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Decision No. 13,230

Appeal of ETY SCHINAZI from action of the Office of Recruitment, Personnel Assessment and Licensing of the Board of Education of the City School District of the City of New York, as successor to the Board of Examiners of the Board of Education of the City School District of the City of New York, with regard to denial of a license.

Decision No. 13,230

(July 22, 1994)

 

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Vincent D'Orazio and Peter D. Winebrake, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's review of certain answers to a test and refusal to award her a required minimum score. The appeal must be dismissed.

Petitioner previously appealed respondent's refusal to award her a required minimum score on a test entitled "Education Administrator, Senior Curriculum Development and Coordination Instruction Specialist, Levels III and IV" (Appeal of Schinazi, 32 Ed Dept Rep 387). In that appeal, petitioner challenged the grading of two short answer questions and the grading of essay 1, parts A, B, and C, and essay 2, parts B and C. In my decision, I found that in several respects petitioner had been denied a proper review. Specifically, with respect to essay question 1, part A, I found that respondent arbitrarily refused to consider petitioner's eleventh response. With respect to essay question 2, parts B and C, I found that respondent's rating guide listed a certain number of numerical requirements where neither the examination nor the answer sheet indicated any particular minimum. Therefore, I determined that there should be a reexamination of petitioner's responses to question 2, parts B and C, to determine whether the substance of her responses conformed to the rating guide, regardless of whether or not they matched its organizational structure. In my decision, dated December 28, 1992, I ordered respondent's Office of Recruitment, Personnel Assessment and Licensing ("ORPAL") to consider petitioner's eleventh response to essay question 1, part A, and to reexamine petitioner's responses to essay question 2, parts B and C, within 60 days of its receipt of my decision.

On or before February 9, 1993, ORPAL reviewed the responses referenced in my prior decision. Specifically, ORPAL considered petitioner's eleventh response to essay question 1, part A, and found petitioner's response creditable. As a result, ORPAL increased petitioner's score. Even with this addition, however, petitioner's score still fell below the minimum passing score established for the examination. ORPAL also reviewed petitioner's responses to essay question 2, parts B and C and determined that the organizational structure of the rating guide did not penalize petitioner in any way. Accordingly, ORPAL refused to alter petitioner's previous score for this portion of the examination.

By letter dated February 24, 1993, respondent informed petitioner that she failed to achieve a minimum passing score and, therefore, a license could not be issued. In addition, by letter dated March 2, 1993, respondent informed the Commissioner of its review and filed with the Commissioner a copy of a memorandum dated February 9, 1993 from Gary M. Kippel, Chief Administrator for Test Development and Technical Support in ORPAL, which explained respondent's review of petitioner's examination. At that time, respondent also filed a copy of a memorandum dated February 11, 1993 from Mr. Kippel which directed the board's Division of Human Resources to update its records to reflect the increase in petitioner's score.

In this appeal, petitioner contends that ORPAL's review is deficient because it does not give a step by step explanation of how credit was assigned. Petitioner also alleges prejudice, lack of impartiality, inconsistency and lack of effort on behalf of ORPAL. Respondent maintains that it reexamined petitioner's examination in accordance with my prior decision. Respondent further contends that it has acted in good faith and has not committed gross error.

Initially, I must a address a procedural matter. In her reply, petitioner maintains that I should not consider the answer submitted by respondent because it was served late. Section 275.13 of the Regulations of the Commissioner, requires that an answer be served within 20 days of the date of service of the petition, which in this case was March 25, 1993. Respondent only served an answer on July 22, 1993 -- after it was contacted by my Office of Counsel by letter on July 8, 1993. Respondent maintains that it did not serve an answer because the Board of Education had no record of service of the petition.

Although I do not condone respondent's delay, I note that service of the answer was made within 15 days of the letter from my Office of Counsel. In addition, I note that the exhibits attached to respondent's answer, which describe the review of petitioner's examination and which form the basis for respondent's defenses, were already on file with the Education Department prior to the commencement of this appeal. Pursuant to section 276.6 of the Regulations of the Commissioner, I may, in my discretion, take into consideration any official records or reports on file in the Education Department which relate to the issues involved in an appeal. Because the exhibits attached to respondent's answer were already on file with the Department, there is no prejudice to petitioner as a result of respondent's delay. Accordingly, I have considered respondent's answer and accompanying exhibits in deciding this appeal.

Turning to the merits, the record indicates that respondent reviewed petitioner's examination in accordance with my prior decision. Within 60 days of the receipt of my decision, ORPAL asked test development staff and subject matter experts to review the relevant sections of petitioner's essays. With respect to essay question 1, part A, the reviewers considered petitioner's eleventh response, found it creditable and increased her score accordingly. Even when this increase is added to the increase referenced in my prior decision, however, petitioner's score is still below the minimum passing weighted average score of 60.0.

With respect to essay question 2, parts B and C, the reviewers determined that the organizational structure of the rating guide did not in any way penalize petitioner. Respondent's review of this question is consistent with my prior decision, which was intended to insure that petitioner had not been penalized by the organizational structure of the rating guide. In addition, in my prior decision, I generally found that respondent properly granted and denied credit. I also stated that it did not appear that petitioner lost credit for essay question 2 because of any failure on her part to organize her answer to conform with the unstated numerical requirements in the rating guide. Respondent's review is therefore consistent with my earlier observations.

The Commissioner of Education will not set aside a licensing determination rendered by the New York City school authorities, except upon a showing of clear and convincing evidence that such determination was rendered through malice, prejudice, bad faith or gross error (Appeal of Moore, 33 Ed Dept Rep , Decision No. 13204, dated June 10, 1994; Appeal of Lantay, 33 Ed Dept Rep , Decision No. 13197, dated June 10, 1994; Appeal of Eisenman, 31 id. 166; Matter of Lubin, 24 id. 271). Although petitioner alleges prejudice, lack of impartiality, inconsistency and lack of effort, these allegations are conclusory and petitioner has failed to introduce any evidence to establish that respondent acted arbitrarily. The papers submitted by petitioner simply offer no basis for finding that respondent's decision was rendered through malice, prejudice, bad faith or gross error. Accordingly, I must deny petitioner's request that respondent be ordered to grant her a license.

THE APPEAL IS DISMISSED.

END OF FILE