Winning Your 3020-a: Due Process and Rules of Evidence

The Chapters below are copied from the New York State Hearing Officer's Manual. If you are a person who is charged under 3020-a or is supposedly going into an alternative dispute resolution hearing or arbitration, then you need to understand the Rules of the Game and how different these Rules are when compared with employment or labor law in a civil or criminal court.

I first became interested in the NYC Rubber Room in 2003, when a friend suggested that I attend an open and public 3020-a hearing for a New York City teacher who was a friend of his. I did attend the entire 6+ months of this 3020-a, and I have continued, when asked, to volunteer my time to attend as an observer/general public, ever since. After seven years I still dont know what to call the New York City version of the 3020-a, as there seem to be random and arbitrary decisions as well as sabotage of rights within each hearing, depending on the arbitrator assigned. No case is similar to any other, even if the specifications are the same. Each case is unique, with a specific mixture of personalities, facts, circumstances and evidence.

I've been taking notes on the arbitrators and the Attorneys, as a support for future reference to this process I call the NYC Rubber Room....the "Rubber Room" is, in my opinion, not a room at all, but a process of making claims about/charging misconduct by employees and/or staff members in order to manage human capital within a location. Everyone is affected by the outcomes, and not just the people who attend the hearings.

more later...

Betsy Combier

Chapter 3: Due Process of Law
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Introduction

Both the United States and New York Constitutions guarantee that no person shall be deprived of "life, liberty or property, without due process of law." The concept of due process imposes a fundamental obligation upon all organs of government, including state agencies. At its base, due process means that no person can be subject to an individualized proceeding in which he or she stands to lose one of the protected interests – in the context of administrative law, either property or liberty – without sufficient procedures to ensure that the governmental action is fundamentally fair.

Of course, these are not self-defining terms. The notions of what is an individualized proceeding, what are protected liberty and property interests, and what constitutes acceptably fair procedures have all been the subject of elaborate judicial interpretation. Because of their great importance in agency adjudication, they are covered in detail here.

Individualized Proceedings

Procedural due process becomes a governmental obligation only in cases in which the government makes an individualized determination towards a small number of persons or entities. Across-the-board, generalized policy decisions do not implicate a right to procedural due process, though such actions may implicate other rights.

Two early United States Supreme Court cases illustrate this distinction nicely. In Londoner v. Denver, [210 US 373 (1908)], the plaintiff was a Denver property owner. A statute allowed the creation of special assessment districts for street repairs, with the total cost of the work to be divided among the property owners, presumably in relation to the benefit to them. Londoner, complaining that his assessment did not accurately reflect the benefit to his parcel, sought a hearing before Denver City Council, but was rebuffed. The United States Supreme Court held that Londoner had been deprived of his due process rights.

In Bi-Metallic Investment Co. v. State Board of Equalization, [239 US 441 (1915)], another Denver property owner–the Bi-Metallic Co.–challenged an order of the State Board of Equalization effectively increasing the valuation of all Denver property by forty percent. The Bi-Metallic Co. requested a hearing and, like Londoner, was rebuffed. This time, however, the United States Supreme Court held that no hearing was constitutionally required.

Both cases involved Denver landowners complaining that their real property taxes or assessments were too high, yet only Londoner had a constitutional right to a hearing. Why? The Supreme Court's answer to this riddle was that only Londoner was the target of an individualized governmental decision; only Londoner could have offered up particularized facts relative to his situation. The Bi-Metallic Co. was understandably unhappy, but its position was no different from any other Denver landowner. A hearing involving Bi-Metallic would have brought forth nothing other than generalized grievances shared by a huge number of other persons and entities.

The protection, then, for persons and entities like the Bi-Metallic Co. is the political process. Unpopular, across-the-board decisions are likely to have negative political consequences. But offering an individual hearing to everyone so affected would bring governmental action to a standstill.

Often these individualized determinations are referred to as "quasi-judicial" to contrast them with "quasi-legislative", across-the-board determinations. Quasi-judicial proceedings involve the determination of adjudicative facts, while quasi-legislative proceedings involve the determination of legislative facts and matters of broad policy. Professor K.C. Davis, undoubtedly the most famous writer on administrative law, explained the distinction as follows:

[Adjudicative facts] are intrinsically the kind of facts that ordinarily ought not be determined without giving the parties a chance to know and to meet any evidence that may be unfavorable to them, that is, without providing the parties an opportunity for trial. The reason is that the parties know more about the facts concerning themselves and their activities than anyone else is likely to know, and the parties are therefore in an especially good position to rebut or explain evidence that bears upon adjudicative facts. Because the parties may often have little or nothing to contribute to the development of legislative facts, the method of trial often is not required for the determination of disputed issues about legislative facts. 2 K.C. Davis, Administrative Law Treatise 412-13 (2d ed. 1979).

This distinction closely tracks the division between Articles 2 and 3 of SAPA. [See, Chapter 1, supra, for a discussion]. Article 2 is the portion of SAPA that relates to rulemaking proceedings; Article 3 is the portion that relates to adjudicatory proceedings. Adjudicatory proceedings, which involve specific named parties and a particular determination of their rights, are individualized determinations for due process purposes. Rulemakings, on the other hand, usually involve the setting of a standard applicable to a large number of persons or entities, and therefore such proceedings are almost always generalized, non-individualized proceedings that do not trigger a procedural due process inquiry. The one exception is that very narrow, targeted rulemakings which directly affect only a small group – as can occur in ratemakings and similar proceedings – can be treated as individualized proceedings that trigger a procedural due process inquiry. [See, ICC v. Louisville & Nashville RR. Co., 227 US 88 (1913)(applying due process principles to a ratemaking proceeding)].

Property Interests

Due process does not protect individuals from all conceivable negative governmental actions. Rather, it protects against deprivations of life, liberty and property. In the administrative context the two important protected interests are property and liberty.

"Property" in the due process sense has both a traditional and non-traditional usage. In the traditional sense property encompasses well-defined categories of wealth such as money, tangible personal property, real estate and so on. Thus, for example, if an agency is bringing an enforcement proceeding seeking a monetary penalty, the private party indisputably has a property interest at stake which implicates due process principles.

It is the non-traditional sense of the word "property" that calls for closer examination. A large number of persons have or seek relationships with the government that are valuable to them. For example, government employees, holders of government licenses, applicants for and current recipients of social welfare benefits all suffer from a loss of their relationship with the government. The critical question is whether the loss of such a relationship constitutes a deprivation of a property interest for due process purposes.

Once again, two United States Supreme Court cases illustrate the point. In Board of Regents v. Roth, [408 US 564 (1972)], the plaintiff Roth was an untenured professor at a public university in Wisconsin. Without explanation, Roth's contract was not renewed for the following year. Roth sued, claiming that the failure to provide him with a hearing before deciding to cease his employment constituted a due process violation. The Supreme Court ruled that Roth had no property interest. While most untenured professors were renewed, Roth could point to no state law entitlement to continued employment because he was expressly made a year-to-year employee. In the course of rejecting Roth's arguments, the Supreme Court offered the following definition of property:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].

The same day as Roth, the Supreme Court decided Perry v. Sindermann. [408 US 593 (1972)]. Perry, like Roth, involved a claim brought by a public university professor who had lost his employment. The Perry plaintiff, like Roth, was not the beneficiary of any formal tenure system. In Perry, however, the Court held that the professor might have a property interest. Unlike Roth, the Perry plaintiff had produced university handbooks and other official publications that arguably created an entitlement to continued employment during satisfactory performance.

Roth and Perry show that the question of whether the private party has a property interest can turn on very narrow factual distinctions. Property interests can come from a large number of sources, including statutes, regulations, agency handbooks and memoranda, and other official pronouncements. If those official statements create enforceable standards that guide the agency's discretion, then the private party has a property interest that can trigger due process rights. Because this can be a close and difficult question, ALJs and other agency employees are safest when they assume that due process principles do, in fact, apply to the proceeding before them. By treating a proceeding as one in which due process principles apply, the agency can help diminish the risk that a reviewing court will later overturn the outcome.

Liberty Interests

Liberty interests, like property interests, can be divided into two types. One kind is fundamental liberty interests. Fundamental liberty interests are those that are sufficiently well-recognized that they are protected regardless of how they are defined by state law. Free speech, voting, privacy and other interests that are protected explicitly or implicitly by the Constitution thus trigger a hearing requirement. Fundamental liberty interests also include significant losses of "liberty" as that term is commonly understood. Thus, for instance, a person in the general citizenry could not be committed to a mental hospital against his or her will without some sort of hearing to determine whether he or she meets the standards for commitment.

The other type is non-fundamental – or, as they are sometimes called, "state-created" – liberty interests. These liberty interests take their definition from state law. In this regard, non-fundamental liberty interests closely resemble property interests. In order for a person to successfully assert that he has a non-fundamental liberty interest, he or she must be able to point to some statute, regulation, contract or other source of law that creates an entitlement. Non-fundamental liberty interests differ from property interests only in that liberty interests lack a clear monetary value, while property interests have a clear monetary value.

One context in which claims of liberty interests are often raised is prison. Inmates – pointing to prison regulations, handbooks and the like – regularly argue that a loss of a privilege is a liberty deprivation that triggers a due process right to a hearing. In Sandin v. Conner, [515 US 472 (1995)], however, the United States Supreme Court ruled that an inmate can successfully raise such a due process claim only if he or she can show that the loss of the privilege is an "atypical and significant hardship." In the Sandin case, the Supreme Court held that an inmate's transfer to disciplinary segregation was not such a hardship and that the inmate had not been deprived of due process when the prison transferred him without first conducting a hearing.

Another special context in which liberty interests are raised in administrative matters is reputational injuries. The United States Supreme Court has held that a person does not have a liberty interest in his or her reputation as such. But, an injury to reputation plus some other significant negative consequence is a loss of liberty that triggers due process. Often, this is referred to as the "stigma plus" test: if some governmental action causes a person stigma plus some other negative consequence, that person has suffered a deprivation of liberty.

For example, in Miller v. DeBuono, [90 NY2d 783 (1997)], a nurse's aide was accused of hitting one of her patients. Under state law, her name was to be placed on a registry maintained by a state agency for the purpose of identifying abusers. The New York Court of Appeals held that the aide had a liberty interest at stake. Placement of her name in the registry called into question her reputation plus it had the effect of severely limiting her employment opportunities, as the registry was publicly-available. Because she had a liberty interest at stake, her due process rights were triggered, and the court ruled that she should have received extensive procedural protections before being placed on the registry.

As with property interests, the question of whether a party has a liberty interest can turn on very narrow factual inquiries. In close cases it is probably best to assume that the private party has a liberty interest and thus that due process principles apply.

Required Procedures

Assuming there is individualized, governmental action at which a private party has a property or liberty interest at stake, the private party's right to "due process of law" is triggered. Of course, this is not a mechanical test, and contemporary notions of the amount of procedure required have evolved over time.

The most famous administrative due process case is the United States Supreme Court's opinion in Goldberg v. Kelly. [397 US 254 (1970)]. In that case, the Supreme Court ruled that the then-existing procedures for determining eligibility under the Aid to Families with Dependent Children program were inadequate, because those procedures gave the recipient an insufficient opportunity to contest the reasons for being removed from the eligible list. In ruling that the then-existing procedures were inadequate, the Court held that the following procedures generally must be provided before the property or liberty interest is lost: timely and adequate notice of the hearing, confrontation and cross-examination of adverse witnesses, the right to make an oral presentation, the right to hire one's own counsel, an impartial decisionmaker, and a decision based entirely on the relevant legal rules and the evidence adduced at the hearing.

More recently, however, the Supreme Court has articulated a more flexible test. In Mathews v. Eldridge, [424 US 319 (1976)], the Supreme Court ruled that the required procedures must be evaluated by balancing three factors. Those factors are the value of the property or liberty interest, the cost to the government in providing more procedure, and the risk of an erroneous decision without more procedure. The more valuable the interest the more procedure is required; the more costly the additional procedure, the less likely it is to be constitutionally required; the greater the chance of an error without additional procedures, the more likely such procedures will be constitutionally required. In Mathews, the Supreme Court demonstrated that the requirement of a full hearing before the decision is itself flexible. In that case, the Court ruled that an oral hearing before deciding to deny disability benefits to the private party was not necessary, because the question of his disability was mostly a medical question that could be evaluated from x-rays and similar medical tests, making an oral hearing less crucial.

The Goldberg list of procedures is similar to the procedures required for adjudicatory proceedings under Article 3 of SAPA. [See, Chapter 1 for a discussion of "adjudicatory proceedings"]. Thus, if the matter is an adjudicatory proceeding under SAPA, careful compliance with SAPA and the agency's hearing regulations should avoid almost all due process problems. For administrative matters that are not adjudicatory proceedings, or otherwise not covered by SAPA, the Goldberg list is a good starting point for determining the procedures that the Constitution demands. Mathews, however, gives agencies and ALJs considerable flexibility in molding procedures to fit the circumstances, as long as the matter is decided in a fundamentally fair and impartial manner. For smaller matters, very informal hearings can suffice. For administrative matters in which much of the evidence is documentary or technical, written submissions can substitute for what otherwise might be lengthy oral hearings. As long as the procedures give all parties concerned a reasonable opportunity to present their case, and the decision is made in a reasoned, fair and impartial manner based upon what the decisionmaker learns at the hearing, due process is generally satisfied.

Specific Procedures

Some due process questions have recurred with enough frequency that they merit specific mention.

Notice

Notice to an affected party must provide that party with enough information to respond. Thus, very cryptic notices that provide only a vague sense of the nature of the matter are not sufficient. [See, e.g., Alvarado v. State of New York, 110 AD2d 583 (1st Dept.1985)(notice stating only that hearing would involve "charges that the gloves [of a boxer] were tampered with" is insufficient)]. An administrative notice, however, need not provide detailed information such as specific times and dates of allegedly important events. [See, e.g., Block v. Ambach, 73 NY2d 323 (1988)(administrative notice need not have same level of detail as a criminal indictment)].

Right to Counsel

SAPA § 501 generally requires that a private party be allowed to hire an attorney to represent him or her in agency proceedings. In most circumstances due process also provides a right to counsel. There are some circumstances, however, in which the party might not be afforded a right to counsel. For example, in student disciplinary matters, where providing counsel may be inconsistent with maintaining a non-adversarial approach, the private party need not be afforded a right to counsel. [See, e.g., Mary M. v. Clark, 100 AD2d 41 (3rd Dept. 1984)]. Such cases are the exception. In most circumstances counsel must be allowed, though it is the private party's obligation to pay his own lawyer.

Pre-Hearing Disclosure or Discovery

Parties often contend that due process requires pre-hearing disclosure or discovery. New York courts have routinely rejected this argument. [See, e.g., Sinha v. Ambach, 91 AD2d 703 (3rd Dept. 1982)]. SAPA § 305 allows agencies to adopt rules allowing for discovery, but unless the agency adopts such a rule, or some other statute requires pre-hearing discovery, parties have no such right. [See, McBarnette v. Sobol, 83 NY2d 333 (1994)(statute requires some disclosure); SAPA § 401 (some mandatory exchange of information on request in licensing matters); Heim v. Regan, 90 AD2d 656 (3rd Dept. 1982)(no discovery right in administrative matters unless agency hearing regulations provide for discovery)].

Cross-Examination

Cross-examination of adverse witnesses who appear is generally a due process right. [See, Hecht v. Monaghan, 307 NY 461 (1954)]. However, the right does not extend to repetitive or entirely collateral examinations of witnesses. [See, National Basketball Ass'n v. New York State Div. of Human Rights, 68 NY2d 644 (1986)]. Thus, an ALJ may cut off cross-examination that serves no truth-seeking function, but may not cut off cross-examination where doing so prejudices the rights of a party. In close cases, it is best to allow a party requesting cross-examination lest the denial become a significant issue on judicial review.

Official Notice

Parties generally have a due process right to have their matter decided on the evidence adduced at the administrative proceeding. If an ALJ intends to go outside the administrative record – as is permissible to take official notice of facts well known to the ALJ or within the agency's special expertise – the private party has a due process right to notice of this intention. Thus, failure to provide a private party with advance warning of an intention to go outside the record, and failure to provide an opportunity to rebut, is a due process violation. [See, e.g., Cohen v. Ambach, 112 AD2d 497 (3rd Dept. 1984)(failure to inform pharmacist that agency would take official notice of standards for advertising in the "public interest" requires reversal of penalty)].

Burden of Proof

The burden of proof is generally placed on the party initiating the proceeding. In the case of enforcement actions against a private party, the burden is on the agency; in matters in which the private party seeks a benefit, the burden is on the private party. SAPA § 306 requires agencies to apply a burden of proof of at least substantial evidence. The Court of Appeals has ruled in Miller v. DeBuono, [90 NY2d 783 (1997)], that a private party who stands to lose a substantial liberty interest has a due process right to a standard of proof no lower than preponderance of the evidence. Therefore, ALJs should initially place the burden of proof on the party initiating the proceeding. The party initiating the proceeding should prevail if the facts adduced at the hearing show that the initiating party's position is the more plausible one based upon the evidence.

Neutral Decisionmaker

Parties have a due process right to a neutral decisionmaker. Thus, an agency official or ALJ who has previously publicly expressed opinions relative to a matter before the agency cannot act as a decisionmaker on that matter. [See, 1616 Second Avenue Restaurant, Inc. v. New York State Liquor Auth.,75 NY2d 158 (1990)(statements in a legislative hearing by agency head require reversal of sanction against license holder)]. Agency officials who have personally participated in the development of a case against a party, or who have a significant personal stake in the outcome, are also generally prohibited from sitting in judgment on those matters. [See, General Motors Corp. v. Rosa, 82 NY2d 183 (1993)(former general counsel promoted to agency head could not review case prosecuted by her and an assistant)]. Substantial, off-the-record conversations by an ALJ or agency official about factual issues in a matter before the agency also preclude that ALJ or agency official from acting as a decisionmaker on that matter. [See, Signet Construction Corp. v. Goldin, 99 AD2d 431 (1st Dept. 1984)].

