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 theclassroom 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 thestudent’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 theclassroom. Ilost 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 timeI 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 containthe sustained charges.
A few more things you should know before you read the decisions on the specific charges:
- I did a lot of reading about arbitrators while in exile. I readhorrific stories of allegedly bias and corrupt arbitrators, likeRandi LowittandEleanor Glanstein. Arbitrators are paid by the NYS Education Department and not the UFT or the DOE. However, they areselected togetherby the UFT and DOE. This means that an arbitrator cannot make it to the panel unless selected byboththe UFT and the DOE.
- If an arbitrator exonerates mostteachers, or at least awards ahigh 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.
- These independent arbitrators make about $1,500a 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 thatindependent
- 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 thedecision goes, I thank her for the nice words, but the sustained chargesand very high fine arenot warranted. As my privateattorney stated “It seems like she split the baby.” In other words trying to appease both sides.
- The first day of thehearing, 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+.
- 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 adid not terminate. Of those 5, 3were 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$10,000for trying to improve a troubled school.
- Disciplineis defined aslearning 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.“
- 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 whetheror not to move forward. That did not happen here with me and NYC DOE skips this necessary step with all their hearings.
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 Departmentby engaging in his real estate business on their time is not supported by Dr. Candia’stestimony or any other evidence. To the extent that Respondent used the Departmentcomputer to view listings or check his personal email account during lunch or afterschool, it was incidental and de minimus. I do not find that Respondent’s activityviolated Chancellor’s Regulation 110, conflict of interest provisions in the City Charter orotherwise constituted misconduct. Dept. Exs. 2, 5, 6 & 7. Specifications 1-2 aredismissed.”
SPECIFICATION 3: Real Estate files on school computer.WITHDRAWNby 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 calledFaceshop.meduring school hours and on school computer.DISMISSED
“To the extent that Respondent usedFaceshopme.com for instructional purposes in teaching technology to students it wasfor a valid educational purpose. The Department has not established that any of the deminimis 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 obtainedthrough Respondent’s Freedom of Information Act (FOIL) requests. There is noevidencethat Respondent engaged in any misconduct withrespect to obtaining thesedocuments.”
SPECIFICATION 10:During the 2011-2012 school year, Respondent inappropriately reset the password for aDepartment email account and/or the email account of another Department employee.DISMISSED
The arbitrator states that “As previously discussed in connection with Specification 8, Respondentaccessed Dr. Candia’s Dreyfus email account by resetting the password. I find that theconduct alleged in Specification 10 is merged or subsumed within that Specification. Itherefore find no additional misconduct alleged in this Specification. Specification 10 isdismissed.”
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 asa public servant to obtain a financial gain, contract, license, privilege, and/or otherprivate and/or personal advantage, direct or indirect, for himself when he inappropriatelyaccessed and/or retrieved Department information, including, but not limited to, aDepartment 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 asa public servant to obtain a financial gain, contract, license, privilege, and/or otherprivate and/or personal advantage, direct or indirect, for himself when he inappropriatelyaccessed a Department email account and/or email messages of another Departmentemployee.DISMISSED
SPECIFICATION 13:During the 2011-2012 school year, Respondent used or attempted to use fits position asa public servant to obtain a financial gain, contract, license, privilege, and/or otherprivate and/or personal advantage, direct or indirect, for himself when he inappropriatelyreset the password for a Department email account and/or the email account of anotherDepartment employee.DISMISSED
The arbitrator states “Specifications 11 and 12 are related and will be discussed together. BothSpecifications rely on the conduct sustained in Specifications 8 and 9. I do not find thatRespondent’s conduct is a violation of the City Charter, Board Rules or Chancellor’sRegulation 110 regarding conflicts of interest. Dept. Exs. 2, 5, 6 & 7. Specifications 11and 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/orcaused Department computer(s) at I.S. 49 to direct the user to a non-Departmentwebsite, including, but not limited to, Protectportelos.org.DISMISSED
The arbitrator states “The Department has not established thatin the 2011-2012 school year. Respondent inappropriately manipulated and/or causedDepartment computers at I.S. 49 to direct the user to protectportelos.org. Specification14 isdismissed.”
SPECIFICATION 15:During the 2011-2012 school year, Respondent used or attempted to use his position asa public servant to obtain a financial gain, contract, license, privilege, and/or otherprivate and/or personal advantage, direct or indirect, for himself by Inappropriatelymanipulating and/or causing Department computer(s) at I.S. 49 to direct the user to anon-Department website, including, but not limited to, protectportelos.org.DISMISSED
The arbitrator states “Specification 14 has been dismissed. Because it is the predicate for theallegations in this Specification, Specification 15 isdismissed.”
