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Jeffery Michael Sherman, Hearing Officer

500 N. Highland Avenue
East Syracuse, NY 13057-1810
315 399-9970
jefferysherman@twcny.rr.com
Hearing Officer's Decision
In The Matter of Charges Pursuant to New York State Education Law, Section 3020-a
RONDOUT VALLEY CENTRAL SCHOOL DISTRICT, Charging Party
And
MINDY SHAW, Respondent
SED File Number 22,558
June 3, 2014
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BACKGROUND
In April 2013 Rondout Valley Central School District Superintendent of Schools
Rosario Agostaro chaired a budget meeting that William Cafiero, principal of the
district's Marbletown Elementary School, attended. Agostaro discussed a 2-3, multi-age
classroom, and Cafiero participated in the discussion. Deputy Superintendent Timothy
Wade alleged, "Mr. Cafiero's demeanor was very animated; he was loud" (Tr. 37). That
is the extent of the information in this record about the April budget meeting. It includes
no agenda, minutes, notes, recordings, or other memoranda of the meeting. It includes no
information about the meeting, such as attendees, location, time, duration, or if the
meeting was open, closed, public, or private. Wade is the only witness in this record to
testify about how Cafiero allegedly conducted himself at that meeting. He testified
Cafiero "was, as I said, animated. He was loud. He said publicly that he had no
knowledge of the 2-3. Mr. Agostaro corrected him that he had spoken to him the day
before, and I also knew that not to be true because I had spoken to him before the budget
meeting" (Tr. 38). That is the seed from which this tree grew. Agostaro did not appear or
testify at any of the sixteen (16) hearings in this case.
The day after the April budget meeting, Agostaro convened a meeting with Cafiero,
Wade, and, Assistant Superintendent for Curriculum and Instruction, Michelle Donlon, to
admonish Cafiero that he must comply with all of the 2-3, multi-age classroom directives
and policies. Cafiero candidly informed the meeting that a number ofteachers had
expressed concerns about the 2-3, multi-age classroom and were composing a letter to the
Rondout Valley Central School District Board of Education expressing their concerns.
Agostaro and Donlon informed Cafiero that protocol required the teachers to express
their concerns to Agostaro and Donlon before presenting them to the board.
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After Cafiero left the meeting, Wade suggested secretly searching his email
history to find out if he had been interacting with the teachers about their letter to the
board regarding the 2-3, multi-age classroom. Agostaro authorized the search and Wade
immediately initiated and conducted it. Donlon was aware of the search; Cafiero and the
respondent were not.
Wade and Marbletown Elementary School Business Administrator Debra Kosinski
immediately conducted the search of Cafiero's email history. The following exchange
took place between district counsel Michael Lambert and Wade on direct examination
Q. So you indicated you made a recommendation that a review of certain emails
be conducted. Is that correct? (Hearing officer's emphasis)
A. Yes.
Q. Did that review take place?
Q. Can you tell us, as best as you can recall, what happened, how this actually
took place?
A. I asked to see six weeks of all of Mr. Cafiero's emails. I and Debra Kosinsky
reviewed six weeks of emails, and within a very short period of time I came
upon emails that Mr. Cafiero had sent to Ms. Shaw with attachments of
observations and requests that he had made regarding those observations.
(Hearing Officer's e,phasis)
Q. Okay, let's go back for a second, sir. You indicated you reviewed those
emails?
(Tr. 38-41):
A. It did.
A. Yes.
Q.
How were those emails actually made available to you?
A. Mr. McDermott, who is the district administrator for the network in
technology, downloaded them to my computer.
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Q. And how is it that he did that?
A. He creates a file. I had sent an email to the superintendent requesting that I
conduct this, and I asked him to give me six weeks of emails.
Q. Okay. And we'll talk about the specific emails in a moment, sir, but I want to
get to the process-
A. Yes.
Q. sort of identified. In the course of reviewing the six weeks of emails, what,
if anything, that you saw that caused you concern?
A. Particular to this case was Mr. Cafiero sending Ms. Shaw emails with
attachments regarding observations.
Q. Okay. Upon reviewing those emails what, if any, further actions did you take?
A. Based on the communications that were seen between the emails, I also
requested that a copy of the R-drives, which are the places on the server where
individuals hold documents, they are password protected, and so only the
individual can have access, and then there are two individuals in technology
that have access. So subsequent to that I looked at Mr. Cafiero's R-drive, Ms.
Shaw's R-drive, and Diane Bracklow, who is the secretary at Marbletown, her
R-drive.
Q. Okay, now, what type of documents are saved on R-drives?
A. They are documents that the individual creates or saves.
Q. And did you review any other emails other than the initial six weeks of emails
of Mr. Cafiero?