Delay

Delay between the time of the underlying incident and the date of the administrative hearing is generally not a violation of a party's due process rights. An agency does, however, have the duty to hold an administrative hearing reasonably promptly after the matter has been noticed. [See, Cortland Nursing Home v. Axelrod, 66 NY2d 169 (3rd Dept. 1985)]. A very lengthy delay, which is not attributable to the private party's own actions, can be a due process violation if it manifestly prejudices the private party's ability to present his case. [See, Sharma v. Sobol, 188 AD2d 833 (1992)].

Statement of Decision

A private party who loses before the agency has a due process right to a decision that explains the reasons for the decision. Thus, an ALJ's or agency's opinion must contain enough information to show the reasoning process for the result reached, and to allow a reviewing court to understand the basis for the decision. In very simple cases less explanation is required; in more complex ones a more detailed explanation is necessary. An agency opinion need not be the equivalent of a formal judicial opinion, but it does need to contain enough explanation to show how the result was reached from the evidence presented in the case. [See, Koelbl v. Whalen, 63 AD2d 408 (3rd Dept. 1978)]. Parties also have a right to an opinion that is consistent with past agency decisions, or explains the reasons for departing from precedent. An opinion that is inexplicably contrary to other agency decisions reached on similar facts is a due process violation. [See, Charles A. Field Delivery Service v. Roberts, 66 NY2d 516 (1985)].

Appendix A: Evidence
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Part One: Application of The Rules of Evidence in Adjudicatory Proceedings

Observance of Rules of Evidence Not Required

A hallmark of administrative law is that compliance with the technical rules of evidence applicable in civil and criminal actions is not required in adjudicatory proceedings. SAPA §306(1), which governs the evidentiary standards for adjudicatory proceedings, provides that "agencies need not observe the rules of evidence observed by the courts, but shall give effect to the rules of privilege recognized by law." While SAPA §306(1) also authorizes an agency to adopt a rule providing for the application of the rules of evidence in an agency adjudication proceeding, no agency has promulgated a rule to such effect. Additionally, the courts have not required as an essential element of a fair adjudicatory proceeding that an ALJ is bound by the rules of evidence.

The refusal to mandate compliance with the rules of evidence, other than preserving the recognized common law, statutory and constitutional privileges, takes into account the major differences between judicial and administrative adjudication. In that regard, the rules of evidence have as a goal to ensure that a jury verdict is based on logic and rationality. Thus, there are many evidentiary rules, with numerous exceptions, that prohibit the admissibility of certain offered evidence because it is believed that individual jurors are unable to evaluate such evidence properly, perhaps by giving it too much weight or by using it for punitive purposes. Furthermore, such rules are difficult to understand in every detail and difficult to apply; experienced judges will often disagree as to whether offered evidence is admissible.

On the other hand, the ALJ has the knowledge and ability to assess properly offered evidence and does not need the protection that the rules of evidence are designed to provide for jurors. The application of the technical rules of evidence and the necessary, and surely frequent, determination of questions regarding their application would be "inconsistent with the objectives of dispatch, elasticity, and simplicity which the administrative process is designed to promote." [Administrative Procedure in Government Agencies: Report of the Attorney General's Committee on Administrative Procedure (Washington, DC 1941)]. Thus, it has long been regarded as appropriate not to insist on adherence to the rules of evidence in adjudicator proceedings.

Accordingly, the AL does not, and should not, conduct a hearing through a rigid application of the technical rules of evidence. Rather, the AL may allow evidence to be admitted even though such evidence would be inadmissible at a civil or criminal trial. Thus, hearsay, single level or double level, may be received by the administrative law judge. [See, e.g., A.J. & Taylor Restaurant, Inc. v. State Liquor Authority, 214 AD2d 727, 625 NYS2d 623 (2nd Dep't 1995) (statement from person absent from hearing regarding the purchase of alcohol by minors, although hearsay, is admissible); Matter of Ribya "BB", 243 AD2d 1013, 663 NYS2d 417 (3rd Dep't 1997) (statement from person absent from hearing regarding what someone else told her about the minor's treatment, although double-level hearsay, is admissible)]. Similarly, written reports may be received. [See, e.g., Gray v. Adduci, 73 NY2d 741, 536 NYS2d 40 (1988) (arresting officer's written report concerning person's conduct, although hearsay, is admissible); Andersen v. Department of Motor Vehicles, 227 AD2d 617, 643 NYS2d 598 (2nd Dep't 1996) (report of officer's safety inspection, although hearsay, is admissible)]. Additionally, statistical evidence may be received, [See, e.g., Enrico v. Bane, 213 AD2d 784, 623 NYS2d 25 (3rd Dep't 1995); Sunset Taxi Co. v. Blum, 73 AD2d 691, 423 NYS2d 231 (2nd Dep't 1979)], as well as copies of documents, or documents that have been altered, [See, e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220 AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) ("best evidence" rule does not bar admissibility of a copy of document); Swick v. New York State and Local Employees' Retirement System, 213 AD2d 934, 623 NYS2d 960 (3rd Dep't 1995) (altered document may still be admissible)], even though such evidence might not be admissible at a trial.

When the ALJ receives evidence, even though the receipt of such evidence would be barred in a court of law, the important and practical question for the ALJ to determine is what weight, if any, should be given to it. The weight of evidence on a disputed issue is on that side of the issue on which the evidence is more probative. In determining how much weight to give to evidence, a common sense approach must be used.

Discretion to Admit or Exclude Offered Evidence

Although the ALJ is free to receive any offered oral or non-testimonial evidence, unless barred by an applicable privilege, it does not necessarily follow that the ALJ should receive any and all offered evidence. To admit any and all evidence that may be offered, however remote from the issues to be determined and however unreliable or untrustworthy, means not only delay but also results in intolerably long and confused records. Additionally, erroneous determinations could be reached as a result.

Consequently, SAPA §301 provides for, and the courts authorize, the exercise of discretion by an ALJ as to whether or not offered evidence should be admitted. [See, Sowa v. Looney, 23 NY2d 329, 333, 296 NYS2d 760, 764 (1968)]. If the offered evidence is irrelevant or cumulative or is without any demonstrable reliability, it may be excluded. [SAPA §306(1); Sowa v. Looney, 23 NY2d at 333-334, 296 NYS2d at 764-765, supra.].

For instance, an ALJ may exclude offered evidence on the ground that it is irrelevant, [See, e.g., Flynn v. Coombe, 239 AD2d 725, 657 NYS2d 494 (3rd Dep't 1997)(testimony of proposed witnesses was properly excluded as they had no personal knowledge of the incident in issue, rendering their testimony irrelevant); Amato v. Department of Health, 229 AD2d 752, 645 NYS2d 600 (3rd Dep't 1996) (in OPMC proceedings to revoke physician's license for negligent and incompetent treatment of five obstetrical patients, testimony of other patients regarding their treatment by physician properly excluded as irrelevant); Goomar v. Ambach, 136 AD2d 774, 523 NYS2d 238 (3rd Dep't 1988) (exclusion of grand jury no bill against physician on ground of irrelevancy proper as such evidence did not prove/disprove physician's alleged conduct)], or cumulative. [See, e.g., McKinley v. Stinson, 237 AD2d 815, 655 NYS2d 669 (3rd Dep't 1997) (in view of fact that 4 witnesses testified on behalf of petitioner, exclusion of additional witnesses who would testify similarly was properly excluded as cumulative); Gonzalez v. Department of Health, 232 AD2d 886, 648 NYS2d 827(3rd Dep't 1996) (exclusion of exhibits was proper as their subject matter was fully addressed by expert witnesses)]. Similarly, irrelevant or repetitious cross-examination can be excluded. [See, e.g., Gonzalez v. Department of Health, supra; Amato v. Department of Health, supra]. The ALJ may also exclude offered evidence on the ground that it is hearsay. [See, e.g., Achatz v. New York State and Local Police and Fire Retirement System, 239 AD2d 857, 657 NYS2d 521 (3rd Dep't 1997) (medical progress reports of petitioner's nontestifying treating physician properly excluded as hearsay as counsel for respondent would have been denied opportunity to cross-examine physician regarding key findings therein); Gross v. DeBuono, 223 AD2d 789, 636 NYS2d 147 (3rd Dep't 1996) (ALJ did not err in precluding petitioner physician's expert from testifying as to petitioner's description of his examination of patients, as petitioner elected not to testify and he was simply trying to introduce his own self-serving statements through another witness)].

The ALJ must exercise intelligent judgment as to whether offered evidence should be excluded because it is either irrelevant or unreliable. As in determining how much weight, if any, should be accorded to admitted evidence, a common sense approach must be used in assessing relevancy and reliability. However, where the ALJ has some doubt as to the evidence's relevancy or reliability, the evidence should be received and appropriate weight given to it in arriving at a decision. When in doubt, it is better to have a complete record, rather than a possibly incomplete one.

Certain Evidentiary Rules Are to Be Given Effect

Privileges

SAPA §306(1) specifically provides that the privileges recognized in law are to be given effect in adjudicatory proceedings. Thus, New York State law privileges whether created under statutory enactment or the common law, as well as constitutional privileges, whether federal or state, are to be applied by the ALJ. A fuller discussion of the privileges is provided infra.

Official Notice

The practice in New York in adjudicatory proceedings has traditionally been to permit agencies to take judicial notice of everything of which courts could take judicial notice and to take official notice of matters within the specialized expertise of the involved agency. [See, Borchers and Markell, New York State Administrative Procedure and Practice (2d ed) §3.9]. SAPA §306(4) codifies this dual practice for adjudicatory proceedings, provided that notice and opportunity to respond when a matter within its specialized expertise is officially noticed, and calls it "official notice."

The concept of judicial notice, as developed by the courts, allows only clearly indisputable facts to be the subject of judicial notice. Examples are such facts as are so generally known or of such common notoriety that they cannot be reasonably the subject of dispute, and specific facts and propositions of widely known and generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.

Additionally, taking judicial notice of records found in standard almanacs, official government weather reports, the contents of standard dictionaries, the wording of statutes and constitutions are classic instances where official notice can be taken. Thus, matters of fact used as historical events; the course and laws of nature; mortality tables; intoxicating nature of beverages; geographical facts; census statistics; meterological data on a certain day; official weather reports; existence of departments and political subdivisions of government; public officers, past and present; and meaning of words, phrases and abbreviations can be judicially noticed. Matters of law, such as statutes of state; acts of congress; regulations; court procedures; authority of public officers; laws of other states; and laws of foreign countries, if a party requests it and furnishes the court with sufficient information to enable it to comply with the request, can be judicially noticed. [See, CPLR § 4511].

As to matters that are within the specialized knowledge of the agency, the case law gives a broad freedom to which matters can be noticed, so long as the requisite notice is given. [See, e.g., Cohen v. Ambach, 112 AD2d 497,490 NYS2d 908 (3rd Dep't 1985)]. Thus, official notice can be taken of earlier agency proceedings [See, e.g., Bracken v. Axelrod, 93 AD2d 913, 461 NYS2d 922 (3rd Dep't 1983)], and matters that would otherwise be the subject of expert testimony. [See, e.g., Cohen v. Ambach, supra].

When an ALJ intends to take official notice of a matter pursuant to SAPA §306(1), it is the ALJ's duty to state on the record the matters of which he/she intends to take official notice and to afford parties the opportunity to argue, comment upon, controvert or distinguish the propriety of taking such notice or to limit the extent and contents of the matter to be noticed. They may not succeed but they have the right to know everything that is being considered.

The taking of official notice by an ALJ is discretionary. As the taking official notice at the request of an agency may work an unfair advantage to an adverse party, especially where the parties are not represented, it should be exercised with caution.

Specific Statute

In specific instances, the Legislature may provide that certain evidence shall or shall not be received in adjudicatory proceedings. [See, e.g., N.Y. Publ. Health L. §10(2) (written reports of investigators concerning alleged violations and investigations "shall be received" in all "courts and places")]. Where such statutes are applicable to an adjudicatory proceeding, they must be given effect.

Unlawfully Obtained Evidence

Issues of admissibility also arise when evidence that is offered has been obtained in violation of a statute or an exclusionary rule based on a violation of a constitutional provision. For example, CPLR §4506 prohibits the use of evidence obtained through the use of an illegal wire tap at an adjudicatory proceeding as well as a civil or criminal action. [See, LaPenta v. State Liq. Auth., 24 NY2d 647, 659-661, 301 NYS2d 584,591-593 (1969)]. With respect to evidence seized in violation of a constitutional provision, e.g., illegal search or seizure in violation of the Fourth Amendment, such evidence is inadmissible at an adjudicatory proceeding if the person who committed the violation was an employee of the agency conducting the proceedings, or a police officer acting as an agent of the agency. [See, Finn's Liq. Shop v. State Liq. Auth., 24 NY2d 647, 658-659, 301 NY2d 584, 589-592 (1969) (employee); Malik v. State Liq. Auth., 24 NY2d 647, 661-663, 301 NYS2d 584, 593-596 (1969) (police officer)].

Where the evidence was obtained unlawfully by police officers, but they were not at the time the evidence was seized agents of the agency conducting the proceeding, a "deterrence analysis" is employed to determine the evidence's admissibility at the proceeding. [See, Boyd v. Constantine, 81 NY2d 189, 597 NYS2d 605 (1993)]. This analysis considers whether the police officers could have foreseen when they engaged in the conduct constituting the violation that the person involved would be subject to an adjudicatory proceeding as a result. If they could not have foreseen such result, the evidence is admissible, and if they could, it is inadmissible. [Id.].

The ALJ and the Rules of Evidence

From the above discussions it can be seen that the ALJ is neither obligated to apply the rules of evidence nor obligated to ignore them, except for privileges. As a practical matter, the admission or exclusion of offered evidence is committed to the sound discretion of the ALJ. So long as the ALJ admits only relevant or reliable evidence, and excludes irrelevant or unreliable evidence regardless of the evidence's admissibility under the rules of evidence, the ALJ will assure a fair, as well as an expeditious hearing.

While the practice in adjudicatory proceedings is not to require the rules of evidence to be followed, knowledge of the rules of evidence and their underlying policies, and an understanding of how they would apply to offered evidence is important. Such knowledge and understanding will be most helpful to the ALJ in determining not only whether the offered evidence has relevance or demonstrable reliability, but also how much weight, if any, should be given to evidence when it is received. Thus, knowledge that offered evidence would be excluded or admissible by application of the rules of evidence and why such a result occurs would certainly be a great aid in making rulings or deciding cases.

What follows in Part Two is a rather truncated discussion of the basic evidentiary rules. It is intended as an introduction and guide to the rules which the ALJ will most frequently encounter at adjudicatory proceedings, and hopefully will assist the ALJ in making his/her rulings on evidentiary matters.

Part Two: Application of the Rules of Evidence in Adjudicatory Proceedings

Definitions

Generally

Evidence is the legal term which covers all of the information and facts adduced in a case, be it testimony of witnesses, or documents or other objects identified by witnesses, or otherwise admissible and presented to the court to prove or disapprove the facts in issue. Evidence is the medium of proof.

Proof is the effect or result of evidence in convincing the mind or the trier of the facts. It is the conclusion arrived at by a consideration of the evidence.

Facts and Circumstances. A fact is what a witness has seen, heard, smelled, felt or tasted. Circumstances are collections of facts.

Inferences may be drawn from facts and circumstances. Inferences are reasonable deductions or conclusions flowing logically from facts which have been proved.

Opinions are statements a witness makes and believes what occurred or did not occur. They may be based on two or more separate facts.

A presumption is a rule of law requiring that if one (the "basic") fact or set of facts is established, the trier of fact must find that another (the "presumed") fact also exists unless the trier of fact is persuaded that the latter does not exist. The standard of persuasion is generally a preponderance of evidence, unless a higher burden is required by law.

Testimony is the oral part of evidence consisting of the statements of witnesses made under oath.

Non-testimonial evidence is evidence which is not testimonial in nature and is admitted into evidence as exhibits. It includes:

Documentary Evidence consists of writings, instruments, records and documents of all kinds, including computerized records.

Real Evidence is evidence of which the trier of the facts acquires knowledge by personal observation and inspection of a thing or object to which the testimony refers. It may be a physical object, inspection of premises or exhibition of parts of the body.

Demonstrative Evidence is evidence which illustrates for the trier of fact testimony or non-testimonial evidence that is presented to the trier of fact, and helpsthe trier of fact understand such other evidence. It includes photographs, maps, sketches, diagrams, motion pictures, videotapes, x-rays, computer generated animations and experiments.

Kinds of Evidence

Direct Evidence is proof of the facts in issue, communicated to the trier of the facts by witnesses, having actual knowledge of them by means of their senses. It is that evidence which, without interference or evidence of any other facts, tends to establish directly a fact in issue.

Circumstantial Evidence is proof of collateral facts, where circumstances are shown, from which the inference may be drawn that the principal or essential facts are true and existed, in such a way that the proof is irreconcilable with any other theory that can be present.

Substantive Evidence or Evidence-in-Chief is evidence that is adduced for the purpose of proving a fact in issue, thus enabling the party offering the evidence to meet its burden of production on a fact in issue.

Impeaching Evidence is evidence that is adduced for the purpose of discrediting a witness on documentary evidence. It does not help a party in meeting its burden of production.

Evidentiary Worth

Probative Value of Evidence refers to the tendency, if any, of evidence to make a fact of consequence in the action more or less probable than it would be without the evidence.

Weight of Evidence refers to how much probative value admitted evidence should be accorded, taking into account credibility, and logic and reason, by the trier of fact.

Sufficiency of the Evidence refers to whether the evidence admitted on behalf of a party is sufficient to satisfy the party's burden of production.

Presumptions

Generally

A presumption is a rule of law requiring that if one (the "basic") fact or set of facts is established, the trier of fact must find that another (the "presumed") fact also exists unless the trier of fact is persuaded that the latter does not exist. A presumption differs from an inference in that an inference permits, but does not require as does a presumption, a trier of fact to conclude that another fact has been established. Presumptions, the source of which is the common law and legislative enactments, are recognized for policy reasons, generally because they reflect natural probabilities based on logic and experience.

Generally, once the basic facts are proven and accepted by the trier of facts, the presumption arises. At that point, if the party against whom the presumption works does not establish by a preponderance of evidence that the presumed fact does not exist, the jury must find that the fact exists. If the party rebuts the presumption, the presumption leaves the case entirely. All that remains of the presumption is the possibility that the jury may draw an inference from the basic facts that the presumed fact exists. However, it must be noted that many of the numerous presumptions recognized in the law have their own set of rules which differs from this view of the general operation of presumptions. As a result, each one that is in issue should be scrutinized.

Specific Presumptions

It is impossible to enumerate all the presumptions recognized in the law. Some of the more common ones are:

It is presumed that a public official, a fiduciary, an officer or director of a corporation will not do anything contrary to his/her official duty or fail to do anything which his/her official duty requires him/her to do;

It is presumed that a death was not brought about by suicide.

For joint accounts it is presumed that the account is the property of those named.

It is presumed that a public employee who stays out of work during a strike is engaged in striking.

It is presumed that a person died at the end of five years of unexplained absence.

Knowledge of the contents of their books is presumed when members of a firm have access to them and an opportunity to know how their accounts were kept.

Mailing of letters: It is presumed that a properly addressed and stamped envelope, deposited in a post office or regularly maintained post box, reaches its destination. If the proof is that such mailing was in a course of business or office practice, it raises the presumption that it was in fact mailed. However, there must be a foundation laid showing that the letter was placed in the usual office receptacle for outgoing mail and the person whose duty it is to mail such letters testifies that he/she always mails such letters placed in such receptacle, and what procedure he/she follows.

Proof of ownership of a motor vehicle creates a presumption that the person operating it, did so with the owner's permission.

Where alleged services are rendered by a relative or close friend, it is presumed in the absence of agreement, that they were rendered voluntarily, gratuitously and without expectation of pay therefor.

Application At The Adjudicatory Proceeding

Whether to apply an otherwise applicable presumption is in the discretion of the ALJ. Unless there is some good reason not to give effect to the presumption, it should be applied.

Relevancy

Generally

The linchpin of all evidence law is the rule that only relevant evidence is admissible and irrelevant evidence is excluded. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This definition recognizes that relevancy is not an inherent characteristic of an item of evidence but exists only as a relation between an item of evidence and a fact that may be properly proved in an action.

Under the definition, to be relevant, the evidence must tend to prove a fact that is of consequence to the litigation. What is of consequence to the litigation will necessarily turn upon the applicable substantive law within the framework of the pleadings and the theory of the action. The fact to which the evidence is directed need not be an ultimate fact or a vital fact, or be in dispute. It suffices that the fact is of some consequence to the disposition of the litigation.

The definition further provides that relevancy also depends upon whether the evidence has "any tendency to make the existence" of the fact of consequence "more probable than it would be without the evidence." When the evidence has such tendency it is considered to have probative value. It is not necessary that the evidence by itself proves the fact for which it is offered or makes the fact more probable than not. A minimal probative tendency is all that is required.

With respect to the tendency element, the test is essentially one of logic and reason. The ALJ or hearing officer, drawing upon his or her own experience, knowledge and common sense, asks whether some logical, rational relationship exists between the offered evidence and the fact to be proven. If such relationship exists, the evidence is relevant, and, if not barred by some other evidentiary rule, admissible. If there is no such relationship, the evidence is irrelevant and excluded. Once the evidence is admitted, it is for the trier of fact to determine how much weight is to be accorded to it.

Even though evidence is relevant, the hearing officer possesses the discretion to exclude it. In that regard, the court may exclude relevant evidence which may have a tendency to cause undue prejudice, confuse the issues, would be cumulative, or unduly consume time, when it is determined that the evidence's probative value is substantially outweighed by one or more of these factors. Under this standard, where probative value is slight, and the danger of undue prejudice, etc., is great, exclusion of the evidence would be warranted, and where the probative value is high and the danger of undue prejudice, etc., is slight, exclusion would not be warranted.

Special Relevancy Rules

Based on experience and policy, the courts and the Legislature have developed special relevancy rules governing specific situations. Some of these rules are as follows:

• Failure To Produce Witnesses and Documents

A party's failure to produce a witness or document when the circumstances indicate it would be logical to do so gives rise to an inference that the witness or document was not produced because the witness or document would have provided facts unfavorable to the party. As a result, the other party may comment on the failure to produce and obtain an adverse inference charge, which permits the trier of fact to consider as relevant evidence the inference and, further, draw the strongest inference against the party.

To obtain such an adverse inference, it must be established that the missing witness or document would be expected to testify favorably or be favorable on behalf of the party who has not called him/her or produced the document; that such testimony or document would be non-cumulative; and that the witness or document is available to the party who has not called him/her or produced the document.

The rule is applicable in civil and criminal cases, but as the defendant in a criminal case has a constitutional right not to testify, it is a violation of that constitutional right to comment on an exercise of that right.

• Destruction Of Evidence

Similar to the inference that may arise when a party fails to produce a witness or document, a party's destruction of relevant evidence gives rise to an inference that the destroyed evidence would have not supported, or would have been adverse to, the party's case.

• Invocation Of Privileges

When a party in a civil or criminal case asserts a privilege to prevent disclosure of testimony or documents, comment upon such invocation of the privilege and an adverse inference from the invocation is permitted. The adverse inference to be drawn is similar to the adverse inference permitted as the result of a failure to call a witness or produce a document. The inference is permitted to be drawn even when the Fifth Amendment privilege against self-incrimination is invoked, except when the defendant invokes it.

• Habit Or Custom

Evidence of a person's habit or proof of business, professional or other institutional practice or custom is admissible as proof that the habit, or practice or custom, was or would have been followed under the same set of circumstances on a specific occasion. Thus, evidence that a person had the habit of engaging in certain conduct is admissible to prove that the person engaged in that conduct at another time. Similarly, evidence that an institution's practice was to have an employee perform a certain task is admissible to prove that a certain employee performed that task on a given occasion.

• Similar Accidents Or Events

Evidence that tends to establish that a person has been negligent on prior occasions is inadmissible to prove that the person was negligent on another occasion. Similarly, evidence that prior accidents have occurred involving a party's product or property is inadmissible to establish that the party was negligent on another occasion with respect to the product or property. However, evidence of such prior events or accidents may be admissible to establish other facts, such as existence of a dangerous condition or notice.

• Character

Evidence of a person's character, i.e., a person's disposition or propensity to engage or not engage in various kinds of conduct, whether consisting of reputation evidence or evidence of prior acts, is inadmissible to prove that the person acted in conformity or in accordance with his character on a particular occasion. Thus, in an automobile accident action, a plaintiff may not show that defendant has a record of numerous traffic infractions or accidents to prove defendant was driving negligently at the time of the accident, nor may the defendant offer evidence of an excellent driving record, i.e., no tickets or accidents, to show defendant was driving carefully at the time of the accident. In a criminal action, the prosecutor may not show that the defendant has a lengthy criminal record to establish that the defendant is guilty of the crime charged.

While such character evidence may have probative value, it is excluded on policy grounds. The view is that such evidence may distract the trier of fact from the main issue of what occurred on the particular occasions, and induce the trier of fact to punish a "bad" person or reward a "good" person because of his/her character, regardless of the evidence in the case.

However, where the evidence of prior acts is relevant for a purpose other than to show conformity or propensity, the evidence is admissible with respect to that person, even though it reveals or suggests a conformity or propensity inference. Such other purposes includes motive, intent or accident, establishment of identity, negate mistake and establishment of a common plan or scheme. A court may nevertheless exercise its discretion and exclude the evidence if it concludes that the evidence's probative value is substantially outweighed by the danger of unfair prejudice, etc.

• "Dead Man's" Statute

As provided by CPLR §4519, a person is barred from giving testimony, albeit relevant, where the person, who is interested in a transaction with a decedent, desires to testify against the estate of the decedent as to a transaction with the decedent. The statute is complex and can be parsed as follows:

Generally upon a trial or proceeding, a party or person interested in the event, or a person, from, through, or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness in his/her own behalf or interest, or in behalf of the party succeeding to his/her title or interest; Against the executor, administrator or survivor of a deceased person or a person deriving his title or interest from through, or under a deceased person, by assignment or otherwise; Concerning a personal transaction or communication between the witness and the deceased person; Except where the executor, administrator or survivor so deriving title or interest is examined in his/her own behalf or the testimony of a deceased person is given in evidence concerning the same transaction or communication. However, the personal representative of the deceased may waive the privilege by a failure to object on the proper ground, or by calling the survivor to the transaction or communication as a witness; but the testimony is confined strictly to the same transaction or communication.

Application In Adjudicatory Proceedings

SAPA §306(l) provides that the ALJ may admit relevant evidence, and exclude irrelevant evidence, as well as unduly repetitious evidence. Practicality also suggests that the ALJs apply the basic relevancy rule; otherwise proceedings could last for an untolerably long time. Whether evidence is relevant is a judgment call for the ALJ, committed to the ALJ's common sense. To the extent a liberal view of relevancy is taken, the question then becomes how much weight the admitted evidence is to be accorded.

With respect to the special relevancy rules, to the extent they are inclusive in nature, they suggest that they ordinarily should be applied in an adjudicative proceeding. [See, Jean-Baptiste v. Sobol, 209 AD2d 823, 619 NYS2d 355 (3rd Dep't1994) (adverse inference from party's failure to testify at hearing may be drawn); DeBonis v. Corbisiero,155 AD2d 299, 547 NYS2d 274 (1st Dep't 1989) (party's invocation of Fifth Amendment privilege against self-incrimination may form basis of an evidence inference at a hearing)]. To the extent the special relevancy rules are exclusionary, they can, but not mandatorily, be applied. [Compare, Amato v. Department of Health, 229 AD2d 752, 645 NYS2d 600 (3rd Dep't 1996), (character evidence, testimony of two of petitioner's patients, that they received excellent care admitted in proceeding involving petitioner's other patients) with Freymann v. Board of Regents, 102 AD2d 912, 477 NYS2d 494 (3rd Dep't 1984) (petitioner's prior disciplinary conviction properly admitted; character evidence rule is not applicable in adjudicatory proceedings)]. In the end, admissibility is committed to the discretion of the ALJ.

Hearsay

Generally

The hearsay rule is actually two separate rules, namely, evidence which is hearsay is inadmissible unless there is an exception which is applicable. The rule is premised on a recognition that hearsay evidence itself lacks sufficient reliability or trustworthiness to be admissible, but there are instances in which the circumstances surrounding the making of the hearsay statement assure sufficient reliability or trustworthiness to warrant its admissibility.

Hearsay may be defined as a statement - an oral or written assertion, or non-verbal conduct intended as an assertion - made by a person other than while testifying at a trial or proceeding which is offered in evidence to prove the truth of the matter asserted. Expressed another way, it is evidence which seeks to establish the existence of a fact based not upon the witness's own personal knowledge or observation but on what someone else said. An example is: W, a witness, testifies as to what B said to W about D, a defendant at the trial, namely that B, who is not present to testify, saw D steal a car. This testimony is being offered to establish that D stole the car, the crime for which D is being tried. Such testimony would be barred by the hearsay rule.

The critical aspect of this testimony to D is what B allegedly saw. D will certainly want to know if B actually observed what is alleged he saw. How good was B's eyesight and how close was B to D when he observed the alleged conduct? How good was B's recollection of the observed conduct when he spoke to W? Does B harbor any bias or prejudice towards D? Is B a credible person? B, of course, is not available for cross-examination to test the possible problems raised, which go to B's perception, memory and veracity. Additionally, B's statements were not made under oath, and the jury cannot assess his demeanor. Permitting W to testify as to what B said would deprive D of an opportunity to test B's alleged observation.

Barring hearsay evidence expresses the common law preference that proof in civil and criminal actions be elicited under conditions where the witness is physically present before the trier of fact and subject to cross-examination by the party against whom the proof is being offered. Observance of these conditions permits the party affected by the testimony to test before the trier of fact the trustworthiness of the witness's testimony, which includes the witness's perception, memory, narration, and more generally his veracity, i.e., is the witness telling the truth?

However, when circumstances surrounding the making of the hearsay statement tend to indicate that the hearsay is reliable or trustworthy, the statement may be admissible under an exception to the hearsay rule. The common law and legislative enactments recognize many exceptions in differing circumstances. Generally speaking, these exceptions recognize that when those requirements of the exceptions are met, it is unnecessary to cross-examine the person who made the statement or have the person take an oath in the presence of a jury. Compliance with the exceptions' requirements dispenses with the need for cross-examination and oath, as such requirements establish equivalent guarantees of reliability or trustworthiness.

Hearsay Rule

• Hearsay

Hearsay, as discussed above, has three distinct elements, namely (a) an oral or written assertion, or non-verbal conduct intended as an assertion; (b) made or done by a person other than a testifying witness, and (c) which is offered in evidence to prove the truth of the matter asserted. These elements are stated in the conjunctive.

As a result, the hearsay rule does not render inadmissible every statement repeated by a witness as made by another person. Where the mere fact that a statement was made or a conversation was had is independently relevant, regardless of its truth or falsity, such evidence is not deemed hearsay, and is otherwise admissible.

It is, therefore, important to determine the purpose for which the evidence is being offered. If the evidence is being offered to establish the truth of the matter asserted therein, it is hearsay. Where the evidence is offered for a non-truth purpose, it is not hearsay, and so long as the non-truth purpose is relevant, it may be admissible.

Some examples may be given. X said to D, "Watch out for the hole in the roadway." When offered, not to prove there was a hole in the roadway, but to prove that D was put on notice of the possible existence of a hole such evidence would not be hearsay, and would be admissible if D's notice is relevant. D said to X, "I am the Pope." When offered to prove that D is mentally unsound, and such status is relevant, the evidence is not hearsay and is admissible. In this situation, the words indicate circumstantially the state of mind of the speaker, D. Additionally, certain words, e.g., the words of a libel or slander, of an offer, of an acceptance, of a bribe, when spoken, have independent legal significance. When spoken, they create legal rights and liabilities. Thus, in an action for slander, where the plaintiff alleges that the defendant called him a thief, a witness who heard the defendant make that statement may testify to it. Obviously, a statement offered for that purpose is not offered for its truth, but rather to establish the essence of the slander claim.

In these instances where the evidence is being offered to prove that a statement was made, and the making of the statement is relevant, the inability to cross-examine the maker of the statement is not all that significant. The reason is that the witness who said he/she heard the statement is present for cross-examination, and whether the statement was actually made can be tested through that witness.

• Exceptions

There are many hearsay exceptions that are recognized in New York law. They are recognized in the common law, contained in Article 45 of the CPLR as well as various statutes in the consolidated laws. A few significant ones will be mentioned here.

It is important to stress that if the evidence is hearsay, it is inadmissible, unless it satisfies one of the exceptions. Furthermore, if there are several links in the chain of hearsay (e.g., A told B, who repeated it to C, who then passed it on to D), each link will have to be independently justified under an exception.

■ Admissions

An admission is a statement or act which amounts to the affirmance of some relevant fact, where such affirmance operates against the interest of the party making it or doing it. It is receivable only against the party who made it. A witness may testify to a party's admissions because it is generally regarded that such admission is reliable, i.e., a party would not say things about himself/herself unless they were true.

Where the act or statement of a party is received as an admission, the party against whom it is admitted has the right to offer an explanation. The weight of an admission is for the trier of fact. Thus, the party may testify that the statement was made through mistake, or that it was made without any personal knowledge, and the trier of fact may credit that testimony.

An admission may be by silence when the person hears and fully comprehends the force and effect of the words spoken and when he/she is at full liberty to reply thereto and would naturally be expected to deny it if he/she considered it false. No presumption of acquiescence would arise if the person at the time of the statement was asleep, intoxicated, deaf, unable to fully understand the language used, or incapacitated or in any way deprived of the freedom or opportunity to reply.

There are also judicial admissions, formal or informal.

Examples of a formal judicial admission are admitting the genuineness of a paper or photograph; admission under an agreed state of facts or a stipulation (unless relieved therefrom by the court); and, facts admitted by the pleadings (complaint, answer, reply). Such admissions are conclusive of the facts admitted in the action in which they are made, unless a court orders otherwise. An informal judicial admission may be facts incidentally admitted in the course of a trial in the same or another case or facts admitted in a deposition or affidavit. Such admissions are not conclusive.

Statements made by a party's employee or agent are receivable against the party as the party's admission only if they were made within the scope of the employee's or agent's authority, i.e., when the statement was authorized to be made by the employer, expressly or impliedly.

■ Business Records

Under New York's business records exception, which is codified in CPLR 4518, any writing or record, entry, memorandum or any act, transaction, occurrence or event is admissible in evidence as proof of said act, occurrence or event, if it was made in the regular course of any business, profession, occupation or calling of any kind and it was the regular course of such business, to make such memorandum or record at the same time of such act, transaction, occurrence or event, or within a reasonable time thereafter. It is emphasized that this exception to the hearsay rule embraces only those entries which are made systematically in the regular routine and usual course of the business, etc. It does not embrace entries made as isolated transactions or incidents or for a specific purpose which is the subject of the litigation or hearing.

Under this exception, a record in any form that describes acts, events, conditions, opinions, or diagnoses is admissible as an exception to the hearsay rule if four requirements are met. First, the record must be "made at or near the time" of the event or opinion being recorded. Second, the maker of the record must either himself/herself have personal knowledge of the matter being recorded and a duty to record it, or must have received the data from others with personal knowledge and under a duty to transmit the information. Third, the record must be kept in the course of a regularly conducted business activity. Finally, it must be shown that it was the regular practice of the business to make the record. The requirements of the exception guarantee trustworthiness since business records are customarily checked; the regularity and continuity of such entries produce habits of precision; the business activity functions in reliance on the records; and employees of the entity are charged with recording and reporting accurately as part of their job.

It must be recognized that this paragraph does not by itself encompass entries which, although recorded in the regular course of business, contain information supplied by an outsider not under a business duty to report. This is not, however, to say that an entry based upon information supplied by an outside volunteer can never be admitted. If the outsider's statement satisfies the requirements of another hearsay exception, the statement may be admissible.

Examples of records that may be admissible as business records are books of account; written memoranda of public officers; and, hospital records covering diagnosis, prognosis, treatment and certified bills.

■ Public Records and Documents

Under the common law and various specific statutory provisions, books, documents and records of a public nature required to be kept are admissible under the public records exception. Thus, birth, marriage and death certificates are specifically made admissible. Additionally, public records in general may be admissible under the business records exception.

Under recent judicial decisions, an exception has been recognized for public investigative reports as to their findings and conditions. [See, e.g., Cramer v. Kuhns, 213 AD2d 131, 630 NYS2d 128 (3rd Dep't 1995) (NHTSA report concerning kick stands on motorcycles); Bogdan v. Peekskill Community Hospital, 168 Misc2d 856, 642 NYS2d 478 (Sup. Ct. 1996) (OPMC findings)]. Such reports are presumptively reliable, but the courts have broad discretion in determining their relevancy and reliability.

■ Prior Testimony

Under CPLR 4517 prior testimony by a witness in an action who is now unavailable to testify is admissible provided such prior testimony was under oath and subject to cross-examination and was on the same subject matter in a prior proceeding involving the same parties. Deposition testimony of a witness is not admissible under this statute but will usually be admissible under CPLR 3117. Interestingly, testimony taken at administrative proceedings is not covered by CPLR 4517. [See, Fleury v. Edwards, 14 NY2d 334, 251 NYS2d 647 (1964)].

■ Excited Utterances

New York recognizes the "excited utterance" exception. The requirements of admissibility under this exception are: (1) the occurrence of an event or condition sufficiently startling; (2) a statement brought about by the event or condition and relating to it; and (3) the absence of time to fabricate. There is no requirement that the declarant be a participant in the event or condition. Thus, the statement may be made by a bystander who observes the startling event.

Such statements are deemed to have a high degree of reliability because they are the impulsive and unreflective responses to an event, which militates against their being made after thought and deliberation.

Application in the Adjudicatory Proceeding

Hearsay may be received, or it may be rejected by the ALJ in the ALJ's discretion. How should an ALJ exercise his/her discretion on hearsay objections?

The policies underlying hearsay and its exceptions give some guidance. In that regard, the hearsay rule is not a rule that operates against common sense, and when the evidence is clearly reliable, albeit hearsay, the ALJ can admit and give the evidence the weight it deserves. The indicia of reliability include–corroboration of the statement's content, in whole or in part, by other evidence; the lack of any basis from which it can be said there is a reason to falsify; and the existence of facts and circumstances which show that a hearsay exception is available. The hearsay statement may also be discounted when there appears to be no legitimate reason why the person who made the statement is not testifying. In short, the ALJ is asking whether the statement "rings true." If it does, it can be admitted, and if it does not, it can be excluded.

It should also be kept in mind that if the opposing party has no objection to the introduction of hearsay statements, they can be recognized as evidence. The question then becomes one of how much weight should be given to it, which is answerable by considering the above-stated factors.

Additionally, hearsay statements, such as affidavits attesting to certain facts, can be received as to collateral issues, ones not affecting the relevant issues in the proceeding.

Privileges

Generally

New York law recognizes numerous evidentiary privileges. Privileges have been recognized in order to protect or encourage a specific relationship or interest as a matter of public policy. In that regard, privileges foster relationships and interests that are deemed to be of sufficient social importance so that nondisclosure of the privileged communication or matter is accepted even though the cost of doing so is to keep relevant and reliable evidence from a jury.

There are several sources of privileges. Article 45 of the CPLR contains the principal privileges: spousal [CPLR 4502], attorney-client [CPLR 4503], physician-patient [CPLR 4504], clergy-penitent [CPLR 4505], psychologist-client [CPLR 4507], social worker-client [CPLR 4508], library records [CPLR 4509], and rape crisis counselor-client [CPLR 4510]. There are also many privileges throughout the consolidated laws. [See e.g., Civ. Rts. Law §79-h (professional journalists and newscasters);Civ. Rts. Law § 79-j (medical records in computer-based multi-state information system); DRL §114 (adoption records); PHL §2301(3) (records of persons with sexually transmitted diseases); PHL §3371 (certain records relating to controlled substances); Soc. Serv. L §136(2) (records of public assistance recipients)]. Additionally, several privileges have been judicially developed: parent-child, trade secrets, official information.

As a general proposition, these privileges protect confidential communications made during the course of the protected relationships, or records or documents made that record certain information. Confidential communications are statements, oral, written or non-verbal, made in the absence of a third-party and that are not intended to be disclosed to parties outside the relationship. When a privilege is applicable, a person can refuse to disclose a communication or record, and prevent others from doing so. Even when a privilege is applicable, there are limited circumstances when the confidential communication or document can be ordered disclosed, or a person may have waived the protection of the privilege.

There is also recognized a self-incrimination privilege, under the Fifth Amendment of the United States Constitution, Art. I, §6 of the New York State Constitution, and CPLR 4502. Unlike the other mentioned privileges, the self-incrimination privilege is intended to strike a balance between the government and the individual in criminal proceedings. This privilege recognizes that a person is not required to give an answer to a question which will tend to incriminate the person or expose the person to a penalty or forfeiture.

Understanding privileges completely is a difficult task. As observed by a leading treatise, current privileges, "are incomplete, inconsistent, undecided on significant questions, and virtually impenetrable to all except the most experienced counsel." [Martin, Capra and Rossi, New York Evidence Handbook (1997), §5.12, at pp.303-304]. What follows is not intended to be a complete discussion of privileges but rather a brief introduction to the principal privileges.

Principal Privileges

• Attorney-Client

Under the attorney-client privilege, an attorney may not disclose a confidential communication made to him/her by a client for the purpose of obtaining or providing legal assistance for the client. The client, too, may refuse to make such disclosure. Only the client may waive the privilege, and upon the client's death, only a limited right of disclosure that relates to wills is permitted. The privilege does not, however, extend to communications with an attorney consulted for the purpose of committing what the client knew or reasonably should have known to be a crime or fraud.

• Spousal

Under the spousal privilege, neither spouse may testify to a confidential communication made by one to the other during the marriage. The communication must have been made in reliance upon the intimacy of the marital relation. Routine exchanges of business information are not within the privilege. One spouse may not waive the privilege and volunteer to disclose the confidential communication without the consent of the other spouse. After death, the surviving spouse may testify to the confidential communication, but cannot be compelled to do so.

• Physician-Patient

Under the physician-patient privilege, a physician, dentist, podiatrist, chiropractor, and nurse may not disclose information which was acquired during the course of treating a patient and which was necessary for treatment. Such information includes confidential communications from the patient and the health-care provider's observations of the patient. Only the patient may waive the privilege.

If the patient has died, the health-care provider must disclose the otherwise privileged information, except that which disgraces the patient's memory, where the personal representative or next of kin of the patient waives the privilege or there is no objection by any party. There are several statutory exceptions to the privilege. [See, e.g., CPLR 4504(b) (dentists are required to disclose information necessary to identify a patient, and health-care providers must disclose information that a patient under the age of sixteen has been the victim of a crime); PHL §§3372, 3373 (reporting requirement with respect to narcotic substance abuse)].

• Psychologist-Patient

Under the psychologist-patient privilege, a psychologist may not disclose a confidential communication made to him/her by a patient. The client, too, may refuse to make such disclosure. Only the client may waive the privilege. There are statutory exceptions. [See, e.g., Soc. Serv. Law §§413, 415 (written reports of child abuse or maltreatment are admissible in any proceeding relating to child abuse or maltreatment)].

• Social Worker-Client

Under the social worker-client privilege, a social worker may not disclose confidential communications made to him/her by a client in the course of giving advice or planning a program for the client, or any advice given to the client. The client may waive the privilege. The exceptions to the privilege are provided: when the communication by the client "reveals the contemplation of a crime or harmful act" [CPLR 4508(a)(2)]; when "the client is a child under the age of sixteen and the information acquired ... indicates that the client has been the victim or subject of a crime . . . " [CPLR 4508(a)(3)]; and when "the client waives the privilege by bringing charges against the certified social worker" which involve confidential communications [CPLR 4508(a)(4)].

• Trade Secrets

The common law recognizes a privilege which allows the owner of a trade secret to refuse to disclose and prevent others from disclosing his/her trade secret. [See, Drake v. Heiman, 261 NY 414, 185 NE 685 (1933)]. A trade secret is defined as a formula, pattern, device, or compilation of information which is not known by others and gives the owner a competitive advantage over others who do not know it.

The privilege is not an absolute one as a court upon a sufficient showing of need can disclose it to another person. Such disclosure, however, must be conditioned upon the presence of safeguards which will prevent the information from being used by the other party or from becoming available to persons other than the parties involved.

• Official Information

Under the common law, confidential communications exist "between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged." [Cirale v. 80 Pine St. Corp., 35 NY2d 113, 117, 359 NYS2d 1, 4 (1974)]. A balancing approach is used to determine if disclosure is warranted. [See, World Trade Center Bombing Litigation Steering Com. v. Port Auth. of N.Y. and N.J., 93 NY2d 1 (1999)]. However, the Freedom of Information Law (FOIL) [N.Y. Pub. Off. Law §84], supersedes this privilege to the extent that records that FOIL requires to be disclosed cannot be protected from disclosure under the privilege. [See, Doolan v. Board of Coop Educ. Serv., 48 NY2d 341, 422 NYS2d 927(1979)].

• Self-Incrimination

Under the self-incrimination privilege, a witness is not required to give an answer to a question which will tend to incriminate the witness or expose the witness to a penalty or forfeiture. A witness must invoke the privilege personally, but a party may invoke the privilege through the party's attorney. The privilege extends to the witness's books and papers. However, a person who holds books and records in a custodial capacity may be compelled to surrender them, even though they tend to incriminate the person. If the witness's testimony would tend to incriminate his/her employer, but not him/her personally, the witness cannot refuse to testify.

Application At The Adjudicatory Proceeding

SAPA §306(l) compels the ALJ to give effect to privileges. When an objection to offered evidence is made on the basis of a privilege, the ALJ must determine whether the cited privilege encompasses the testimony or document, and if so, whether there has been a waiver of the privilege. If the privilege is applicable and there has been no waiver, the ALJ must sustain the objection.

Opinions

Generally

As a general proposition a witness may testify only to the facts that he/she perceived. Opinions or conclusions, based on reasoning from those facts, may not be given. Recognizing that opinion testimony can be helpful to the trier of fact in resolving issues fairly and expeditiously, the common law has provided that in certain instances lay witnesses and expert witnesses may give opinion testimony.

Opinion Rule

• Lay Witnesses

A lay witness may give his/her opinion, based upon facts that the witness has personal knowledge of, provided that such opinion is based upon common ordinary knowledge, without special skill or background, and it is unreasonable to expect the witness to describe all the facts which would permit the trier of fact to draw the conclusion. The rule is liberally construed, and lay witnesses may give their opinion on a wide variety of subjects.

They include:

■ Observations - A lay witness may give his/her opinion as to such matters as color, weight, distance, size, quantity, state of emotion, apparent physical condition, identity and likeness, estimated age, rational or irrational conduct, handwriting.

■ Sensations - A lay witness may describe his/her own sensory experiences, such as taste, smell and touch. He/she may testify as to heat or cold or electric shock.

■ Emotions - A lay witness may give his/her opinion of another person's display of emotion. He/she may state, for example, that one person's contact with another was friendly or hostile.

■ Intention - Where the actual performance of an act is not disputed, but its effect or genuineness depends upon the intent with which it was done, the one who did it may testify as to what his/her intention was at the time. However, a lay witness may not testify to another person's unexpressed intent.

■ Physical or Mental Condition - A lay witness may describe another person's apparent physical condition, such as general strength, vigor, illness or any other characteristics that anyone can see; or whether a person appeared to be intoxicated. The necessary foundation for an expression of opinion as to apparent intoxication of another may include testimony that the person in question smelled of alcohol, was incoherent in speech, his/her eyes were glassy or bloodshot, he/she could not stand or walk without assistance, etc. He/she may also testify as to rational and irrational conduct of a person.

■ Speed - A lay witness may testify that a vehicle was moving rapidly or slowly. However, if he/she testifies as to the rate of speed, he/she must first show that he/she had some experience in observing the rate of travel of vehicles or give some other satisfactory reason or basis for his/her opinion.

■ Age - A lay witness may give his/her estimate of another person's apparent age. However, the facts and circumstances upon which his/her opinion is based must be given and the witness should first describe the person's appearance and only then give his/her own opinion as to his/her age.

■ Identification - The identification by a lay witness of someone whom he/she knows or has seen before, or of an object, is proper, even though it may not be positive and absolutely certain. Although the identification need not be beyond any doubt, it must, nevertheless, be based upon some convincing and reliable sensory impression, the description of which raises the likelihood that it is the same person or object.

■ Identification of Voice - A lay witness may identify the voice of another person who is heard but is out of sight, provided there is some basis for the identification, e.g., that the witness heard the person speak or another occasion, prior or subsequent, and, for this reason, recognized the voice at the time in question.

■ Identification of Handwriting - A lay witness may identify the handwriting of another person, provided there is basic showing of some familiarity with the handwriting, e.g., that the witness has observed in person writing, or that the witness has received other writings from the person in circumstances where it is clear that the person made those other writings.

• Expert Witness

A witness qualified as an expert may be permitted to give an opinion within that area of qualification where the underlying subject matter of the opinion is beyond the understanding of the ordinary juror or outside lay comprehension. The subject matter calling for expert testimony may be in the fields of science, engineering, technology, mechanics, medicine, business or other matters requiring specialized knowledge.

To ensure that there is relevancy and reliability in expert opinions, the New York courts permit a witness to testify as an expert and give an opinion where four basic conditions are met. First, as stated before, the underlying subject matter of the opinion involves an area which is beyond the ken and understanding of the average juror. Second, the witness must be qualified as an expert to give an opinion within that subject matter. Third, the basis of the opinion must be facts known to the witness or accepted by similar experts in the field as reliable in forming an opinion, and the methodology utilized must be generally accepted within the expert's field. Fourth, the witness must have reasonable certainty as to his/her opinion.

As to the first requirement, there is not always a clear line separating matters within a lay person's comprehension from those which only an expert can understand. In essence, the resolution turns upon the need for the testimony, i.e., whether the expert opinion will supply jurors with knowledge they do not have. Resolution is in the court's discretion.

With respect to qualifications, it must be shown that the witness by reason of his/her education or practical experience possesses special knowledge or skill that pertains to the subject matter of his/her testimony. It must be emphasized that the witness may qualify as an expert by formal training or education, i.e., medical school, or through on the job work and training, e.g., mechanic. Whether the witness is qualified to testify as an expert is a question for the court to determine in the exercise of its discretion.

The third requirement demands a showing that the witness is basing his/her expert opinion upon an acceptable basis and is employing an acceptable methodology in reaching a conclusion from that basis. As to the former, it can be satisfied by a showing that the witness is basing his/her opinion upon personal knowledge of facts, e.g., physician who examines a patient may testify as to what his/her observations reveal, or facts presented at trial; or, upon facts presented at trial and made known to the witness, e.g, witness attends trial and perceives the evidence presented, or information is conveyed by means of a hypothetical question, which takes into account evidence presented at the trial; or upon facts and data presented to the witness outside of court, provided evidence is presented which establishes the reliability of such out-of-court material, and that experts in the field rely on such material as a basis for opinion.

With respect to methodology, when the opinion is derived with the use of novel scientific theories or techniques, there is a need for a showing that such theories or techniques are generally accepted in the relevant scientific community. In that regard, New York follows the rule of Frye v. United States, [293 F. 1013 (DC Cir. 1923)], as enunciated by recent court decisions. [See, e.g., People v. Wesley, 83 NY2d 417, 611 NYS2d 97 (1994) (DNA evidence)]. Under this approach, the trial court determines whether most scientists in the relevant community believe that the theory or technique produces or leads to reliable results, and not whether the theory or technique is actually reliable. The New York rule differs from the federal rule, as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.. [113 S. Ct. 2786 (1993)]. As noted in a leading New York treatise, the Frye standard has been applied by the New York courts: "to a wide range of scientific evidence including DNA profiling, rape trauma syndrome, hypnotically restored testimony, polygraph test results, bite mark identification, hair analysis to discover cocaine use, voice spectrographica analysis, and expertise on the unrelability of eyewitness identification.

Some methodologies, such as DNA profiling, rape trauma syndrome, and bite mark identification, have been found generally accepted as reliable by the relevant scientific community and hence admissible under Frye. Others, such as polygraph test results and hypnotically refreshed testimony, have been found wanting." [Martin, Capra and Rossi, New York Evidence Handbook §7.23, at pp. 645-646].

With respect to the fourth requirement, it is intended to ensure that the opinion is not based on speculation.

An expert is no more entitled to speculate than a layperson.

Application At The Adjudicatory Proceeding

Opinion evidence is admissible at the discretion of the ALJ. Where the opinion is helpful to the resolution of the issues, it should be admitted especially expert. [See, e.g., City of Schenectady v. McCall, 245 AD2d 708, 666 NYS2d 754 (3rd Dept. 1997) (expert testimony by both parties regarding whether alleged injury permanently disabled one from employment); Romanello v. Adduci, 234 AD2d 299, 651 NYS2d 64 (2nd Dep't 1996) (expert testimony that licensed repair shop performed nonquality work); Enu v. Sobol, 171 AD2d 302, 576 NYS2d 378 (3d Dep't 1991) (general surgeon may testify regarding urologist's treatment of patients); Sheehan v. Passidomo, 122 AD2d 869, 505 NYS2d 915 (2nd Dept.1986) (DMV automotive facilities inspector's opinion admissible)]. On the other hand, where the opinion is not helpful, speculative or otherwise lacks a rational basis, it may be excluded.

Impeachment

Generally

A witness's credibility, i.e., whether the witness's testimony is believable or unbelievable, will depend upon two considerations: the accuracy of what the witness says, i.e., the witness's opportunity and capacity to perceive, together with the capacity to recollect and communicate, and the truthfulness of the witness, i.e., the witness's veracity. The proper scope of cross-examination covers matters affecting the witness's credibility on both considerations.

Impeachment is the particular form of cross-examination whose purpose is to attack the witness's credibility and persuade the trier of fact that the witness's testimony should not be credited. Generally, any matter that has tendency in reason to discredit the witness's credibility may be brought to the attention of the trier of fact. There are six principal modes of impeachment recognized by the New York courts.

Modes of Impeachment

• Capacity Defects

Defects or limits in sensory or mental capacities of a witness at the time of the relevant event bear on the witness's credibility. Accordingly, when there is a good faith basis to do so, the witness can be cross-examined as to weakness of vision or hearing, influence of drugs or alcohol, physical or mental illness, and other matters that may affect the witness's ability to perceive and remember accurately the matters about which he/she testified. Additionally, such matters can be established by testimony from other witnesses or documents. The extent to which this mode of impeachment can be used rests in the discretion of the court.

• Partiality

The fact that the witness may not be impartial, but rather harbors a partiality to the party calling the witness, is generally viewed as bearing on the witness's credibility. Matters that show bias, intent, or hostility can be inquired into on cross-examination provided there is a good faith basis to do so. Among such matters are personal relationships between the party and the witness; employment between the party and the witness; a financial stake in the outcome of the action; enmity between the witness and the other party; and corrupt pressure placed upon the witness by the party calling him/her. Such impartiality can be shown by other witnesses or documents. The extent to which a party uses this mode is subject to the trial court's discretion.

• Conviction Of A Crime

It is generally regarded under New York law that a person who has been convicted of a crime may be less credible than a person who has not been convicted of a crime. Thus, the fact that a witness had previously been convicted of a crime either by eliciting an admission of such conviction on cross-examination or by introduction of a certificate of such conviction may be inquired into. [See, CPLR 4513]. It must be stressed that only convictions may be inquired into and only convictions of crimes. Thus, questioning as to an arrest or indictment is not permitted, nor is questioning as to traffic infractions, offenses (except in criminal cases), juvenile delinquency and youthful offender convictions permitted. It is also important to note that any conviction for a crime can be inquired into, even though it does not directly go to veracity, i.e., murder, robbery. However, the court in its discretion may bar the examination where it finds that the conviction due to its remoteness or nature lacks substantial probative value, or is unduly prejudicial to a party.

• Misconduct

New York law has long recognized that a witness may be cross-examined, upon a good faith basis, about any immoral, vicious or criminal act engaged in by the witness if the act evidences moral turpitude. It is not necessary that such acts be the subject of a criminal conviction or that they relate directly to veracity, as engaging in such acts itself suggests a willingness to lie. Such acts include use of aliases; use of drugs; use of disrespectful language to a superior officer; and criminal activity. As with criminal convictions, the court has the discretion to prohibit such examination, especially where the questioning is an attack on character in general. [See, e.g., Gutierrez v. City of New York, 205 AD2d 425, 613, NYS2d 627 (1st Dep't 1994) (cross-examination about receipt of public assistance, legitimacy of children and immigration status improper); Catalan v. Empire Storage Warehouse, Inc., 213 AD2d 366, 623 NYS2d 311 (2nd Dep't 1995) (cross-examination about personal bankruptcy improper)]. Additionally, when the witness denies engaging in the charged conduct, the cross-examination may not show otherwise by the introduction of other testimony or documents.

• Reputation For Truth

The witness may be shown to have a bad reputation for veracity. This is done by calling a witness who can testify that he/she is familiar with the witness's reputation for veracity, and that the witness has a reputation for being an untruthful person. Such reputation witness may not refer to specific acts committed by the attacked witness, nor may the reputation witness give his/her own personal opinion of the attacked witness's lack of veracity. However, the reputation witness can state that he/she would not believe the attacked witness under oath.

• Prior Inconsistent Statements

If the witness has made a statement prior to the trial which is inconsistent with his/her trial testimony, the making of this inconsistent statement can be shown. The theory is that when a witness has given conflicting accounts of the same matter or event, the witness's testimony is not credible, either because the witness may be lying or because the witness is careless or has an uncertain memory. The making of the prior inconsistent statement can be explored on cross-examination. If the making of the prior inconsistent statement is denied, it may be proven by the introduction of other evidence, provided it is relevant to an issue in the case or relates to bias or capacity defects.

Application At The Adjudicatory Proceeding

Whether to allow the use of one of the modes of impeachment and/or to place limits thereon is committed to the discretion of the ALJ. Where the cross-examination will involve excursions into matters which do not have any real bearing upon credibility, such cross-examination can be prohibited or limited. [See, e.g., Gross v. DeBuono, 223 AD2d 789, 636 NYS2d 147 (3rd Dept.1996) (ALJ acted well within his discretion in limiting petitioner's cross-examination with regard to matters such as the witness's marital status, sexual history, prior injuries and legal proceedings); Matter of Epstein v. Cort Watch Co., 7 AD2d 663, (3rd Dep't 1958) (ALJ did not act improperly in not requiring witness to answer questions regarding her personal history and relationship with decedent, whose widow was seeking death benefits)]. However, where the questioning goes to expose partiality, it should not be barred, but it can be limited. [See, e.g., Davis v. Alaska, 94 S. Ct. 1105 (1974)].

Authentication

Generally

Authentication refers to the requirement that before any relevancy can be ascribed to an offer of evidence, it must be established that the evidence, be it documentary evidence, real evidence or demonstrative evidence, or a conversation, or a test result, is what the offer or the evidence claims it to be. To illustrate, a purported letter of a party is not relevant unless it is properly shown that the party who signed the letter actually wrote the letter, nor is a telephone conversation offered to show knowledge on the part of a speaker relevant unless the person speaking is sufficiently identified. In both cases, relevance is conditioned upon the fulfillment of a condition of fact, in the former establishing the party as the author of the letter, in the latter the identification of the speaker.

Whether the offered evidence is what it purports to be can be established by other evidence sufficient to sustain a finding of its genuineness or by reason of a statutory procedure which may make specified evidence "authenticated" upon certain conditions being complied with. Once the offered evidence is found by the court to be what it purports to be, the evidence shall be admitted for consideration by the trier of fact. The fact that the court permits the evidence to be admitted does not necessarily establish the genuineness of the evidence and does not preclude an opposing party from introducing contradictory evidence. All that the court has determined is that there has been a sufficient showing of the genuineness of the evidence to permit the trier of fact to find that it is genuine. The trier of fact independently determines the question of genuineness, and, if the trier of fact does not believe the evidence of genuineness, it may find that the evidence is not genuine, despite the fact that the court has determined that it was "authenticated" or "identified."

Specific Applications Of Authentication

• Government Records and Certain Private Records

Government records are admissible by having a copy of the record certified in compliance with CPLR 4540, which certification attests to the authenticity of the copy of the record and that such copy is an accurate copy of the original record. Certain private documents such as hospital records or commercial documents can be authenticated by similar certification, as established by specific statutory enactments.

• Documentary, Real and Demonstrative Evidence

Generally, documentary evidence, such as letters and records, can be authenticated by testimony from a witness who saw the document executed or is familiarwith the signature or handwriting on the document, or by expert testimony. Real evidence, such as the murder weapon, can be authenticated by testimony from a witness with personal knowledge concerning the item that the offered item is in fact the murder weapon. Demonstrative evidence, such as a photograph or a diagram, can be authenticated by testimony from a witness with knowledge concerning the scene or event depicted in the photograph or diagram that it is a fair and accurate representation of that scene or event.

• Telephone Conversations and Audio Recordings

Oral statements or conversations, like written communications, are only relevant if the person who purportedly made the oral statement or engaged in the conversation, was in fact the person who made such oral communication. Authentication problems arise when the witness who heard the oral communication was not physically present with the alleged speaker, a situation which will arise with telephone conversations and audio recordings. Authentication can be established by testimony from a witness who is familiar with the voice based on prior dealings with the alleged speaker, or by expert testimony.

• Mechanical Test Results

The results generated by mechanical tests or devices, such as Breathalyzer tests, blood-alcohol concentration (BAC) tests, Enzyme Multiplied Immunvassay Test (EMIT), blood grouping tests, and the Alco-Sensor Breath Screening test, are admissible so long as it is shown that the results produced are accurate. This authentication process will involve three steps. First, the reliability of the principles underlying the machine or device and that they are capable of producing accurate results must be demonstrated, which can be shown by the taking of judicial notice, e.g., the reliability of radar principles has been judicially noticed, or by independent proof. Where the machine involves novel scientific theories, the Frye principle becomes involved. Second, it must be shown that the machine or device was working properly when the result was obtained, and third, that the machine or device was properly used or administered.

• Application To Adjudicatory Proceedings

Since authentication is an aspect of relevancy, the ALJ should follow the basic authentication evidentiary rules, with an objective view as to whether the requirement is met. With respect to test results, the courts have cautioned that where there is an absence of proof that the machine or device producing the result produces accurate results or that their underlying theories are not generally accepted by the relevant scientific community, the test results should not be admitted. [See, e.g., Sowa v. Looney, 23 NY2d 329, 296 NYS2d 760 (1968) (polygraph test result should not have been received into evidence at the police disciplinary hearing as there is a lack of general scientific recognition of the efficacy of polygraph tests); Lahey v. Kelly, 71 NY2d 135, 524 NYS2d 30 (1987) (EMIT drug test results shown to be reliable and properly admitted into evidence by ALJ)].

Best Evidence

Generally

The best evidence rule requires that when a party seeks to prove the contents of a writing, recording or photograph, the party must produce the original of the writing, recording or photograph or explain its absence before other evidence establishing its contents may be admitted. The underlying principle of this rule is intended to prevent fraud, fabrication, or mistake and to eliminate uncertainties that may result from faulty memories.

Thus, when a party offers oral testimony of the contents of a record, the best evidence rule will require that the original record be produced. If the original is not produced, a valid legal reason must be given to account for the fact that the original cannot be produced. A proper foundation must be laid for the receipt of the oral evidence, such as showing that the original record has been destroyed or lost; or that it is unobtainable because it is out of the jurisdiction; or that it is in the adverse party's possession or control and he has refused to produce it. The oral evidence of the contents of a record may not be given until its absence is satisfactorily explained.

When the offered evidence is a photographic copy of a writing or a copy made by a similar process that accurately reproduces the original, CPLR 4539(a) provides that such copies if made in the regular course of business are as admissible as the original. Additionally, there are numerous statutory provisions which provide for the admissibility of copies of public records provided they are certified to be accurate copies of the original, a subject discussed in the authentication section of this appendix.

Application In Adjudication Proceedings

The application of the best evidence rule is committed to the discretion of the ALJ. [See, e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220 AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) (photocopies of weight certification documents admitted)]. Where there is little or no doubt as to the accuracy of a copy, or the oral summary of the contents of a writing, the best evidence rule need not be strictly followed. However, where there is doubt as to the accuracy of the copy of the orally recited contents, insistence upon the following of the best evidence rule may be appropriate.

New York Charter Parents Association On Assembly's Charter Cap Bill

FOR IMMEDIATE RELEASE
Friday, May 28, 2010

Contact:
Mona Davids, 917-340-8987
Mariama Sanoh, 917-822-9203

NEW YORK CHARTER PARENTS ASSOCIATION STATEMENT ON ASSEMBLY’S PROPOSED CHARTER CAP BILL

NEW YORK, NY (May 28, 2010) -- The New York Charter Parents Association (NYCPA) is pleased that the majority of the reforms we advocated for are included in the assembly bill.

We thank Assembly Speaker Sheldon Silver for his efforts in implementing true charter school reform and listening to the cries of parents of Special Education and English Language Learner students who have been pushed out of charter schools.

With the State Comptroller auditing charter schools we believe the high instances of financial mismanagement and fraud at charter schools will decrease thus the money will go into the classrooms and not in the school leaders pockets.

The prohibition of for-profit management companies operating charter schools is a significant victory because per pupil funding should go to the students and not private profiteers. We will continue to ensure and hold accountable the for-profit operators that are managing charter schools and push for a reduction in their management fees so more money goes to our children.

We strongly believe that the NYC DoE Chancellor should not be an authorizer because of the lax oversight of the Office of Charter Schools. The reinstatement of the chancellor’s authority in authorizing charter schools is a shame. DoE authorized charters are the ones with the least oversight and the most corruption, financial mismanagement, corporate chicanery and incompetent boards. Parents complain to the DoE about the mismanagement and pushing out of Special Education, English Language Learners and low-performing students and they are continuously ignored.

Lastly, we really hoped the co-location process would be improved. There already are building councils at all co-located schools so the recommendation in the bill for the council to include a parent will not make a difference. We need a better process.

NYCPA will continue to advocate for TRUE charter school reform. We will continue to work in partnership with district parents to make ALL schools great schools.

WWW.NYCHARTERPARENTS.ORG

Assembly Approves Sweeping Education Reforms to Support New York State's Application for Race to the Top Funding

Assembly Speaker Sheldon Silver and Education Committee Chair Catherine Nolan (at right) today announced the passage of legislation to reform the state's charter school system.

The legislation (A.11310) would raise the cap on charter schools from 200 to 460, helping to ensure that New York State will have one of the nation's most competitive applications for federal funding under the Race to the Top (RTTT) grant program in time for the June 1 deadline. This measure, in conjunction with a strong teacher evaluation system authorized earlier in the week and funding for long-term assessment of student achievement, will help ensure that New York State receives maximum RTTT funding.

"These sweeping reforms will help put an end to divisive fighting over school space and give a meaningful voice in the process to traditional public school parents," said Silver (D-Manhattan). "The legislation also increases transparency by giving the State Comptroller auditing power over charter schools, while ensuring that they enroll and retain children with special needs. This measure will undoubtedly encourage the creation of more successful charter schools in New York State."

"This bill will allow New York State to submit a competitive application for federal Race to the Top funding and increase our chances at receiving up to $700 million for our schools," said Nolan (D-Queens). "I would like to thank New York State Board of Regents Chancellor Merryl Tisch, New York State Education Commissioner David Steiner and Senior Deputy Commissioner John King for their leadership, cooperation and hard work."

The legislation creates a new request for proposals process for the creation of 260 new charter schools. The new system favors applications which best respond to certain Race to the Top objectives such as increasing high school graduation rates and addressing student achievement gaps in reading/language arts and mathematics. Requests for proposals for new charter schools would be issued by the Board of Regents and SUNY trustees after undergoing a public review process.

In addition, the legislation would:

* Institute a four-year period over which the 260 new charter schools would be created;
* Prohibit for-profit organizations from operating or managing any new charter schools;
* Ensure that charter schools serve more children with disabilities, English language learners and free- and reduced-price lunch program participants;
* Require the chancellor to develop building usage plans for fair allocation and usage of space;
* Require matching capital improvements to the traditional public school portion of a building when such an improvement is made in excess of $5,000 to the co-located charter school;
* Authorize the State Comptroller to audit charter schools at his or her discretion; and
* Increase accountability by new disclosure and ethics provisions.

The Assembly also passed legislation today that would provide financial support for a state longitudinal data system to measure long-term student achievement (A.11309). Earlier this week, the Assembly passed legislation enhancing the statewide evaluation system for teachers and principals (A.11171).

NYS Legislature Passes Early Retirement Incentive Legislation

The Retirement Incentive Legislation that was given to me last week by a NYC BOE Assistant Principal.

May 28, 2010

Governor David A. Paterson Announces Passage of Early Retirement Incentive Legislation
LINK

ALBANY, NY (05/28/2010)(readMedia)-- Governor David A. Paterson today announced that the Legislature has passed his bill authorizing an early retirement incentive that will provide State agency commissioners and local officials with an additional mechanism to achieve necessary workforce cost savings.

"My early retirement incentive bill provides State agencies and local government leaders with a tool to streamline the workforce and achieve critical cost savings. This legislation represents an important first step, but additional workforce reductions are essential as we address the State's current $9.2 billion deficit, seek to reduce the structural deficit and continue our efforts to help local governments contain costs and protect property taxpayers," Governor Paterson said. "I applaud the Legislature for passing this bill, and I look forward to signing it into law."

The Governor's Program Bill No. 249 establishes a temporary retirement incentive program for certain State employees and other public employees. Public employees will be able either to retire without penalty at 55 years of age with a minimum of 25 years of service, or be targeted to receive an additional month of pension credit – not to exceed 36 months – for each year of service. This measure is projected to save the State nearly $95 million in the current fiscal year and $225 million in State fiscal year 2011-12. Local public employers will have the option to elect to participate in the early retirement incentive.

The early retirement incentive will be provided in two parts:

Part A provides a targeted incentive to positions that can be eliminated. This incentive provides an additional month of retirement service credit for each year of credited service, up to a maximum of three years of additional retirement service credit, Employers that elect to participate in this part of the retirement incentive program will be required to provide a 30- to 90-day open period to allow eligible employees adequate time to consider the incentive. Local employers that choose to opt-in to Part A must do so on or before August 31, 2010 and school districts must do so by July 30, 2010. Eligible employees must be currently eligible to retire, or be at least 50 years of age with ten or more years of service.

Part B provides the option to retire without penalty to Executive Branch and participating local government employees at age 55 with at least 25 years of service. Participating employers will provide a 90-day open period to allow eligible employees adequate time to consider the incentive. Employers may elect on or before September 1, 2010 to provide employees the benefits of Part B, and educational employers must opt-in by July 1, 2010. Employees meeting the required criteria may be denied participation in this part of the early retirement incentive if it is determined that an employee holds a position that is critical to the maintenance of public health and safety.

Governor Paterson proposed the early retirement incentive, in addition to a number of other workforce proposals, in an effort to achieve $250 million in workforce savings included in his Executive Budget as part of the broader imperative to close the State's $9.2 billion deficit.

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Muckety Courts shows how David Paterson, his father Basil and his brother Daniel are connected to the Courts of New York State

Reducing The Probationary Period Of A Teacher To Gain Tenure In A Different School District

I have posted the decisions of the NY State Education Department in matters involving the issue of probationary teachers seeking a reduction in the mandated three years to get tenure if they already had tenure in another school district. The Commissioner says this is possible if you were a teacher in your prior district, not a teaching assistant.



Appeal of JULIA ZALAMAN from action of the Board of Education of the Katonah-Lewisboro Union Free School District and Superintendent Robert J. Roelle regarding termination of employment.

Decision No. 15,953
(July 23, 2009)

James R. Sandner, Esq., attorney for petitioner, Wendy M. Star, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents, Susan E. Fine, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Katonah-Lewisboro Union Free School District (“respondent board” or “board”) to terminate her employment. The appeal must be dismissed.

Petitioner was granted tenure as a teacher by the Elmsford Union Free School District (“Elmsford”) in September 1983. In September 2001, petitioner began working as a substitute teacher in the Katonah-Lewisboro Union Free School District (“district”) in the middle and high schools.

In May 2005, petitioner applied for a position as a teaching assistant in the district. By letter dated June 14, 2005, the assistant superintendent offered petitioner a position as a teaching assistant with a three-year probationary period, effective September 1, 2005. Subsequently, on August 29, 2005, petitioner completed an employment application. Under “teaching experience,” petitioner indicated that she had been an art teacher for grades K-12 in Elmsford for 20 years. The application did not request information about previously acquired tenure.

By letter dated April 29, 2008, the superintendent informed petitioner that he intended to recommend to the board at its June 5, 2008 meeting that petitioner’s probationary appointment be terminated effective June 30, 2008. On June 5, 2008, the board adopted a resolution terminating petitioner’s employment effective June 30, 2008. This appeal ensued. Petitioner’s request for interim relief was denied.

Petitioner contends that she was entitled to a shortened probationary period of two years pursuant to Education Law §3012(1)(a) because she had previously acquired tenure in Elmsford. Petitioner argues, therefore, that as of September 2007 she acquired tenure by estoppel. Petitioner contends that as a tenured employee, the board may not terminate her employment without a due process hearing pursuant to Education Law §3020-a. Petitioner also asserts that respondents had notice of her prior tenure status. She seeks a return to her teaching assistant position with full back pay and benefits. She also seeks costs and attorneys’ fees.

Respondents contend that the petition fails to state a claim upon which relief can be granted. They deny that petitioner is entitled to, or obtained, tenure by estoppel or is entitled to reinstatement. They assert that petitioner’s alleged status as a prior tenured teacher does not entitle her to a shortened probationary period as a teaching assistant. They further deny that they had any notice of petitioner’s alleged prior tenure status and assert that petitioner never submitted any proof of such status before receiving counseling regarding her performance in the fall of 2007.

Initially, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521). Therefore, while I have reviewed petitioner’s reply submissions, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner contends that she is entitled to tenure by estoppel. Tenure by estoppel “results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent” permits an employee to serve beyond the expiration of the probationary term (Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446; citing Matter of Lindsey v. Bd. of Educ. of Mount Morris Cent. School Dist., et al., 72 AD2d 185). To determine whether petitioner is entitled to tenure by estoppel, I must first determine the correct length of her probationary term.

Education Law §3012(1)(a) provides in pertinent part:

Teachers and all other members of the teaching staff of school districts, ... shall be appointed by the board of education ... for a probationary period of three years, ... provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, ... the probationary period shall not exceed two years (emphasis added).

Petitioner contends that for purposes of tenure and seniority rights under Education Law, the term “teacher” includes teaching assistants as well as other professional educators. She asserts, therefore, that because she is a teacher who was previously appointed on tenure in another district, she is entitled pursuant to Education Law §3012(1)(a) to a two-year probationary period for any subsequent appointment, including an appointment as an teaching assistant. Contrarily, respondents assert that since petitioner was appointed as a teaching assistant, not a teacher, the language of Education Law §3012(1)(a) is inapplicable.

The term “teacher” has different meanings in various contexts in the Education Law. The Court of Appeals has found that for the purposes of the abolition of positions and lay offs, seniority protection afforded tenured teachers also applies to teaching assistants, who serve in the special subject tenure area of teaching assistant (Matter of Madison-Oneida BOCES v. Mills, et al., 4 NY3d 51). The court stated that “in order to have an internally consistent interpretation between tenure track statutes, statutes of appointment (§3012[1][a]; §3014[1]) must have a parallel interpretation with statutes of abolition (§§2510, 3013[2])” (Matter of Madison-Oneida BOCES v. Mills, et al., 4 NY3d 51, 58).[1] The Appellate Division, Second Department has also determined that a teaching assistant is entitled to tenure by estoppel under Education Law §3012 when she had worked full time for six years with knowledge of the board beyond the three-year probationary period (Walters v. Amityville UFSD, 251 AD2d 590).

The Appellate Division, Third Department, however, recently considered the tenure status of teaching assistants vis-à-vis teachers in determining eligibility for a reduced probationary period. In Matter of Putnam Northern Westchester BOCES, et al. v. Mills, et al. (46 AD3d 1062), the court held that a newly appointed BOCES teacher was not entitled to a reduced probationary period although she held prior tenure as a teaching assistant. The court held that the statutory “language [of Education Law §3014] does not specifically provide that the reduced probationary period should be available to teachers previously tenured in nonteaching positions” (Matter of Putnam Northern Westchester BOCES, et al. v. Mills, et al., 46 AD3d 1062, 1063). In that case, the court’s focus was on the previous tenure area, and the court distinguished the “drastically different” duties and qualifications between teaching assistants and teachers, ultimately denying a reduced probationary period for a teacher who held previous tenure as a teaching assistant.

In that case, the court interpreted the word “teacher” in the context of a reduction in the probationary period for prior service under Education Law §3014, a statute that uses language identical to the language of Education Law §3012(1)(a) at issue here: “in the case of a teacher who has been appointed on tenure in another school district within the state” (emphasis added). The court concluded that “the legislative intent of Education Law §3014 is to shorten the probationary period only for those teachers who have previously attained tenure as teachers [citations omitted]” (Matter of Putnam Northern Westchester BOCES, et al. v. Mills, et al., 46 AD3d 1062, 1065). In the instant case, while petitioner had previously attained tenure as a teacher, her subsequent appointment was as a teaching assistant, not as a teacher. The same word in a statute cannot have two different meanings depending on the context (see McKinney's Cons Laws of New York, Book 1, Statutes §236)[2]. Thus, in light of the court’s holding in Matter of Putnam Northern Westchester BOCES, et al. v. Mills, et al. (46 AD3d 1062), I find that §3012(1)(a) is inapplicable to petitioner. Accordingly, she is not entitled to a reduced probationary period and she did not receive tenure by estoppel.

In light of this disposition, I need not address the parties’ remaining contentions. However, as a final matter, I note that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

THE APPEAL IS DISMISSED.

END OF FILE

[1] The operative language of Education Law §§3012(1)(a) and 3014(1) reducing the probationary period to two years “in the case of a teacher who has been appointed on tenure in another school district within the state” is virtually identical; the distinction is that §3012 applies to school districts other than city districts, whereas §3014 applies to boards of cooperative educational services (BOCES).

[2] That section provides: “In the absence of anything in the statute indicating an intention to the contrary, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout, and the same meaning will be attached to similar expressions in the same or a related statute.”

Appeal of MARYANNE DENOVA, KATHY EATON, JANET EZMAN, PATRICIA HIGGINS, JANET LENHART, ROSE LOMANACO, JULIE MOOLENSCHOT, MICHELE STEVENS, and LAURA WICKMAN from action of the Madison-Oneida Board of Cooperative Educational Services, Amy Galway, Mark Russell, Kelly Ingalls, Tammy Foster, Richard Dando, Deborah Flagler, Michael Schwartz, Christine McCurdy, and John Rork regarding termination of services.

Decision No. 15,183
(March 7, 2005)

James R. Sandner, Esq., attorney for petitioners, Kevin H. Harren, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent Madison-Oneida Board of Cooperative Educational Services, Henry F. Sabota and Craig M. Atlas, Esqs., of counsel

MILLS, Commissioner.--Petitioners seek to annul a determination of the Madison-Oneida Board of Cooperative Educational Services ("BOCES") terminating their services at the end of the 2001-2002 school year. The appeal must be dismissed.

Petitioners are nine certified teaching assistants, who were employed by BOCES during the 2001-2002 school year. On June 1, 2002, BOCES terminated 11 of the approximately 65 teaching assistants it then employed, including petitioners, effective June 30, 2002. Petitioners claim that one of the 11 teaching assistants was terminated properly, and that another was recalled to service prior to the commencement of this appeal on July 19, 2002.

Petitioners claim that they were improperly terminated pursuant to Education Law §§2510 and 3013, and Part 30 of the Commissioner ’s regulations, because they were not the least senior persons in the tenure area of teaching assistant. Petitioners have named nine individual respondents, all of whom are teaching assistants whose services were not terminated. Petitioners claim that the individual respondents are among the nine least senior teaching assistants, and that all have less seniority than petitioners. (Although all nine individual respondents were personally served with copies of the notice of petition and petition, none has entered an appearance in this matter.)

This appeal arose because of BOCES’ maintenance, since at least 1979, of a policy of classifying tenure areas by both position and specific subject assignment. In applying this policy to teaching assistants BOCES created approximately 30 different specific tenure areas (e.g., "teaching assistant-heavy equipment" and "teaching assistant-science"), and teaching assistants received probationary appointments to these specific subject-related areas (see Appeal of Krason, et al., 41 Ed Dept Rep 305, Decision No. 14,695).

I issued an interim order in this appeal on August 26, 2002, directing BOCES to reinstate petitioners as teaching assistants.

Thereafter, BOCES’ director of personnel submitted an affidavit indicating that prior to the issuance of my interim order, petitioners Eaton, Higgins, Lenhart, and Lomanaco had already been recalled by BOCES to positions as full-time teaching assistants. (Petitioners Eaton, Higgins, and Lenhart accepted these offers of employment, while petitioner Lomanaco declined.) As a result, the appeal must be dismissed for lack of standing as to petitioners Eaton, Higgins, and Lenhart, since they have been reemployed and thus are no longer aggrieved.

The record also indicates that, on August 29, 2002, after receiving my order, BOCES offered teaching assistant positions to petitioners DeNova, Ezman, Moolenschot, Stevens, and Wickman. Petitioners Ezman, Moolenschot, and Stevens accepted the positions offered and presumably continued to work through the 2002-2003 school year. Petitioner DeNova declined the offer. Petitioner Wickman also declined the offer, because she had been offered and accepted a position as a full-time case manager on August 1, 2002. As a result, the appeal must be dismissed for lack of standing as to petitioners Ezman, Moolenschot, Stevens, and Wickman, since they have been reemployed and thus are no longer aggrieved.

Petitioners Lomanaco and DeNova also lack standing to pursue this appeal. The record indicates that petitioner Lomanaco was offered reinstatement to a full-time teaching position on August 19, 2002, and declined on August 27. She was again offered a full-time teaching assistant position on August 29, 2002, and declined the position in writing on August 29. Petitioner DeNova was offered a full-time teaching assistant position on August 29, 2002 and declined in writing on August 31. Neither written declination contains any indication that the petitioner wished to be reemployed but for some reason was unable to accept respondent’s offer, nor do they state any other significant circumstances. Petitioners Lomanaco and DeNova did not indicate any temporary impediment to being reemployed, and they expressed no interest in the positions (cf., Matter of Lewis v. Cleveland Hill UFSD, 119 AD2d 263; Matter of Sopher v. Board of Educ., East Ramapo CSD, 97 AD2d 768). Based upon the record before me, I must conclude that these petitioners have no interest in the positions offered, and can no longer be considered aggrieved.

Although the appeal is dismissed on procedural grounds, I note that the "layoff units" at issue here have been found impermissible (Appeal of Krason, supra). On review of Krason, the courts have also determined that Education Law §3013(2) does apply to teaching assistants (Matter of Madison-Oneida BOCES v. Mills, 2 AD3d 1240; aff’d ____NY3d ____, December 21, 2004).

THE APPEAL IS DISMISSED.

New York Education - Article 61 - § 3014-B Teachers' Rights as a Result of a School District Taking Over a Program Formerly Operated by a Board of Cooperative Educational Services

3 No. 181
In the Matter of MadisonOneida Board of Cooperative Educational Services,Appellant,
v.
Richard P. Mills, as Commissioner of Education of the State of New York, et al.,
Respondents.

In the Matter of PUTNAM NORTHERN WESTCHESTER BOARD OF COOPERATIVE EDUCATIONAL
SERVICES et al.,

Steve Brill Does It Again: Misinforms The Public and Ignores Real Facts

Steve, I know that Joel Klein and the New York City Board of Education consider you their press person of the moment. Dont think that you are immune from the comments of knowledgeable bloggers concerning the facts surrounding every issue that you dont research.

Under Assault has chopped up your latest article in the New York Times magazine (see below). Kudos to you, Under Assault!

Oh, by the way, why does NY State want Race To The Top funds? Why cant we just get everyone at Tweed to resign/be fired, and keep five people (with four assistents only): (1) an experienced educator/curriculum expert; (2) a payroll/CPA/auditor; (3) a federal compliance expert; (4) an advocate/attorney specializing in special education law; (5) an attorney who has a long track record in education and labor law.

Betsy Combier


May 17, 2010
The Teachers’ Unions’ Last Stand
By STEVEN BRILL

MICHAEL MULGREW(at right) is an affable former Brooklyn vocational-high-school teacher who took over last year as head of New York City’s United Federation of Teachers when his predecessor, Randi Weingarten, moved to Washington to run the national American Federation of Teachers. Over breakfast in March, we talked about a movement spreading across the country to hold public-school teachers accountable by compensating, promoting or even removing them according to the results they produce in class, as measured in part by student test scores. Mulgrew’s 165-page union contract takes the opposite approach. It not only specifies everything that teachers will do and will not do during a six-hour-57 ½-minute workday but also requires that teachers be paid based on how long they have been on the job. Once they’ve been teaching for three years and judged satisfactory in a process that invariably judges all but a few of them satisfactory, they are ensured lifetime tenure.

Next to Mulgrew was his press aide, Richard Riley. “Suppose you decide that Riley is lazy or incompetent,” I asked Mulgrew. “Should you be able to fire him?”

“He’s not a teacher,” Mulgrew responded. “And I need to be able to pick my own person for a job like that.” Then he grinned, adding: “I know where you’re going, but you don’t understand. Teachers are just different.”

That is the kind of story that makes Jon Schnur smile. Schnur, who runs a Manhattan-based school-reform group called New Leaders for New Schools, sits informally at the center of a network of self-styled reformers dedicated to overhauling public education in the United States. They have been building in strength and numbers over the last two decades and now seem to be planted everywhere that counts. They are working in key positions in school districts and charter-school networks, legislating in state capitals, staffing city halls and statehouses for reform-minded mayors and governors, writing papers for policy groups and dispensing grants from billion-dollar philanthropies like the Bill and Melinda Gates Foundation. Bill Gates, along with Education Secretary Arne Duncan; Teach for America’s founder, Wendy Kopp; and the New York City schools chancellor Joel Klein could be considered the patron saints of the network.

Over the last several months, Schnur and the well-positioned fellow travelers on his speed dial have seen the cause of their lives take center stage. Why the sudden shift from long-simmering wonk debate to political front burner? Because there is now a president who, when it comes to school reform, really does seem to be a new kind of Democrat — and because of a clever idea Schnur had last year to package what might otherwise have been just another federal grant program into a media-alluring, if cheesy-sounding, contest called Race to the Top. It has turned a relatively modest federal program (the $4.3 billion budget represents less than 1 percent of all federal, state and local education spending) into high-yield leverage that could end up overshadowing health care reform in its impact and that is already upending traditional Democratic Party politics. The activity set off by the contest has enabled Schnur’s network to press as never before its frontal challenge to the teachers’ unions: they argue that a country that spends more per pupil than any other but whose student performance ranks in the bottom third among developed nations isn’t failing its children for lack of resources but for lack of trained, motivated, accountable talent at the front of the class.

Schnur, who is 44, became interested in education when, as an editor of his high-school newspaper, he read a draft of an article from a student who had transferred from a Milwaukee public school to his school in the suburbs. “She was savvier than any of us on the editorial board, but the draft was just so terribly written,” he told me. Schnur added that “the more I got to know her, the more I became obsessed with why public education hadn’t reached people like her.” After graduating from Princeton, he worked in the Clinton campaign and then landed an education-policy job in the Clinton administration.

Schnur recalls that when he met Barack Obama before his Senate campaign in 2004, and heard him talk about education, “I figured this guy could be the great education president — in 2017.” When Obama moved up the timetable, Schnur joined his 2008 campaign as a policy adviser. Six months later, he was working as a counselor to Education Secretary Duncan. As the Obama administration prepared to spend $80 billion in education aid as part of the economic stimulus program, Duncan and Schnur diverted $4.3 billion to the contest aimed at encouraging cash-strapped states to overhaul their public schools. Schnur came up with the name and pushed the overall spin of the contest, and it was clear from conversations with people in the school-reform movement that he is the one person who seems to know everything happening on all fronts, from the White House to legislative chambers in Albany or Sacramento to charter schools in New Orleans. Joel Klein, for example, said he talks to Schnur about once a week.

The winners of the Race would be those states that submitted the best blueprints for fulfilling the reform agenda, which includes allowing school districts to take over failing schools, improving curriculum standards and encouraging school innovation (which means, in part, allowing charter schools to flourish). But what the reformers have come to believe matters most is good teachers. “It’s all about the talent,” Secretary Duncan told me. Thus, the highest number of points — 138 of the 500-point scale that Duncan and his staff created for the Race — would be awarded based on a commitment to eliminate what teachers’ union leaders consider the most important protections enjoyed by their members: seniority-based compensation and permanent job security. To win the contest, the states had to present new laws, contracts and data systems making teachers individually responsible for what their students achieve, and demonstrating, for example, that budget-forced teacher layoffs will be based on the quality of the teacher, not simply on seniority. (Fifteen states, including New York and California, now operate under union-backed state laws mandating that seniority, or “last in/first out,” determines layoffs. These quality-blind layoffs could force a new generation of teachers, like those recruited by Teach for America, out of classrooms in the coming months.) To enable teacher evaluations, another 47 points would be allocated based on the quality of a state’s “data systems” for tracking student performance in all grades — which is a euphemism for the kind of full-bore testing regime that makes many parents and children cringe but that the reformers argue is necessary for any serious attempt to track not only student progress but also teacher effectiveness.

By late March, when the first round of the Race ended, it was clear that Schnur’s spin had worked “better than any of us imagined,” he says. Thousands of local news stories across the country speculated about how particular states were faring, some of them breathlessly referring to the “March Madness” as governors, state legislators and bureaucrats rushed to consider reforms that might improve their chances. Forty states and the District of Columbia entered the first round. Fifteen, including such union strongholds as California, Ohio and Michigan, passed laws or revised regulations aimed at boosting their chances. Before Duncan had dispensed a nickel, the country had seen more school reform than it had in decades. And still more is being debated as the deadline for a second round of proposals looms next week and states, including New York, Connecticut and New Jersey, hustle to do more to boost their scores.

When the starting gun for the Race went off, four forces that had been building came together and gained strength from one another.

