Appellate Division of the Supreme Court, Second Department

Roemer's Brief to Appellate Division of the Supreme Court to Reverse Lower Court's Order

To be argued by


David Roemer


Time: 15 minutes


New York Supreme Court


Appellate Division - Second Judicial Department


Docket No. 99-00490


DAVID ROEMER,


Petitioner-Appellant


-against-


BOARD OF EDUCATION OF THE CITY SCHOOL


DISTRICT OF THE CITY OF NEW YORK,


Respondent.


 


BRIEF FOR PETITIONER-APPELLANT


David Roemer, pro se
345 Webster Ave., Apt. 4-O
Brooklyn, New York 11230
718-438-7375


Michael D. Hess
Corporation Counsel of the City of New York
Attorney for Respondent
100 Church Street
New York, New York 10007



Kings County Clerks Index No. 21557/98



Table of Authorities


Paul Heifetz vs Walker & Zanger, Inc
644 N.Y.S.2d 57 (A.D. 2 Dept. 1996)


City of Canadaigua vs Canadaigua Police Officers Association
572 N.Y.S.2d 213 (AD 4 Dept. 1991)


Board of Education of Greenburgh Central School District No. 7 vs Greenburgh Teachers Federation, etc.
586 N.Y.S.2d 11 (A.D. 2 Dept. 1992)


Lubin & Schlesinger, Inc vs Martin Scheinberg
Michael Lubin, et. al.vs Martin Scheinberg
641 N.Y.S.2d 509 (Sup 1996)


Michael Garippa vs The Board of Education of the City School District of the City of New York
New York Law Journal [April 2, 1998 (p.31, col.6)]


Austin vs The Board of Education of the City School District of the City of New York
New York Law Journal [May 6, 1999 (p.29, col.5)]


Preliminary Statement


Appellant, David Roemer, appeals from Judge David B. Vaughan's December 10, 1998 order dismissing my petition against the Board of Education of the City School District of the City of New York ("the Board") asking the Supreme Court to vacate the findings and recommendations of the panel selected to hear and determine proceedings pursuant to §3020-a of Education Law and to reimburse me for all of my legal expenses. The panel found me culpable of the charges preferred against me and ordered my dismissal from my position as a teacher at Edward R. Murrow High School in Brooklyn, New York.


Vacating the findings and recommendations of the panel will not have the effect of putting me back into a classroom with the responsibility of teaching children. That cannot happen unless the Board gives me a teaching assignment and schedule of classes to teach. What such an order will do is return the Board and me to the status that existed on June 15, 1995, or thereabout.


At that time, I had completed my teaching assignment and had received a year-end unsatisfactory rating for poor teaching. My actions, verbal statements, and writings throughout the year made it clear to any reasonable person that my teaching would be the same in September 1995 as it was in September 1994 (R. at 66, 75, 80-84, the "Findings") when I transferred to Edward R. Murrow High School after 10 years of satisfactory service as a teacher at Midwood High School and Erasmus Hall High School, both also located in Brooklyn.


The unsatisfactory rating arose from a disagreement between me and the Principal about teaching. I did not change or promise to change my teaching because the Board agreed to conciliate the pedagogic disagreements I had with the Principal in accordance with a provision in the collective bargaining agreement for resolving professional differences of opinion (R. at 106, the "Article 24 Conciliation").


This process was not completed and, therefore, the agreement to conciliate is still open (R. at 107, the "Letter to Lo Shiavo"). The Board wanted then, in June 1995, and wants now the pedagogic disagreement to be resolved in this manner, that is, according to the terms and conditions set forth in the collective bargaining agreement.


The arbitration panel made a grievous error in removing me from my position at Edward R. Murrow High School. They ignored the fact that the conciliation process has not been completed and penalized me without having a just cause.


I explained this to the lower Court in my Reply Affidavit in Support of Petition and in oral arguments. The lower court ruled against me.


Question Presented


Whether the lower Court erred in granting the cross-motion to dismiss the petition and not granting the petition to vacate the findings and recommendations of the panel selected to hear and determine proceedings pursuant to §3020-a of Education Law.


Facts of the Case


First Four Observation Reports


At the beginning of September 1994 I transferred to Edward R. Murrow High School and I was given four classes in Regents Physics to teach. On September 22, 1994 the Assistant Principal of Science, carrying out his supervisory responsibilities, came into my classroom for the purpose of observing the lesson. Afterwards, we discussed the lesson in the customary post-observation conference. The subsequent observation report stated that the observed lesson was unsatisfactory.


On September 29, 1994 the Principal, following the same procedures, found a lesson of mine to be unsatisfactory. I was observed again on October 13, 1994 and October 26, 1994.


Notes on Pedagogy


I considered these unsatisfactory ratings to be pedagogically unsound and in violation of the collective bargaining agreement because my supervisors, in effect, were demanding that I teach a particular type of lesson. There are many different types of lessons and it is a teacher's professional responsibility to select the best type of lesson or method of teaching. There are cooperative learning lessons, reading lessons, computer lessons, hands-on activities and so on. My interpretation of the observation reports and the subsequent discussions was that my supervisors wanted me to teach the so-called "developmental lesson." This type of lesson has as its main elements a "motivation," an "aim," "pivotal questions," and a "summary." It is a highly structured and teacher-directed method of teaching that is widely used in New York City public high schools.


In my method of teaching, I give students every day a hand-out which describes the concepts the students are expected to learn and enumerates questions, problems, and activities. An example of one of my hand-outs can be found on page 69 of the Record on Appeal. While my method of teaching contains a "motivation," my lessons do not include an "aim," "pivotal questions," and a "summary" as understood by a New York City public school supervisor looking for and expecting a "developmental lesson."


