Budnick v New York City Dept. of Educ.

[*1] Budnick v New York City Dept. of Educ. 2009 NY Slip Op 52425(U) [25 Misc 3d 1235(A)] Decided on November 23, 2009 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 23, 2009
Supreme Court, New York County

Jill Budnick, Petitioner,

against

New York City Department of Education and Joel I. Klein as the Chancellor of New York City Department of Education, Respondents



102686/09



Attorney for the Plaintiff :

Reavis Parent Lehrer LLP

41 Madison Avenue - 41st Flr.

New York, New York 10010

Phone: 1-212 763-4100

Attorney for the Defendant :

Corporation Counsel

100 Church Street. 4th Floor

New York, New York 10007

Phone: 1-212-788-0303

Walter B. Tolub, J.

Petitioner, Jill Budnick, seeks to annul an unsatisfactory rating (U rating) issued by the school's Rating Officer and confirmed by the Chancellor, and change it to a satisfactory rating (S rating).

Facts

Ms. Budnick is a tenured teacher at PS 34 who began teaching in New York City in 1987. Ms. Budnick received the U rating on her Annual Professional Performance Review for the 2007-2008 school year. Joyce Stallings-Harte (Harte) is the school principal and the Rating Officer who gave Ms. Budnick the U rating.

Ms. Harte based the U rating on two classroom observations, which resulted in three letters addressed to Ms. Budnick. Petitioner appealed the rating to the Chancellor and a formal [*2]hearing ensued on September 25, 2008. By decision dated October 27, 2008, the Chancellor denied the appeal.

Ms. Budnick claims that a U rating can lead to termination and that respondents targeted older, more highly compensated teachers, such as herself, for termination as a cost-cutting measure. She alleges that Ms. Harte rated only three of the school's teachers, all of whom are senior teachers, including Ms. Budnick, as unsatisfactory. Ms. Budnick claims that by denying her appeal, respondents failed to perform a duty enjoined upon them by law and that they engaged in conduct that was in violation of lawful procedure, that was affected by an error of law, and that was arbitrary and capricious or that was an abuse of discretion.

Unless otherwise indicated, all exhibits are attached to the petition.

Teacher evaluations and appeals of unsatisfactory ratings must be conducted in compliance with the formal procedures set forth primarily in two handbooks prepared by the Division of Human Resources, namely, "Rating Pedagogical Staff Members" (Ex. 4, Handbook) and "The Appeal Process." The Handbook requires a Rating Officer (in this case, the school principal) to complete a thorough performance review for the academic year before rating the teacher (Section II, at 3-4).

The Handbook states that the Rating Officer should make informal and formal classroom visits in order to improve and sustain effective teaching (Ex. 4, Section 1, A, at 1). A formal observation may consist of one full-period observation or a series of short visits by the principal (Section II, E, at 7). Discussion with the teacher before and after an observation must be built into the formal observation process, along with a post-observation conference and a written report, which should include prescriptive recommendations for professional growth where appropriate (id.). The Rating Officer must characterize each formal observation of the employee's performance as Satisfactory or Unsatisfactory and indicate why this is so (Section 1, A, at 1). In arriving at the rating for a school year, the Rating Officer should take into account all events and incidents manifesting professional growth, pupil guidance and instruction, and classroom management (Section, II, C, at 4). A U rating has serious implications, as it is a compelling reason to file charges against a tenured teacher and may affect the teacher's ability to obtain additional licenses and salary increments (Section II, G, at 9).

Reports of observations must be included in a teacher's official file and a teacher is permitted to append a letter or note of explanation or rebuttal to documents placed in the file (Ex. 4, Section II, I, at 9-10). This appended material is considered part of the original document and should be permanently attached thereto (Section II, I, at 10). Any material to be placed in a teacher's file must include a notation that it is being placed in the file and a space for the teacher to sign and to indicate when he or she received a copy of the material (id.).

The first letter regarding Ms. Budnick's performance was dated February 4, 2008 (2008 is the date for the documents and events referred to here). The letter stated that Ms. Harte visited Ms. Budnick's classroom on January 22 and observed a reading lesson. The letter noted Ms. Budnick's instructions and recommended that she let the students know that "you will be looking at them as they try the strategy out" (Ex. 9). Ms. Budnick should "continue to note which students met the lesson goals and which need additional work" and those needing additional work should be included in a small group lesson at another time (id.). The letter concluded that petitioner should institute the recommendations in order to lift the level of instruction. The letter [*3]did not rate the lesson as U or S. It recited that it would be placed in petitioner's file. Ms. Budnick signed and dated it.

