must elect to request a hearing before an impartial hearing officer, or [you] will waive your right to such a hearing." The second notice also advised that if petitioner did "not request a hearing to contest these charges, the maximum penalty that will be imposed will be termination." The notice included a form for requesting a hearing and detailed 12 separate factual "Specifications," in which petitioner allegedly "rendered incompetent and inefficient service, engaged in verbal abuse and unprofessional conduct."[FN1] [*3]

The Board of Education asserts that it sent the second notice to the Worthman Avenue address by certified and regular mail,{**23 Misc 3d at 687} and that the regular mail copy was not returned and the certified mail copy was returned "unclaimed." Petitioner asserts{**23 Misc 3d at 688} that he never received the second notice since it was not sent to his correct address, and as a result he could not have submitted a timely request for hearing.

On or about August 31, 2007, Michael Best, Esq., general counsel to the Board of Education, sent petitioner a "Notice of Inquest" by certified and regular mail to the Worthman Avenue address. The letter advised as follows:

"On May 16, 2007, you were served with Education law Section 3020-a charges by regular and certified mail. Under the law, you have ten days to request a hearing on the charges or waive your right to a hearing. We have confirmed your failure to request a hearing with the New York State Education Department. Since you have failed to request a hearing in a timely manner, your right to a hearing is deemed waived.

"For informational purposes only, you are hereby advised that the charges preferred against you are now subject to disposition at the next regularly scheduled meeting of the Panel for Education Policy to be held on September 24, 2007 at 6:00 pm at the Tweed Court House, 52 Chambers Street, New York, NY 10007."

[*4]

The Board of Education asserts that the regular mail copy of the notice of inquest was not returned, and that the certified mail copy was returned "unclaimed." Petitioner asserts that he never received the notice of inquest since it was not sent to his correct address.

On October 12, 2007, Chancellor Joel I. Klein, Chairperson of the Panel for Education Policy, wrote to petitioner at the Worthman Avenue address, detailing the events that occurred since the charges were preferred against him on May 16, 2007, specifically the notices sent to him and his failure to respond and request a hearing.[FN2] The letter advised that "[i]n a memorandum dated August 30, 2007, the Office of Legal Services notified the Panel for Educational Policy (hereinafter 'the Panel') that at a trial on these charges, the evidence against you would have consisted of" testimony by specific individuals as to certain conduct. The letter listed the individuals' names, summarized the substance of their testimony, and stated that "[b]ased on{**23 Misc 3d at 689} the representations of the Office of Legal Services, the Panel makes the following findings of fact," which basically adopted the testimony as described. The letter listed the Panel's findings[FN3] and stated that the Panel concluded that "effective immediately, your services with the New York City Department of Education are terminated."

On October 18, 2007, petitioner received by hand delivery at the reassignment center, a letter from the Board of Education which stated in its entirety as follows: "Pursuant to the 3020-a disciplinary proceeding decision you are hereby terminated from your employment with the Department of Education effective October 18, 2007." This letter was hand-delivered to petitioner at work, but was addressed to him at the Worthman Avenue address. Petitioner states that when he received the termination letter, he directly informed his union representative, John Settle, that he had been terminated and that he had never received "formal charges" or "notice of his rights under the Education Law." Petitioner states that his union representative contacted the [*5]Board of Education to request a hearing, and that such request was denied.[FN4] Petitioner subsequently filed a notice of claim on January 18, 2008, and asserts that "approximately thirty (30) days have elapsed since that time and Respondents have refused to adjust such claim."{**23 Misc 3d at 690}

On February 15, 2008, petitioner commenced the instant article 78 proceeding, challenging the termination of his employment. Petitioner contends that the Board of Education failed to comply with the notice requirements of Education Law § 3020 (1), which provides that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020-a]." Particularly, petitioner argues that he was not provided with the statutorily required "Notice of Charges" specifying the charges in detail, the penalty to be imposed and his rights under Education Law § 3020-a. Petitioner asserts that he was provided only with a "Notice of the Nature of the Charges, incorrectly styled as Notice of Charges," that such document bears an incorrect address from over four years prior, and that he did not receive "anything by certified or registered mail with regard to any threatened disciplinary proceedings."