My critique of the negative opinions of my supervisors was expressed as follows by the United Federation of Teachers:



Mr. Bruckner, Principal of Murrow H.S., and Mr. Cohen, A.P. Science, have directed him to use a "developmental" approach to teaching Physics. His observations have been critical because of his lack of a developmental lesson plan. (R. at 105, the "Request for Conciliation")


Supervisors in New York City public schools generally base the rating of a lesson as being satisfactory or unsatisfactory on their observation of the lesson and, more specifically, on the quantity and quality of student learning. When pedagogues speak of a "type of lesson" or "teaching methodology" they are referring to a brief abstract statement of what the teacher will do in the classroom. Demanding a particular type of lesson is pedagogically unsound and can cause a supervisor to prejudge a lesson in an unreasonable manner.


Request for Conciliation


I complained about the judgment of my supervisors to the Chapter Chairperson of the United Federation of Teachers, and we both met with the Principal on or about October 28, 1994 (R. at 107, the "Letter to Lo Shiavo"). At this meeting the Principal agreed to conciliate our disagreement about teaching under Article 24 of the collective bargaining agreement, which is titled "Professional Conciliation".


Nevertheless, no attempt was made to conciliate and I was observed with unsatisfactory ratings on November 7 and November 16, 1994. In my mind, these observations served no legitimate purpose and simply confirmed what was apparent from the first four observation reports: the Principal and I have different ideas about teaching. The Principal considers my teaching to be inferior whereas I consider my teaching to be innovative and superior.


Acceptance of Conciliation


On December 2, 1994 the Office of the Chancellor accepted the request for conciliation submitted by the United Federation of Teachers on November 3, 1994 (R. at 105, the "Request for Conciliation"; and R. at 106, the "Article 24 Conciliation"). On December 5, 1994, the Principal entered my classroom, as he had in the past, and observed the lesson. At the post-observation conference the Principal did not mention the conciliation agreement, and he criticized the lesson just as he did in his previous post-observation conferences.


His behavior was inconsistent with an effort at conciliation. At the §3020-a hearing I expressed my opinion about how the conciliation process should be conducted:



The first step would be to try to identify exactly the difference between what I was doing in the class and what they wanted me to do or what the other teachers were doing or what I was doing in - -at Midwood. It's not at all clear exactly -- I mean, it's not clear in my mind exactly what the difference was between what I was doing in Midwood and what I was doing at Murrow. To me I was just adding things, but that would be the first step, to see if we could resolve that. Then the second thing would have been, since we were all agreed that the best lesson is the ones where there's the most amount of student participation, would be to find a way to measure student participation, maybe by tests at the end of the period or having people observe the activities of the students.And the third level that it could have been conciliated would be by comparing the test scores my kids got with the test scores that the other teachers got. And if we had gone through these steps and these processes, it might have been possible for us to resolve our--our differences. (emphasis added 539-540) ( R. at 83, the "Findings")



Meeting with Superintendent


On January 5, 1995 the Principal, Assistant Principal, and I met with the Superintendent of Brooklyn High Schools, Joyce Coppin, to discuss the situation. I was accompanied by the District Representative of the United Federation of Teachers. At this meeting the Superintendent completely supported the actions of the Principal and said that if I continued to teach in the same manner I would get an unsatisfactory rating at the end of the year. The Superintendent wrote a letter dated February 3, 1995 which summarized what transpired at this meeting (R. at 79 the "Findings"; R. at 107, the "Letter to Lo Shiavo").


The Superintendent was reneging on the Principal's promise to conciliate given to me in our October meeting and ratified and accepted by the Board of Education on December 2, 1995. What made the Superintendent's behavior at the meeting of January 5, 1995 questionable, in my mind, was the fact that she did not give a copy of the letter of February 3, 1995 to Joseph Lo Shiavo, who accepted the request for conciliation on behalf of the Chancellor.


As a result of the Superintendent's not advising Mr. Lo Shiavo of the true nature of her intervention in the conciliation process, the Mr. Lo Shiavo, pursuant to the collective bargaining agreement, appointed a conciliator, Harold Matthes to the case. Mr. Matthes met with me and the Principal on March 29, 1995. At that time, I told Mr. Matthes about the meeting of January 5, 1995 and the subsequent letter of February 3, 1996 (R. at 80, the "Findings"; R. at 107, the "Letter to Lo Shiavo"). Mr. Matthes did not resolve the disagreement and did not terminate the conciliation process (R. at 106, the "Article 24 Conciliation"; R. at 107, the "Letter to Lo Shiavo").


I was observed again on March 21, 1995, March 31, 1995, May 9, 1995, and May 16, 1995. All of the observation reports gave the lessons unsatisfactory ratings.


On May 1, 1995 the Chapter Chairperson of the United Federation of Teachers sent a letter to Joseph Lo Shiavo inquiring about the status of the conciliation process (R. at 107, the "Letter to Lo Shiavo"). There has never been any response to this letter. I interpreted this to mean the conciliation agreement was still open. This interpretation was based on my understanding that Mr. Lo Shiavo was in charge of the conciliation process for the Board. Mr. Lo Shiavo said:


I will be in contact with you or a representative of your staff assigned to handle this case on a periodic basis. As the Board Conciliator, I am available to provide assistance and guidance to facilitate a successful completion of this process. Please feel free to contact me at any time.(R. at 106, the "Article 24 Conciliation")


Annual Unsatisfactory Rating


On May 17, 1995 I was observed by a representative of the Superintendent who authorized an unsatisfactory Annual Professional Performance Review of Pedagogical Employee. On June 9, 1995 I was observed again by the Assistant Principal of Science and given another unsatisfactory observation report.


My reaction to the unsatisfactory annual rating was to request conciliation and to make it clear that there would be no change in my teaching in September 1995 (R. at 66, 75, 80-84, the "Findings").


Program for September 1995


At the end of June 1995, the Principal gave me a teaching program for September 1995 that was identical the program I had the previous year. This was wrong to do because of the adversarial relationship that existed between us at that time.


Items B and E in Specification 1 (R. at 12, the "Charges") are based on letters the Assistant Principal placed in my file concerning complaints made by students against me for poor teaching. When such complaints arise it is important for supervisors, guidance counselors and teachers to work together to provide children with the guidance and support they need. In the case of Physics, the subject I was teaching, many children have difficulty understanding the subject matter. There are circumstances when the children's parents should be told about the child's difficulties. In the September 1994 to June 1995 school year my supervisors and I did not have a working relationship that promoted the interests of the children, because of the disagreement about the effectiveness of my teaching.


For the sake of providing appropriate support and protection to children, supervisors should have influence over the teacher derived from the supervisory relationship. My supervisors, starting in September 1995, did not have the appropriate level of influence over me because of our inability to resolve our disagreement.


It was my belief that the reason I was given a teaching program for September 1995 is that otherwise the Superintendent would have had to initiate disciplinary proceedings against me. The Board would not have supported disciplinary measures for poor teaching, I believed, when there was an open agreement to conciliate about teaching methodology. It was my belief that taking disciplinary measures against me in June 1995 would have exposed my supervisors to criticism, not me.


September 1995 to March 1996


On September 14, 1995 I met with the Principal, who described his requirements for a good lesson. On or about September 29, 1995 I told the Assistant Principal and Principal that I would not meet with them to discuss my lessons except with another person present. I did not go to the post-observation conferences because I believed my supervisors did not have good intentions and I didn't want to cooperate with inappropriate conduct. Individuals working with children should have high moral standards and should not engage or participate in dishonest practices. I was not being properly supervised by the Principal and Assistant Principal, and I believed that going to post-observation conferences would have the effect of covering up this situation.


I was observed seven times after that. On March 1, 1996 I was ordered to report to another school for non-teaching duties "pending charges of insubordination" (R. at 89, the "Recommendation of Employee Panel Member").


Specification of Charges


On November 13, 1996, I was notified that the Board found probable cause for the charges preferred against me by the Chancellor of the New York City Board of Education. I was given a copy of these charges which accused me of incompetence and insubordination.

The charges are broken up into Specification 1, covering the school year September 1994 to June 1995 and Specification 2, covering the school year beginning in September 1995. There was nothing in Specification 1 which supported the charge of insubordination, however, there was a reference to insubordinate behavior in all but one of the items of Specification 2.


Nothing in the charges refers to the conciliation agreement. For example, the letter Mrs. Coppin wrote on February 3, 1995 (R. at 79, the "Findings"), warning me that I would get an unsatisfactory year-end rating, is not mentioned. I considered the charge of insubordination to be dishonest because it referred, not to my requests for the completion of the conciliation process, but to my refusal to go to post-observation conferences.


Arbitration Hearing


I exercised my right under §3020-a of Education Law to request an arbitration hearing. The first hearing was on June 13, 1997 and the seventh and last hearing was on February 12, 1998. On June 12, 1998 I was terminated and soon received the findings and recommendations of the panel.


I interpreted the findings and recommendations of the panel to be saying that I was innocent of the charge of incompetence, but guilty of insubordination. I considered the finding of insubordination unreasonable since I had done nothing wrong.


On June 24, 1998 my attorney filed a petition in Supreme Court to vacate the findings and recommendations of the panel. The petition argued that the panel did not follow the legal definition of incompetence. My attorney accompanied the petition with a personal request to the Board's attorney that I be re-instated at a different school.


On or about October 22, 1998 the Board filed a cross-motion to dismiss the petition. On December 2, 1998 I submitted a reply affidavit, which my attorney helped me write, in support of the petition. In my reply affidavit I argued that the decision should be set aside because there was an open agreement to conciliate. I also pointed out that the standards of review according to Article 78 apply so that the award could be vacated on the grounds that it was arbitrary, capricious and otherwise unreasonable. On December 10, 1998 Judge David N. Vaughn heard oral arguments from me acting pro se and from the Board's attorney. Judge Vaughn ruled against me in favor of the Board. I am appealing from this order.


Award Is Totally Irrational


Observations Before and After Conciliation.


The charge of incompetence is based on the observation reports which conclude that there was a lack of student learning. The observations, post-observation conferences, and observation reports serve a supervisory function that is well understood by teachers, supervisors, and the Board. However, there is a difference between those observation reports written before the Board accepted the request to conciliate and those written after the acceptance. The former were in accordance with practices of the Board of Education and the collective bargaining agreement and had meaning to me and to the Board, and to any panel, judge or panel of judges. After the acceptance of the request for conciliation, the observation of my lessons and the subsequent observation reports lost the meaning that they normally possess.


This is apparent from the wording of the request for conciliation made by the United Federation of Teachers: "The observation reports were critical because of a lack of developmental lesson plan" (R. at 105, the "Request for Conciliation"). It is clear from the context (see page 7 above) that this is a criticism of the observation reports.


It is a criticism that undermines the conclusion that the lessons were unsatisfactory. The Board, through the Office of the Chancellor, responded to this criticism and request for conciliation in a positive way. The Principal's response to the Board's acceptance of the request to conciliate was to simply ignore the conciliation process. He did not explicitly tell me that he was not going to conciliate nor did he inform Mr. Lo Shiavo that he wanted to withdraw from the conciliation process. As a result, the observations, the post-observation conferences and the observation reports did not possess the meaning and purpose they normally do when a Principal carries out his supervisory responsibility to observe a teacher.


My interpretation of what the Principal and Superintendent were telling me with the Letter of February 3, 1995 (R. at 79, the "Findings") the observation reports, and the year-end unsatisfactory rating, is that they were not going to conciliate. They may have done this because they were afraid that an agreement would be reached which would have been detrimental to the operation of the school. However, the purpose of observation reports is not to cancel conciliation agreements. Observation reports are supposed to provide supervisory guidance to teachers about their teaching.


The panel failed to make any distinction between the observation reports written before the conciliation agreement of December 1994 and the observation reports after December 1994. They failed to realize that the observation reports after the agreement to conciliate were unauthorized and meaningless.


The panel seemed to think, as I will try to show below, that since the Principal and I were unable to resolve our disagreements I ought to have tried to satisfy the Principal with my teaching. This is wrong because the logical consequence of the Principal and me not coming to terms is for me to transfer to another school or resign from the Board. The panel's inability to grasp this point of logic makes its decision totally irrational.


Reasonableness of the Directives


The majority report of the panel, which was written by the Chairman of the Panel (the "Chairman), states:


It is not our role to determine whose teaching method is better. Administrators have a right to insist upon a particular methodology so long as their suggestions and directives are reasonable and are neither arbitrary nor capricious. Clearly, Cohen and Bruckner's suggestions fall into neither category.(R. at 75, the "Findings")


The Chairman is making a judgment as to whether or not Cohen and Bruckner's directives were "reasonable and are neither arbitrary or capricious." I never suggested that my supervisors' directives were unreasonable, arbitrary and capricious. My position is that my supervisors' directives were unsound because they are not consistent with the latest developments in pedagogic research. I expressed this viewpoint in the documents I submitted which led to the request for conciliation.


My guess is that the hearing officer felt obliged to defend the reasonableness of the pedagogic supervision I received because he misconstrued the case. He assumed that the case against me was presented to him in good faith. Under this assumption, a possible defense I could have had would be that my supervisors' directives were unreasonable, arbitrary and capricious. Therefore, the hearing officer -- trying to give me every benefit of the doubt-- considered whether or not this was so and concluded in favor of my supervisors.


I am suggesting that the hearing officer confused the case before him with a lawful case of incompetency. In a typical incompetency case, the Principal and Assistant Principal observed a teacher's lessons and advised the Superintendent that they want to give the teacher an unsatisfactory annual rating. The Superintendent then observed one of the teacher's lessons and decided to authorize the unsatisfactory rating. The teacher can appeal an unsatisfactory rating to the Chancellor. After at least two years of unsatisfactory ratings the Principal and Superintendent decided to file charges against the teacher. The reason for the second year is to give the teacher an opportunity to improve his or her instruction. The Chancellor's office then generated a document describing the charges. The charges were voted on by the Board meeting in executive session and again in a public meeting. There is, in other words, a factual connection between the specification of charges and all that proceeded the specification of charges. The specification of charges creates a true picture of what happened.


In the case before this court, the specification of charges distorts what actually occurred between me and my supervisors. It creates a totally false picture. It was the responsibility of the panel to see the falseness of this picture and to replace it with an accurate picture of what occurred. The failure of the panel to do this renders the findings and recommendations of the panel totally irrational.


Lawfulness of Charges


The Chairman states:



In sum, on this point, there is nothing in the record to even remotely suggest that Bruckner or Cohen placed unreasonable demands upon Roemer. They surely did not conspire to oust him and Roemer acknowledged that he did not regard them as malicious individuals bent on getting him. (R. at 76, the "Findings")


No conspiracy? No malice? How did the Board and I transmigrate from conciliating a disagreement about teaching methodology to the filing of charges against me? Who is responsible for a legal procedure which has cost the taxpayer hundreds of thousands of dollars?


It certainly isn't me. I used the developmental method of teaching at Midwood High School for five years. Since abandoning this approach and method, I was much more relaxed and natural in the classroom and felt a greater sense of accomplishment. At Erasmus Hall High School I used this new method of teaching for 9th graders in a non-Regents course called Physical Science, formerly known as General Science, with great success. At Edward R. Murrow High School I taught 11th and 12th graders Regents Physics with the same sense of accomplishment I experienced at Erasmus Hall High School. The idea that I would give up my method of teaching in an effort to please the Principal is unrealistic.


My supervisors never suggested that I transfer to another high school and I did not request a transfer. I could have had the same problem with my supervisors at any other school. The conciliation process was being supervised by Joseph Lo Shiavo, and I believed that a transfer to another school ought to be authorized and approved by him.


The panel was supposed to listen to the evidence and testimony and be open to the possibility, raised by the evidence and testimony, that the charges were brought against me to side-step the conciliation agreement and, therefore, were improper. The panel simply assumed that the charges were made in good faith and interpreted the facts of the case from this perspective only. This caused the panel to misunderstand the case and render a totally irrational decision.


Insubordination


In the second year I refused to go to the post-observation conferences unless accompanied by another person. The Chairman writes:


Respondent's response to these directives was similar to his response to directives raised concerning lessons and lesson plans. He found the directives meaningless since he believed nothing good could come out of the meetings. As a result, he stopped attending them:

Q. Isn't it true you stopped going to post-observation conferences?

A.Yes. (581)

Clearly, he should not have. In so doing, Respondent was blatantly insubordinate. (R. at 78, the

"Findings")


Insubordination is an immoral act which shows a lack of respect for authority. I came to the conclusion that it would be wrong to go to the post-observation conferences because they served no lawful purpose (see page 12 above). The Chairman is aware of this because he credits me with the view that "nothing good can come from the meetings."


After quoting my ideas on how the conciliation process should be carried out (see page 9 above) , the Chairman writes:


Respondent's last comment is most significant. It indicates he would have been willing to modify his practice only if the administrators were willing to accept some or all of his views about teaching. While this may be a genuinely conciliatory attitude, it affords no basis for us to conclude that were Respondent returned to duty he would conform to the requirements imposed by his administrators.

This view of Respondent's is best reflected in his answer to the following question:

"Q. Well, when you say you weren't going to change without the conciliation process, can you explain what you mean by that?

A. Well, I was willing to change my teaching methods as part of the conciliation process, and if I went to the post observation, that would be taken as an indication that this was not the case, that I was trying to implement Mr. Bruckner's suggestions. (703)"

This, we are convinced, is Respondent's true attitude - that he would not accept the suggestions of administrators until and unless the conciliation process "Findings")


The Chairman is criticizing me for not going to the post observation conferences. Yet, had I gone to the conferences, it would have made my intentions unclear. Indeed, the Chairman himself uses the fact that I did not go to the post-observation conferences to determine whether or not to terminate me.


The Chairman's statement that I was "blatantly insubordinate" has no basis in fact or reason.


The Chairman possibly imagined that the Principal considered my not going to post-observation conferences to be insubordinate. There is no reason to think that the absence of post-observation conferences caused the Principal any harm. On the contrary, a Principal has a duty to help teachers improve their teaching, and my actions simply relieved him of this responsibility.


Perhaps the Chairman imagined I was guilty of insubordination because I did not change my teaching. This, too, is unreasonable because there is no evidence that the Board or the Chancellor, who are the Superintendent's superiors, supported such a charge. The Board was never given an opportunity to approve a charge of insubordination based on my refusal to change my teaching. The evidence shows that the Board would not support such a charge. This is why no disciplinary letters and reprimands for insubordination were given to me in the first year. The criticism of insubordination was made in the second year and referred only to my not going to post-observation conferences.


Criticizing the Superintendent


The Chairman says,


Respondent's counsel asserted that discharge was not proper because of the poor manner in which school officials handled the conciliation process. Essentially, conciliation affords the teacher an opportunity to discuss with supervisors their pedagogical differences and to try and reach an accommodation. The Panel notes Respondent's claim that Superintendent of Brooklyn High Schools, Joyce Coppin, did not properly function as a conciliator between Respondent and school administrators. We find some merit to this allegation. Superintendent Coppin's letter to Roemer dated February 3, 1995 states that she is "making recommendations which effectively tell you to accept the principal's position," and that she is "reminding you that, based on what I have heard at the meeting, you are in danger of getting an unsatisfactory rating (Respondent's Exhibit 4)."

The Panel agrees with Respondent's contention that those comments go beyond the Superintendent's role as a conciliator. The directive, to "accept the principal's position," though couched as a recommendation, is not a conciliatory gesture but is rather the imposition of a requirement. Thus, we find, the conciliation process at Dr. Coppin's level was not properly conducted. (R. at 79, the "Findings")


The Chairman is criticizing the Superintendent for telling me to accept the Principal's position and for not properly conducting the conciliation process. This undermines the rationale for penalizing me. Indeed, the Superintendent's handling of the conciliation caused the dissenting panelist to limit my penalty to being transferred to another school (R. at 88, the "Recommendation of Employee Panel Member")


However, the criticism also makes no sense. The Superintendent authorized the year-end unsatisfactory rating of June 1995 and warned me in January 1995 that this would be the result of my teaching. The idea that the Superintendent ought to have allowed me to believe that I would get a satisfactory rating so as not to expose herself to the criticism that she was a poor conciliator is absurd.


The Superintendent had no duty to play the role of conciliator because the conciliation agreement was optional. There was a conciliation agreement only because the United Federation of Teachers requested it and the Board accepted the request. The Board's acceptance was based on the premise that the Principal agreed to conciliation (R. at 105, the "Request for Conciliation"). The Chairman has no basis for criticizing the Superintendent's letter of February 3, 1995, and has no basis for concluding that the "conciliation process at Mrs. Coppin's level was not properly conducted." Mrs. Coppin is an experienced administrator and is capable of understanding the disagreement between the Principal and me and is qualified to decide how this disagreement should be handled.


The Superintendent did make mistakes and did not properly carry out her duties. Her first mistake was to give me a teaching program for the September 1995 school year without the disagreement being resolved. Her second mistake was to use the observation reports to generate a paper case against me for incompetence.


Conciliation Contract



The Chairman does not correctly describe conciliation when he states, "Essentially, conciliation affords the teacher an opportunity to discuss with supervisors their pedagogical differences and to try and reach an accommodation" (see page 21 above). This describes, if anything, not the conciliation process, but the post-observation conferences I had with my supervisors from September 1994 to September 1995.


In the conciliation process set forth in Article 24 and agreed to by the Board (R. at 106, the Article 24 Conciliation"), a conciliator is supposed to monitor a conversation between the Principal and me. At such a meeting, with a conciliator present, the Principal and I can reach an agreement. This will result in a written agreement with an enforcement paragraph.


The Principal and I could have reached an agreement at the post-observations conferences or I could have complained to the Superintendent about the Principals observation reports. Instead, the Principal and I decided to avail ourselves of the provisions of "Professional Conciliation" as set forth in the collective bargaining agreement. By not grasping the distinction between the conciliation agreement and the post-observation conferences, the panel, in effect is ignoring the existence of the conciliation agreement.


The Board and the United Federation of Teachers included Article 24 in the collective bargaining agreement fully aware of the professional relationship which exists between supervisors and teachers. The Board included Article 24 because they want teachers to participate in decisions about methodology and know that this can lead to professional disagreements between supervisors and teachers. The Board wants these disagreements to be resolved through Article 24 of the collective bargaining agreement. The panel acted irrationally in not recognizing this.


Meaning of Conciliation


The Chairman not only does not know the terms and conditions of the conciliation agreement he does not even understand the meaning of the word "conciliate". The Chairman says,


Similarly, we reject Respondent's claim that he thought he could continue to act as he had in the past because the conciliation process were still ongoing. Conciliator Harold Mathis testified on this issue. He recalled conducting a conciliation session in March 1995. Respondent and Bruckner were present and spoke. Significantly, Mathis remembered that he "made it clear that we were not going to be able to resolve the issue. We are not going to find common ground (671-673)." Given this testimony, which was clear and unrebutted, there can be no doubt that Respondent knew the conciliation process had not succeeded as early as Spring 1995. As such, his assertion that he was waiting for the conciliation process to finish while still insisting on teaching the way he wanted, failing to provide lesson plans, etc. is without merit. (R. at 80, the "Findings")


The phrase "the conciliation process had not succeeded " does not make any sense. Conciliation does not fail or succeed. It either results in a resolution of the disagreement or it does not. The Board and I will both benefit from the conciliation process regardless of outcome. If an agreement is reached it means that we resolved our differences and I can remain as an employee of the Board. If an agreement is not reached, it means the Board and I have agreed that it is better for all concerned that I teach in private schools or find other employment.

The Chairman seems to be saying in this paragraph that in the Spring of 1995 I knew that there would be no resolution of my disagreement with the Principal. At this point, he is saying, I ought to have started trying to please the Principal. This is nonsense. Why should the Principal conciliate if, in the event that we do not resolve our disagreement, I have to teach the way the Principal wants?


The Summer Break


The Panel failed to understand the significance of the fact that I completed my teaching assignment in June 1995. This is a time when teachers frequently transfer to other schools for many reasons. This hiatus, as it were, is very relevant to the case because the professional disagreement between us should have been resolved at this time. In the Panel's mind the sequence of events seems to be the following:


1. Roemer's lessons were unsatisfactory.


2. There was a conciliation attempt.


3. The conciliation did not result in an agreement.


4. Roemer continued to teach in an unsatisfactory manner.


5. The Board of Education filed charges against him.


A more accurate sequence of events is as follows:


1. Roemer was given unsatisfactory observations of his lessons in September and October of 1994.


2. Roemer requested conciliation on November 3, 1994 (R. at 105, the "Request for Conciliation").


3. The Board agreed to conciliate on December 2, 1995 (R. at 106, the "Article 24 Conciliation").


4. The Board did not follow the conciliation procedures (R. at 79, the "Findings").


5. The Board gave Roemer and unsatisfactory year-end rating on May 19, 1995.


6. Roemer did not change his teaching (R. 24, the "Charges").


7. Roemer insisted upon conciliation (R. at 66, the "Findings").


8. The Board gave Roemer a full Physics program in September 1995.


9. The Board removed Roemer from classroom on March 1996 (R. at 89, "Recommendations of Employee Panel Member").


10. The Board voted to terminate Roemer on November 1996.


The Panel's oversimplification of the sequence of events means that the panel ignored important facts about the case. The facts the panel ignored was that I was given a program to teach for September 1995 and that disciplinary measures were not taken against me in June 1995.


It was necessary for the panel to consider these facts in order to form a meaningful, plausible and coherent understanding of why charges were filed against me. The only plausible explanation for why my supervisors gave me a teaching program for September 1995 is the one that I believed in September 1995 and the one that I am suggesting now to this court. Namely, that the Board wants to conciliate the disagreement about teaching methods in the manner that was agreed upon from the beginning. The reason the Board supported disciplinary action against me in November 1996, when the Board voted on the specification of charges, is that the charges describe an incompetent teacher, not a teacher who has a new method of teaching. The charges describe a teacher who is refusing to go to post-observation conferences, not one who is insisting on the completion of a conciliation agreement.


Current Status of Conciliation Agreement


The Chairman writes, "In addition on November 8, Respondent was formally notified that the conciliation process was at an end (Respondent's Exhibit 41)" (R. at 81, the "Findings"). Respondent's Exhibit 41 is a letter written by the conciliator over 8 months after the conciliator had a proscribed role to play in the conciliation process. The conciliator's decision, when he was involved in the conciliation, was not to terminate the conciliation process (R. at 107, the "Letter to Lo Shiavo"). This letter, furthermore, directly conflicts with Respondent's Exhibit 1 which was written by the conciliator at a later date.


In determining that "the conciliation was at an end" the panel made a grossly irrational statement which directly conflicts with the facts of the case.


Incompetence


The Chairman writes:


The Panel also notes Respondent's claim that significant learning did take place, despite the criticisms leveled against him. We need not address this issue, in detail. Many students will learn even in the worst of circumstances. Nonetheless, we do note that the Physics Regents' failure rate was higher in Respondent's classes than in those of other Physics teachers (584-585; letter from Ira Cohen to Respondent, dated June 22, 1995).

It is true that at times a teacher deemed incompetent and/or insubordinate in a pedagogical setting is given an additional opportunity to improve. This is especially so where, as here, the teacher has long service in the school system. However, the specific facts of this case demand that Respondent's services be terminated. This is so for a number of reasons. (R. at 81, the "Findings")


The dissenting panelist writes:


I concur with the findings of the panel majority but dissent from the recommendation that Dr. David Roemer be dismissed***Given the above, Dr. Roemer, a tenured teacher of Physics, appointed in 1984, should not be dismissed from service, but given a lesser penalty. I recommend that he return to E.R. Murrow under a period of probation with the clear understanding that he comply with school policy; provide the required written lesson plans and meet with his supervisors, at their direction, in order to improve his teaching strategies. As an alternative, Dr. Roemer be allowed to transfer to another High School. (R. at 88, the "Recommendation of Employee Panel Member")


The panel found that I was not guilty of the charge of incompetence. This is clear because the dissenting panelist stated that "I concur with the findings of the panel majority", and recommended my transfer to another school, without remediation, without probation, and without penalty. This means the dissenting panelist did not believe I was incompetent and did not think the majority panel found me to be incompetent.


Furthermore, the first paragraph of the Chairman's statement is a virtual admission that I am a competent teacher. The phrase "significant learning" ties in with a definition of incompetence that the Chairman himself uses which is that "no learning was taking place" (R. at 66, the "Findings"). When the chairman states "Many students will learn even in the worst of circumstance", he is simply saying that I am an unsatisfactory but not an incompetent teacher.


The Chairman's remark, "we need not address this issue in detail", makes it clear what the panel was thinking when it unanimously agreed to penalize me: I was an unsatisfactory teacher who refused to improve his teaching. If I had promised to try to improve, the panel would have had to decide how bad my teaching really was and decide whether my performance would improve or be judged differently at another school. The panel did not consider this because I was steadfastly refusing to change my teaching.


The panel acted irrationally because the only meaningful charge in the specification of charges is the charge of incompetence. Having found me innocent of the charge of incompetence, the panel should have not penalized me at all. Furthermore, the panel should have ordered the Board to pay all of my legal expenses, as required by Education Law, since the charges were frivolous.