Ms. Harte issued a second letter, dated March 17, purportedly addressing the same January 22 lesson as in the February 4 letter. The March 17 letter stated that the lesson plan was adequate, but that the execution of the lesson was "problematic" (Ex. 10). The letter noted that Ms. Budnick's strategy of calling on every student to share his or her work was unfocused because Ms. Budnick did not reiterate the teaching point. The letter stated that students called upon to share should be selected with a definite teaching objective in mind, that it took too much time for every student to share, which resulted in students becoming distracted, and that there was no evidence that they understood the teaching point.

The March 17 letter went on to say that quarterly assessments of the children were supposed to be completed by December 2007 and that petitioner had not completed some assessments. The letter assigns a U rating to the lesson. Ms. Budnick did not sign the letter; however, at the hearing she admitted receiving it.

Ms. Budnick responded to the March 17 letter in a letter dated April 14. Ms. Budnick's letter stated that the first letter addressing the January 22 lesson did not state that it was unsatisfactory and that, according to the Collective Bargaining Agreement, informal observations were not to be rated. Ms. Budnick wrote that she did not meet with the Rating Officer to discuss the lesson. Petitioner further wrote that she did not call on every student to share their work and that she did not recall a time that she ever called on more than two students to share their work. Regarding the assessments, the letter stated that, since Ms. Harte had examined Ms. Budnick's assessments and returned them without comment, Ms. Budnick had been "fully confident that everything was in place" (Ex. 11).

Ms. Harte's third letter, dated May 16, dealt with a reading lesson observed on April 30, 2008. The letter noted that the teaching point was not named or posted. Some students were not partnered and petitioner told them to move around to find a partner, causing some confusion. By the time the students became situated, they had missed the opportunity to talk to their partners. Petitioner told students to go to their tables to work. Petitioner sat in the center and students continually interrupted her to ask for help. There was no "small group conference as we have worked on during professional development" (Ex. 13). The letter stated that petitioner focused on coloring and recopying sloppy work, instead of on writing skills. The letter said that when students gathered to share their work, they should recall the teaching point. As there was no teaching point, it was hard to see evidence and documentation of student learning. When petitioner praised students for working well, she did not praise them for specifically working on meaningful tasks. The letter further stated that since petitioner had not established a proper structure for the students to talk, they were not developing strong speaking and listening skills.

The May 16 letter assigned a U rating to the lesson. Ms. Budnick signed and dated it.

On May 20, 2008, Ms. Budnick responded to Ms. Harte's May 16, 2008 letter (Ms. Budnick's letter is dated May 10, but the petition gives the letter date as May 20). In her letter, Ms. Budnick wrote that there was a teaching point for the lesson, that she modeled for the students what they should do, and that when she asked them to turn and talk, all did, except two students who seemed nervous. She chose three children for small group instruction, and had them sit next to her at the big table, instead of isolating the small group, so she could keep an eye [*4]on the rest of the class. The small group worked on writing legibly. Ms. Budnick wrote that she chose four students to share their work with the class.

Ms. Harte completed the Annual Professional Performance Review evaluation form dated June 20. The evaluation form consists of 23 separate categories of performance. Ms. Budnick's performance received U ratings in nine categories. She was not rated for the other categories. The evaluation form has a space to list the documents that the Rating Officer uses to determine ratings for the categories. The form lists by date the three letters that Ms. Harte wrote and the corresponding category of performance.

Ms. Budnick appealed her U rating at the September 25, 2008 hearing before the Chancellor's Committee, as provided by section 4.3.1 of the Bylaws of the Panel for Educational Policy of the DOE. Ms. Budnick attended the hearing and was represented by her union advisor, who proffered documentary evidence and oral testimony and cross-examined Ms. Harte. The Chairperson of the Chancellor's Committee represented respondents.

Following the hearing, the Chairperson issued a report noting that Ms. Budnick was advised to improve certain aspects of her teaching, but she did not. The report also noted that Ms. Harte testified that Ms. Budnick failed to meet the goals of her lessons, that Ms. Budnick's performance was not at the level where Ms. Harte could see the students making progress, and that Ms. Budnick's lesson plans were not available. Ms. Harte testified thatMs. Budnick's control of her students was poor "to the point where parents actually sat in the classroom" (Respondents' Answer, Report, Ex. E, at 2).

The Chancellor's report further stated that Ms. Budnick's union advisor cross-examined Ms. Harte and elicited the following. Ms. Budnick did the same lesson all the time. She completed her assessments after December 2007 and they were incomplete. Ms. Harte met with Ms. Budnick to discuss her lessons. There was no pre-observation discussion for the May 16 observation.

The Chancellor's report related the union advisor's statement on behalf of Ms. Budnick. At the hearing, the advisor said that Ms. Budnick turned in all of her assessments. Although her teaching style was unique, she improved the performance of her students. The first classroom observation of February 4 was neutral and there was no pre-observation conference. All the observations were cursory in nature and were not followed by conferences.

