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Betsy Combier

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The E-Accountability Foundation announces the

'A for Accountability' Award

to those who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. They ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up. These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions. The winners of our "A" work to expose wrong-doing not for themselves, but for others - total strangers - for the "Greater Good"of the community and, by their actions, exemplify courage and self-less passion. They are parent advocates. We salute you.

Winners of the "A":

Johnnie Mae Allen
David Possner
Dee Alpert
Aaron Carr
Harris Lirtzman
Hipolito Colon
Larry Fisher
The Giraffe Project and Giraffe Heroes' Program
Jimmy Kilpatrick and George Scott
Zach Kopplin
Matthew LaClair
Wangari Maathai
Erich Martel
Steve Orel, in memoriam, Interversity, and The World of Opportunity
Marla Ruzicka, in Memoriam
Nancy Swan
Bob Witanek
Peyton Wolcott
[ More Details » ]
Silencing Opposition: A NYC Math Teacher Fights Back After Receiving an Unfair 'Unsatisfactory' Rating from a Principal
Edmond Farrell uses the Freedom of Information Law and Department of Education/Teacher regulations in his fight to change an unfair 'unsatisfactory' rating. His rights in the administrative proceedings were violated, Chancellor Klein never answered his appeal, and now a Verified Petition has been filed with Commissioner Mills on the grounds of teacher abuse, abuse of discretion, and age discrimination. This case may change everything in New York State.
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.


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). 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

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
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 (a publication of the Division of Human Resources; See Rating Manuals) in part:

"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, and recommendations that were set forth in the six observation reports that the Principal submitted as her allegedly "appropriate supporting data," you will surely realize that I was not being given "appropriate professional latitude."

Chancellor Klein, on April 20, 2004, your opinion column entitled, "Give the Schools to the Mayor" was published in the Washington Post. In the column, you noted:

"The ability to transform a public education system begins with a concept central to any successful enterprise, public or private -- accountability. And as we have seen, accountability can be little more than a cynical punch line in a system that disperses control of such critical educational functions as budget, management, and curriculum through a network of localized, politically driven, semi-independent school boards able to set, follow or ignore their own rules."

Principal Zwillenberg demonstrated a remarkable lack of accountability when she made the conclusional allegation that my teaching service was "unsatisfactory." She demonstrated this same lack of accountability when she did not apply the Commissioner's Regulations to my annual professional performance review. Instead of following the Commissioner's Regulations, she appeared to have made up her own rule that a mathematics teacher is to be given a suggestion to follow the Region 5 Mathematics Prototype, and that if the suggestion isn't followed, the end result will be a U-rating.

Mrs. Zwillenberg is known for sending out "mixed signals." On January 15, 2004, a date of bitterly cold, snowy weather, she sent me a letter which stated:

"Please accept my appreciation for your attendance at school today. I am certainly aware of the tremendous hardship involved in traveling during this morning's severely inclement weather."

"Once here, we witnessed a monumental effort of team cooperation by all."

"On behalf of the Administration and the students whom we serve, thank you, Mr. Farrell. Your dedication and commitment to the students of John Adams are certainly admirable."

It must be emphasized here that Mrs. Zwillenberg did not support her allegation that my teaching service was "unsatisfactory" by a recital of any statistical data or factual data. In addition, Mrs. Zwillenberg did not submit any instructions to staff that affect the public, provisions of the Education Law, Regulations of the Board of Regents, Commissioner's Regulations, Chancellor's Regulations, or Bylaws of the Panel for Educational Policy that I allegedly violated.

§100.2(o)(2)(iii)(b)(5) of the Commissioner's Regulations states:

"Training in performance evaluation. The plan shall describe how the school district or BOCES provides training in good practice for the conducting of performance evaluations to staff who perform such evaluations, or alternatively, shall state the fact that the school district or BOCES permits such personnel to participate in training in this subject offered by the department."