Petitioner contends that since he was not provided with notice as to his right to request a hearing on the charges, the Board of Education's

"unilateral determination to terminate [his] employment without the due process hearing as provided for under Education Law § 3020-a deprives [him] of property rights in his tenured position without due process of law, and is arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of the rights guaranteed to Petitioner under the due process clause of the New York State Constitution."

Petitioner also contends that under Education Law § 3020-a (2) (d), the Board of Education is statutorily obligated to consider whether his failure to timely request a hearing is "excused."

Education Law § 3020 recognizes that a tenured teacher has a constitutionally protected property interest in his or her right to continued employment which cannot be deprived without due process. (See Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625 [1981]; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450 [1979], cert denied 444 US 845 [1979]; Matter of Novillo v Board of Educ. of Madison Cent. School Dist., 17 AD3d 907 [3d Dept 2005], lv denied 5 NY3d 714 [2005]; Matter of Elmore v Plainview-Old Bethpage Cent. School Dist., Bd. of Educ., 273 AD2d 307 [2d Dept 2000].) The procedures for{**23 Misc 3d at 691} disciplining and terminating a tenured teacher are set forth in Education Law § 3020-a. (See Matter of Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722 [2d Dept 2008]; Matter of Chawki v New York City Dept. of Educ., Manhattan High Schools, Dist. 71, 39 AD3d 321 [1st Dept 2007], lv denied 9 NY3d 810 [2007].) Section 3020-a (2) (a) provides that if disciplinary charges are to be preferred,

"[*6]a written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee."

Section 3020-a (2) (c) provides that "[w]ithin ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges." Section 3020-a (2) (d) provides that the "unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing," and "[i]f the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed."

Here, as a tenured teacher, petitioner was entitled to the procedural due process protections afforded under Education Law § 3020-a, as detailed above. Specifically, after the charges were submitted in writing and filed with the Board of Education and the Board of Education determined that probable cause for the charges existed, the Board was required by statute to forward to petitioner immediately, via certified or registered mail, or personal delivery, a written statement specifying the charges in detail and outlining his rights, including his right to a hearing and the maximum penalty if he did not request a hearing within 10 days. (See Education Law § 3020-a [2] [a]; Matter of Pollock v Kiryas Joel Union Free School Dist., supra; Matter of Chawki v New York City Dept. of Educ., Manhattan High Schools, Dist. 71, supra.)

Contrary to the Board of Education's assertion, the first notice that was personally delivered by hand to petitioner on{**23 Misc 3d at 692} May 11, 2007, did not satisfy the substantive requirements of section 3020-a (2) (a). That notice included a brief list of the charges which merely informed petitioner as to the "nature of the complaint," but it neither specified the details of the charges, nor advised petitioner of his right to a hearing and the maximum penalty if he did not request a hearing within 10 days, as required under section 3020-a (2) (a).

The second notice dated May 16, 2007 satisfied the substantive requirements of section 3020-a (2) (a) by providing the details as to 12 separate incidents, and advising petitioner of his right to request a hearing and that the failure to do so in 10 days would result in his waiving that right with a maximum penalty of termination. That notice, however, was mailed to petitioner via certified and regular mail at the Worthman Avenue address, where petitioner claims he has not resided since 2003.[FN5] For that reason, petitioner asserts that he never received the second notice and was denied due process in that he did not receive notice of the charges or [*7]his right to a hearing in compliance with Education Law § 3020-a (2), since the certified mailing of the second notice was sent to an outdated and incorrect address.

The Board of Education responds that it complied with due process in that: (1) the address at Worthman Avenue was the address the Board of Education had for petitioner in its human resource system; (2) petitioner was responsible for updating his address and the Board of Education's records indicate that he did not do so until after he was terminated;[FN6] (3) the certified mailings of the second notice of May 16, 2007 and the August 31, 2007 notice of inquest were returned "unclaimed"; and (4){**23 Misc 3d at 693} those notices were also sent to petitioner via regular mail and were not returned.