A. Yes. I reviewed an expanded level of all of Mr. Cafiero's emails. Once I found
the emails between Mr. Cafiero and Mindy Shaw, then I looked at a short
period of all of her emails. Once we were satisfied that this issue of
observations was really focused between Mr. Cafiero and Dr. Shaw, then I
focused on emails between those two individuals. And we looked at a year at a
time.
At this point, Agostaro and Wade canceled their investigation into Cafiero's
suspected interaction with teachers about the 2-3 classroom and shifted their focus to his
interaction with the respondent. Wade directed McDermott to recover every email
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between Cafiero and the respondent, and then Wade culled those that pertained to
evaluation reports, which included the names of the teachers and staff and drafts of
evaluation reports for those teachers and staff members. Upon collecting all ofthe emails,
Wade pulled file copies of the final evaluation reports and compared the verbiage word
for word between the draft attachments in emails between Cafiero and the respondent and
the final evaluation report in the employee's personnel file. Based on nuances in the final
reports, Wade concluded that the respondent had assisted Cafiero to an extent that
warranted terminating her tenure and employment.
After compiling the results of Agostaro and Wade's clandestine search of Cafiero's
and the respondent's email histories, district counsel Michael Lambert, Wade, and
Donlon interviewed Marbletown Elementary School teachers and staff individually, in
closed meetings, without the presence, participation, or knowledge of the respondent or
Cafiero, to find out if they were aware that the respondent might have edited preliminary
drafts of their APPR evaluation reports at Cafiero's request. Each of them said they were
not aware that she had allegedly assisted Cafiero by editing their report; each expressed
equanimity and confidence that if she had she would have assured its veracity. None of
the employees challenged or protested the content of their final report or requested that
the district take any action about it.
Despite the absence of protests or complaints about the cited evaluations, and the
absence of evidence or suggestion that any of them misrepresented any employee in any
way, Agostero and Wade contacted the New York State Education Department about the
issue, providing a sample of the cited evaluations. The following exchange took place
between respondent's counsel Anthony Brock and Wade on cross-examination (Tr. 430,
431):
Q. And when you learned that Ms. Shaw had participated in the editing of District
6, did you notify the State Education Department?
A. The superintendent contacted the State Education Department.
Q. And in that contact, it was discussed whether or not the observation that we
have here in District 6 would need to be redone to comply with the APPR,
correct?
A. Yes.
Q. And the State Education Department advised you that District 6 was fine and
would not need to be redone, correct?
A. Not exactly.
Q. Okay. Did the State Education Department require that this observation be
disregarded and a new one be done for Ms. Bullock?
A. No.
Q. And as it stands now, School District 6 is the official record for Ms. Bullock
with respect to her observation for 2012-'13 school year, correct?
A. It is part of the total, yes.
Based on the results of Agostero and Wade's clandestine, speculative search of
Cafiero's and the respondent's email records, Wade determined that Cafiero violated an
unspecified, unwritten rule that employee evaluations are private and the exclusive
responsibility of certified evaluators. From Wade's determination, the district concluded
that the respondent was insubordinate, exhibited conduct unbecoming a teacher, engaged
in misconduct and/or incompetence and/or neglect of duty, knowingly and wrongfully
drafted, in whole or in part, false and/or fraudulent observation reports, knowingly and
wrongfully shared and/or exchanged with Cafiero confidential employee information,
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notes, and/or teacher artifacts as to which she had no legal right of access, knowingly and
wongfully drafted and submitted to Cafiero her own observation report, and, finally, that
she knowingly and wrongfully conspired with Cafiero to prepare fraudulent observation
reports. Ultimately, the district imposed the following charges against the respondent:
THE CHARGES
CHARGE I: Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty
On multiple occasions in the 2011-2012 and/or 2012-2013 school years, Mindy
Shaw, a tenured elementary and special education teacher assigned to the Marbletown
Elementary School, knowingly and wrongfully drafted in whole or in part, a false
and/or fraudulent observation report of a District staff member assigned to the
Marbletown Elementary School, including but not limited to the following:
CHARGE II: Insubordination and/or conduct unbecoming a teacher and/or
misconduct and/or incompetence and/or neglect of duty
On multiple occasions in the 2011-2012 and/or 2012-2013 school years, Mindy
Shaw, a tenured elementary and special education teacher assigned to the Marbletown
Elementary School, knowingly and wrongfully shared and/or exchanged with
William Cafiero, the principal of Marbletown Elementary School, confidential
employee information as to which Ms. Shaw had no legal right of access, including
but not limited to the following:
CHARGE 111: Insubordination and/or conduct unbecoming a teacher and/or
misconduct and/or incompetence and/or neglect of duty
In that on or about October 24, 2011, Mindy Shaw, a tenured elementary and special
education teacher, knowingly and wrongfully drafted and thereafter submitted to
William Cafiero, the principal of Marbletown Elementary School, her own
observation report, which was thereafter finalized and submitted for inclusion in Ms.