Pass Rates On Regents Examinations


The Chairman's reference to the pass rate of my students on the year-end Regents examination is somewhat misleading (see page 26 above). The pass rate on the Physics Regents was 60 percent in the year before I came to Edward R. Murrow High School, 70 percent during the year I taught, and then back down to 65 percent during the year when I taught a full Physics program for only 10 weeks (R. at 66, the "Findings").


This is a more significant statistic than the statistic that the Chairman cites because at this school students are rotated and reassigned to other teachers on a quarterly basis, that is, every 10 weeks. Thus, when the Chairman refers to the failure rate of my class he is referring only to students I taught for the last 10 weeks of the year.


Furthermore, I gave my students computerized tests generated by the Physics Department during the year (R. at 67, the "Findings") . At the hearing, the Board did not challenge my testimony that the grades students got on my full-period tests generally reflected the grades you would expect from the student body attending Edward R. Murrow High School.


The evidence, in other words, not only supports my contention that I was a competent teacher but supports the claim that I was an outstanding teacher. It is absurd and irrational for an innovative teacher who experiences such success in the classroom to be charged with incompetence and terminated.


Conclusion of Argument


To have a situation where a teacher, deemed to be unsatisfactory by the Principal, is refusing to improve his teaching is entirely unacceptable in an educational setting for children (see page 12 above). However, this situation was not brought about by me but by my supervisors by giving me a teaching program for September 1995. The disagreement about teaching could have been settled before I was given a class to teach by either my a) resigning entirely from the Board, b) transferring to another school, or c) reaching an accommodation with the Principal pursuant to the agreement to conciliate.


The panel ought to have realized that the charges were not brought against me for legitimate educational or administrative reasons. Furthermore, the case against me was that I was an incompetent teacher. Therefore, when the panel determined that I was not incompetent they ought to have given me no penalty at all and ordered the Board to pay my legal expenses.


The Panel Exceeded Its Authority


By terminating me, the panel, in effect, has altered the terms and conditions of the collective bargaining agreement which it is not authorized to do.


When the Board agreed to conciliation under Article 24 of the collective bargaining agreement, the question of whether or not I would continue to teach the classes already assigned to me was taken for granted: I would continue to teach my classes and continue to get paid for this service. No other arrangement was even considered.


However, when, by the end of the school year in June 1995, the matter had still not been resolved, to continue with this arrangement would be unfair to the children and unreasonable. Alternative arrangements should have been negotiated and agreed upon as part of the Article 24 conciliation agreement. By terminating me the panel has simply decided that during the conciliation process I should not be teaching or performing non-teaching duties.


The panel does not have the authority to unilaterally change the terms and conditions of the conciliation agreement and for this reason the award should be vacated.


Award Violates Public Policy


Article 24 of the collective bargaining agreement was only recently added to the teacher's contract. Article 24 is consistent with and can be considered part of the current efforts of the New York State Education Department to improve instruction in public schools in New York State by changing the way schools are governed and the way students are taught. This can be seen from three documents which describe public policy on education:


1) A New Compact for Learning, subtitled Improving Public Elementary, Middle, and Secondary Education in the 1990s published by the State Education Department in 1991 (reference 1)


2) Building a Learning-Centered Curriculum for Learner-Centered Schools, subtitled Interim Report of the New York State Curriculum and Assessment Council to the Commissioner and the Regents (reference 2)


3) Teaching for the 21st Century, subtitled Guideline for Annual Performance Reviews including School-based Professional Development for New York City Public School Teachers (reference 3)


The findings and recommendations of the panel are in violation of public policy because it is thwarting the current efforts of the State Education Department and the Board to improve instruction in New York City public schools and to change the way public schools are administered.


Concerning different teaching methods, a quotation from reference 3 supports my comments about pedagogy (see page 7 above) and sheds light on my supervisors' criticisms of my teaching:


"good teaching" in one school or classroom may look different from "good teaching" in another school setting or for a different group of students. For example, students working together on a cooperative learning assignment may discuss how to solve a particular problem. In a computer lab, students may individually interact with computer software programs. In other classrooms, students may participate in a developmental lesson given by their teacher. Students in all these different settings are experiencing a variety of approaches to classroom teaching, all of which may be appropriate and each of which needs to be assessed appropriately. (page 1) [emphasis added]


Reference 3 is part of the teacher's collective bargaining agreement for 1993 to 1995. This agreement provides for two methods for evaluating teachers at the end of the year: Component A allows a teacher to set "his or her own goals and objectives in conjunction with the supervisor". "Component B is the traditional classroom observation by a principal or supervisor which must include a pre-observation discussion and a post-observation conference..." (page 6). In explaining why these two options are provided an interesting and pertinent comment is made:


For tenured teachers who have been repeatedly observed by their supervisors, formal observations are frequently viewed as a pro forma requirement rather than a learning experience. Still others have experienced observations as restrictive when only one type of lesson is evaluated rather than a range of instructional strategies. (page 3) [emphasis added]


This is exactly what happened to me (R. at 105, at "Request for Conciliation"). The Principal and Assistant Principal were judging my lessons in a negative way because they were not "developmental". It should be noted that my method of teaching was developed at various workshops and seminars paid for by the State Education Department and the Board (R. at 105, the "Request for Conciliation").