Although due process does not require actual notice before the government may extinguish a person's property interest, "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (Jones v Flowers, 547 US 220, 226 [2006], quoting Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]; accord Matter of Harner v County of Tioga, 5 NY3d 136, 140 [2005]; Kennedy v Mossafa, 100 NY2d 1, 9 [2003]; Silverstein v Minkin, 49 NY2d 260, 263 [1980], rearg denied 50 NY2d 929 [1980].) In Jones v Flowers (supra) the United States Supreme Court recently held that when the government becomes aware prior to the taking that its attempt at notice has failed, due process requires the government to "take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." (547 US at 225.)

Jones involved the certified mailing of a notice of tax sale to a property owner that was returned unclaimed. The record indicated that the property owner moved out of the house when he and his wife separated, and seven years later, the Arkansas Commissioner of State Lands sent him a certified letter as to the tax delinquency, at the address of the property; two years after that, another certified letter was sent to him at the same address, advising that his house would be sold if he did not pay his taxes. The certified letters were returned marked "unclaimed," and the Commissioner took no further steps to notify the property owner.

The United States Supreme Court concluded that "[t]he Commissioner's effort to provide notice to [the property owner] of an impending tax sale of his house was insufficient to satisfy due process given the circumstances of this case." (Id. at 239.) The Court found that

"[a]lthough the State may have made a reasonable calculation of how to reach [the property owner], it had [*8]good reason to suspect when the notice was returned that [the property owner] was 'no better off than if the notice had never been sent.' Deciding to take no further action is not what someone 'desirous{**23 Misc 3d at 694} of actually informing' [the property owner] would do; such a person would take further reasonable steps if any were available." (Id. at 230 [citation omitted], quoting Malone v Robinson, 614 A2d 33, 37 [DC Ct App 1992].)

"What steps are reasonable in response to new information depends upon what the new information reveals." (Id. at 234.)

Analyzing the "new information," the Court in Jones reasoned that the return of the certified letters marked "unclaimed" meant either that the property owner still lived at the property but was not at home when the postal carrier called and did not retrieve the letter at the post office, or that the property owner no longer resided at that address. (Id.) Based on that information, the Court determined that several additional reasonable steps at notice were available, including resending the notice by regular mail, posting the notice on the front door or addressing otherwise undeliverable mail to "occupant." (Id. at 234-235.)

Although Jones involves an issue of due process and notice in the context of tax sale of real property, petitioner's protected property interest in his tenured teaching position and his right to due process are no less significant. Applying the holding in Jones, this court concludes that the second notice sent by certified mail was insufficient to satisfy due process, as once that notice was returned marked "unclaimed," the Board of Education became aware that its attempt at notice had failed, and due process required the Board of Education to take additional reasonable steps to notify petitioner.[FN7] Moreover, under the circumstances presented, additional reasonable and practicable steps were plainly available.

The Education Law permits service of the notice by two methods in the alternative, by certified or registered mail, or by{**23 Misc 3d at 695} personal delivery. (Education Law § 3020-a [2] [a].) The Board of Education utilized both methods in serving petitioner with the various notices involved in this proceeding. Specifically, the December 2006 letters initially advising petitioner of his reassignment, and the final letter in October 2007 as to his termination, were hand-delivered to petitioner at work, while all other notices in the interim period between those dates, regarding the charges, petitioner's right to a hearing, and his having waived that right, were sent via certified and regular mail to an outdated address. [*9]

As held in Jones, when the certified mail was returned unclaimed, the Board of Education became aware that the notice was ineffective, which triggered an obligation on the Board of Education's part to take additional steps to effect notice, by redelivering the second notice to petitioner personally at his place of work. Personal delivery at work was the one additional reasonable and practical step to effect notice, which was clearly available to the Board of Education, since the Board of Education employed petitioner at all times, had direct firsthand knowledge of his work location, and had previously effectuated service on petitioner by such means.

The Board of Education's additional regular mailing of the notice does not alter this conclusion, in view of the circumstances presented in this proceeding. Although the Court in Jones found that one additional reasonable step addressed to the possibility that the owner had moved, was to resend the notice by regular mail so that a signature was not required, in Jones the government had no knowledge of the owner's actual whereabouts. In sharp contrast, whereas here the Board of Education employed petitioner and knew exactly where he was working, once the certified mail was returned unclaimed, the one practicable and reasonable follow-up measure calculated to make actual notice likely, was personal delivery to petitioner at work.