Shaw's official personnel file.
CHARGE IV: Insubordination and/or conduct unbecoming a teacher and/or
misconduct and/or incompetence and/or neglect of duty
In that on multiple occasions in the 2011-2012 and/or 2012-2013 school years, Mindy
Shaw, a tenured elementary and special education teacher, knowingly and wrongfully
conspired with William Cafiero, the principal ofthe Marbletown Elementary School,
to prepare fraudulent observation reports regarding numerous District employees, to
wit: Ms. Shaw and Mr. Cafiero had numerous communications in which a plan was
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developed whereby Mr. Cafiero would forward observation notes to Ms. Shaw and
Ms. Shaw would write the observation report and/or Ms. Shaw would write an
observation report purporting to reflect an observation conducted by Mr. Cafiero
when, in fact, the observation report did not reflect observations made by Mr. Cafiero
on the date set forth on the observation form, including but not limited to the
following:
CHARGE V : Insubordination and/or conduct unbecoming a teacher and/or
misconduct and/or incompetence and/or neglect of duty
In that on or about October 24, 2011, Mindy Shaw, a tenured elementary and special
education teacher, knowingly and wrongfully conspired with William Cafiero, the
principal ofthe Marbletown Elementary School, to prepare a fraudulent observation
report regarding employee Mindy Shaw, to wit: on or about October 24, 2011, Ms.
Shaw prepared for and transmitted [to] Mr. Cafiero a draft Observation Form
purporting to reflect an observation by Mr. Cafiero of employee Mindy Shaw that
purportedly took place on October 24, 2011. Such observation report was thereafter
finalized and submitted by Mr. Cafiero for inclusion in employee Mindy Shaw's
official personnel file.
INVESTIGATION
The charges and specifications were intended to justify terminating the respondent's
tenure and employment, and they have the potential to adversely impact the of the rest of
her life in many ways; therefore, the district assumed the heavy burden of proving that
they truly and accurately represent the respondent's activity, and that the activity
constitutes just cause to terminate her tenure and employment. It is axiomatic that the
district was obligated to conduct a fair, comprehensive investigation into all aspects of
the charges and specifications.
The district devoted inordinate time, treasure, and personnel to gathering examples of
the respondent's volunteer editing of cited evaluation drafts in response to Cafiero's
requests, but the record does not indicate that the district investigated its allegations of
insubordination, conduct unbecoming a teacher, misconduct and/or incompetence,
fraudulent observation reports, sharing confidential employee information, notes, and/or
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teacher artifacts, and conspiring with Cafiero. These allegations are exceedingly serious
and warranted precise, thorough, independent explanations.
Typically, investigations into matters like this one begin with investigatory interviews
with employees whom the employer suspects of wrongdoing. Time-honored American
labor-relations practices defer to the innocent until proven guilty commandment. Here,
though, the district built its case without interviewing the respondent or Cafiero, thereby
essentially predetermining its position. It did not inform the respondent of its
investigation until it presented her with the formal charges. By failing to conduct an
investigatory interview with the respondent at the start of its investigation, the district
merely compiled information about activity that it conjectured, and determined it to be
just cause for termination.
The district confined its investigation to alleged editing nuances in the cited
evaluation report drafts and offered vague evidence of them as conclusive proof that the
respondent and Cafiero engaged in a conspiracy that included fraudulent observation
reports and sharing confidential information. The district did not offer evidence or proof
of who authored the nuances, or if they were fraudulent, or if they were derived from
confidential information. Moreover, the district failed to offer evidence or proof that the
respondent was insubordinate or incompetent, or that she in any way exhibited
misconduct or conduct unbecoming a teacher.
The district's allegation that the respondent was insubordinate is not consistent with
the record. Her cooperation with Cafiero was the polar opposite of insubordination;
nothing in the record shows that any superior ever ordered her not to comply with
Cafiero's requests for editing assistance with evaluation drafts, and nothing in the record
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shows that any superior ever admonished her for doing so. Moreover, nothing in the
record shows that any training, instruction, policies, or documents ever informed her that
complying with Cafiero's requests for editing assistance with evaluation drafts was
prohibited activity. In fact, the record includes no such documents or policies, so the
allegation of insubordination is unfounded and unproven.
The district's allegation that the respondent exhibited conduct unbecoming a teacher
is widely inconsistent with the record and deeply insulting to her personal history. The
record shows that she is a model teacher who enjoys the admiration of her students, the
respect of their parents, and the esteem of her colleagues and superiors. Her complete
devotion and dedication to her profession poured forth throughout the hearing. The
district owes her a sincere apology for even suggesting that she exhibited conduct
unbecoming a teacher.
The district's allegation that the respondent engaged in misconduct and/or was
incompetent is not consistent with the record. The district failed to explain this charge.
The record shows that she is extra-competent. Her writing skills, knowledge of
Marbletown Elementary School, familiarity with its faculty and staff, overall
professionalism, and school spirit inspired her superior, Principal Cafiero, to apply those
assets toward editing APPR draft evaluations. The district did not explain how the
respondent was incompetent.
The district's allegation that the respondent submitted fraudulent observation reports
is one that a thorough investigation would have proven or disproven. Nowhere does the
record indicate that any of the cited final evaluations are not accurate representations of
the person evaluated. It is self-evident that the district would immediately withdraw
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fraudulent evaluation reports, but every cited evaluation report stands in the record as
written. The district failed to prove that any of them include fraudulent, or even
erroneous, representations of any employee.
Ultimately, the district proved what the respondent and Principal Cafiero openly
admitted, i.e., that they worked together to produce comprehensive, accurate,
grammatically correct annual APPR evaluation reports for teachers and staff at
Marbletown Elementary School. The district failed to prove, or even show, that the
respondent's uncompensated volunteer clerical assistance to the process violated or was
prohibited by the APPR or any other written or unwritten policy, procedure, or directive.
At the hearing and in its post-hearing brief, the respondent alluded to the idea that her
editing assistance always came at the request of her superior, Principal Cafiero; therefore,
she cannot be disciplined for compliance. The district posited that the respondent actively
solicited opportunities to supply input on many of the cited evaluation reports. The record
supports both of those observations, but it fails to support the district's determination that
the APPR or any other directive expressly prohibited such professional cooperation.
Ultimately, the district failed to conduct a thorough, proper, fair investigation into its
allegations against the respondent; therefore, it failed to prove the allegations in the
charges by a preponderance of evidence.
DISCUSSION
The record abounds with evidence that the respondent has an abundance of genuine
knowledge of the atmosphere, culture, and faculty at Marbletown Elementary School.
The record also shows, albeit not as thoroughly, that Principal Cafiero has equal natural
and professional affinity for the school and its faculty and staff. It is impossible to
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conclude that either or both of them would engage in activity that would compromise the
integrity or reputation of the school or any of its personnel. In fact, from my objective
professional perspective it is impossible to conclude that either or both of them acted in
any way other than in the best interest of the district, the school, and the personnel in that
environment.
The hearings and record elucidate a teacher completely different from the one implied
in the charges and specifications, making it impossible to conclude that the respondent
would engage in the type of conduct the charges and specifications depict and the district
struggled to illustrate. Absent the unrelated, unsupported, disputed 1997 and 1998
counseling memos that the district resurrected to shore up its wobbly case, Dr. Shaw's
24-plus year history includes no discipline, but praise from district administrators,
colleagues, and parents is abundant.
October 22, 2010
Dear Dr. Shaw,
We just wanted to congratulate you on receiving the N YS Council Award for
Language Arts . . .Wow . . . What an honor! You must be very proud, and rightly
so. Speaking on behalf of all the parents, our children are really blessed to have
such a competent, dedicated, innovative, and enthusiastic teacher to greet and
teach them everyday. Thank you for all your hard work in making such a positive
difference in the lives of our children.
Christopher loves school and summed it up best when he told me that he wishes
he could go to school every day, "even on Saturday and Sundays!" You have
mastered the invaluable skill of making learning fun. Congratulations and thanks
again for all you do . . . It's appreciated more than you know.
Congratulations and Best Wishes,
The Jordan Family (R-18)
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The Board of Education's charges against the respondent provoked some parents to
question, challenge, and protest the board's action. Barbara Jordan, the author of R-18,
wrote eloquently in a letter dated October 8, 2013 (R-19), to the Board of Education, in
pertinent part: "Dr. Shaw and her classroom assistants have created a dynamic, engaging,
and caring educational environment that continually fosters positive attitudes toward
learning and respect toward each other. I've watched Dr. Shaw help my son and his
classmates develop learning and social skills to help them navigate the complexities of
formal education and develop the tools needed to succeed in life. Although not at all
easy, Dr. Shaw has for almost two decades coordinated and implemented this special
program with great success, not to mention warmth and compassion."
In a subsequent paragraph, Barbara Jordan continued: "And here's the proof. . . After
two years, my son's 'autism label' was removed and for the first time this year he has
been placed in a non-inclusive class and is doing remarkably well. I am absolutely
convinced that this would not have been possible without the strong foundation that Dr.
Shaw built for him during the two years he was in her class."
In a letter dated October 7, 2013, Marbletown Elementary School parent Melissa
Story wrote:
To The Board of Education,
Hello,
I am a parent of four children who were all lucky enough to begin their academic
careers in Dr. Mindy Shaw's classroom. That is a total of eight years that Dr.
Shaw was directly involved with my children, their educational lives [and] our
family's life. I have written many letters of support for Mindy Shaw's K-1
program, but until this past May I never had to write in support of Dr. Mindy
Shaw herself. Let me say it simply, Mindy is one of the most passionate teachers I
have ever met. She has served not only my children but many more with her
unique and special ability to recognize each student's own needs. This is not easy.
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She has taught more about community and acceptance and responsibility than any
teacher they have had since. So now I come to find out she is still under attack
[by] the district and [is] fighting for her job. So, I ask all of you, does seeking her
termination fit the situation? Does it actually make any sense?
Please take into account this letter of support for Mindy Shaw as you, the board,
allow the administration to abuse one ofthe 'good ones.' She is a teacher who
keeps families in the district, and the BOE should be clear on that point.
Thank you for your time.
The charges hit the respondent like a ton of bricks and grievously tormented her for a
whole year. The district's prosecution of them revealed surprising animosity toward her,
despite her manifest professional and natural qualities. Attacks against her veracity and
integrity over inconsequential trivialities made me cringe; artful gambits on cross-
examination to create Hobson's choice answers made me upset. I do not believe the
district would have been so aggressive if it were not for Agostaro and Wade's obvious
acrimony for Principal Cafiero. This case must not allow the respondent to be collateral
damage of that acrimony.
THE APPR
Principal Cafiero and the respondent had developed a highly functional working
relationship at Marbletown Elementary School. Having taught in the school for 20-plus
years when Principal Cafiero began his assignment there, the respondent graciously
proffered assistance to help him assimilate to the Marbletown culture, and he sometimes
relied on her professional knowledge ofthe culture as a source of prudent guidance. The
record shows that Principal Cafiero manifested a gregarious approach to his duties and
won the trust and friendship ofthe faculty, staff, students, and parents at Marbletown
Elementary School. In sum, the record shows that the school was highly functional until
this issue arose.
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The record also shows that the respondent enjoyed close collegiality with the faculty
and staff, a strong, continuing trust and bond with the parents of her past, present, and
future students, and the respect and admiration of her students. She credibly demonstrated
broad practical and personal awareness of each colleague she testified about on direct and
cross-examination and comprehensive experiential knowledge of Marbletown
Elementary School's mission. Most importantly, the respondent exhibited a natural,
unbound passion for teaching. Her dedication and spirit are pervasive in the record, and
her value as a human resource is abundantly obvious. Principal Cafiero recognized that
value and allowed it to flourish.
The respondent's energy for all things Marbletown, and her dedication to Principal
Cafiero's goals, motivated her to volunteer for work over and above her required
assignments. Aware of her writing and composition skills, Principal Cafiero offered her
opportunities to edit annual evaluation reports he had drafted. He and the respondent
testified that, on evaluation reports cited in the charges against the respondent, he made
notes during classroom observations of teachers and used them to create various forms of
"source material," often drafts of evaluation reports. He then transferred that source
material to the respondent, usually in a folder, and she edited and compiled it into
comprehensive, accurate evaluation report drafts that she returned to him for his final
approval and signature. The respondent testified that she always returned the source
material to Cafiero in the folder with the draft she compiled. Cafiero testified that the
source material became redundant when he signed the final evaluation report, and he
discarded it as a matter of course. The record shows that Cafiero and the respondent often
conversed about evolving evaluation reports, and their conversations became source
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material that the respondent included in compilations that she returned to Cafiero for his
approval.
The district asserts that Cafiero and the respondent coined the term "source material"
upon becoming aware of the charges against the respondent and Cafiero as a fabricated
means of camouflaging a scheme that is not clearly defined in the district's case. Cafiero
and the respondent did not deny that they coined the term "source material" in
preparation for this hearing, because it is appropriate. They freely admitted that the
respondent edited and compiled evaluation report drafts, so whatever material she used
seems inconsequential. In reality, the district alleges, with no evidence or proof, that
Cafiero disregarded his duty as a certified evaluator to conduct classroom observations
and write evaluation reports; instead, he exploited the respondent's dedication by having
her write complete final evaluation reports and transfer them to him for approval;
however, nothing in the record supports that allegation. The district failed to prove that
the respondent's explanation of source material is not essentially true.
