A Case for Teacher Tenure Part 1 – The Dismissed Charges


Teacher Tenure Protection

On May 2, 2014, I was notified that I was not terminated and that the tenure law came through. I was to be returned to the classroom after 826 days of ruthless attacks on my career that began when I raised concerns. If you are reading this post, you should have already read: DOE vs Portelos Termination Verdict Is In 826 Days After They Took Aim to Fire

Again, I spoke up on issues of PUBLIC CONCERN and had I not been tenured, I would have been fired. Since they couldn’t, they had to trump up fake charges. Here are over 30 of those trumped up charges. Parents and other taxpayers, you NEED educators to be protected for the student’s sake.

I read what is happening on the West coast with the Vergara vs California tenure battle. I urge anyone thinking of following suit here on the East coast to tread lightly. I don’t care how many billionaires you have backing you, just make sure you stock up on Tylenol because we will be a headache.

After two years in exile I won my case and I was returned to the classroom. I lost the 7 hours a day I was paid to just think. This has slowed down my blogging and strategizing significantly. The reason is good though. I love teaching and you can ask the many educators and students I have encountered in the last 6 schools I visited in the last 6 weeks. In my spare time I read the 107 page decision by Arbitrator Felice Busto three times over. I annotated, copied, pasted and embedded testimony and evidence to counter the sustained charges. I also filed an Article 75 Appeal for the $10,000 fine I still received despite acting as a parent and being praised as an educator.

I’m going to now share the 38 dismissed and sustained charges, but I will have to break them down to a series. Otherwise this post, that took me a month to write, would be extremely long.

Part 1- Our defense and the many, many dismissed charges. Part 2 and 3 will contain the sustained charges.

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A few more things you should know before you read the decisions on the specific charges:

  1. I did a lot of reading about arbitrators while in exile. I read horrific stories of allegedly bias and corrupt arbitrators, like Randi Lowitt and Eleanor Glanstein. Arbitrators are paid by the NYS Education Department and not the UFT or the DOE. However, they are selected together by the UFT and DOE. This means that an arbitrator cannot make it to the panel unless selected by both the UFT and the DOE.
  2. If an arbitrator exonerates most teachers, or at least awards a high rate of low fines, then the chances are the DOE will not select them again. On the flip side, if an arbitrator has a high termination rate, then chances are the UFT will not select them again.
  3. These independent arbitrators make about $1,500 a day at these hearings. Yes, fifteen-hundred dollars. That is a lot of money, so when it comes time to writing a decision, are they really that independent?
  4. During the hearing days, I found Arbitrator Felice Busto to be mostly fair and she did not seem to fit the mold of those other arbitrators I had read about. I judged that by her sustaining and overruling the objections of both sides pretty equally. As far as the decision goes, I thank her for the nice words, but the sustained charges and very high fine are not warranted. As my private attorney stated “It seems like she split the baby.” In other words trying to appease both sides.
  5. The first day of the hearing, Arbitrator Felice Busto wanted to check the time and she did so by looking at her flip phone. Yes, a flip phone. Not an iPhone or Android. “So what Mr. Portelos? Who cares what phone she has? Not everyone has a smartphone.” You are right, but think about the fact that my case was full of tech related allegations. My concern was that she wouldn’t fully understand how some technology works. The record is replete with our attempts to make her aware, but as you will see in this series, some tech ignorance will now cost me and my family $10,000+.
  6. Sometime around January 2014, I had the idea to FOIL Arbitrator Busto’s past decisions. Due to privacy, I only received 13 that had at least some guilt. Anything where a charge was dismissed was redacted. Of the 13, 8 were awarded terminations. Of those 8, 7 involved inappropriate conduct with students. One was insubordination. That leaves five cases where she found guilt and a did not terminate. Of those 5, 3 were given $5,000 fines and 2 were given only letters of reprimand. Those involved slapping students in self-defense and some foul language. I received $10,000 for trying to improve a troubled school.
  7. Discipline is defined as learning and correcting an action. Keep that in mind and think about what I should have done differently or do differently in the future. Perhaps they are saying “Just look the other way.
  8. Lastly, NYS Education Law 3020-a states that for charges to be preferred against an educator, an executive session of a school board needs to take place to review the charges. Imagine a school board in a little town upstate meeting privately to review allegations and deciding whether or not to move forward. That did not happen here with me and NYC DOE skips this necessary step with all their hearings. This is something that is currently being fought in court by Advocate Betsy Combier.