I would like to know what training Grace Zwillenberg, Bahaa Aboughaida, and Ben Waxman received in the "conducting of performance evaluations," what their recent supervisory goals and objectives have been, and what the status is of labor relations at John Adams. I would also like to be able to compare the performance of my students on uniform departmental mathematics exams, to the performance of students in similar classrooms that were assigned to other teachers, and to be able to compare the behavior and attendance of my students (in the observed classes) to their behavior and attendance in their other subject classes.

On page 2 of the September 2004 issue of CSA News, Jill S. Levy, the president of the Council of School Supervisors and Administrators, wrote an article entitled, "When the Office Bully is the Boss."

Ms. Levy stated:

"According to my research, workplace bullying is persistent, intrusive behavior exhibited by one or more individuals. It includes humiliating, unwarranted offensive behavior toward an individual or groups of employees. Such malicious attacks on personal or professional performance are typically unpredictable, unfair, irrational and often unseen."

"Workplace bullying is an abuse of power or position that can cause such anxiety that people gradually lose all belief in themselves, and may suffer physical or mental illness as a result. Bullying has been identified as a more crippling and devastating problem than all the other work-related stresses put together."

"The literature is clear about how to handle bullying. And I have said this again and again to you, my members. Do not be afraid. A bully works through lies and deception. You are not the problem, the bully is."

After reading Ms. Levy's article, I realized that despite the Principal's having sent me a pleasant letter on January 15, 2004, her repeated suggestions to utilize the Region 5 Mathematics Prototype, which were reiterated by the AP and Regional IS, were typical of the methods employed by a "workplace bully."

Ms. Levy's article is available online.

Should you wish to proceed with a formal administrative review of my U-rating, please direct Mrs. Zwillenberg, Mr. Aboughaida, and Mr. Waxman to bring along all records under their jurisdiction that reflect or reveal:

1) the extent of their involvement in such training during any school year,

2) each specific instance of their application of such training during the 2003-2004 school year relating to all staff members that they evaluated,

3) the performance of all mathematics students enrolled at John Adams High School, during the 2003-2004 school year, on uniform departmental mathematics exams, and who were assigned to other teachers in similar classes to the ones observed,

4) the academic, disciplinary, and attendance record of all my students (in the observed classes) in their other subject classes, during the entire time period that they have been enrolled at John Adams HS,

5) the record that cited or mentioned Education Law §3210(1)(a) to students enrolled at John Adams HS and to their parents or guardians,

6) all records revealing the Principal's, AP's, and Regional IS's supervisory goals and objectives during the 2003-2004 school year,

7) all records revealing whether they didn't meet their 2003-2004 supervisory goals and objectives, met them, or exceeded them,

8) all grievances filed at John Adams HS during the last three school years, and the ensuing decisions (at all levels), and

9) the professional performance review plan in effect in the City School District of the City of New York during the 2003-2004 school year (as per §100.2(o)(2)(iii)(a)(2) of the Regulations of the Commissioner of Education).

In addition, please direct Mrs. Zwillenberg, Mr. Aboughaida, and Mr. Waxman to provide me with one copy of the preceding records no later than twenty business days prior to the first scheduled date of the administrative review.

Prof. James A. Gross of the New York State School of Industrial and Labor Relations, Cornell University, stated the following on pages 69 and 70 of Teachers on Trial -- Values Standards, & Equity in Judging Conduct & Competence, Copyright © 1988 by Cornell University:

'Another pernicious subjective influence appearing in 3020-a incompetency cases has been termed the 'I'm-out-to-get-you' evaluation. (J. Rapp, Legal Aspects of Evaluation 5, pp. 17-18, Paper presented at the Annual Meeting of the American Association of School Administrators -Mar. 8-11, 1985.) Panels were not consistent in dealing with such biased evaluations. One panel adopted a prejudicial balancing test that permitted the use of biased evaluations to support charges of incompetence and then used that bias as a reason for mitigating the penalty imposed.

