No Facts In Observations Means No Tenure Rights In NYC 3020-a in Incompetency Cases

There are no facts in observations, say the New York State Supreme Court and the New York State Supreme Court Appellate Division, Second Department (Elentuck v Green):

Citation Number available at www.versuslaw.com

decided: March 7, 1994. IN THE MATTER OF HARVEY M. ELENTUCK, APPELLANT, v. RICHARD R. GREEN, ETC., ET AL., RESPONDENTS. Harvey M. Elentuck, Jamaica, N.Y., appellant pro se. Paul A. Crotty, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Carita R. Zimmerman of counsel), for respondents. Guy James Mangano, P.j., VINCENT Pizzuto, Myriam J. Altman, Gabriel M. Krausman, JJ. DECISION & ORDER In a proceeding pursuant to CPLR article 78 to compel the respondents to give the petitioner access to certain documents, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated February 11, 1992, as, upon reargument, adhered to its original determination in an order and judgment (one paper) of the same court dated November 16, 1989, which granted the petition only to the extent of permitting the petitioner access only to certain hearing panel reports prepared pursuant to Education Law 3020-a. Ordered that the order is affirmed insofar as appealed from, with costs. The petitioner, who is a teacher, sought disclosure, pursuant to the Freedom of Information Law (see, Public Officers Law, art 6), of various documents related to the termination of his employment, including, inter alia, "all Chancellor's Committee reports, Education Law � 3020-a reports, and 'unsatisfactory' lesson observation reports in the possession of Community School District/Board 24". We find that the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law � 87[2][g]). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law � 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law � 87(2)(g) (see, Matter of McAulay v Board of Educ. of City of N.Y., 61 A.D.2d 1048, 403 N.Y.S.2d 116, affd 49 N.Y.2d 659; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc. 2d 1041, 1046-1047, 430 N.Y.S.2d 460). The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law � 87(2)(g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268, 520 N.Y.S.2d 599). We have reviewed the petitioner's remaining contentions and find them to be without merit. MANGANO, P.J., PIZZUTO, ALTMAN and KRAUSMAN, JJ., concur. 19940307

Therefore, if end-of-year ratings of teachers are based solely on observations, and this is what is brought to 3020-a for a single arbitrator to rule on and for this single arbitrator to terminate an "incompetent" teacher, then teachers are being declared incompetent without any facts to base this decision on.

Furthermore, if teachers are being terminated based upon the observations of principals who have an ax to grind about the expensive tenured positions they have to pay for rather than getting two teachers who are half the salary, then there is no more tenure.

We know why the Mayor and the CEO of the public school system are not saying anything about how they ended tenure rights almost 10 years ago, but why did the UFT and NYSUT allow this?

Just askin'

Betsy Combier

Go to the links below to comment on the bills on teacher evaluations:

http://open.nysenate.gov/legislation/bill/A9822-2011

http://open.nysenate.gov/legislation/bill/A9814B-2011

http://open.nysenate.gov/legislation/bill/S6798A-2011

Go to the following websites often, to see what your future holds:

http://www.nysenate.gov/

http://www.nysenate.gov/open

http://assembly.state.ny.us/

From the New York State Committee on Open Government:

 February 2, 2000

FOIL-AO-11936

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

I have received your letter of December 28 in which you sought an advisory opinion
in your capacity as attorney for the Ellenville Central School District concerning a request
made under the Freedom of Information Law. Your question is: "Are the ratings of
‘satisfactory' or ‘unsatisfactory' given to teachers for classroom evaluations to be considered
‘final ratings', which have to be made available under FOIL, or are they opinions or perhaps
‘interim ratings' which do not have to be made available under FOIL." You added that the
evaluations and ratings at issue are not "annual reviews".

In this regard, from my perspective, the question may be answered based on the
function of the ratings. The "annual reviews" to which you referred are not fully described. 
However, it appears that the outcome of those reviews would represent the District's final
determination concerning an employee's performance. If that is so, and if the ratings
prepared based on classroom evaluations represent a preliminary element used later in
reaching a final determination concerning performance, I do not believe that there would be
an obligation to disclose.

As you are aware, 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 (i) of the Law.

Pertinent to an analysis of rights of access is §87(2)(g), which permits an agency to
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 point out that the Appellate Division, Second Department, has determined that
records apparently analogous to those requested may be withheld, stating that:

"The lesson observation reports consist solely of advice,
criticisms, evaluations, and recommendations prepared by the
school assistant principal regarding lesson preparation and
classroom performance. As such, these reports fall squarely
within the protection of Public Officers Law § 87(2)(g)"
[Elentuck v. Green, 202 AD2d 425, 608 NYS2d 701, 702
(1994)].

If the contents, nature or function of the records at issue are different or
distinguishable from the records considered in Elentuck, the result, in terms of the ability to
deny access, may also be different. If, however, they are indeed analogous to those found to
be deniable, I believe that the records may be withheld.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm