DOE HANDED STUNNING DEFEAT IN “U” RATING APPEAL

Tuesday, December 01, 2009
DOE HANDED STUNNING DEFEAT IN “U” RATING APPEAL

In a sharply worded decision, yesterday, Justice Walter Tolub of New York Supreme Court rebuked the DOE for affirming a "U" rating given by an elementary school principal to a 20 year veteran when few of the procedural safeguards were followed. Jill Budnick, represented by private counsel, decided not to accept the rating and had claimed that she was targeted by the principal due to her seniority.

Justice Tolub found that the 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" 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 11, 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.
The Rating Officer must characterize each formal observation of the employee's performance 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 Oficer 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 11, I, at 9-10). This appended material is considered part of the original document and should be permanently attached thereto (Section II, I, at lo). 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.

Justice Tolub found that the rating officer did not provide pre and post observation conferences or any meaningful way to correct Budnick's alleged deficiencies. Additionally the Court noted that documents appended to the file letters were not included in the record on appeal and the appeals officer refused to mark into the record supportive letters from colleagues and other teachers.

The irregularities, according to the Court required that the U rating be vacated, an S rating be substituted and the DOE ordered to make the changes.