An analysis of New York’s new teacher evaluation law

An analysis of New York’s new teacher evaluation law

Source: NYMuniBlog 

Warren Richmond, a Harris Beach partner and member of the firm’s Labor and Employment Law Practice Group and Educational Institutions Industry Team, published an article in the New York Law Journal that focuses on the new Annual Professional Performance Review (APPR) plans for teachers and the limitations the statute places on school districts to terminate probationary teachers.

The article raises the failure of the law to define “performance” and “significant factor” and the consequences of the legislation in making it more difficult to terminate non-tenured teachers whose performance is inadequate or otherwise problematic.

To read the article, click on the following link, “Evaluation Law Could Limit Ability To Terminate Probationary Teachers.”

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification

Appeal of Johnny G. Destino, Decisions of the Commissioner of Education, Decision No. 16,461

Johnny G. Destino, a member of the Board of Education of the City School District of the City of Niagara Falls, appealed the school board’s appointment of Maria A. Massaro, Esq. (Massaro) to the position of Administrator for Human Resources, a position in the Classified Service.

Among the several issues addressed in this Decision of the Commissioner of Education was Destino’s challenge to Massaro’s appointment based on the allegation that Massaro unqualified to hold the Human Resources Administrator’s position because she lacked New York State certification as a School District Administrator (“SDA”).*

The school district's retiring Human Resources Administrator had sent an email dated October 18, 2010 to the Board containing the job description the position that had been adopted by the Municipal Civil Service Commission on March 22, 2007.

He also advised the school board that the posting of the vacancy dated September 13, 2010 reflected the 2007 job description and that “No changes were made to the job description.” The e-mail also reported that the minimum qualifications for the position were expanded to include candidates with a Bachelor’s degree and appropriate "HR experiences," thus permitting candidates for the position to come through either the certificated pathway (School Administrators with a Certificate) or the classified pathway (those candidates who would fall under Civil Service review).

The minimum qualifications attached to the 2007 job description were: “Graduation from a regionally accredited or New York State registered college or university with a Master’s degree and New York State permanent [SDA]certification and three (3) years experience in school administration or human resources” while the  expanded qualifications for the September 2010 job posting stated, in pertinent part:

1. A New York State permanent certification as a School District Administrator (SDA), School Administration and Supervisor (SAS), or New York Sate certification as a School District Leader (SDL) and three (3) years experience in school administration or human resources; or

2. Graduation from a regionally or New York State registered college or university with a Bachelor’s Degree including coursework in personnel management, labor relations, law or education and three (3) years experience in human resources management. 

The announcement also stated that "Additional education beyond a Bachelor’s Degree can be substituted for the required three (3) years experience. Experiences in the areas of labor relations, policy compliance, employee benefits and staff development may be used to fulfill the human resources requirement."

Noting that the position of "Human Resources Administrator" was not among the titles specifically listed in the Commissioner's certifications to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school, the Commissioner explained that it such a position would only be considered a pedagogical position for which certification was required if it involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.”

The Commissioner noted that with one limited exception, the duties described for Human Resources Administrator did not involve supervision and direction of members of the teaching and supervisory staffs. Therefore, said the Commissioner, the position is not one whose routine duties squarely fall within the positions certified as pedagogical in Certification.**.

The Commissioner, however, found that among the 21 “typical work activities” set out in the job description, which remained unchanged notwithstanding the change in qualifications for appointment to the position, it “impermissibly included one pedagogical duty as part of the Human Resources Administrator position that would require an incumbent to possess certification pursuant to Part 80 of the Commissioner’s regulations” --  “[a]cts as chief school officer in the absence of the Superintendent and Deputy Superintendent of schools.”

Citing Education Law §3003(1); 8 NYCRR §80-2.4, the Commissioner said that “Although [the school district] disputes that this is a “primary” responsibility of the position, nonetheless, to the extent that Massaro could be required to act as chief school officer in the district in the absence of the superintendent or deputy superintendent and carry out the duties of those positions at any time, she would need to be properly certified. As Massaro is not a certified individual, she may not be assigned as acting superintendent as such a position clearly involves supervision and direction of pedagogical personnel.

However, in light of the facts that this [1] was only one of 21 listed job activities, [2] was not a routine function of the position and [3] would only apply as a contingency in the event of the absence of the superintendent and deputy superintendent, the Commissioner declined to annul Massaro’s appointment, finding that the proper remedy on these facts is to order the school district to remove “acting as chief school officer in the absence of the superintendent and deputy superintendent from Massaro’s duties as Human Services Administrator and [to] refrain from assigning her to serve as chief school officer unless she obtains the appropriate school leader certification.”