The Chancellor's report stated that Ms. Budnick testified on her own behalf. Ms. Budnick said that she received no feedback about the assessments, that all her students met or exceeded the standards to enter the first grade, and that she modified lessons as needed for the students.

The report stated that the Chairperson found no evidence that the Rating Officer was unfair or inaccurate and that the evidence showed that Ms. Budnick did not sufficiently improve in her delivery of instruction and classroom management skills to warrant an S rating. The report recommended sustaining the U rating. On October 27, 2008, the Chancellor issued a letter sustaining the U rating, noting that it was a consequence of insufficient progress in the delivery of instruction and in classroom management skills.

Ms. Budnick alleges that the Chancellor failed to take account of her testimony and other evidence at the hearing. Ms. Budnick testified that all but two of her students met or exceeded the standards needed to enter the first grade. The exceptions were a pupil with special needs and a pupil who did not speak English. Ms. Budnick and the union advisor testified to her students' [*5]success, her efforts on behalf of their education, including monitoring their progress, maintaining charts, and constantly communicating with parents. There was testimony that Ms. Budnick met with other kindergarten teachers, attended professional workshops and conferences, recruited six parents as volunteers in the classroom, obtained donations of school supplies for free, and purchased supplies with her own money.

Several parents submitted letters testifying to their children's success in petitioner's class. Ms. Budnick alleges that the Chairperson reviewed these letters at the hearing, but did not mark them as exhibits. Another teacher submitted a letter praising the readiness of petitioner's former students to enter first grade. This was also reviewed by the Chairperson, but not formally marked as an exhibit.

Ms. Budnick alleges that respondents violated the Handbook requirement that all incidents manifesting professional growth, pupil guidance and instruction, and classroom management should be taken into account when rating a teacher (Ex. 4, Section, II, C, at 4). Ms. Budnick alleges that respondents failed to follow the Handbook procedures in other ways. For this reason, she argues, the denial of her appeal was arbitrary and capricious. She contends that the U rating is not supported by adequate evidence.

Respondents contend that the Rating Officer's reports justified the U rating and that the Chancellor and his designees are in the best position to make specialized determinations regarding teacher performance (see Maas v Cornell Univ., 94 NY2d 87, 92 [1999]). They contend that procedure was sufficiently followed and that every procedural flaw attendant upon an agency action or hearing does not mean that a petitioner's rights were violated. Regarding the allegation that they targeted senior teachers, respondents reply that teachers more senior than petitioner received S ratings.

Discussion

A judicial review of an administrative determination is limited to the grounds invoked by the agency at the time of its determination (Matter of Aronsky v Board of Educ. Community School Dist. No. 22 of City of NY, 75 NY2d 997, 1000 [1990]). The court may not substitute its judgment in place of the agency's, even if the court believes that a better determination could thereby be obtained (Peconic Bay Broadcasting Corp. v Board of Appeals, Town of Southampton, 99 AD2d 773, 774 [2d Dept 1984]; Matter of Clancy-Cullen Storage Co. v Board of Elections of City of NY, 98 AD2d 635, 636 [1st Dept 1983]). Judicial review of an administrative determination is limited to whether the determination was made "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion ..." (CPLR 7803 [3]). The arbitrary or capricious test relates to whether a particular action has a sound basis in reason and is taken with regard to the facts (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Where the determination is rational and the administrator has not acted in violation of lawful procedure, arbitrarily, or in abuse of discretionary power, the courts must confirm the determination (id.).

Ms. Budnick correctly contends that respondents violated the Handbook. The Handbook calls for discussions and conferences before and after an observation (Ex. 4, Section II, E, at 7). [*6]The record is not clear on whether there was a pre-observation conference for the first observation on January 22, but there was no pre-observation discussion for the May 16 observation. There were no post-observations conferences for either observation.

The Handbook states that a formal observation must rate the lesson as S or U, and note the reasons for the rating (Ex. 4, Section I, A, at 1). The February 4 letter regarding the January 22 lesson did not rate the lesson. While the letter made recommendations, it did not criticize any aspect of the teaching. Despite these omissions, Ms. Harte relied upon this letter to rate petitioner as unsatisfactory in these categories on the evaluation form: effect on character of pupils; control of class; and skill in adapting instruction to individual needs.

Ms. Budnick's responses to the March 17 letter and the May 16 letter were not included in the file as the Handbook requires (Ex. 4, Section II, I, at 10). The Handbook also requires that all documents in the file be reviewed in rating performance (Section II, I, at 9). Ms. Budnick's responses were not considered because they were not in the file.

The Handbook says that material to be placed in a file must note said placement and be signed by the teacher (Ex. 4, Section II, I, at 9). At the hearing, the Rating Officer attempted to introduce two letters, dated November 2, 2007 and December 2007, neither of which informed petitioner that they would be in her official file, did not contain signature lines, and were not signed. Petitioner objected, and the Chairperson ruled that the documents should be removed from the file. A document removed from the file is inadmissible, although it can be used to refresh the memory of the author during cross examination (Section II, I, at 11). Nonetheless, the Chairperson allowed the Rating Officer to refer to those documents during the case in chief against petitioner.

