Superintendents and principals have the power to "observe" subordinates and judge their performance based upon their "observations". Often the observation reports may be biased or prejudicial, and the teacher has little recourse. In New York City, an award-winning math teacher at John Adams High School, Mr. Edmond Farrell, was given six unsatisfactory observation reports after 9 years of satisfactory and excellent ratings. What changed was the administration, a new Principal, Mrs. Grace Zwillenberg, was appointed to the school in 2003-2004. She does not like Ed, who is over the age of 50. She wanted him out, and used observation reports to get him out of the school.

UPDATE

But in New York City observation reports have been designated in the courts as "opinions" Elentuck v Green, 202 AD2d 425, 608 NYS2d 701, 702; 1994. See https://www.leagle.com/decision/1994627202ad2d4251270. Will Mr. Farrell's U-rating hold up in court? He has filed a Verified Petition with New York State Education Commissioner Richard Mills to find out.

Edmond Farrell, a math teacher in New York City who had the unfortunate experience of being, he believed, falsely accused of 'unsatisfactory' performance, fought back using references to the Freedom of Information Law and the Regulations of the Commissioner of Education. His letter, we believe, should be used as a model for anyone fighting an unfair assessment by someone higher up who is trying to get rid of/silence/harass him/her.
September 16, 2004
CERTIFIED MAIL

Chancellor Joel I. Klein
New York City Department of Education
52 Chambers Street
New York, New York 10007

Dr. Elizabeth Arons
Executive Director
Division of Human Resources
New York City Department of Education
65 Court Street
Brooklyn, New York 11201

Ms. Virginia Caputo
Director
Office of Appeals and Reviews
New York City Department of Education
65 Court Street
Brooklyn, New York 11201

Dear Chancellor Klein, Dr. Arons, and Ms. Caputo:

I'm writing to you to complain that Mrs. Grace Zwillenberg, the principal of John Adams High School, gave me an arbitrary, capricious, irrational, and therefore, totally unjustified U-rating this past June, despite my teaching service for the 2003-2004 school year having been satisfactory. I'm requesting a full investigation of the matter, reversal of the U-rating to an S-rating, and that you take whatever additional action you deem appropriate.

Page 2 of the Department's manual, The Appeal Process :

"The Appellant must file a full, written rebuttal to any of the reasons and documents furnished, and must notify the Office of Appeals and Reviews if any of the documents are being grieved with the Office of Labor Relations. If the Appellant so requests, the scheduling of the Review will be delayed until all grievance steps have been completed. The Appellant is required to file a Waiver Form with the Office of Appeals and Reviews to delay scheduling the Review."

I wish to proceed as quickly as possible with my appeal of the U-rating. Therefore, I am not filing a waiver form.

As a "full, written rebuttal to...the reasons and documents furnished," I wish to call the following matters to your personal attention:

At the outset, it is appropriate to note that annual professional performance reviews of staff members in the New York City school system must be carried out in compliance with §100.2(o)(2)(iii)(a)(2) of the Regulations of the Commissioner of Education.

As far as I have been able to determine, neither the UFT nor organizations representing parents were ever provided with an opportunity to comment on changes in the procedures for evaluating teachers, prior to their adoption. If so, then this is reflective of a violation of §100.2(o)(2)(iii)(a)(2) of the Regulations of the Commissioner of Education with respect to the formulation and implementation of the professional performance review plan.

§100.2(o)(2)(iii)(a)(2) of the Commissioner's Regulations states:

"Each superintendent and in the case of the City School District of the City of New York, the Chancellor, in collaboration with teachers, pupil personnel professionals, administrators and parents selected by the superintendent or in the case of the City School District of New York, the Chancellor, with the advice of their respective peers, shall develop the professional performance review plan, which shall be approved by the governing body of each school district or BOCES, filed in the district or BOCES office, as applicable, and available for review by any individual no later than September 10th of each year. The governing body of each school district and BOCES shall provide organizations representing parents and the recognized representative of the teachers' bargaining unit with an opportunity to comment on such plan prior to its adoption."

The Part §100.2(o)(2) is available online

On June 24, 2004, I was issued an Annual Professional Performance Review form (BE/DOP 9955B) which had been signed by Principal_____ on June 18, 2004. I signed receipt for the form on the same date that it was issued to me.