Turning to a procedural issue raised by the school district – the timeliness of the appeal – after determining that Destino’s appeal had been timely fined, the Commissioner noted that he “would decline to dismiss the appeal as untimely in any event, because the unlawful employment of an unqualified individual is a continuing wrong.”

Finally, the Commissioner considered the board requests a certificate of good faith “as to the individuals” named in the appeal as respondents pursuant to Education Law §3811(1).

Such certification is solely for the purpose of authorizing the board to defend and indemnify school district officers for legal fees and expenses incurred in defending a proceeding brought against them arising out of the exercise of powers or performance of their duties under the Education Law. Destino challenged only the actions of the board and the superintendent. Noting that “It is appropriate to issue such certification unless it is established on the record that the requesting individuals acted in bad faith,” the Commissioner said that on the record before him he would issue the requested certification for the limited purpose of Education Law §3811(1).

* In addition, Destino asserted that there was an appearance of, or actual, conflict of interest because Angelo Massaro, the board’s general counsel, is Maria A. Massaro’s father. Maria Massaro had been employed with the district since July 1, 1999 in various capacities, including attorney, in-house counsel, member of the administrative staff responsible for district policies and health care insurance, hearing officer and district negotiator in union negotiations.

** The school district received nine applications after posting employment notices in two newspapers, on the district's website, with the Orleans-Niagara Board of Cooperative Educational Services and with an Association for personnel administration.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16461.pdf

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

2013 NY Slip Op 03560, Appellate Division, First Department

A New York City police officer was served with disciplinary charges alleging that [1] he left a loaded firearm unsecured in his backpack on a desk in a library and subsequently made an unauthorized call to a witness in an investigation that followed concerning the incident and [2] made vulgar statements and exposed his genitals to an arrestee while on duty in the precinct.

New York City’s Police Commissioner determined that the officer was guilty of serious acts misconduct and terminated his employment.

The Appellate Division*sustained the Commissioner’s decision noting that the officer had admitted the allegations with respect to the firearm incident and that there was substantial evidence to support the hearing officers determination with respect to the precinct incident.

As to the Commissioner’s decision to terminate the police officer, citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The penalty imposed does not shock the conscience since [the Commissioner] is accountable to the public for the integrity of the Department."

* Supreme Court transferred the CPLR Article 78 petition filed with it by the police officer to the Appellate Division in accordance with CPLR §7803.4.with respect to the issue of whether substantial evidence supported the administrative determination made as a result of a hearing held at which evidence was taken.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03560.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

There is a constitutional right to be present during the testimony of the complaining child absent some compelling reason to bar the employee from the hearing while the child is testifying

There is a constitutional right to be present during the testimony of the complaining child absent some compelling reason to bar the employee from the hearing while the child is testifying

2013 NY Slip Op 03432, Appellate Division, First Department

A teacher appealed the Supreme Court’s denial of her petition to vacate the adverse disciplinary arbitrator’s award and its granting the employer’s motion to confirm the award.

The critical issue before the Appellate Division: was the teacher denied administrative due process when she was not permitted to be present during the testimony of the “complaining witness,” a student?

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and remanded the matter to the hearing officer with instruction that the hearing officer take testimony from the child complaining witness in the presence of the teacher.

The Appellate Division, citing Matter of Daniel Aaron D., 49 NY2d 788, explained that the teacher's exclusion from the administrative hearing “during the testimony of the only eyewitness to her alleged hitting of a student — the student himself — violated her constitutional right to confront the witnesses against her.”

The court said that nothing in the record indicated that there was a “compelling competing interest” that warranted the teacher’s being excluded from that portion of the hearing and the record was silent as to the basis for the teacher’s exclusion.

Further, the Appellate Division noted that there was no finding that teacher's presence would cause trauma to the student or substantially interfere with his ability to testify.

With respect to another argument advanced by the teacher -- in addition to her constitutional right she had an absolute right to confront witnesses under Education Law §3020-a – the Appellate Division ruled that “she waived that argument by failing to object on the record to her exclusion from the hearing, but had she so objected the argument would have been rejected as the Appellate Division observed that “In any event, there is no such absolute right under §3020-a.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03432.htm

Statewide program to reward highest performing teachers and help improve classroom performance announced by Governor Cuomo

Statewide program to reward highest performing teachers and help improve classroom performance announced by Governor Cuomo
Source: Office of the Governor

Governor Andrew M. Cuomo predicted that New York State’s Master Teacher Program for Teachers will encourage “the best and brightest to stay in education and mentor other teachers.”