The court agrees with petitioner that the evidence does not rationally support the findings.

The March 17 letter was used to assign a U rating to "attention to pupil health, safety and general welfare" on the evaluation form, but the letter does not reasonably support a deficit in that area. In that regard, the union advisor stated at the hearing that there were no accidents in the class, that if a child was ill he or she received the proper treatment, and that Ms. Budnick was in constant communication with the families.

The March 17 letter purports to address the same January 22 lesson as the February 4 letter. As Ms. Budnick correctly states, the hearing revealed some confusion regarding whether the letters addressed different lessons on different dates or the same lesson. At the hearing, Ms. Harte suggested that Ms. Budnick had given the same lesson on different dates and that the March 17 letter was about a lesson in February. She also stated that the March 17 letter was about the January 22 lesson. The Chairperson said that Ms. Harte "observed these things" and put the February 4 letter in the file (Ex. 2, at 19). Then the Chairperson said that Ms. Harte "turned around and used it as a lesson observation" (id.), suggesting that the letters were about one lesson. The statement in the Chairperson's report that Ms. Budnick always gives the same lesson appears to derive from this discussion.

The February 4 letter gave no indication of the problems with Ms. Budnick's performance that were noted by the March 17 letter, although both claimed to discuss the same lesson. This means that from the day of the lesson, January 22, until March 17, Ms. Budnick was not put on alert that she needed such extensive improvement as suggested in the March 17 letter.

The Handbook makes it clear that the Rating Officer should help a teacher improve by [*7]providing a planned program for improvement with attainable goals and by monitoring the teacher's progress (Ex. 4, Section I, A, at 1). At the hearing, the union advisor stated that, while Ms. Budnick partook of the professional development programs offered to teachers, she did not receive the kind of professional development needed by someone who was in danger of a U rating.

The Chancellor's report stated that Ms. Budnick's control of her classroom was so poor that parents had to sit in the classroom. None of the letters indicated that Ms. Budnick's problems were at such a serious level.

All of the above, taken together, including respondents' failure to follow the Handbook, the confusion regarding whether two or three lessons had been observed, and the lack of sufficient proof for the U rating, leads the court to conclude that the year-end U rating and the Chancellor's determination upholding it were arbitrary and capricious and not reasonably supported by the record.

While agreeing that the Handbook is binding on them, respondents contend that they are only obligated to comply with procedural regulations affecting substantial rights (see Matter of Lehman v Board of Educ. of City School Dist. of City of NY, 82 AD2d 832, 834 [2d Dept 1981]), and that the objections raised here do not concern petitioner's substantial rights.

The court notes that U ratings have been annulled because based on material not in the teacher's file, where the rule was that evaluations must be based on material in the file (Matter of Mangone v Klein, 2007 NY Slip Op 32475[U], * 6 [Sup Ct, NY County 2007]; Appeal of Dowrie, No. 15506, December 22, 2006, Decisions of the Commissioner of Education of New York State[FN1]); because an official failed to countersign the rating and there was no discussion of the problem with the petitioner (Kalman v Lyles, Index No. 105463/08 [Sup Ct, NY County, Oct. 21, 2008, Madden, J.] [FN2]); and because the U rating was not preceded by an inspection of the petitioner's work and a consultation with him (Matter of Bonilla v Board of Educ. of City of NY, 285 AD2d 548, 549 [2d Dept 2001]). A U rating may not be based on documents not shown to the petitioner in advance of the hearing (Smith v Board of Education of City School Dist. of City of NY, 18 Misc 3d 192, 196 [Sup Ct, NY County 2007] [based on respondents' violating the "The Appeal Process"]).

Here, the court determines that respondents violated the same or similar rules that were violated in the above-cited cases and that led to the annulment of U ratings. The court does not find it necessary to determine whether the rules affected substantial rights.

It is hereby

ORDERED that the petition is granted; and it is further ADJUDGED that the 2008 year-end U rating and the Chancellor's October 27, 2008 determination upholding it are arbitrary and capricious; and it is further

ORDERED that respondents shall revoke and expunge the 2008 year-end U rating and change it to an S rating; and it is further [*8]

ORDERED that the matter is remitted to the New York City Department of Education for further proceedings not inconsistent with this decision.

Dated:________________

ENTER:

__________________

Walter B. Tolub J.S.C. Footnotes

Footnote 1:http://www.counsel.nysed.gov/Decisions/volume46/d15506.htm

Footnote 2:http://decisions.courts.state.ny.us/fcas/fcas_docs/2008oct/3001054632008001sciv.p df