On the front of the form, Principal____ conclusionally alleged that the following thirteen characteristics of my teaching service were "unsatisfactory":

1) A. 4. Professional attitude and professional growth

2) A. 5. Resourcefulness and initiative

3) B. 1. Effect on character and personality growth of pupils

4) B. 2. Control of class

5) B. 3. Maintenance of wholesome classroom atmosphere

6) B. 4. Planning and preparation of work

7) B. 5. Skill in adapting instruction to individual needs and capacities

8) B. 6. Effective use of appropriate methods and techniques

9) B. 7. Skill in making class lessons interesting to pupils

10) B. 8. Extent of pupil participation in the class and school program

11) B. 9. Evidence of pupil growth in knowledge, skills, appreciations and attitude

12) D. 2. Effort to establish and maintain good relationships with parents

13) D. 3. Willingness to accept special assignments in connection with the school program

One indication that Principal Zwillenberg's allegations were conclusional is that she never presented me with a written statement of facts and statistics, with respect to any of the preceding thirteen categories, as a means of establishing that changes in the performance of my official duties must be made. Taking into account circumstances beyond my control, my position is that I was "sufficiently competent" with respect to every aspect of my teaching service that would properly form the basis of the annual professional performance review.

To be "proper," in this instance, would mean that the review criteria were based on, but not limited to, the eight categories set forth in §100.2(o)(2)(iii)(b)(1) of the Commissioner's Regulations, and were developed collaboratively by teachers, pupil personnel professionals, administrators, and parents selected by the Chancellor, with the advice of their respective peers. The proposed professional performance review plan had to be submitted to parent groups and the UFT prior to going into effect so that they could offer comment. Finally, the plan had to be voted into place during a public meeting of the Panel for Educational Policy.

A second indication that Principal Zwillenberg's allegations were conclusional is that she never presented me with a copy of the professional performance review plan currently in effect in the City School District of the City of New York, along with a factual or statistical statement demonstrating that my teaching service was not "sufficiently competent" with respect to each of the evaluation criteria set forth in the plan.

Although Principal Zwillenberg's and Assistant Principal Aboughaida's written statements to me advised me to meet with APAboughaida on a weekly basis, I soon discovered that the meetings were not productive, and were designed to give the impression that the administration was offering assistance. Not once after any of the weekly meetings did APAboughaida ever issue me any written orders or mandates, directing that I change any aspect of my teaching service. Rather, APAboughaida kept suggesting that I "follow Region 5's Mathematics Prototype Investigation Model," and I kept informing him that teaching is essentially a function of the instructor's personality, and that there are no absolutes in teaching. As a result, the meetings became somewhat heated, rather than helpful in nature.

On the back of the form, Principal Zwillenberg conclusionally alleged that each of six listed observation reports constituted "substantiating documentation" with respect to each of the thirteen preceding characteristics. Also, on the back of the form, she falsely alleged, within a listing of submitted records, that she (the principal) had observed an October 21, 2003 lesson. Rather, the assistant principal had observed the lesson.

Page 3 of the Department's manual, Rating Pedagogical Staff Members (a publication of the Division of Human Resources), states, in part:

"A Certification of Unsatisfactory or Doubtful work shall be accompanied by appropriate supporting data."

Please be advised that my U-rating was not accompanied by "appropriate supporting data," because the records which did accompany it, did not contain statistical data, factual data, or instructions to staff that affect the public.

Page 4 of the manual states, in part:

"The characterization of an employee's service as Satisfactory indicates that he/she has demonstrated sufficient competence or improvement and a willingness to learn. If such has not been the case, ratings of Unsatisfactory or Doubtful should be used."

Please be advised that my service was satisfactory, and, it goes without saying, "sufficiently competent." Neither Principal Zwillenberg nor anyone else issued me any instructions directing me to change any aspect, whatsoever, of my service.

The manual's Foreword states, in part:

"The admissibility of documents and written criticisms has been defined by contractual language, grievance/arbitration decisions and rulings adjudicated by both the legal system and the State Commissioner of Education. Hence, the principal must be aware of the type and nature of documents which are germane to the evaluation of staff and the need for clear, objectively written statements."

It is reasonable to assume that Principal Zwillenberg was aware of "the need for clear, objectively written statements," i.e., statements that recited facts or statistics. Nonetheless, she inexplicably failed to ensure that AP, Regional Instructional Supervisor Ben Waxman, and she, herself, included any facts or statistics in the letters ("observation reports") that they wrote to me.

Appendix B of the manual, as part of "SUGGESTED APPROACH TO A WRITTEN OBSERVATION," indicates that principals should include a:

"Brief factual description of the lesson that would include aim, motivation, developmental procedures, summary, homework, and any major points of the lesson worth mentioning."

Please be advised that none of the six observation reports that accompanied my U-rating contained a "factual description of the lesson."