The Board of Education argues that petitioner was obligated to update his address and that he did not do so until after he was terminated. The identical argument was raised and rejected in Jones, on the grounds that even if the property owner fails to comply with a statutory obligation to keep his address updated, the government cannot be relieved of its constitutional obligation to provide adequate notice. (547 US at 232.) In any event, the Board of Education does not dispute petitioner's assertion that its Office of Salary Services lists his correct address at Covert Street.{**23 Misc 3d at 696}

Based on the foregoing, this court concludes that the Board of Education's determination to terminate petitioner's employment must be annulled for not complying with the requirements of due process, and petitioner is entitled to reinstatement with back salary and benefits.

Accordingly, it is hereby ordered and adjudged that the petition is granted, and respondents' determination terminating petitioner's employment is annulled, and respondents shall reinstate petitioner forthwith with full salary and benefits retroactive to November 26, 2007.[FN8]

Footnotes

Footnote 1: The details of the specifications are as follows:

"Specification 1: On or about December 13, 2005, Respondent: a) told Student A in words to the effect of leave the class because he didn't like her; b) pointed at Student A through a window and laughed at her.

"Specification 2: On or about March 29, 2006, Respondent failed to call in when he was absent.

"Specification 3: On or about September 5, 2006, Respondent failed to attend his 9th period class after being told to do so by Assistant Principal Dietrich.

"Specification 4: On or about September 7, 2006, Respondent smoked a cigarette on school premises in violation of Chancellor's Regulation C-810.

"Specification 5: On or about September 7, 2006, Respondent told students words to the effect of: a) You are getting me aggravated; b) If you don't want to be here, don't come to school and aggravate me; c) See what happens when you do the wrong thing; d) There's always a method to the madness; e) If I had a better classroom, I might be able to deal with it; f) I cannot work like this either.

"Specification 6: On or about September 8, 2006, Respondent was dismissed from a disciplinary meeting because of behavior indicative of intoxication.

"Specification 7: Throughout the fall of 2006 Respondent: a) mumbled under his breath; b) was jittery and jumpy; c) appeared unfocused during class.

"Specification 8: On or about September 26, 2006, Respondent rendered an unsatisfactory lesson as observed by Assistant principal Eileen Dietrich in that Respondent failed to: a) properly plan and prepare for the lesson; b) circle the room to assess student work and answer questions; c) use a closure activity; d) maintain a level of academic rigor and content appropriate for the students; e) follow through to have all the students work in groups; f) focus on the entire class; g) immediately address a student error; h) teach the whole period; i) engage students in the lesson; j) properly pace the lesson; k) use a proper 'Do Now' activity; 1) properly call on students; m) maintain control of the class; n) pay attention to routine matters.

"Specification 9: On or about October 12, 2006, Respondent failed to appear for a medical examination and failed to contact the office to notify anyone.

"Specification 10: On or about December 12, 2006, Respondent told a student words to the effect of I don't need this disabled mind in my classroom.

"Specification 11: On or about November and/or December, 2006, Respondent ignored directives from a supervisor to: a) tutor students; b) turn in lesson plans; c) attend a meeting with the supervisor as scheduled.

"Specification 12: On or about fall of 2006, Respondent was teaching the wrong math course."

Footnote 2: The Board of Education does not provide an affidavit of service as to this letter, and does not otherwise indicate the manner in which it was sent or delivered to petitioner.

Footnote 3: The Panel found as follows:

"1. Just cause for disciplinary action under Education Law § 3020-a;

"2. Incompetent and inefficient service;

"3. Conduct unbecoming Respondent's position or conduct prejudicial to the good order, efficiency, or discipline of the service;

"4. Substantial cause rendering Respondent unfit to perform properly his obligations to the service;

"5. Violation of Chancellor's Regulation A-421;

"6. Violation of Chancellor's Regulation C-810;

"7. Insubordination;

"8. Neglect of duty; and

"9. Just cause for termination."

Footnote 4: The Board of Education submits an affidavit from Lisa Becker, senior counsel to the Board of Education, stating that she has "no recollection" of a conversation with petitioner's union representative, Mr. Settle, about petitioner's failure to respond to the disciplinary charges and a request for a hearing on his behalf. She also states that even if she had received such a call requesting a hearing on petitioner's behalf, she would have advised Mr. Settle "to make a written application but that it would be denied as petitioner had already been terminated based on his failure to request a hearing in a timely manner."