Annual versions ofthe APPR prove it is a work in progress that is amenable and
subject to updates and improvements. It is a uniform statewide guideline that school
administrators use to monitor and maintain threshold competence levels of faculty and
staff throughout the public education system. It is not part of any teacher's responsibility
to be informed of its contents or its application. In fact, the district made it abundantly
clear that Rondout Valley Central School District purposely and with determination
prevented teachers, including the respondent, from being informed of its contents or its
application; therefore, it is counterintuitive for the district to charge the respondent with
violating it.
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The district engaged Ulster County BOCES to educate administrators, including
Cafiero, and certify them to complete the annual evaluation procedure. At no point did
the district present evidence, other than Wade's personal view, that the APPR prohibited
Cafiero from allowing the respondent to edit drafts of evaluations reports. Moreover, at
no point did the district present evidence, again, other than Wade's personal view, that
the respondent was prohibited from complying with Cafiero's requests. No Ulster County
BOCES representative, especially the one or ones that certified the district's
administrators, appeared at or provided a statement to the hearing. That fact, combined
with the fact that the State Education Department essentially endorsed all of the cited
evaluations, left me no choice but to conclude that Principal Cafiero and the respondent
did not violate the APPR or any other express policy or practice in completing them.
Annual Professional Performance Review (APPR) Observations and Evaluation
Reports are fundamentally important to the school district and the subject employee, so
the data and information in them must be comprehensive and accurate. The APPR
explains the procedure and schedule for certified school administrators to conduct annual
observations and complete evaluation reports. Individual school districts throughout New
York State develop systems to comply with APPR requirements. The Rondout Valley
Central School District arranged for Ulster County BOCES trainers to certify
administrators as evaluators, and then Assistant Superintendent for Curriculum and
Instruction Michelle Donlon assigned certified evaluators to equitable numbers of
teachers and staff in the Rondout Valley Central School District. She assigned 19 plus 3
evaluations to Principal Cafiero on the Observation Schedule for the 2012 - 2013 school
year (SD-130).
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AN N UAL PROFESSIONAL PERFORMAN CE REVIEW PLAN
2009-2012
The Superintendent of Schools, in consultation with, the Annual Professional
Performance Review Committee has updated the annual performance appraisal
plan that meets the following criteria:
Provides each member of the teaching faculty with a meaningful and
useful tool for performance appraisal that is objective, comprehensive, and fosters
recognition for excellence in teaching, identifies areas for future growth, and promotes
the highest levels of professional development.
Provides a necessary and desirable level of flexibility in the construction
of performance assessment techniques to be used by the individual faculty member (SD-
74, "Cafiero - 4124, H. O. 's emphasis).
RONDOUT V ALLEY CEN TRAL SCHOOL DISTRICT
Annual Professional Performance Review
Classroom Teachers
And
Building Principals
PLAN ADOPTED BY THE BOARD OF EDUCATION ON SEPTEMBER 13, 2011
INTRODUCTION
Annual Professional Performance Review ("APPR") supports the professional
growth of our educators. A successful review system should provide timely
feedback, an opportunity to acknowledge educators' strengths as well as their
weaknesses and an opportunity for growth as an educator (SD-75, p. 3, SD-76, p.
3, SD-77, p. 3, H.O.'s emphasis).
The District will work with all available resources to assist in designing and
implementing these new systems. Any items required to be included in the APPR
Plan, but not yet finalized due to collective negotiations are specifically identified
(SD-75, p. 3, SD-76, p. 3, H. O. 's emphasis).
The District will work with all available resources to assist in designing and
implementing these new systems (SD-77, p. 3).
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RONDOUT V ALLEY CEN TRAL SCHOOL DISTRICT
Annual Professional Performance Review
Classroom Teachers
And
Building Principals
PLAN ADOPTED BY THE BOARD OF EDUCATION ON December 11, 2012
Part III
AN N UAL PROFESSIONAL PERFORMAN CE REVIEW
2012-2013 SCHOOL YEAR
Philosophy
The Rondout Valley Central School District's administration, working in
collaboration with the Rondout Valley Federation of Teachers believes
professional review is an integral part of the continuous growth process for
teachers. The following plan meets the requirements of the New York State
Annual Professional Performance Review (APPR) regulation.