First there’s the rise of the reformers who seem to be in daily communication through e-mail and blogs. The standard profile is someone who went to a prestige college, joined Teach for America for a two-year stint and found the work and the challenges so compelling that he or she decided education should be more than a layover before a real career. So they did more teaching or became involved running a charter school or a reform group, then kept moving up the ladder as sympathetic political leaders, including Democrats (most in this network also seem to be Democrats), took over cities or states and looked for people to overhaul school systems. One exception is Schnur. “I was in Wendy’s class in Princeton in 1989, so I couldn’t do T.F.A. because it didn’t exist yet,” Schnur says, referring to Wendy Kopp, who founded Teach for America in 1990 based on a senior thesis she wrote envisioning a Peace Corps-like cadre of young college grads.

Although Schnur is a cheerful, modest type, there is a strain of self-righteousness that runs through the reform network. Some come off as snobs who assume any union teacher is lazy or incompetent and could be bested by young, nonunion Ivy Leaguers full of energy. And others see tying teachers’ pay to their students’ improvement on standardized tests as a cure-all. But most — especially those who have taught and appreciate how hard it is — understand that standardized tests are far from perfect, and that some subjects, like the arts, don’t lend themselves to standardized testing. They know that most teachers want to be effective and that data-based performance assessments should be combined with classroom observation and other subjective measures not only to hold teachers accountable but also to help them improve their performance.

The second force at work is a new crop of Democratic politicians across the country— including President Obama — who seem willing to challenge the teachers’ unions.

Third, there’s the boost given to school reform by high-powered foundations, like the Gates Foundation, which have financed important research and pilot reform projects, and by wealthy entrepreneurs, who have poured seed money into charter schools.

And fourth, there’s the charter-school movement, which has yielded an increasingly large and vocal constituency of parents whose children are among the more than 1.5 million students attending more than 5,000 charter schools.

Put those forces together with the Race, and you have education reform moving into prime time. Parents marched and lobbied in Tallahassee, Albany and Los Angeles, demanding that their school systems be reformed the way Obama’s instructions for winning the Race said they should. Newspaper editorial boards of all political stripes joined in their cause; “Union Lackeys” was a typical title of a Las Vegas Review-Journal editorial about recalcitrant Democratic legislators.

If unions are the Democratic Party’s base, then teachers’ unions are the base of the base. The two national teachers’ unions — the American Federation of Teachers and the larger National Education Association — together have more than 4.6 million members. That is roughly a quarter of all the union members in the country. Teachers are the best field troops in local elections. Ten percent of the delegates to the 2008 Democratic National Convention were teachers’ union members. In the last 30 years, the teachers’ unions have contributed nearly $57.4 million to federal campaigns, an amount that is about 30 percent higher than any single corporation or other union. And they have typically contributed many times more to state and local candidates. About 95 percent of it has gone to Democrats.

Before they successfully organized in the 1950s and 1960s, teachers endured meager salaries, political favoritism, tyrannical principals and sex discrimination against a mostly female work force. It’s that sense of needing to stick together against real or potential mistreatment by management, plus a sincere — and accurate — belief that most teachers do teach for reasons beyond simply making a living, that drives Mulgrew and other union leaders. There’s also the reality that their own power comes from making sure that the all-for-one-one-for-all contract that they negotiate remains the determining factor in a teacher’s professional life.

Nonetheless, almost all the states that submitted first-round applications proposed school reforms that a year ago would have been seen as pushing beyond what the teachers’ unions would allow. Some moved further than others either because the lure of the Race to the Top money trumped the unions’ opposition, or because political leaders and educators were able to persuade union leaders to get on the train instead of standing in front of it.

*********

ON MARCH 4, Duncan announced that 16 applicants were finalists for the first round. And he said that they all were examples “for the country of what is possible when adults come together and do the right thing for children.” One of those finalists was New York, which finished 15th but where the union’s clout was such that the application failed to address the core requirements of Duncan’s agenda. Joe Williams of Democrats for Education Reform sent an e-mail message to the network — addressed “Dear Education Warrior” — saying he was “baffled” by Duncan’s apparent leniency in giving states like New York a pass. But by the end of the month, Duncan had redeemed himself with the reformers. He picked only two states, Delaware and Tennessee, for the first round of awards. Those states had scored highest (455 and 444) on the 500-point scale. Georgia and Florida (434 and 431) were close behind, but Duncan told me he wanted “to set a high bar.”

School officials in Delaware, which will receive $100 million, have been working on reform projects for more than a decade, and the state already has a comprehensive student-performance data system in place. “We worked on the application all summer, built on a 10-year legacy of reform,” Gov. Jack Markell, a Democrat, said. And so, in its application, the state was able to point to regulations that had been beefed up for the Race. In Delaware, no teacher now will be rated “effective” who does not meet targets connected to student test-score improvement (as well as other subjective measures, like evaluations of lesson plans and classroom management) over the school year, and teachers could be removed if they are rated “ineffective” or “needs improvement” two years in a row. “We know testing has to be part of the evaluation process,” Diane Donohue, the head of the Delaware state teachers’ association, says. “This is a culture change that has been happening over the years and came to a head with Race to the Top.” In fact, Donohue was one of the five people picked to present Delaware’s proposal in Washington.

In Tennessee, Gov. Phil Bredesen, also a Democrat, pushed the Legislature to pass laws allowing more charter schools and making student test scores 50 percent of annual teacher evaluations. The statewide teachers’ union ended up supporting both bills.

Bredesen explained the new politics of education in his state this way: “For me there’s a little bit of a ‘Nixon goes to China’ feel about it, because I had done a lot of things that teachers were quite happy with over the years. My argument to them was that this is coming from a Democratic administration. This is not a Republican idea anymore. I told them that I know this goes at the core of what you and your colleagues have been protecting over the years,” Bredesen continued, referring to how he broached the subject of teachers being evaluated and paid based on individual performance ratings. “But now, we’re all going to have to evolve. It’s coming, and you can either help to structure it, or you can fight it, and it won’t be as good.”

Bredesen points to an earlier development in his state that, he says, had “broken the ice.” In 2009 the Gates foundation provided a $90 million grant to the Memphis school system — the state’s largest — on the condition that teachers there allow 35 percent of their performance ratings to be based on student test scores. Bredesen’s icebreaker was emblematic of the forces of reform coming together around the Race. Projects like the one in Memphis financed in the last decade by Gates and other foundations and the work of reform policy groups like the New Teacher Project, which has been involved extensively in Delaware, paved the way for reform, as has the ascent of less ideological, more executive-minded Democrats like Bredesen.

*********

THE PERSON IN charge of preparing New York’s application was John King, the senior deputy commissioner of the state Education Department. Schooled in Brooklyn (where his father was the first black principal in a Brooklyn school), King is an alumnus of Harvard and Yale Law School and was a founder of the Roxbury Preparatory Charter School in Massachusetts.

King works for David Steiner, the state education commissioner. But the Education Department is largely under the control of the Legislature, which appoints the State Board of Regents, which oversees the department. The Legislature has also passed — and could repeal — statutes that essentially guarantee lifetime teacher tenure and that mandate teacher layoffs strictly on the basis of seniority. The key leader of the Legislature is Assembly Speaker Sheldon Silver, who, like many New York Democrats, held an election-night victory party at the U.F.T. headquarters. The U.F.T.’s Web site calls Silver “our partner” and quotes him as declaring at a union rally, “I and my colleagues in the Assembly majority will be your best friends . . . in Albany.”

King says that “navigating all of the competing interests in New York is a lot different than any other job I have had.” Thus, he explains, that with “all of the limits we had with the laws and collective-bargaining agreements in place and the political reality of the Legislature,” preparing New York’s application “was difficult and frustrating.”

One frustration centered on charter schools. Charters are publicly financed schools open to any child by lottery but run by entities other than the conventional local school district. Typically they are operated by nonprofit organizations that rely on donations to provide seed money but then use the same per-pupil money doled out to the public schools for ongoing operations. Those who run charters are accountable for the school’s performance, but they are free to manage as they wish. That includes the freedom to hire teachers who are not union members. A law allowing charter schools in New York was passed in 1998 over intense opposition from the teachers’ union. It survived because there was a Republican governor, George Pataki, and then only because Pataki attached it to a bill giving a pay raise to legislators. Moreover, to placate the union, legislators capped the number of charters to be issued statewide.

The Race to the Top reopened the charter debate. Although other reform criteria count for much more, the contest measured a state’s amenability to charters, giving up to 40 of the 500 points to charter-friendly states. With New York State 12 charters away from hitting its 200 cap (and likely to hit it with new charters to be issued this year), not lifting the cap threatened the state’s application.

Charter schools are not always better for children. Across the country many are performing badly. But when run well — as most in Harlem and New York’s other most-challenged communities appear to be — they can make a huge difference in a child’s life. So by the time the Race rules were issued, the charter cap had become something that many New York parents, particularly in neighborhoods with underperforming schools, cared a lot about. In Harlem, for example, about 20 percent of all age-eligible children are now enrolled in charters, and in April, 14,000 other children submitted applications in the lottery for next year’s 2,700 open seats. This means that more than 11,000 kids just in Harlem were turned away. Across the city applications were up 25 percent, and 43,000 students were turned away.

Bill Perkins, who represents Harlem in the State Senate, is the Legislature’s leading opponent of charters. Sitting next to a poster of Barack Obama with the headline “Brothers for Barack” in his office on 125th Street, Perkins, who has enjoyed teachers’ union support, says it’s “stupid and unfair to blame unions when the reason the schools in this community are failing is that they lack resources. . . . the president is wrong.” In February, Perkins was faced with a march on Albany organized by the charter schools to protest his and his colleagues’ opposition to lifting the charter-school cap.

A building on 118th Street is one reason that the parents who are Perkins’s constituents know that charters can work. On one side there’s the Harlem Success Academy, a kindergarten-through-fourth-grade charter with 508 students. On the other side, there’s a regular public school, P.S. 149, with 438 pre-K to 8th-grade students. They are separated only by a fire door in the middle; they share a gym and cafeteria. School reformers would argue that the difference between the two demonstrates what happens when you remove three ingredients from public education — the union, big-system bureaucracy and low expectations for disadvantaged children.

On the charter side, the children are quiet, dressed in uniforms, hard at work — and typically performing at or above grade level. Their progress in a variety of areas is tracked every six weeks, and teachers are held accountable for it. They are paid about 5 to 10 percent more than union teachers with their levels of experience. The teachers work longer than those represented by the union: school starts at 7:45 a.m., ends at 4:30 to 5:30 and begins in August. The teachers have three periods for lesson preparation, and they must be available by cellphone (supplied by the school) for parent consultations, as must the principal. They are reimbursed for taking a car service home if they stay late into the evening to work with students. There are special instruction sessions on Saturday mornings. The assumption that every child will succeed is so ingrained that (in a flourish borrowed from the Knowledge Is Power Program, or KIPP, a national charter network) each classroom is labeled with the college name of its teacher and the year these children are expected to graduate (as in “Yale 2026” for one kindergarten class I recently visited). The charter side of the building spends $18,378 per student per year. This includes actual cash outlays for everything from salaries to the car service, plus what the city says (and the charter disputes) are the value of services that the city contributes to the charter for utilities, building maintenance and even “debt service” for its share of the building.

On the other side of the fire door, I encounter about a hundred children at 9:00 a.m. watching a video in an auditorium, having begun their school day at about 8:30. Others wander the halls. Instead of the matching pension contributions paid to the charter teachers that cost the school $193 per student on the public-school side, the union contract provides a pension plan that is now costing the city $2,605 per year per pupil. All fringe benefits, including pensions and health insurance, cost $1,341 per student on the charter side, but $5,316 on this side. For the public-school teachers to attend a group meeting after hours with the principal (as happens at least once a week on the charter side) would cost $41.98 extra per hour for each attendee, and attendance would still be voluntary. Teachers are not obligated to receive phone calls from students or parents at home. Although the city’s records on spending per student generally and in any particular school are difficult to pin down because of all of the accounting intricacies, the best estimate is that it costs at least $19,358 per year to educate each student on the public side of the building, or $980 more than on the charter side.

But while the public side spends more, it produces less. P.S. 149 is rated by the city as doing comparatively well in terms of student achievement and has improved since Mayor Michael Bloomberg took over the city’s schools in 2002 and appointed Joel Klein as chancellor. Nonetheless, its students are performing significantly behind the charter kids on the other side of the wall. To take one representative example, 51 percent of the third-grade students in the public school last year were reading at grade level, 49 percent were reading below grade level and none were reading above. In the charter, 72 percent were at grade level, 5 percent were reading below level and 23 percent were reading above level. In math, the charter third graders tied for top performing school in the state, surpassing such high-end public school districts as Scarsdale.

Same building. Same community. Sometimes even the same parents. And the classrooms have almost exactly the same number of students. In fact, the charter school averages a student or two more per class. This calculus challenges the teachers unions’ and Perkins’s “resources” argument — that hiring more teachers so that classrooms will be smaller makes the most difference. (That’s also the bedrock of the union refrain that what’s good for teachers — hiring more of them — is always what’s good for the children.) Indeed, the core of the reformers’ argument, and the essence of the Obama approach to the Race to the Top, is that a slew of research over the last decade has discovered that what makes the most difference is the quality of the teachers and the principals who supervise them. Dan Goldhaber, an education researcher at the University of Washington, reported, “The effect of increases in teacher quality swamps the impact of any other educational investment, such as reductions in class size.”

This building on 118th Street could be Exhibit A for that conclusion.

“I’ve got one child in a charter and have had two in public schools,” says Bernice Wynn, who runs an optician’s shop on Lenox Avenue with her husband, and whose daughter, Tiana, is in the Harlem Success Academy. “There is no comparison. Tiana is in first grade and already reading chapter books and writing stories.”

“Someone like Perkins has to know that we know that,” DeJuan, her husband, adds.

Perkins argues that “we have to focus on improving the public schools for everyone.” Klein’s response is that while charter schools can never be a substitute for a public school system, they can demonstrate how public schools can be improved, while creating healthy competition for a system that used to be a monopoly. “Parent choice can only make all schools better,” he says, paraphrasing a favorite line on the placards of the parents who picketed Perkins in Albany last winter and in Downtown Manhattan last month when he held a hearing about charters. Perkins himself benefited from parent choice; he graduated from Collegiate, the prestigious West Side private boys’ school, something he says “is irrelevant.” “There is nothing wrong with a mother wanting her children to get the best education,” he says.

Two weeks ago, the reform network was buzzing with the news that the political consultant Basil Smikle had announced that he was running against Perkins in the Democratic primary this September and that Perkins’s opposition to charters would be his main issue. Mulgrew of the U.F.T. was quoted in The New York Post praising Perkins as a “staunch supporter of all the children of Harlem. That will weigh heavily in our endorsement process.”

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AS JOHN KING struggled to prepare New York’s application, he knew that the entire school system could benefit from Race to the Top money if the state lifted the charter-school cap. That’s why King was pushing for the change so urgently, as was Merryl Tisch, the chancellor of the New York State Board of Regents.

That is also why, at about midnight on Saturday, Jan. 16, Tisch answered the phone in her apartment on the East Side of Manhattan and let out an earsplitting shriek. She recalls that her husband, James Tisch, who is the chief executive of Loews Corporation, thought someone must have died. What she was reacting to was a draft of a bill concerning charters that had just been released by the State Assembly.

The first paragraphs seemed to lift the cap. But a closer reading revealed so many conditions that it would be no easier to start new charters than under the current law. With three days left before New York’s application was due, Silver and the Democrats were choosing to side with the union over winning a possible $700 million that the Race offered her financially strapped state. Thus, Tisch’s shriek.

“I’m told that the people from Nysut” — New York State United Teachers — “and the U.F.T. drafted the poison-pill provisions,” Tisch said. Silver denied that, adding, “If it’s something someone doesn’t agree with, they call it a poison pill.” Silver told me he “supports charters, but to me the real need remains supporting public education with the resources to lower class size.”

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ALTHOUGH THE last-minute crisis over the charter cap grabbed headlines all over New York, it turned out to be the least of the problems in the state’s proposal. Its application featured comic overstatements — New York has been recognized for its “ability to move poor performing teachers from the classroom,” for example — and far more significant omissions and misstatements, all of which were the product of King’s game effort to finesse the grip the unions have on public education in New York.

For example, the states were instructed to check boxes on a grid to signal which of their local school systems had signed a memorandum of understanding, or M.O.U., agreeing with the state to implement each of the many initiatives their plans promised if the state got the Race money. To make this expression of commitment unambiguous, the Race application included the exact M.O.U. that was to be signed. The contest instructions also stated that if the wording of the M.O.U. for any local school system was changed to make it “conditional,” the box should not be checked.

New York checked all the boxes for all of its school districts for all of the initiatives on the grid it submitted. But in a 403-page appendix to its 348-page application, New York included the M.O.U. that actually had been signed by all of its school districts. It was worded almost exactly as the federal government’s M.O.U. — except that after reciting everything that would be done to link student tests to teacher evaluations, and to compensate teachers and move them up on a career ladder according to those evaluations, the New York M.O.U. inserted this qualifier: “consistent with any applicable collective-bargaining requirements.” The same phrase was also inserted after the promise to “ensure the equitable distribution of effective teachers” — a reform aimed at allowing school systems to assign their best teachers to the schools most in need. Then for good measure at the end of the entire M.O.U. this sentence was added to cover everything: “Nothing in this M.O.U. shall be construed to override any applicable state or local collective-bargaining requirements.”

Of course the U.F.T.’s collective-bargaining agreements in New York City, as well as union contracts in much of the rest of the state, explicitly prohibit exactly the reforms promised in the application. Changing that is the point of Duncan’s contest. When I asked Tisch about this, she pointed to another added sentence, in which each school system and the union agree to negotiate any necessary contract changes in “good faith.” That’s the “way we solved that,” she says.

“Right,” Klein says. “That’s like telling a woman you’ll marry her in the morning.”

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MOREOVER, IT TURNS out that Mulgrew of the city’s U.F.T. refused to sign even that altered M.O.U. Instead, shortly before the applications were due in Washington, he submitted a completely redone version that outlined a teacher-evaluation program that would be completely voluntary and that contained a provision declaring that “student performance data shall not be a factor in decisions regarding individual teacher compensation.”