Despite its finding that a new principal, the sole evaluator, was, with hostility, attempting to build a case against a teacher with nine years' experience because the teacher employed teaching methods not favored by the principal, the panel relied on the evaluations submitted in support of the district's charges of incompetence, concluding (for unexplained reasons) '(it had) no authority nor would it be appropriate for (it) to evaluate (the principal)' because 'she is a trained administrator).' In determining a penalty (a one-year suspension without pay), however, the panel said it 'would be inappropriate' to ignore the fact 'that an atmosphere was created between (the teacher and the principal)'.

(Poland Central School Disrict v. Dain Faville, NYS Ed. Dept. at 11-12, 27-28 -1983.) Biased evaluations should never be used to assess competence. They must be rejected, and not with delicately vague language."

"The identical approach was used by another panel in an even more flagrant example of evaluator bias. In this case, a new principal instructed an English department chairperson who had evaluated a teacher 'in highly approving terms' to change her evaluation to unsatisfactory. According to the department chairperson, the teacher 'had excellent rapport with the children. They trusted him. They felt at ease with him. Excellent.' (School District of New York v. Willard Gellis, NYS Ed. Dept. at 21-22, 25 -1985.) The chairperson testified that she was summoned to the office of (the principal). He asked her whether she had found the (teacher's) lesson satisfactory or not. She replied that she had found it satisfactory for the most part. There followed what the witness characterizes as a 'rather explosive' conversation with the principal. (The principal) instructed her to write up the observation as unsatisfactory. When she objected, (the principal) reacted as follows: '... He said to me do you want this job ... he repeated it over and over again ... when I didn't answer him, he said to me, I could get you out of this job next week if I have to.' (Id. at 22-23.)

Subsequently, the principal and the superintendent met with the chairperson and told her that the teacher was unsatisfactory. The chairperson then resigned from her administrative position. (Id. at 24-25.)"

Prof. Gross' book is very insightful, and is de rigueur reading for anyone involved in teacher evaluation. His biography on the back cover states:

"James A. Gross is a professor in the New York State School of Industrial and Labor Relations, Cornell University, where he specializes in labor law and labor arbitration. He is a member of the National Academy of Arbitration and is on the labor arbitration panels of the American Arbitration Association, the Federal Mediation and Conciliation Service, and the New York State Public Employment Relations Board. Gross, who received his Ph.D. from the University of Wisconsin, has published extensively on labor relations, labor law, labor arbitration, and public policy."

I am certain that this letter has more than adequately demonstrated that my U-rating is not sustainable. However, I am prepared to cite facts and statistics that would completely discredit the advice, criticisms, evaluations, and recommendations that Mrs. Zwillenberg, Mr. Aboughaida and Mr. Waxman offered in the observation reports that they wrote to me. I am also prepared to cite facts and statistics that would constitute competent evidence that my teaching performance was satisfactory (or better) at John Adams HS during the 2003-2004 school year.

I can offer evidence from an outside, independent individual who found my teaching performance good enough to expand my teaching load for him on two different occasions, and to invite me back to teach for him again this semester.

Further, I am prepared to offer as evidence that my requests for lesson videotaping and the presence of simultaneous independent observers were invariably denied without explanation. This was to ensure that Mrs. Zwillenberg, Mr. Aboughaida, and Mr. Waxman and others were free to list whatever advice, criticisms, evaluations, and recommendations they wanted to, and not be faced with the possibility that I would be able to produce something that, or someone who, would be able to demonstrate that the criticisms and evaluations were bogus, and that the advice and recommendations (which did not have to be followed, anyway) had no rational factual basis.

Both Mr. Waxman's discussions with me, and the text of the observation report he issued, made it clear that he could not give me a "satisfactory" rating if I continued "bucking the system." His criticisms pretty clearly justified my main contention throughout the 2003-2004 school year, namely, that I have to be able to improvise on my lesson plans depending on how a lesson actually goes, and not follow in lockstep a hoped for plan.