Here are all the charges dismissed or withdrawn:

SPECIFICATION 1 AND 2: Conducting Real Estate on school computer and during school time. DISMISSED

The inference that he was operating a business or “scamming” the Department by engaging in his real estate business on their time is not supported by Dr. Candia’s testimony or any other evidence. To the extent that Respondent used the Department computer to view listings or check his personal email account during lunch or after school, it was incidental and de minimus. I do not find that Respondent’s activity violated Chancellor’s Regulation 110, conflict of interest provisions in the City Charter or otherwise constituted misconduct. Dept. Exs. 2, 5, 6 & 7. Specifications 1-2 are dismissed.

SPECIFICATION 3: Real Estate files on school computer. WITHDRAWN by the DOE after SCI admitted they found nothing on the computers and their report contained “errors” when it was published.

SPECIFICATION 4 AND 5: Working on and running a business called Faceshop.me during school hours and on school computer. DISMISSED

To the extent that Respondent used Faceshopme.com for instructional purposes in teaching technology to students it was for a valid educational purpose. The Department has not established that any of the de minimis activity observed by Dr. Candia is misconduct for which he can be disciplined.”

SPECIFICATION 7: Using his position to obtain confidential Department information, including, but not limited to, witness statements not otherwise available to the public. Disclosing confidential Department information on a non-Department website, including, but not limited to, protectportelos.org. DISMISSED 

Arbitrator stated: “Other documents, such as the Principal’s time cards, were obtained through Respondent’s Freedom of Information Act (FOIL) requests. There is no evidence that Respondent engaged in any misconduct with respect to obtaining these documents.

SPECIFICATION 10: During the 2011-2012 school year, Respondent inappropriately reset the password for a Department email account and/or the email account of another Department employee. DISMISSED

The arbitrator states that “As previously discussed in connection with Specification 8, Respondent accessed Dr. Candia’s Dreyfus email account by resetting the password. I find that the conduct alleged in Specification 10 is merged or subsumed within that Specification. I therefore find no additional misconduct alleged in this Specification. Specification 10 is dismissed.”

Specification 10 is dismissed because it is merged with Specification 8.

SPECIFICATION 11: During the 2011-2012 school year. Respondent used or attempted to use his position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself when he inappropriately accessed and/or retrieved Department information, including, but not limited to, a Department email account and/or email messages of another Department employee. DISMISSED

SPECIFICATION 12: During the 2011-2012 school year. Respondent used or attempted to use his position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself when he inappropriately accessed a Department email account and/or email messages of another Department employee. DISMISSED

SPECIFICATION 13: During the 2011-2012 school year, Respondent used or attempted to use fits position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself when he inappropriately reset the password for a Department email account and/or the email account of another Department employee. DISMISSED

The arbitrator states “Specifications 11 and 12 are related and will be discussed together. Both Specifications rely on the conduct sustained in Specifications 8 and 9. I do not find that Respondent’s conduct is a violation of the City Charter, Board Rules or Chancellor’s Regulation 110 regarding conflicts of interest. Dept. Exs. 2, 5, 6 & 7. Specifications 11 and 12 are dismissed. Specification 10 has been dismissed. Because it is the predicate for this  specification, Specification 13 is also dismissed.”

SPECIFICATION 14: During the 2011-2012 school year, Respondent inappropriately manipulated and/or caused Department computer(s) at I.S. 49 to direct the user to a non-Department website, including, but not limited to, Protectportelos.org. DISMISSED

The arbitrator states “The Department has not established that in the 2011-2012 school year. Respondent inappropriately manipulated and/or caused Department computers at I.S. 49 to direct the user to protectportelos.org. Specification 14 is dismissed.”