This model was chosen because it is a model that supports professional
development. The Danielson model was first developed to assist educators in
defining elements of effective professional development. It is the belief of the
Rondout Valley Central School District that as accountability increases so must
the support for success. This model can assist educators in the professional growth
cycle of our teaching and learning systems (SD-77, p. 9, H. O. 's emphasis).
Specific Choices for the Rondout Valley Central School District
The evaluation system will occur in a cycle. The time frames refer to days when
school is in session. The day before a major break will be avoided for
observations; and meetings will be held whenever possible in the building to
which the teacher is assigned (absent exigent circumstances). The parties can
mutually agree to reschedule an observation or to schedule another observation in
the event that extraordinary issues outside of the control of the parties have or will
render the observation inaccurate or not otherwise reflective of the teacher's
skills. Nothing herein shall prevent the District from providing additional support,
as needed, to a teacher who is not currently on a TIP (SD-77, pp. 10, 11, H. O. 's
emphasis).
The record leaves no doubt that the APPR Observation/Evaluation process
demands significant time from certified administrative evaluators. Violations and
deviations could result in serious consequences for the district and its employees, so one
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would expect experienced, competent evaluators to improvise efficiencies, while
maintaining the integrity of the process. The record shows that Cafiero enjoyed a strong
working relationship with the respondent and relied on her to double check and edit
evaluation reports for the teachers and staff at Marbletown Elementary School.
The district failed to present evidence that expressly prohibits evaluators from
using valid, appropriate information from colleagues and coworkers to compose accurate,
comprehensive evaluation reports. Here, the district proposes to terminate the
respondent's tenure for working with Cafiero by contributing valid, accurate, appropriate
information to the APPR Observation/Evaluation process. The district failed to show that
any evaluation the respondent edited did not accurately represent the teacher or staff
member's true work performance. Moreover, the district did not prove, or even show,
that any teacher, staff member, or the district was advantaged or disadvantaged by their
evaluation.
HEDI
The Rondout Valley Central School District Annual Professional Performance
Review for Classroom Teachers (SD-76), Part III, Annual Professional Performance
Review Grades 4- 8 Common Branch Teachers 2011 - 2012 School Year (underscore in
original), says in pertinent part:
Summary of State Requirements
The New York State APPR regulation requires the district to rate teachers on a 100-
point scale. Teachers will gain points from a variety of assessment tools:
20% or 20 points will come from the state based upon the achievement results of
that teacher's students on state assessments
20% or 20 points will come from "locally selected measures" of student growth
60%> or 60 points will come from multiple measures of teacher effectiveness
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A minimum of 40 of the 60 points will be based upon scores from the
Danielson2011 rubric.
The total 100 possible points will be known as the Composite Effectiveness
Score
Based upon the Composite Effectiveness Score from 0-100 points, a teacher
will receive an overall rating of Highly Effective, Effective, Developing
or ineffective (HEDI)
The following scale was set by New York State
Highly Effective = 91-100 points
Effective = 75-90 points
Developing = 65-74 points
Ineffective = 0-64 points
In compliance with SD-76, the Rondout Valley Central School District uses the
Danielson 2011 Rubric for assessing teacher effectiveness. As such, the elements of the
60% or 60 points that comprise the multiple measures will include: 40 points come from
two (2) classroom observations utilizing the Danielson Rubric (Domains 1, 2, and 3)
Form 4" (SD-76, p. 9). Nothing in the record indicates that the respondent's assistance to
Cafiero in the teacher observation and evaluation report procedure compromised this
requirement or standard. The record presents no evidence that any cited evaluation report
favorably or adversely changed a teacher's status on the HEDI scale, and no cited
evaluations were changed or declared tainted as a result of Agostaro and Wade's
clandestine foray into Cafiero's and the respondent's email histories.
FOREKNOWLEDGE
A wise high school coach once told me that when you point your finger at someone
there are three fingers pointing back at you. It is a time-honored tenet of American labor
relations that employers must make employees aware of conduct that results in discipline
up to and including discharge. Some misconduct, such as theft, sabotage, and
insubordination is so intuitive and egregious that it is fatal without warning or
progressive discipline; other misconduct, and the employer's response to it, is governed
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by the collective bargaining agreement, work rules, company policies, and civil and
criminal codes. In any event, employers cannot make up rules to fit situations and impose
discipline ex post facto.
Nothing in the record shows that the district ever served express or implied notice on
the respondent or Principal Cafiero that and policy, practice, or procedure prohibited their
functional working relationship. The district failed to prove that they knew, expressly or
intuitively, that they were doing anything that could result in discipline. In fact, they
credibly testified that they would not have engaged in the functional relationship if they
had any inkling that it was prohibited.