The following quotation from reference 1 shows that the State Education Department wants to change instructional methods. After noting the economic, technological, and sociological changes that are bringing in the new century and the staggering "failures" of our schools, the Compact states that the cause is not lack of dedication on the part of people who work in the school systems:


The problem is that the system they are caught in-- schools as we still organize and run them, prevailing notions of curriculum and instructional method, the existing allocations of responsibility and authority -- has become obsolete (page 1). [emphasis added]`


The relevance of the above quotation to the present case should be obvious: I have developed a new method of teaching which my supervisors do not approve of and have been terminated as a result. The next quotation from reference 1 supports my comments (see page 7 above) about my professional obligations:


Among the responsibilities of teachers are... to participate in making decision about the educational program in the classroom and the school, including such matters as curriculum and materials, methods of instruction, student grouping and scheduling, budgeting, and staffing. (page 8) [emphasis added]


The following quotation from reference 2, I believe, supports my teaching methodology:


The Compact also emphasizes that learning "must begin and end with the students themselves", as the ultimate authors of their own understandings; and that the "service delivery model" of packaged schooling and passive students in not a model for genuine learning. (page 2)


In my method of teaching (R. at 69 and 76, at "Findings") I give students a hand-out which explains the concepts the students need to learn. My oral explanation supplements the explanation in the hand-out. This gives students ways of learning the concepts which do not depend entirely on me and tells students exactly what they are responsible for learning. This is what, I believe, is intended by the phrase in the above quote "begin and end with the students themselves" as contrasted with the phrase "service delivery model". In my method of teaching the center of activity is shifted away from the teacher onto the student.


The following quotation is from reference 1:


Over the past decade, we have learned a great deal about how people learn. This new understanding requires major changes in how we approach curriculum, teaching, and assessment. (page 4)[emphasis added]


My supervisors' ideas of teaching were formed multiple decades ago. They have in their mind's eye a certain image of what good teaching looks like. They have been using this image of a highly-structured and teacher-directed lesson for years to evaluate experienced teachers and to give direction to new teachers. Article 24 was included in the collective bargaining agreement as a counterpoise to these outdated ideas about education.


The following quotation is from reference 1 and reinforces the fact that public policy is in favor of developing new strategies for teaching children, not punishing innovative teachers:


School districts are expected and encouraged to develop materials, instructional strategies, and organizational approaches that will enable students to successfully achieve the desired learner outcomes.(page 5) [emphasis added]


The following quotation from reference 2 goes to the very heart of the disagreement between the Principal and me. The Principal once told me, "The most important thing in education is what happens between the teacher and the student." My philosophy is that the most important thing in education is what happens between the student and the subject matter. I believe reference 2 supports my philosophy and not the Principal's and I offer the following quote from this document:


Their teachers (of learner-centered school) function more like coaches, mentors, wise advisors, and guides than as information transmitters or gatekeepers. (page 1)


One of the techniques I used in my classroom is called "independent study". The hand-outs included problems, questions and activities which students work at in class at their desks. The Chairman agreed with my supervisors that, "In their view, he was simply handling out worksheets, taking a few minutes to explain the day's work and in essence, letting the students fend for themselves." ( R. at 77, the "Findings"). Let me quote from reference 2:


In addition to knowledge, skills, and values within and across disciplines, the (Regents') Goals emphasize throughout that all students must "develop a capacity for self-directed learning". This one central requirement recognizes the core of learning which empowers all students and vouchsafes their freedom of thought and autonomy as persons and citizens, along with their intellectual and career development. (page 2)[emphasis added].


Thus, in my mind I was letting my students "develop a capacity for self directed learning" and in the mind of my supervisors I was letting my students "fend for themselves". The quotation above indicates that public policy is in favor of my point of view as does the following quote from the same reference:


They (curriculum, instruction, and assessment) must encourage students to develop their abilities to work alone and with others, to do things competently as well as to think about them clearly, to reason, question, draw connections, compare relate, contrast, communicate clearly and persuasively, evaluate viewpoints, frame problems, acquire and use evidence, draw inferences, and create new knowledge, understandings, relationships, and products. (page 4)[emphasis added]


One of the great drawbacks of highly-structured and teacher-directed lessons, as in college-style lecturing and the developmental lessons, is that all students are presumed to be learning at the same rate. One of the benefits of my method of teaching is that I provide students with work to do during the class. Some students will be able to grasp a science concept quickly and go on to do the more challenging activities while other students can concentrate on understanding the basic concept. Quoting again from reference 2:


At all levels of schooling, the implementation of common high-level standards for all will require attention to creating means for open-ended pacing (allowing for more time and different uses of time responsive to student needs), access to a thinking curriculum for all students, and the use of multimodal teaching strategies that address the many ways students learn by all teachers. (page 8) [emphasis added]


In conclusion, the findings and recommendations of the panel is against public policy because it is supporting the "top - down" or authoritarian approach to managing teachers and is suppressing innovative teaching methods which will help students learn.


Award Relegates Parties to Litigation


The findings and recommendations relegates both parties to future litigation since it has the effect of preventing the Board from completing the conciliation process. As a result of the panel's actions I am no longer an employee of the Board it is impossible for the Board and me to complete the conciliation agreement. This means that the Board is guilty of breach of contract.


The breach of contract lies in the fact that the Board promised to send a conciliator who would monitor a conversation between the Principal and me concerning teaching methodology. This would give me an opportunity to reach an agreement with the Principal, which agreement would be accompanied by a written description of the agreement and an enforcement paragraph. As a result of the panel's actions the Board is now unable to complete the contract which exposes the Board to litigation.


Arbitration Was Not Voluntary


The arbitration hearing was mandated by statue, and the normal strict requirements for overturning an arbitration award under Article 75 of the CPLR do not apply. To quote from a decision written by Judge Helen E. Friedman of the Supreme Court of the State of New York which vacated an award terminating a tenured teacher under section 3020-a of Education Law:


However, where as here, arbitration is mandated by statue, the standard is closer to that set forth in Article 78 of the CPLR.


In an Article 78 proceeding, a court may not review the facts as to weight of evidence, but may determine whether the decision is based on substantial evidence, comports with due process, and is rational.


In a still more recent decision Judge Alice Schlesinger overturned an award against a tenured teacher and stated that the broader requirements of Article 78 should be used.


Conclusion


It is respectfully prayed that the findings and recommendations of the panel be vacated and that I be awarded all costs associated with the hearing, the petition, and this appeal.


Respectfully Submitted,


 


David Roemer
345 Webster Ave.
Brooklyn, New York 11230


Dated: Brooklyn, New York


May 27, 1999