I am compelled to inform you that Mrs. Zwillenberg clearly was, and still is, out to get me. I can offer factual data to show this to be the case. One example of Mrs. Zwillenberg's hostility is the remark that she made to Ray Taruskin, the UFT Chapter Leader at Far Rockaway HS after a Step 2 grievance hearing concerning a joint observation report. Mr. Taruskin offered to try to arrange a transfer to a different school for me. In reply, Mrs. Zwillenberg stated, "I wouldn't inflict him on anyone else!" A second example occurred at an Article 24 conciliation hearing where Mrs. Zwillenberg repeatedly made derogatory comments regarding me.

On more than one occasion, Mrs. Zwillenberg alleged orally that I was working for an outside company, and gathering data about my students to sell to outsiders for my financial gain. She repeated her suspicions on more than one occasion to the UFT Chapter Leader.

Mr. Aboughaida was in Mrs. Zwillenberg's pocket, and did exactly what she wanted him to, in order to get and keep his job. At our various weekly meetings, Mr. Aboughaida frequently made reference to the fact that we had to do what Mrs. Zwillenberg wanted us to do, with respect to items such as the Region 5 Mathematics Prototype, lesson plans, and group work in every class, whether we agreed or not.

With respect to the second of my six observations during the 2003-2004 school year, during a heated discussion, I told Mr. Aboughaida that he had to know that that lesson was definitely satisfactory. His response was that it was "her call, not mine" .

Lastly, I offer my previous record under many different principals and assistant principals. Never once, prior to the 2003-2004 school year, did I ever receive a U-observation or U-rating. In fact, I received national recognition for outstanding performance in teaching math at the high school level at the national convention of Renaissance Learning, Inc. two years ago.

I am still a tremendous asset to the New York City school system, bogus U-rating or not. I trust that you will listen to me, and will ensure that I am given the opportunity to expand my unique skills in dealing effectively with the problem of low-performing high school mathematics students, who perform at levels well below high school (fifth grade, for example), and whose skills must be brought up to a much higher level if they are to be able to deal successfully with high school math, and with life, in general. I ask you to ensure that I get this opportunity, and that you do not allow my current supervisors to drive me out of the school system, which is their obvious intention.

Please inform me of your decision in this matter within ten business days of receipt of this letter. If you would like to put the City through the expense of holding a formal administrative review, I am agreeable, although it is obvious that Mrs. Zwillenberg's failure to submit statistical data, factual data, or instructions to staff that affect the public in support of my U-rating, or to submit any general agency or State rules, regulations, or policies, would warrant an immediate reversal of the rating, and the substitution of an S-rating in its place.

Should you wish to proceed with the formal administrative review, I would like to call the following individuals as expert witnesses to testify as to the contents of observation reports:

Robin S. Greenfield, Esq., and Susan W. Holtzman, Esq., of the Department of Education's Office of Legal Services.

Celeste T. Segure, Esq, formerly of the Department of Education's Office of Legal Services, and currently employed by the New York City Housing Authority's Office of Equal Opportunity.

Irving Schachter, retired teacher.

Betsy Combier, a parent advocate, and who is the editor of and the president of the E-Accountability Foundation

Norman Scott,, a retired teacher and former UFT Chapter Leader

Chancellor Klein, since you are an attorney, I am hoping that you will respect the judicial decisions and Commissioner's decisions that I've cited in this letter, and will find them to be an adequate basis upon which to reverse my "unsatisfactory" rating since they clearly demonstrate that Mrs. Zwillenberg did not submit "appropriate supporting data." Indeed, she could not possibly have submitted "appropriate supporting data" for a U-rating since I am a "sufficiently competent" teacher. In addition, Mrs. Zwillenberg did not follow the procedures described in the Commissioner's Regulations for conducting an annual professional performance review. However, if, by any chance, you determine to sustain the U-rating, then I request that you issue me an expansive statement fully setting forth the rational factual basis for your decision, as I would certainly pursue the matter further.

Thank you for your full consideration of the many important issues that I have raised.


Edmond Farrell

cc: Harolyn Fritz
Randi Weingarten
Grace Zwillenberg

Teachers throughout America are being threatened into silence about what they see and hear in our nation's public schools. We must put a stop to this violation of our freedom of speech.

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