SPECIFICATION 15: During the 2011-2012 school year, Respondent used or attempted to use his position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself by Inappropriately manipulating and/or causing Department computer(s) at I.S. 49 to direct the user to a non-Department website, including, but not limited to, protectportelos.org. DISMISSED

The arbitrator states “Specification 14 has been dismissed. Because it is the predicate for the allegations in this Specification, Specification 15 is dismissed.

There is much more I want to share about charges 14 and 15, but perhaps on a different post.

SPECIFICATION 16:
On or about February 9, 2012, Respondent remained inside I.S. 49 until approximately 5:57 P.M., in violation of Principal Linda Hill’s directive requiring that all staff personnel vacate school premises by 5:30 P.M. DISMISSED

The arbitrator writes “Principal Hill testified that she had issued a directive to staff to advise her, in advance by email, if they would be remaining in the building after 5:30 p.m. Respondent testified that he was aware of the directive. However, on February 9, 2012, he testified that he lost track of the time and was in the building until approximately 5:47 p.m. Before leaving he knocked on the Principal’s door but she refused to open it and speak with him and said “out now, get out, no.” T. 2561-2564.

Principal Hill testified that she did not open the door because she was startled and felt threatened. She also confirmed that when Respondent asked to speak to her she told him “no” and asked him to leave. When asked if she would have refused to speak with a teacher other than Mr. Portelos she was evasive. T. 76-78, 289-292.

On February 17, 2012, Principal Hill issued Respondent a Letter to File for insubordination regarding his failure to follow this directive. Dept. Ex. 13. This one time oversight, under the circumstances described above where she refused to speak to him, was not insubordinate or conduct for which he can be disciplined. Specification 16 is therefore dismissed.”

SPECIFICATION 17: On or about February 9, 2012, Respondent failed to leave I.S 49 through the main lobby exit after official school hours as directed by Principal Linda Hill. DISMISSED

The arbitrator states “This charge is related to Specification 16. The Principal’s directive to teachers regarding staying after hours also included instructions to exit through the main doors of the lobby. Principal Hill testified that after Respondent left the building she reviewed the hallway video to see which door he exited through. T. 78. The video showed that Respondent did not leave through the main doors as he should have in her after hours instructions to staff.

Respondent testified that he did not recall which door he exited through but that he was very flustered after the Principal refused to speak with him. After she told him to leave, he testified that he would have headed for the nearest exit. T. 2618. He also testified that he had observed other teachers leaving through other doors after hours who were not disciplined.

I do not find that Respondent’s exit, on one occasion through the wrong door, constitutes misconduct for which he can be disciplined. This Specification falls within the realm of picayune and innocuous conduct and it is therefore dismissed.

SPECIFICATION 18: On or about January 26, 2012, during a meeting with Susanne Abramowitz and UFT Chapter Representative Dr. Richard Candia, Respondent engaged in unprofessional and/or inappropriate conduct, in that Respondent:

A. Referred to Ms. Abramowitz, in sum and substance as, a f***.
B. Raised his voice.
C. Waived and/or flailed his arms in Ms. Abramowitz’s face.
D. Pointed his finger at Ms. Abramowitz.
E. Caused papers to fall to the ground.
F. Stormed out of the office.

DISMISSED

The arbitrator states “The discrepancies between the written statements and the testimony by Dr. Candia and Ms. Abramowitz regarding this incident cannot be reconciled. Their testimony that they did not remember Ms. Abramowitz’ profanity toward Respondent when they wrote statements the next day was implausible. T. 1211-1212, 1334. This is especially so when their memories at that time should have been more accurate than nearly two years later at the hearing.

It is also relevant that these statements were written right after the January 27, 2012 union meeting in which Dr. Candia felt betrayed by Respondent and was angry with him. Dr. Candia admitted that he overreached in his witness statement when he accused Respondent of “erratic, unpredictable, and unprofessional behavior over a period of weeks.” He failed to identify anything other “bickering” that was going on between the two that was unprofessional. T. 1340-1341, 1350-1351.

Respondent’s testimony denying that he called Ms. Abramowitz a “f ” is credited. This is a far cry from a situation where an argument between colleagues resulted in physical violence. Specification 18 is dismissed.