Appendix D of the manual, as part of "GUIDE FOR WRITTEN FORMAL OBSERVATION REPORT OF A LESSON," indicates that principals should:

"Objectively state lesson development and activities."

Please be advised that none of the six observation reports that accompanied my U-rating contained any "objective statements."

The six observation reports consisted solely of advice, criticisms, evaluations, and recommendations.

It is my position that the advice, criticisms, evaluations, and recommendations were not supported by a recitation of any facts or statistics.

It is also my position that I was under no legal obligation to implement the recommendations, and that no teacher in the State of New York may be appropriately rated as "unsatisfactory" based on that teacher's alleged failure to implement recommendations, advice, suggestions, or the like.

Principal Zwillenberg's determination to rate my service as "unsatisfactory" was not grounded on established legal principles. Her determination had no rational, factual basis in the record.

On February 16, 1976, Arbitrator James J. Hill decided In the Matter of Arbitration between United Federation of Teachers and Board of Education of the City of New York, Cases Nos. 1330-0324-74 (Mae Leass) and 1330-0615-73 (Bertil Swanteson).

On page 14, Arbitrator Hill stated:

"A misstatement of fact, based on a misunderstanding of the supervisor, is of vital concern to the teacher, whether the error appears in an observation report or some other document, which both parties recognize as grievable."

"As noted heretofore, the Board cites Union Counsel Kaufman on the non-grievability of professional evaluations of a teacher's performance and proficiency, but takes strong exception to his contention that factual allegations within such reports may be challenged under the grievance and arbitration provisions of the contract. Board's counsel states:"

" 'Mr. Kaufman's claim that factual matters in such evaluations could be the subject of grievances is an impractical and illusory attempt to distinguish the indistinguishable. While such a distinction may appear reasonable at first, a thorough examination of an evaluatory report reveals that a rending of it into its factual and conclusory aspects is impossible. Such a report ordinarily sets forth those significant events which the supervisor has observed and then draws conclusions based upon his view of their educational soundness. The two are so intertwined and interrelated that to attempt to separate them would be analogous to Hercules' attempt to unravel the Gordian knot. ... The conclusions of the report, which Mr. Kaufman has admitted are not grievable, depend upon the factual matters set forth therein. To remove essential facts, which Mr. Kaufman claims is possible, would leave only unsupported conclusions, creating, in effect, a travesty of an observation report. As Hercules destroyed his problem rather than solving it, so this attempted separation of facts and conclusions would destroy an observation report.' (Brief, pp. 11-12)"

" 'Mr. Kaufman's proposal for the handling of grievances concerning supervisory evaluations would leave, if the grievant were sustained in a claim of factual error, only baseless charges, not conclusions. Such a result was never agreed to by the Board.' (Brief, p. 14)"

On page 15, Arbitrator Hill stated:

"In my judgment, this argument is without merit. It seems to say that if an evaluator's conclusions rest on assertions of fact which are shown to be false, the assertions must remain lest the conclusion be seen as baseless. The argument is untenable. If the conclusions of an evaluator rest on assertions of fact which are shown to be false, the conclusions have no validity and should, in all fairness, be deleted. And the same result would obtain, it should be noted, if the Board were upheld in its original position that Article IV F 20 (5) was intended to provide for review of the accuracy and fairness of evaluative reports by some other appellate body, apart from the contract grievance procedures. Certainly if such evaluations should remain in the files, while the factual basis for such conclusions has been found to be false, the teacher should have the right to make it known, as a matter of record, that the judgment rests on factual allegations which have been deemed false and expunged from the record."

However, the New York State Supreme Court, Appellate Division, Second Judicial Department, effectively reversed Arbitrator Hill's presumption that assertions of fact are to be found in observation reports. The (former) New York City Board of Education was aware of Elentuck v. Green (202 AD2d 425), a judicial decision involving (former) Chancellor Richard R. Green, and agreed with it.

On May 13, 1998, Ron LeDonni, the Secretary of the (at the time) New York City Board of Education, wrote a letter (attached) to Mr. IS informing him of a decision that had been issued by the New York City Board of Education's Freedom of Information Law Appeal Panel.

Mr. LeDonni stated, in part:

"You aver that observation reports contain factual data such as the date of the report, who was observed, the name of the school where the observation was held and depending on the subject matter, could contain mathematical problems, etc. You believe that based on relevant case law as stated in Gould v. NYC Police Department, 89 NY2d 267 (1996) and Mothers on the Move, Inc. v. Messer, 652 NYS 2d 773 (1997) that the reports should be disclosed because they contain factual information."

"The Appeal Panel has reviewed your appeal, accompanying documents and applicable case law and makes the following determination."