Footnote 5: Petitioner asserts that "in 2003 he informed principal Silberman and payroll secretary, Pat Wilder, that he was moving and provided the new address to Ms. Wilder." Petitioner further asserts that the Board of Education "had notice of his correct address as early as October 2006," as evidenced by his application for leave of absence for health reasons dated October 12, 2006, and a confidential medical report and evaluation dated November 15, 2006, both of which list his address as 22 Covert Street, 3R, Brooklyn, New York.

Footnote 6: The Board of Education produces a computer printout from its human resource system, indicating petitioner's address as "428 Worthman Avenue," as well as an internal complaint from December 2005 listing petitioner's "home address" as "428 Worthman Avenue." The Board of Education also submits several documents from 2006, addressed to petitioner at "428 Wortman Avenue," including an October 13, 2006 letter regarding his failure to appear for an October 12, 2006 medical examination.

The Board of Education notes that on October 23, 2007, "almost two weeks after his termination," petitioner contacted the Board of Education "to change his address with the BOE system" from 428 Worthman Avenue to 22 Covert Street, and that his address was "updated in the BOE system on November 7, 2007."

Footnote 7: The cases cited by the Board of Education distinguishing between "unclaimed" and "undeliverable" mail, Matter of Harner v County of Tioga (5 NY3d 136 [2005]) and Cadle Co. v Tri-Angle Assoc. (18 AD3d 100 [1st Dept 2005]), appear to be contrary to the Supreme Court's decision in Jones v Flowers (supra). The Board of Education also cites an appellate case decided after Jones, which finds Jones factually distinguishable, Temple Bnai Shalom of Great Neck v Village of Great Neck Estates (32 AD3d 391 [2d Dept 2006] [certified mail notice as to the right to redeem was sent by the private citizen who previously purchased the tax lien; multiple mailings were sent to various potential recipients at their current and correct addresses, and were returned unclaimed only after repeated attempts at delivery; and no suggestion in the record that the potential recipients were not at home or otherwise legitimately unavailable to sign for the mailing], lv denied 8 NY3d 813 [2007], cert denied 552 US —, 128 S Ct 1241 [2008]).

Footnote 8: Petitioner states that while he was terminated as of October 18, 2007, he remained on payroll until November 25, 2007.

Sunday, December 2, 2007
"Negative learning" and statistical malpractice at the Panel on Educational Policy
LINK

At last week’s meeting of the Panel on Education Policy at Tweed, Jim Liebman’s performance in attempting to defend the indefensible – the school grading system that he designed -- was breathtaking in its ignorance.

Liebman, the current DOE accountability “czar,” is a former criminal attorney, currently on leave from the Columbia law school, with no training or experience in education policy, statistics or testing, and yet the entire educational focus of the DOE is now based upon his faulty theories and expensive initiatives, including the $80 million supercomputer called ARIS, assigning letter grades to all schools primarily on the basis of one year’s worth of test scores, devoting millions of more dollars and hours of precious classroom time to interim standardized assessments, and the creation of “data inquiry teams” in all schools – all in the effort to “differentiate instruction” which in the end will be impossible without smaller classes.

At the PEP meeting, in order to justify the school grading system, he fastened on the “F” that PS 35 in Staten Island received, a school in which 98% of its students are on grade level in math, and 86% in ELA. Why did this exemplary school receive an “F”? Because last year, only 35% of its students improved their scores over the year before in reading, and only 23% in math – though research shows that a large part of annual variations in test scores are based on chance alone and are statistically unreliable. (For more on this, see my Daily News oped and a previous posting, Ten reasons to distrust the new accountability system.)

During the discussion, Liebman compared PS 35 to one of its “peer” schools – the Anderson school, a citywide Gifted and Talented school that accepts students on the basis of their high IQ and high test scores. When Patrick Sullivan pointed out the unfairness of comparing PS 35 to a selective school like Anderson, Liebman said it didn’t matter how the kids got there, they should all make the same annual gains. He failed to mention, however, that elementary schools are grouped with other schools according to only the roughest measures of demography –and that no statistician would compare the performance of a school that selects its students on the basis of test scores with a neighborhood school, like PS 35, that has to admit every child in its zone.