I asked Mulgrew over breakfast, “If Arne Duncan was sitting here with a check ready to give to New York, and he said he’d give it to you if you promise to allow test scores to be tied to compensation, would you make the promise?”

“No — I’d tell him we have to negotiate with the guy up the street,” Mulgrew replied, referring to Klein, “to come up with a fair system first. But I could not promise him that we could.”

“Would you promise to support a repeal of the state law requiring layoffs to be done only on the basis of seniority?” I asked him, referring to what has now become another controversial issue.

“No, that’s the law,” he said.

Nonetheless, the box signifying the U.F.T.’s agreement to the standard M.O.U. was also checked.

Klein says he didn’t want to sign the M.O.U. because the caveats made it meaningless, but he ultimately went along so as not to “seem like a spoilsport.”

David Steiner, the commissioner for the New York State Department of Education, signed the application. He offered no explanation for why the boxes were checked other than that his staff has since looked at other applications and found that Florida, Massachusetts, Pennsylvania and Illinois also checked the boxes “based,” he said, “on a future commitment to collectively bargain.” He’s right. California did the same thing, as did lots of other states, including the first-round winner, Delaware. (In Delaware’s case, however, the core of its commitments — like how teachers will be evaluated — did not require a union sign-off, explained Donohue, the Delaware state teachers’ union president. The collective-bargaining caveat in the M.O.U., she said, “has to do with other, smaller aspects of the plan, like extending school days at turnaround schools, which I am sure we will agree on.”)

When it came time for King and four others representing New York to make a presentation to the Race’s vetters in Washington, King’s performance, as seen on a video I reviewed of the session, looked a bit like a hostage tape. “We were all struggling,” King recalls. “We thought we had a great proposal in terms of what we could control — like curricula standards and data systems — but the areas we could not control because of the contracts and laws were difficult.”

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EVEN IF THE UNION still has support in strongholds like Albany, union leaders like Weingarten and Mulgrew seem to have realized that the political pressure the Race has generated means they have to yield in some places and in some ways. In mid-April, Mulgrew agreed with Klein to streamline the teacher-discipline process in a way that, by the end of the year, will close New York’s so-called rubber rooms, the infamous “reassignment centers” where the New York City teachers charged with the most extreme incompetence or misconduct (currently 600 out of 80,000) are sent to do nothing while they await tenure-protected arbitration hearings. Until this agreement, the arbitration process lasted an average of three years, during which the teachers remained on the payroll and accumulated pension entitlements. Only a handful of teachers were ever dismissed at the end of the process. It will now still probably take at least a year to remove these most egregiously incompetent or misbehaving teachers, and there continues to be no broader process in place in New York for evaluating, promoting or removing teachers based on performance. Nonetheless, this is a concession that the union had repeatedly refused to make.

Weingarten has always embraced teacher accountability in theory, but with the caveat that the system has to be fair, after which she adds that there’s no way to guarantee that linking student progress to testing will be fair because tests don’t take subjective factors into account, nor would allowing subjective evaluations by principals be fair. To the reformers, Weingarten’s refrain has until lately seemed a way to duck reform while appearing to favor it. But last month, she took an important, if muted, step toward the reformers: she ended a high-profile confrontation in Washington, D.C., by agreeing to the elimination of tenure-based job security.

“When I came here, all the adults were fine; they all had satisfactory ratings,” says Washington’s schools superintendent, Michelle Rhee, referring to the teachers. “But only 8 percent of eighth graders were on grade level for math. How’s that for an accountable system that puts the children first?”

In 2008, Rhee — a Klein protégée, who founded the New Teacher Project after teaching in Baltimore for Teach for America — proposed huge salary increases for those teachers who would give up lifetime tenure guarantees and lockstep compensation and agree to have their performance linked to student test-score improvements. Those who didn’t volunteer could keep their current pay scales and job security. For two years, the union refused to allow Rhee’s offer to be put up for a vote. Rhee persisted — “I’m not big on the collaborative, warm and fuzzy approach,” she says — and became a hero of the reformers.

Despite efforts by both sides to save face for the union by preserving the language of tenure, the deal that Weingarten and Rhee negotiated in April actually achieved more than Rhee sought in her original offer. The new contract unambiguously, if subtlely, strips tenure of its core job-security protections. Two clauses now make it possible for Rhee to fire any teacher with tenure, no matter which track he or she chooses (lockstep compensation or performance-based pay), if the teacher is evaluated as “ineffective” for one year or “minimally effective” for two years. The criteria used to define “ineffective” or “minimally effective” are, according to another clause, “a nonnegotiable item” determined solely by Rhee and her staff. Rhee still has catching up to do when it comes to the data systems that other Race finalists demonstrated, but this new contract — which New York’s Klein calls “a home run for Michelle” — gives the District of Columbia a better shot for the second round. (Washington placed 16th in the first round.)

The teachers’ unions have become accustomed in recent years to fighting off reform efforts by Republicans and think-tank do-gooders. They ignore the rhetorical noise, while sticking to the work of negotiating protectionist contracts with the politicians who run school systems and depend on their political support. But what happened last month in Washington could signal a new era in which the unions have to worry that Democrats, like Washington’s mayor, Adrian Fenty, not only won’t yield in contract negotiations but will also support laws and programs aimed at forcing accountability. That is the threat posed by the Race. “Deliberately or not, President Obama, whom I supported, has shifted the focus from resources and innovation and collaboration to blaming it all on dedicated teachers,” Weingarten says.

Certainly, the political math has changed. “My basic calculus of school reform is that I know I have every Republican vote and at least some of the Democrats,” says Mike Johnston, a Colorado state senator who is a Democrat and avid reformer (and another Teach for America alumnus). As with Bredesen’s Tennessee First to the Top Act, Johnston got lopsided votes for a Race-friendly bill he sponsored in February that not only ties student test scores back to teachers but also names the educational institutions that trained the teachers, so that education schools, too, would be held accountable.

But Colorado is more union-friendly than Tennessee, and Johnston’s math only got him so far last winter in a state where Democrats are the majority in both houses of the Legislature. He also pushed for a bill that would make 50 percent of annual teacher evaluations depend on test scores. However, Gov. Bill Ritter, another Democrat, instead submitted an executive order setting up a council to define effectiveness and create an implementation plan that would then be presented to the Legislature. That probably explains why Colorado — whose largest school system, in Denver, already has strong teacher-accountability rules — did not win in the first round; the state was a finalist but came in 14th.

“I’m going to try to get the bill passed in May,” Johnston told me in April. “Not winning the first round should help.” Last week, despite a pushback from the union that included demonstrations and radio ads, his bill passed by a wide margin with votes from both parties. And in a development that would have seemed surreal six months ago, Weingarten endorsed the bill after Johnston agreed to minor amendments, including an appeal process for those tenured teachers judged ineffective. (The larger teachers’ union, the National Education Association, opposed it.) Colorado now seems likely to win in Round 2 of Race to the Top.

Asked if Colorado and the District of Columbia didn’t represent some pretty significant concessions, Weingarten told me, “Anyone who knows me knows that I have always favored what’s good for children and fair to teachers, and that’s what I stood for here.”

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DUNCAN’S HARD LINE in the first-round awards obviously helped Johnston. But other reformers worry not only that Duncan praised the many states with weaker proposals than Colorado’s that made it into the first round of 16 finalists, like New York, but also that he has promised that there will be “10 to 12” more winners in the second round to share the remaining $3.4 billion. With that money to be awarded this September — at the height of the Congressional election season, when dispensing pork might be tempting — would Duncan reach far enough down the scoring charts this time to award states that aren’t serious about his reform goals? Would a simple fix in the New York law capping the number of charter schools, perhaps passed on the eve of the second application’s June 1 deadline, be enough to mask the more fundamental deficiencies in the New York plan? Indeed, three weeks ago the Democratically controlled State Senate did exactly that, in what Klein calls “a bend in history’s arc caused by the Race.” (The Assembly had not acted as of this writing.)

Moreover, on May 11, Tisch and Steiner announced that in anticipation of the June 1 deadline for the second round of Race applications they had gotten the unions to agree to a four-tiered evaluation system for teachers — “highly effective,” “effective,” “developing” and “ineffective” — that would replace the old satisfactory-unsatisfactory regime. In part the evaluations would be tied to state standardized test scores, though they would count for only 20 to 25 percent of an evaluation. This would seem to make it easier to remove ineffective teachers, because the agreement calls for a teacher’s removal if judged ineffective two years in a row, and, as such, it’s a reform that would have been unimaginable four months ago when the first-round application was filed — or even two months ago, when Mulgrew and I had breakfast. But it still does not allow for these evaluations to be linked to teacher compensation, and the small print allows for a drawn-out collective-bargaining process over what the other 75 to 80 percent of the evaluation criteria would be — before which the evaluations could apparently not begin. Nonetheless, it will make New York’s second-round application stronger.

One reason New York may have gone even as far as it did in the first round could be that good intentions can’t guarantee perfect execution in a federal bureaucracy. Joanne Weiss, who runs the Race program for Secretary Duncan, began last summer to recruit experts, called “peer reviewers,” to score the applications in a way that would inoculate the decisions from charges of political favoritism. Five vetters were assigned to each application, and the score was the average of their individual scores. Duncan would reserve the right to override the point scores, but if he did, he would have to explain himself because the scores would be released publicly. (He told me that he doesn’t plan to override the vetters.) Department of Education regulations required that the scorers not only have no financial interest in the outcome of their decisions, but not even an appearance of a conflict, both in terms of money and potential bias. This pretty much eliminated people involved in operating school systems or those who are active in Schnur’s reform network, yielding vetters who were academics, education foundation staff members (but not at places like the Gates Foundation that finance reform projects) and long-retired educators.

“When I found out that the reviewers would be people who are not directly involved in K-through-12 education, I got concerned,” recalled Paul Pastorek, the Louisiana schools superintendent who is widely admired in reform circles. Pastorek’s application included impressive details of what Louisiana had already achieved in creating data systems, described the state’s overhauling of New Orleans schools following Hurricane Katrina and presented a comprehensive plan for more progress. Pastorek and I had this conversation about the scorers about three weeks before he found out that his state came in 11th. According to the tallies, he’d have come in much higher but for the rating he received from one scorer, who gave Louisiana a surprising 349, which was lower than New York’s average score.

However the mechanics of the process might be improved in the second round, some of the reformers were also concerned, as three of them told me, all using the same phrase, that Duncan’s language was “too collaborative.” What they meant was that by emphasizing how the unions had bought into the plans of the two first-round winners, Delaware and Tennessee, he was suggesting that the unions could block a state from winning by not signing on.

When I talked to him in April, Duncan denied wanting to send that signal, noting that Georgia and Florida, with no union sign-offs but far-reaching plans, finished third and fourth in the first round. And he nodded when I speculated that Florida’s chances seemed even better for the second round because a new law — passed by both houses of the Legislature after the first round ended — would force accountability on all teachers without the union’s agreement. “What we want are the plans that touch the most children,” Duncan said. “Ideally we want the adults working together, but at the end of the day, this is about doing reform.”

After we spoke — in another sign not only of the turmoil caused by the Race but also of the union’s continued power — Florida’s governor, Charlie Crist, who is in a hotly contested Senate race, vetoed the teacher-accountability bill. He said he did so because “the people spoke, and they spoke loudly.” Those on the other side pointed to a ferocious lobbying campaign by the state teachers’ union that generated more than 100,000 e-mail messages and phone calls to Crist’s office.

As the Florida fight suggests, this is not a battle that is going to end soon. In fact, even as the battle lines have now been drawn in communities and state capitals across the country, the fight is about to come back to Washington, where turning a grant program into a contest started it all. President Obama was so pleased with the reaction to the Race that he recently proposed a new $1.3 billion contest after the first two rounds are completed, this time directed at individual school districts instead of states. More significant, Duncan has said that some of the billions in more traditional annual federal aid that has flowed to states according to population formulas should now be based on Racelike competitions aimed at various pieces of the reform agenda. “This is the chance of a lifetime,” Duncan says. “We have to move the country in a fundamental, dramatic way.”

In a Congress controlled by Democrats, that could be a struggle. When Duncan’s testimony broached the broader idea at a March Congressional hearing, the House Appropriations Committee chairman, David Obey, a Democratic representative from Wisconsin — which finished 26th out of 41 entrants in the first round of the Race — reminded Duncan of the states’ dire need for basic funds and signaled his skepticism about the Race reforms, declaring, “When the sailboat is sinking, my top priority would not be to put a new coat of varnish on the deck.” (Obey recently announced he will retire next year, perhaps making Duncan’s reform path easier.)

“Every Democrat knows the president really cares about this,” Schnur says. Which suggests that the Nixon-to-China dynamic that prevailed in states like Tennessee may work in Washington. Obama could most likely get some, probably many, Democratic votes, while winning support from Republicans on an issue they have championed so strongly in the past that taking a flat-out anti-Obama approach would be especially awkward.

“That President Obama did this is a total game changer,” says Pastorek, the Louisiana schools superintendent, who is a Republican working for a Republican governor, Bobby Jindal. “If he really sticks to this, education will never be the same.”

Steven Brill is the co-founder of Journalism Online. His last article for the magazine was about executive compensation.

More on Brill's "poop" in the NY Times
Tweed and its RRs: filling in what Brill conveniently left out

Lawsuit Is Filed Against The State of California Saying That The School Finance System Is Unconstitutional

California may be far away in miles, but not in spirit. They have "rubber room" teachers there, too.

Historic Lawsuit Challenges California’s Unconstitutional Education Finance System

A historic lawsuit was filed today against the State of California requesting that the current education finance system be declared unconstitutional and that the state be required to establish a school finance system that provides all students an equal opportunity to meet the academic goals set by the State.

The case, Robles-Wong, et al. v. State of California, was filed in the Superior Court of California in Alameda County. Specifically, the suit asks the court to compel the State to align its school finance system—its funding policies and mechanisms—with the educational program that the State has put in place. To do this, plaintiffs allege, the State must scrap its existing finance system; do the work to determine how much it actually costs to fund public education to meet the state’s own program requirements and the needs of California’s school children; and develop and implement a new finance system consistent with Constitutional requirements.

The lawsuit was filed by a broad coalition, including more than 60 individual students and their families, nine school districts from throughout the State, the California School Boards Association (CSBA), California State PTA, and the Association of California School Administrators (ACSA).

“Filing this lawsuit was a last resort,” said CSBA President Frank Pugh. “Education funding has been in a deteriorating spiral in California for decades. A failure to act now threatens the future of California’s students and the future of our state. The Governor and lawmakers have known for some time that the current school finance system is harming students and they’ve done nothing to remedy the crisis. The $17 billion in cuts to education have only made a dire situation even worse. California’s unstable, unsound and insufficient school finance system is robbing our students of an education.”

“This lawsuit seeks to ensure that the State, the Legislature and the Governor comply with the Constitution and fund and deliver the promised education program to all students in the state,” said Bill Abrams, a partner at the law firm of Bingham McCutchen and counsel for plaintiff students and families. “The Constitution requires that school funding ‘first be set apart’ to meet program demands, and provides that education is a fundamental right and must be made equally available to every child. Too often, this isn’t the case, and the State balances its budget on the backs of its students by cutting or underfunding education programs, and thus prevents schools from meeting its own education standards.”

California’s broken school finance system has undermined the ability of districts to educate our children by making no connection between what is expected of schools and students and the funding provided in order to meet those expectations.

California has set clear requirements for what schools are expected to teach and what students are expected to learn. But the state has failed in its obligation to provide the resources necessary to meet these requirements. The state’s failure to support the required educational program adversely affects all students. Academic achievement results show California’s irrational, unstable and insufficient school finance system denies students the opportunity to become proficient in the State’s academic standards.

“Numerous reports during the last decade have documented the state’s failure to remedy the broken school finance system. The Governor’s own Committee on Educational Excellence in 2007 concluded that our current system is not producing the results that taxpayers and citizens are counting on and that our students deserve,” said Chuck Weis, president of the Association of California School Administrators. “We are asking the courts to require the State to meet the expectations set by law in the Constitution.”

California’s unique revenue and expenditure system makes our schools almost completely dependent on the state, and yet the Governor and Legislature have failed to make education a priority.

The Constitution gives education financing a unique priority by requiring that “from all state revenues there shall first be set apart the monies to be applied by the State for support of the public school system.” Instead, school financing has been battered by instability that prohibits necessary planning to deliver what has been promised to students, and as a result all students suffer. Only half of all California students are proficient in English-language arts; and less than half (approximately 46 percent) are proficient in mathematics. In addition, fewer than 70 percent of California students graduate from high school.

“We require students to meet high education standards and then deny them the resources they need to meet those standards,” said Jo A.S. Loss, president of the California State PTA. “We must have a system that allows schools to deliver a high-quality education for all children – in good times and in tough times.”

Currently, the state ranks 47th among all states in its per-pupil spending on education, spending $2,856 less per pupil than the national average.

Rachel Norton

Yet most Californians, according to a recent poll conducted by the Public Policy Institute of California, believe there is not enough state funding going to public schools, and a majority single out K-12 education as the area that they most want to protect from spending cuts.

“Since I started going to school at Alameda High as a freshman, I know that summer programs have been cut. I know that teachers have been laid off. And I know that programs that are supposed to help my classmates and me go to college have been cut,” said Maya Robles-Wong, a 16-year-old 11th-grader and a plaintiff in the lawsuit. “I’m not an expert in education finance, but I know enough to say that it’s not because my teachers and our schools aren’t trying to give us what we need. I know that the real problem is that the State is not providing the support my school needs to teach me everything I need.”

Ignoring the facts about our state’s education finance system will deny generations of students the opportunity to be competitive and successful in our global economy. California educates the most diverse student population in the nation and yet we rank nearly last in per-pupil funding. Unless the State fixes the broken school finance system, students will be denied the opportunity to become informed citizens and productive members of society.

For more information about the school finance lawsuit, please visit www.fixschoolfinance.org.

The California School Finance Lawsuit

On May 20, 2010 a historic lawsuit was filed against the state of California requesting that the current education finance system be declared unconstitutional and that the state be required to establish a school finance system that provides all students an equal opportunity to meet the academic goals set by the State.

This lawsuit was brought forth by a broad coalition of students, parents, school districts and educational organizations.

What's New

* Press Release: Historic Lawsuit Challenges California’s Unconstitutional Education Finance System - May 20, 2010