"In Elentuck v. Green, 202 A.D. 2d 425, 608 N.Y.S. 2d 701 (1994) the court held that lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by a supervisor regarding lesson preparation and classroom performance and are exempt from disclosure. The court found that observation reports do not contain factual or statistical tabulations or data. This case is clearly applicable regarding the records you have requested. Although the cases you cite in your appeal address various types of documents containing factual information which should not be exempt from disclosure, they are not applicable to the records you request nor do they reverse the holding in Elentuck."

In Gould v. NYC Police Department (89 NY2d 267), the case which the (at the time) New York City Board of Education rejected as permitting public access to observation reports, the Court of Appeals stated:

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

In Gould, the Court of Appeals also stated:

"However, the Police Department argues that any witness statements contained in the reports, in particular, are not 'factual' because there is no assurance of the statements' accuracy and reliability. We decline to read such a reliability requirement into the phrase 'factual data,' as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness's observations."

A different Court of Appeals case demonstrated that only facts, and not opinions, could be assessed as accurate or inaccurate.

In Elliot M. Gross v. The New York Times Company (82 NY2d 146), the Court of Appeals stated:

"Thus, in determining whether a particular communication is actionable, we continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener (see, Hotchner v Castillo-Puche, 551 F2d 910, 913, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Restatement - Second- of Torts § 566), and a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts (see, Ollman v Evans, supra, p 976; Buckley v Littell, 539 F2d 882, 893, cert denied 429 US 1062; Restatement -Second- of Torts § 556 comment c). The former are actionable not because they convey 'false opinions' but rather because a reasonable listener or reader would infer that 'the speaker (or writer) knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed' (Steinhilber v Alphonse, supra, p 290).

In contrast, the latter are not actionable because, as was noted by the dissenting opinion in Milkovich v Lorain Journal Co. (supra, pp 26-27, p 28 n3 -Brennan, J.), a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture (see, e.g., Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F2d 1280, 1290). Indeed, this class of statements provides a clear illustration of situations in which the full context of the communication 'signal's readers or listeners that what is being read or heard is likely to be opinion, not fact' (Steinhilber v Alphonse, supra, p 292; quoting Ollman v Evans, supra, p 983)."

To base my "unsatisfactory" rating, or any teacher's "unsatisfactory" rating, on records that do not contain statistical or factual tabulations or data, and instructions to staff that affect the public, is arbitrary, capricious, irrational, and flies in the face of the fundamental due process that is guaranteed to U.S. citizens by the Federal Constitution.

In Canty v. New York City Board of Education (312 F. Supp. 254), the United States District Court of the Southern District of New York stated:

"The terms 'arbitrary' and 'capricious' embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision."

On February 2, 2000, Mr. Robert J. Freeman, Executive Director of the New York State Committee on Open Government issued Advisory Opinion #11936 to the Attorney for the Ellenville Central School District.

Within his letter, Mr. Freeman offered his opinion concerning public access to "ratings of 'satisfactory' or 'unsatisfactory' given to teachers for classroom evaluations." Mr. Freeman pointed out "that the Appellate Division, Second Department, has determined that records apparently analogous to those requested may be withheld."

In addition, Mr. Freeman referred to the precise same case that Mr. LeDonni did, Elentuck v. Green (202 AD2d 425), and quoted from the decision:

"The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law §87(2)(g)."

Mr. Freeman's letter is available online

Since observation reports consist "solely of advice, criticisms, evaluations, and recommendations," teachers might wonder whether or not they are required to implement the advice and recommendations, and take the criticisms and evaluations to heart, lest they be rated "unsatisfactory" for not having "demonstrated sufficient competence or improvement and a willingness to learn."

Throughout the State of New York, teachers are not required to implement advice, recommendations, suggestions, and the like, even if they originate from supervisory personnel. Furthermore, teachers may not be rated "unsatisfactory," or otherwise disciplined, for an alleged failure to implement such.

On March 6, 1986, (at the time) Commissioner of Education Gordon Ambach determined Appeal of Board of Education of the Orchard Park Central School District (25 EDR 331).

Commissioner Ambach stated on page 332:

"Absent a violation of an established school rule or a direct order from a supervisor, respondent's behavior would not constitute neglect of duty. Although petitioner identifies certain provisions of the school building manual as the source of a rule against leaving students to work unsupervised in the hallway, those provisions are expressed in terms of suggestions to teachers rather than directives. Upon careful review of the record, I find that petitioner failed to establish that respondent's conduct breached any mandatory school rule or directive by a supervisor."