There was an abundance of statistical malpractice on display that night -- between Liebman’s presentation and the talk given by the DOE testing “expert”, Jennifer Bell-Elwanger, who tried to convince the panel that the city’s lack of significant progress on the NAEPs since 2003 was indeed real progress. Both of these individuals would have flunked an elementary course in statistics if they had tried to make these arguments in a college exam.

When asked wouldn’t it better to have separate grades for achievement and progress, rather than collapse all these categories into one grade, even if he were convinced that the lack of one year’s progress in test scores was significant (which it isn’t) Liebman replied that the good thing about giving a single grade is that it gets people’s attention (or something like that.) One could say the same about threatening to cut off the hands of someone accused of theft, or even capital punishment, which doesn’t mean it’s a remotely fair practice or even useful.

More recently, in response to questions about class size from parents in Manhattan and Queens, Liebman has insisted that the reason the DOE refuses to reduce class size is that classes would have to shrink to below 15 students to improve instruction and/or student achievement. In other words, lowering class size from 30 to 20 would make absolutely no difference.

Not only is such a statement absurd to anyone who has actually spent any time teaching in the public schools or observing classrooms, it is completely unsupported by research. Instead, it is simply another lame excuse that opponents of reducing class size like to throw up as a smokescreen in order to discourage such efforts.

Here is a comment sent to me from Chuck Achilles, a principal investigator of the famed STAR experiment in Tennessee and a professor of at Eastern Michigan University and at Seton Hall University. Chuck is also one of the premier class size researchers in the world:

“Hi Leonie:

I thought that the “below 15” idea (archaic) had faded. Anyone who says that is uninformed and ought to be asked (challenged) publicly to defend the assertion. It came once from one meta-analysis (Glass & Smith, 1988) that was very limited in its n of observations (77, of which some were for physical skills like hitting a tennis ball against a wall.) Just in STAR, we had more than 1300 observations in the range of 12-28 students. We typically analyzed reading outcomes, but sometimes we did math (giving us 2600 comparisons) and could have used other academic (test) outcomes… I’ve faxed some pages to show the linear effect: About a correlation of -.35 for each student added to a class. Because STAR used the class average as the unit of analysis, this means (approximately) the addition of each student to a class in the n=12-28 range reduces the class average score (about .1 of a month per year.) Later analyses show that it is cumulative.

Chuck A.”

Here is a fact sheet with numerous citations, showing there is no threshold in terms of reducing class size; and that the increase in achievement in relation to the decrease in class size is roughly linear.

Liebman reminds me of a phenomenon called “negative learning” ---in layman’s terms, a little learning is a dangerous thing. One would think that someone who got his reputation by writing about the high error rate in capital punishment would have a little humility and understand the possibility of human fallibility in making absolute judgments, but no such luck.
Posted by Leonie Haimson at 12/02/2007 08:30:00 PM ShareThis
Labels: class size, James Liebman, linear, NAEP, negative learning, nyc school grades, statistical malpractice, threshold effect
2 comments:

NYC Educator said...

It's hard to rely on people whose jobs involve defending the status quo. It's doubly hard when those are the very people who created it.
December 3, 2007 2:19 PM
Anonymous said...

Where do we grade the chancellor and mayor on the continuing horrific overcrowding of high schools in Queens. Whereas the new "smaller" schools don't have open enrollment, the larger, older schools don't have caps and keep taking in students (via safety transfers, new admits into NYC and other transfers --such as from prison and juvenile detention) even though there is no space for them in the school. What difference does it make to the chancellor that these schools are at 200 percent capacity or 300 percent capacity?

I only say this because as a NYC teacher, I just received an additional seven students in the past two weeks...a couple of the students are no shows (I tried to contact parents, but had no luck), a couple of the students are already disruptive (they transferred with their behaviors) and all the students are way behind in my class--and, of course, getting new students constantly throws off the balance and coherence in a class.

None of this is measurable by the report card system. The schools (mine, at least) is trying really hard to assist and educate all of our students, but the overcrowding and constant increase in enrollment is creating chaos. This is chaos that we are not causing but will cause us to get a failing grade.....

Where is accountability from the top?
December 4, 2007 10:49 PM