SPECIFICATION 19: On or about January 26, 2012, Respondent entered an ongoing meeting without permission or authority and engaged in unprofessional and/or inappropriate conduct, in that Respondent:
A. Disrupted the meeting.
B. Attempted to take control of the meeting.
C. Addressed the attendees and demanded to know if Ms. Abramowitz had
polled them about school academies.

DISMISSED

The arbitrator states “This was a small meeting of teachers which was about to end as it was nearing homeroom time. There was also no evidence that he attempted to take control of the meeting, it is doubtful this would have become a matter of discipline but for the issues that have been discussed in Specification 18. Neither Ms. Wolfson, nor any other participants in the meeting, reported that Respondent acted unprofessionally. Specification 19 is dismissed.

SPECIFICATION 20: On or about January 28, 2012, Respondent, without consulting, notifying, and/or seeking authorization from Principal Hill or the I.S. 49 administration, sent a mass email to numerous staff members at I.S 49 using the school’s Dreyfus email account system, in violation of Principal Linda Hill’s previous directive indicating that mass emails were not to be sent to staff members without her approval. DISMISSED

The arbitrator states “Moreover, this email dealt exclusively with internal union affairs—the request of the Chapter Leader for the Union Delegate to resign (an elected position) as well as notification to Respondent that he was being removed from the Union’s Consultation Committee (an appointed position). To discipline a union representative for sending an internal union communication to members would have a chilling effect on union affairs. Specification 20 is dismissed.

SPECIFICATION 21: On or about December 3, 2012, Respondent called the teacher’s lounge at I.S. 49 and informed a staff member, in sum and substance, that he had a camera in the lounge and was taping the staff. DISMISSED

The arbitrator states “It was also clear throughout the course of the hearing that Respondent’s technological prowess, while considerable, had become grossly exaggerated. This Specification involves picayune, innocuous conduct that cannot be subject to discipline. Specification 21 is dismissed.

SPECIFICATION 22: During the 2011-2012 school year, Respondent, while committing one, some, or all the activity in Specification 21, caused staff members at I.S. 49 to feel nervous and/or uncomfortable.

The arbitrator states “Under the circumstances discussed in Specification 21, there is no basis on which to find that making another staff member feel nervous or uncomfortable can result in discipline. Specification 22 is dismissed.

SPECIFICATION 23: On or about January 25, 2012 Respondent, without consulting, notifying, and/or seeking authorization from Principal Hill or the I.S. 49 administration:
A. Accessed the school website, www.Dreyfus49.com, through an alternative access point that he created when he developed the site.
B. Reinstated his administrative privileges on the www.Dreyfus49.com website after they had been revoked. DISMISSED

The arbitrator states “At this time, Respondent was an authorized administrator of the Dreyfus49 website. He had been not been informed by any administrator that his privileges had been revoked. There is also no evidence that Principal Hill (or any other administrator) ever spoke to him about the revocation of his administrator privileges or his actions to reinstate them. There is no basis to conclude that Respondent did anything inappropriate to restore his privileges as an administrator of the site in order to reset the student’s password. Accordingly, Specification 23 is dismissed.

SPECIFICATION 24: On or about January 28, 2012, Respondent, without consulting, notifying, and/or seeking authorization from Principal Hill or the I.S. 49 administration:
A. Accessed the school website, www.Drevfus49.com, through an alternative access point that he created when he developed the site.
B. Reinstated his administrative privileges on the www.Drevfus49.com website after they had been revoked. DISMISSED

The arbitrator states “Principal Hill testified that she suspended Respondent’s email account and administrator privileges after Dr. Candia complained to her that Respondent had sent his email asking Respondent to resign as Union Delegate to union members. However, she did not inform Respondent that she was taking this action. Given recent events, it was not unreasonable for Respondent to restore his gmail account and/or administrator privileges. He testified that progress reports were due and that he needed to access the Dreyfus site in order to submit them. Resp. Ex. 16. Respondent’s conduct cannot be subject to discipline when he was never advised why his Dreyfus email account and administrator privileges had been suspended by the Principal. Specification 24 is dismissed.