An examination of each of the six observation reports that accompanied my U-rating will clearly reveal that no instructions or directives had been given to me, but rather suggestions.

10/24/03 observation by Assistant Principal:

"During future visits to your classes, I look forward to observing your implementation of the suggested strategies that we have discussed."

12/1/03 joint observation by Principal and Assistant Principal:

"During future visits to your classes, I look forward to observing your implementation of the suggested strategies that we have discussed."

12/22/03 observation by Assistant Principal:

"During future visits to your classes, I look forward to observing your implementation of the suggested strategies that we have discussed."

3/15/04 observation by Assistant Principal:

"During future visits to your classes, I look forward to observing your implementation of the suggested strategies that we have discussed."

5/13/04 joint observation by Principal and Assistant Principal:

"During future visits to your classes, I look forward to observing your implementation of the suggested strategies that we have discussed."

6/7/04 observation by Ben Waxman Regional Instructional Supervisor:

"During future visits to your classroom, I look forward to observing your implementation of the strategies and methodologies suggested and discussed."

It is quite clear that if the Principal, AP, and Regional Instructional Supervisor were genuinely dissatisfied with my teaching service, then they had an obligation to give me directions or instructions as to what to do, but not a series of suggestions.

On January 25, 1989, (at the time) Commissioner of Education Thomas Sobol determined Appeal of Board of Education of the City School District of the City of New York
(28 EDR 302).

Commissioner Sobol stated on page 303:

"After 16 days of hearing, the hearing panel unanimously recommended dismissal of all charges. The panel found that while respondent is not a 'good' teacher; is boring; does not consistently follow district policy; and maintains a narrow structured point of view in conducting his classroom; his performance did not fall below the minimal level expected of a 'reasonable teacher.' The panel found that respondent had a minimal level of competency to communicate facts; that he had knowledge of subject matter content; that he could motivate and interest students; that he maintained a classroom environment reasonably conducive to learning; and that he had an ability to assess and evaluate student performance. Based upon its assessment of these factors, the panel unanimously agreed that respondent had met the minimum level of competency which should be expected of a 'reasonable teacher.' The panel also unanimously rejected the charges of neglect of duty. The panel determined that there was no evidence that respondent did not fulfill his obligations, nor that he was unprepared to teach or that his lesson-plans or records were in any form of disarray."

"The panel, in a commentary on respondent's teaching and questioning techniques, stated that there were no absolutes in teaching, and that respondent had to be evaluated for effectiveness. The panel decision notes the fact that respondent's students fared at least as well or better than the students of other teachers in the science department during the period covered by the charges."

At page 305, then Commissioner Sobol stated:

"The issue of incompetency however is a more difficult one. In a classroom situation, incompetence in its simplest terms means that a teacher is unable to provide a valid educational experience for those students assigned to his classroom. The record before me supports the panel's conclusion that petitioner also failed to prove this charge by a preponderance of the credible evidence. While I do not feel that it should be the determining factor in every case, the performance of respondent's students on the regents examinations in both earth science and biology indicates that respondent's students did as well as or better than the students in similar classrooms in the same school. There is no evidence in the record that respondent's students were substantially different in academic ability than students assigned to other teachers in similar classes, or that any other factor outside of respondent's classroom influenced their performance on the examinations. This tends to support the panel's finding that respondent was able to educate his students. It is also my finding that respondent provided a plausible explanation for the decisions which he made concerning the conduct of his classes and his methods of instruction. Weighing all of these factors, it is my conclusion that petitioner has failed to prove by a preponderance of the credible evidence that respondent is an incompetent teacher."

Chancellor Klein, on page 1 of the March 2004 issue of Connections (Volume 1, Issue 1), a Department of Education / Teacher Communication Exchange, you stated:

"On the other hand, I don't support some of the practices that you told me about in some of your emails to me. Whether a 'mini-lesson' lasts for 10 or 12 minutes should be left to the professional judgment of the teacher, as should the decision about how and where children sit in their classrooms. Some of you have mentioned your concerns about bulletin boards. In my view, bulletin boards are important: by demonstrating student work, they set a tone in the school that can support learning. At the same time, we shouldn't become overly preoccupied with bulletin boards, and some of your emails suggest this may sometimes be happening. Effective management, like effective teaching, is a skill that can be learned and we are working to help all staff improve their management skills. Indeed, that is a key reason that we have developed our path-breaking Leadership Academy. I have also discussed these concerns with our Superintendents and I am confident that they will be reviewing management practices at the school level to ensure that teachers are given appropriate professional latitude."

Chancellor Klein, if you will compare your statement against the advice, criticisms, evaluations,