There is much more I want to share about charges14 and15, but perhaps on a different post.
On or about February 9, 2012, Respondent remained inside I.S. 49 until approximately5:57 P.M., in violation of Principal Linda Hill’s directive requiring thatall staff personnelvacate 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 startledand felt threatened. She also confirmed that when Respondent asked to speak to hershe told him “no” and asked him to leave. When asked if she would have refused tospeak 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 forinsubordination regarding his failure to follow this directive. Dept. Ex. 13. This one timeoversight, 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 isthereforedismissed.”
SPECIFICATION 17: On or about February 9, 2012, Respondent failed to leave I.S 49 through the main lobbyexit 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 teachersregarding staying after hours also included instructions to exit through the main doors ofthe lobby. Principal Hill testified that after Respondent left the building she reviewed thehallway video to see which door he exited through. T. 78. The video showed thatRespondent did not leave through the main doors as he should have in her after hoursinstructions to staff.
Respondent testified that he did not recall which door he exited through but thathe was very flustered after the Principal refused to speak with him. After she told him toleave, he testified that he would have headed for the nearest exit. T. 2618. He alsotestified that he had observed other teachers leaving through other doors after hourswho 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 withinthe realm of picayune and innocuous conduct and it is thereforedismissed.”
SPECIFICATION 18:On or about January 26, 2012, during a meeting withSusanne Abramowitz and UFTChapter Representative Dr. Richard Candia, Respondent engaged in unprofessionaland/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.
The arbitrator states “The discrepancies between the written statements and the testimony by Dr.Candia and Ms. Abramowitz regarding this incident cannot be reconciled. Theirtestimony that they did not remember Ms. Abramowitz’ profanity toward Respondentwhen they wrote statements the next day was implausible. T. 1211-1212, 1334. This isespecially so when their memories at that time should have been more accurate thannearly 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 angrywith him. Dr. Candia admitted that he overreached in his witness statement when heaccused Respondent of “erratic, unpredictable, and unprofessional behavior over aperiod of weeks.” He failed to identify anything other “bickering” that was going onbetween the two that was unprofessional. T. 1340-1341, 1350-1351.
Respondent’s testimony denying that he called Ms. Abramowitz a “f ” iscredited.This is a far cry from a situationwhere an argument between colleagues resulted in physical violence. Specification18 isdismissed.”
SPECIFICATION 19:On or about January 26, 2012, Respondent entered an ongoing meetingwithoutpermission or authorityand engaged in unprofessional and/or inappropriate conduct, inthatRespondent:
A. Disrupted themeeting.
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.
The arbitrator states “This was asmall 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 isdoubtful this would have become a matter of discipline but for the issues that have beendiscussed in Specification 18. Neither Ms. Wolfson, nor any other participants in themeeting, reported that Respondent acted unprofessionally. Specification 19 isdismissed.”
SPECIFICATION 20:On or about January 28, 2012, Respondent, without consulting, notifying, and/orseeking authorization from Principal Hill or the I.S. 49 administration, sent a mass emailto 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 werenot to be sent to staff members without her approval.DISMISSED
The arbitrator states “Moreover, this email dealt exclusively with internal union affairsthe request ofthe Chapter Leader for the Union Delegate to resign (an elected position) as well asnotification to Respondent that he was being removed from the Union’s ConsultationCommittee (an appointed position). To discipline a union representative for sending aninternal union communication to members would have a chilling effect on union affairs.Specification 20 isdismissed.”
SPECIFICATION 21:On or about December 3, 2012, Respondent called the teacher’s lounge at I.S. 49 andinformed a staff member, in sum and substance, that he had a camera in the loungeand was taping the staff.DISMISSED
The arbitrator states “It was also clear throughout the course of the hearing thatRespondent’s technological prowess, while considerable, had become grosslyexaggerated. This Specification involves picayune, innocuous conduct that cannot besubject to discipline. Specification 21 isdismissed.”
SPECIFICATION 22:During the 2011-2012 school year, Respondent, while committing one, some, or all theactivity in Specification 21, caused staff members at I.S. 49 to feel nervous and/oruncomfortable.
The arbitrator states “Under the circumstances discussed in Specification 21, there is no basis onwhich to find that makinganother staff member feel nervous or uncomfortable can resultin discipline. Specification 22 isdismissed.”
SPECIFICATION 23:On or about January 25, 2012 Respondent, without consulting, notifying, and/orseeking authorization from Principal Hill or the I.S. 49 administration:
A. Accessed the school website, www.Dreyfus49.com, through an alternativeaccess point that he created when he developed the site.