SPECIFICATION 26: On or about January 28, 2012, Respondent, without consulting, notifying, or seeking approval from Principal Hill or the I.S. 49 administration, manipulated the school website, www.Dreyfus49.com, by creating an alternative access point into the system that enabled him to maintain administrative access to the site in the event that the
alternative access point, as mentioned in Specifications 23 and 24, was disabled. DISMISSED

SPECIFICATION 27: By committing one, some, or all of the actions described in Specifications 23 and/or 24 and/or 25 and/or 26, Respondent used or attempted to use his position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself. DISMISSED

The arbitrator stated “Specifications 23, 24 and 26 have been dismissed. Respondent’s conduct sustained in Specification 25 is not a violation of the Board Rules, the City Charter or Chancellor’s Regulation 110 pertaining to conflicts of interest.

SPECIFICATION 30: On or about November 2012, Respondent, without consulting, notifying, and/or seeking approval from Principal Hill and/or the Department, utilized the I.S. 49 recorded telephone message, which invited callers to visit the website, www, welearnandgrowtogether.com, to advertise, promote, and/or direct traffic to his alternative website, https://sites.google.com/site/occupywarrenstreet . DISMISSED

Apparently, even though the site was not used for years, Principal Linda Hill never changed the school’s voice mail message that mentioned the site name www.welearnandgrowtogether.com.

The arbitrator stated “The Department, in closing argument, stated that it does not contend that Respondent accessed the school’s telephone message. The Department argues that Respondent, as a Department employee, would have known that the recorded message referenced welearnandgrowtogether.com and, consequently, was directing visitors to OWS. However, this Specification, on its face, charges Respondent with utilizing the I.S. 49 recorded message. Even if the charge could be construed in the manner the Department suggests, there is no evidence to establish that Respondent knew the content of the school’s recorded telephone message. Specification 30 is dismissed.

I did not know this as I do not listen to the school’s voice mail and just dial the extension I need. Principal Linda Hill also testified that when they realized it, the voice mail company quoted her $600 to change the voice mail message. $600 TO CHANGE A VOICE MAIL MESSAGE? ARE YOU KIDDING ME? Taxpayers, remember that this saga started over two years ago when I alleged financial misconduct and misappropriation of funds. I’m glad we have that type of money.

600 dollars to change voicemail

Testimony of Principal Linda Hill stating she paid $600 to change a voice mail message.

SPECIFICATION 32: By committing one, some, or all of the actions described in Specifications 29 and/or 30 and/or 31, Respondent used or attempted to use his position as a public servant to obtain a financial gain, contract, license, privilege, and/or other private and/or personal advantage, direct or indirect, for himself. DISMISSED

Specification 30 has been dismissed. The Department has not established that the misconduct sustained in Specifications 29 and 31 constitutes a conflict of interest as defined in the Board Rules, the City Charter and/or Chancellor’s Regulation 110.

SPECIFICATION 35: On or about December 3, 2012, at a Community Education Council meeting, Respondent made disparaging comments about Assistant Principal Diacomanolis and/or discussed an ongoing confidential investigation regarding allegations that A.P. Diacomanolis had acted inappropriately with a student, despite the fact that he had already reported this conduct to Principal Hill and said allegation was under investigation by The Office of the Special Commissioner of Investigation (“SCI”). DISMISSED

The arbitrator stated “The issue of corporal punishment or inappropriate touching of children in schools is a matter of legitimate public interest. I find that Respondent was speaking as a public citizen on a matter of public concern. The question now becomes whether the potential disruption to the Department’s operations from Respondent’s speech outweighs his rights under the First Amendment. The CEC and other public bodies depend on the information and opinions of teachers to carry out their responsibilities. To impose discipline under these circumstances risks dissuading public employees from contributing to the public discourse. For these reasons, the Department has not established that the potential disruption from Respondent’s speech regarding the video outweighs Respondent’s expressive rights under the First Amendment. Specification 35 is dismissed.

A Case for Teacher Tenure Part 2 – Guilty…As Charged?

A Case For Teacher Tenure Part 3 – The Rest of the Charges

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About Francesco Portelos

Parent and Educator fighting for the student and the teacher.
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