Recruiting and retaining quality educators in mathematics and science was among the recommendations made by the new NY Education Reform Commission in its Preliminary Action Plan presented to the Governor in January.

The NYS Master Teacher Program was formed with a partnership between the State University of New York and Jim Simons’ Math for America Program. High-performing secondary science and mathematics (STEM) teachers who make a commitment to mentor other teachers will receive $15,000 annually over four years.

An initial group of 250 STEM teachers will be selected from Mid-Hudson, North Country, Central New York and Western New York in Fall 2013; the program will launch in the remaining 6 regions in Spring 2014. The SUNY campuses hosting the first four groups of master teachers include SUNY Plattsburgh, Buffalo State, SUNY New Paltz and SUNY Cortland.


The NYS Master Teacher Program will be managed by SUNY with technical assistance provided throughout the first phase of implementation by Math for America, a successful program currently operating in New York City and other major cities. The Master Teacher program will be based at and hosted by higher education institutions in each of the 10 regional economic development regions.

Selected master teachers will engage in peer mentoring, attend and create intensive content-oriented development opportunities throughout the academic year. Master teachers will also work closely with pre-service and early career fellows to develop future world-class educators.

Eligible teachers must be ranked “highly effective,” have a minimum of 4 years teaching experience, hold a NYS teaching certification and have their primary teaching responsibilities be in the areas of math and science in grades six through twelve.

Applications will be available on July 1^st and due by August 1^st. The first round of Master Teachers will be announced on September 1^st.

Audits reports issued by New York State Comptroller Thomas P. DiNapoli

Audits reports issued by New York State Comptroller Thomas P. DiNapoli 

New York State Comptroller Thomas P. DiNapoli announced today the following audits have been issued:

Department of Health, Excessive Medicaid Payments for Services to Recipients Receiving Medicare Benefits (Follow-Up) (2012-F-29)
An initial audit report, issued in September 2010, examined whether DOH was correctly paying claims for services to Medicaid recipients who also had health insurance through Medicare. Auditors identified about $600 million in Medicaid payments that could have been avoided had DOH taken more comprehensive and proactive steps to administer Medicaid reimbursements for services provided to dual eligible individuals. In the audit just released, auditors found DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. All three prior audit recommendations have been partially implemented.

New York State Thruway Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-33)
NYSTA is responsible for inspecting its bridges and repairing any defects found during inspections. If a serious (“red flag”) structural defect is identified during an inspection, NYSTA must notify the New York State Department of Transportation (DOT) within one week. NYSTA has six weeks to take appropriate action. In addition, NYSTA must provide DOT with the written determinations from bridge inspections within 60 days. Auditors found the authority repairs defects identified during inspections. However, highway bridges were not always inspected timely and DOT was not always notified of red flags within one week, as required.

Rochester-Genesee Regional Transportation Authority, Real Estate Portfolio (2012-S-90)
The Rochester-Genesee Regional Transportation Authority provides public transportation services in Monroe, Genesee, Livingston, Orleans, Wayne, Wyoming and Seneca counties. State law requires each authority to maintain adequate inventory controls for its property and report annually on all property held. It also requires authorities to determine which property shall be disposed of and transfer or dispose of such property as promptly as possible. Auditors found the authority has accounted for all of its property holdings and established a value for them. However, it owns two properties that have been identified as excess holdings for more than 14 years. Additionally, the authority did not accurately report its property holdings during the three years ended March 31, 2012.

Department of Environmental Conservation, Pollution Testing on Exhaust Emissions from Heavy Duty Diesel Vehicles (Follow-Up) (2013-F-3)
The initial audit report, issued in March 2010, examined whether DEC adequately fulfilled its testing program responsibilities for exhaust emissions. Auditors found DEC generally fulfilled its responsibilities but could improve by maintaining critical performance data and coordinating with DMV and DOT to ensure such data was maintained for all aspects of the program. Auditors also questioned whether DEC's coverage of inspection facilities was adequate. In a follow-up report, auditors found DEC officials have made progress addressing the issues identified in the initial report. Of the 12 prior audit recommendations four were implemented, five were partially implemented, and three were not implemented.