B. Reinstated his administrative privileges on the www.Dreyfus49.com website afterthey had been revoked.DISMISSED
The arbitrator states”At this time, Respondent was an authorized administrator of the Dreyfus49website. He had been not been informed by any administrator that his privileges hadbeen 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 toreinstate them. There is no basis to conclude that Respondent did anythinginappropriate to restore his privileges as an administrator of the site in order to reset thestudent’s password. Accordingly, Specification 23 isdismissed.”
SPECIFICATION 24:On or about January 28, 2012, Respondent, without consulting, notifying, and/orseeking authorization from Principal Hill or the I.S. 49 administration:
A. Accessed the school website, www.Drevfus49.com, through an alternativeaccess point that he created when he developed the site.
B. Reinstated his administrative privileges on the www.Drevfus49.com website afterthey had been revoked.DISMISSED
The arbitrator states “Principal Hill testified that she suspended Respondent’s emailaccount and administrator privileges after Dr. Candia complained to her thatRespondent had sent his email asking Respondent to resign as Union Delegate tounion members. However, she did not inform Respondent that she was taking thisaction. Given recent events, it was not unreasonable for Respondent to restore hisgmail account and/or administrator privileges. He testified that progress reports weredue 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 advisedwhy his Dreyfus email account and administrator privileges had been suspended by thePrincipal. Specification 24 isdismissed.”
SPECIFICATION 26:On or about January 28, 2012, Respondent, without consulting, notifying, or seekingapproval from Principal Hill or the I.S. 49 administration, manipulated the schoolwebsite, www.Dreyfus49.com, by creating an alternative access point into the systemthat 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 24and/or 25 and/or 26, Respondent used or attempted to use his position as a publicservant to obtain a financial gain, contract, license, privilege, and/or other private and/orpersonal advantage, direct or indirect, for himself.DISMISSED
The arbitrator stated “Specifications 23, 24 and 26 have been dismissed. Respondent’s conductsustained in Specification 25 is not a violation of the Board Rules, the City Charter orChancellor’s Regulation 110 pertaining to conflicts of interest.”
SPECIFICATION 30:On or about November 2012, Respondent, without consulting, notifying, and/or seekingapproval from Principal Hill and/or the Department, utilized the I.S. 49 recordedtelephone message, which invited callers to visit the website,www, welearnandgrowtogether.com, to advertise, promote, and/or direct traffic to hisalternative 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 namewww.welearnandgrowtogether.com.
The arbitrator stated “The Department, in closing argument, stated that it does not contend thatRespondent accessed the school’s telephone message. The Department argues thatRespondent, as a Department employee, would have known that the recorded messagereferenced welearnandgrowtogether.com and, consequently, was directing visitors toOWS. However, this Specification, on its face, charges Respondent with utilizing theI.S. 49 recorded message. Even if the charge could be construed in the manner theDepartment suggests, there is no evidence to establish that Respondent knew thecontent of the school’s recorded telephone message. Specification 30 is dismissed.”
I did not know thisas I do not listento the school’s voice mail and just dial theextension 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 allegedfinancial misconductandmisappropriation of funds. I’m glad we have that type of money.
SPECIFICATION 32:By committing one, some, or all of the actions described in Specifications 29 and/or 30and/or 31, Respondent used or attempted to use his position as a public servant toobtain a financial gain, contract, license, privilege, and/or other private and/or personaladvantage, direct or indirect, for himself.DISMISSED
Specification 30 has been dismissed. The Department has not established thatthe misconduct sustained in Specifications 29 and 31 constitutes a conflict of interest asdefined 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 Diacomanolisand/or discussed an ongoing confidential investigation regarding allegations thatA.P.Diacomanolis hadacted inappropriately with a student, despite the fact that he hadalready reported this conduct to Principal Hill and said allegation was underinvestigation by The Office of the Special Commissioner of Investigation (“SCI”).DISMISSED
The arbitrator stated “The issue of corporal punishment or inappropriate touching of children inschools is a matter of legitimate public interest. I find that Respondent was speaking asa public citizen on a matter ofpublic concern.The question now becomes whether the potential disruption to the Department’soperations from Respondent’s speech outweighs his rights under the First Amendment.The CEC and other public bodies depend on the information and opinions ofteachers to carry out their responsibilities. To impose discipline under thesecircumstances risks dissuading public employees from contributing to the publicdiscourse. For these reasons, the Department has not established that the potentialdisruption from Respondent’s speech regarding the video outweighs Respondent’sexpressive rights under the First Amendment. Specification 35 isdismissed.”