The district relied on the uncertain, unsupported, anecdotal testimony of various
district employees to support its position that evaluation reports are private and
confidential. Moreover, it asserted that evaluation reports are not accessible even under
Freedom of Information Law (FOIL) requests. The district offered no proof or support for
that assertion, but it offered no proof that the respondent violated the confidentiality of
any evaluation report.
The APPR is, by design, a work in progress. In fact, the record shows that the
Rondout Valley Central School District administration continues to climb its learning
curve. No one with perfect knowledge of it testified or otherwise contributed to the
hearing in this 3020-a process. The district's case and focused on the respondent's
volunteer, unpaid assistance with editing Principal Cafiero's evaluation reports. The
respondent did not dispute the district's position that certified evaluators are the only
personnel authorized to conduct APPR observations and evaluations, but her knowledge
of the policy was limited.
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Deputy Superintendent Wade testified: "There were a number of workshops that
BOCES conducted, and subsequently they conducted in-house training. So there was an
expectation that administrators became familiar with the new [APPR] process and
followed the new process."
Q. Did any teachers attend any ofthe trainings, either in-district or out-of-district
offered by the district?
A. [Wade] They did not.
Q. Why not?
A. They were not invited. It was an administrator training for administrators to
observe and evaluate.
Q. Sir, you indicated that 75 [Rondout Valley Central School District Annual
Professional Performance Review [for] Classroom Teachers and Building
Principals (SD-75)] was adopted by the board on September 13, 2011. During the
course of the '11-'12 school year were there any modifications to school district 75
adopted by the board?
A. [Wade] There were, because it went to all classroom teachers; it was expanded, the
criteria. So there was the APPR that was adopted in 2012.
Wade went on to testify that the Rondout Valley Central School District Board of
Education adopted the Rondout Valley Central School District Annual Professional
Performance Review [for] Classroom Teachers (SD-76) in December 2012 (Tr. V ol. 1, p.
100). The Rondout Valley Central School District Board of Education engaged Ulster
BOCES to train and certify Rondout Valley Central School District administrators
according to SD-76. No course syllabus or lesson plan or manual or outline entered the
record. No Ulster BOCES trainer testified about the framing. The District did introduce
settled cases supporting its position.
The district failed to identify any teacher or staff member who was advantaged or
disadvantaged by the activity alleged in the charges. Moreover, the district failed to show
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harm or disrepute that the activity alleged in the charges brought to Rondout Valley
Central School District in general or Marbletown Elementary School in particular. In fact,
the activity alleged in the charges enhanced administrative productivity and overall
morale at Marbletown Elementary School.
Finally, the district failed to prove that the APPR or any policy, rule, or regulation
expressly prohibited the respondent from working with Principal Cafiero, or vice versa,
to produce comprehensive, accurate annual evaluation reports in compliance with the
HEDI standards. Nothing in the record supports the district's allegations that the
respondent and Principal Cafiero intentionally concealed their working relationship or
conspired to circumvent rules or regulations. Their candid, non-encrypted emails surfaced
through Agostaro and Wade's secret, surreptitious, clandestine foray into arguably
private domain.
DECISION
The district failed to prove that the respondent was insubordinate, that she exhibited
conduct unbecoming a teacher, or that she engaged in misconduct, incompetence, or
neglect of duty.
The district failed to prove that the respondent "knowingly and wrongfully drafted in
whole or in part a false and/or fraudulent observation report of a district staff member
assigned to Marbletown Elementary School."
The district failed to prove that the respondent "knowingly and wrongfully shared
and/or exchanged with William Cafiero, the Principal of Marbletown Elementary School,
confidential employee information as to which Tshel had no legal right of access."
i
I
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The district failed to prove that the respondent "knowingly and wrongfully drafted
and thereafter submitted to William Cafiero, the Principal of Marbletown Elementary
School, her own observation report."
The district failed to prove that the respondent "knowingly and wrongfully conspired
with William Cafiero. the Principal of Marbletown Elementary School, to prepare
fraudulent observation reports regarding numerous District employees."
The district failed to prove that the respondent "knowingly and wrongfully conspired
with William Cafiero, the principal ofthe Marbletown Elementary School, to prepare a
fraudulent observation report regarding employee Mindy Shaw"; therefore:
Charge I - Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty is dismissed.
Charge II - Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty is dismissed.
Charge III - Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty is dismissed.
Charge IV - Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty is dismissed.
Charge V - Insubordination and/or conduct unbecoming a teacher and/or misconduct
and/or incompetence and/or neglect of duty is dismissed.
It is so ordered on this 3
r d
day of June 2014.
Respectfully,
Jeffery Michael Sherman, Hearing Officer