State University of New York, Fuller Road Management Corp., College of Nanoscale Science and Engineering - Network Security Controls (2012-S-28)
The college has a number of business relationships with both public and private organizations. As part of these relationships, the college facilitates the management and processing of financial, legal, research, and numerous other types of data. The New York Office of Cyber Security’s Information Security Policy defines a set of minimum security requirements that are considered best practices for all state entities, including SUNY campuses. Auditors found that in addition to the security measures established by the university, the college has implemented its own controls that protect the security of systems and data.

Department of Agriculture and Markets, Disposal of Electronic Devices (2012-S-70)
State policy requires all state agencies to establish formal procedures to address the risk that personal, private or sensitive information may be improperly disclosed. One way information can be compromised is through disposal of electronic devices. Auditors found that 15 of the 132 electronic devices readied for surplus by the agency still contained data, even though the department had certified that all memory devices had been removed. One of the hard drives contained personal, private and sensitive information related to an employee. The printer hard drive and cameras also contained retrievable data, and the cell phones had not been programmed back to their original manufacturer settings.

Capital District Transportation Authority, Real Estate Portfolio (2012-S-91)
The authority’s primary responsibility is the management of the capital region’s bus services. State law requires the authority to report its real property holdings, listings of properties purchased or sold and its sale/lease procedures annually. The authority has a real estate portfolio that consists of nine properties/facilities. In connection with this portfolio, the authority reported that it has entered into 23 leases that generate about $808,000 annually. Auditors found the authority’s annual report for 2011-2012 omitted three properties. In addition, the three properties were not disclosed on the authority website and the report that was available on the website was not dated. The authority also could not document that it achieved fair market value for the properties.

Department of Transportation, Collection of Lease and Permit Revenues (2012-S-6)
DOT has land that it does not use continuously. Interested parties can pay a fee for a permit to use such land temporarily. Auditors found DOT is not effectively collecting all unpaid lease and permit fees. As of May 2012, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. In total, 195 permits were more than 30 days past due. Of 45 sampled permits which had outstanding balances, no action was taken on eight. These eight permits had a total of $417,000 outstanding at the time of the audit.

Statewide Travel Audits
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entity:

State University of New York, College at Plattsburgh - Selected Employee Travel Expenses (2012-S-141)
Auditors examined the travel costs of two college employees with $194,805 in travel costs. Most of the expenses examined were appropriate. However, one faculty member charged the College for $708 in expenses that were not related to official business and used his travel card for $177 of other inappropriate expenses.

For other recent audits, including those on travel, go to: http://www.osc.state.ny.us/audits/auditDateList.htm  

An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress

An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress 

2013 NY Slip Op 03252, Appellate Division, Fourth Department

Supreme Court determined that the resignation of a tenured teacher [Educator] formerly employed by the school district, "was involuntarily submitted as a result of fraud, coercion and duress" and directed Educator’s reinstatement with back pay and benefits.”

The school district appealed and the Appellate Division reversed the Supreme Court’s decision, indicating that further consideration and evaluation of Educator’s allegations of duress by the Supreme Court was required.

Citing Gould v Board of Educ. of Sewanhaka Cent. High Sch. Dist., 81 NY2d 446, the Appellate Division said that as a general rule "A resignation under coercion or duress is not a voluntary act and may be nullified."

In contrast, the Appellate Division, citing Rychlick v Coughlin, 99 AD2d 863, affd. 63 NY2d 643, explained that "it has consistently been held that a threat to do that which one has the legal right to do does not constitute duress."

Stated in the alternative, as the Court of Appeals held in Abramovich v Board of Educ. of Cent. Sch. Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450, motion to reargue denied 46 NY2d 1076, cert denied 444 US 845, "[a] person's resignation may not be considered to be obtained under duress unless the employer threatened to take action which it had no right to take.”

Further, said the Appellate Division, under "appropriate circumstances . . . a tenured teacher may, as part of a stipulation in settlement of a disciplinary proceeding brought against him [or her], waive his or her continued right to the protections afforded by §3020-a of the Education Law" provided that such a settlement is “voluntarily and knowingly made” in contrast to having been made "lightly, inadvertently, inadvisedly or improvidently….”

The Appellate Division ruled that under the circumstances Supreme Court should conducted a trial "to resolve the factual issue raised by the pleadings and affidavits concerning [Educator’s] allegations of duress and to make appropriate findings of fact before proceeding any further" and remanded the case to Supreme Court for that purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03252.htm