A Case for Teacher Tenure Part 2 Guilty…As Charged

If you just happened to land on my site for thefirst time and have not hadtime to read all 236 articles on this site, at least read the following before you continue:

DOE vs Portelos Termination Verdict Is In 826 Days After They Took Aim to Fire.

Diane Ravitch Blog: The Portelos Case – Why Tenure Exists

and Part 1 of this series:

A Case for Teacher Tenure Part 1 The Dismissed Charges

In Part 1 I shared all the charges against me that were dismissed by the arbitrator from my termination hearing. Those did not include the over 25 allegations and investigations against methat were unsubstantiated. Do not mistake investigations with charges. All in all, with investigations and charges, the Department of Education has taken over 50 shotsat my career and missed. Thanks TENURE!!

Now for the charges that were sustained by Arbitrator Felice Busto.

SPECIFICATION 6:During the 2011-2012 school year, Respondent disclosedconfidential Departmentinformation, including, but not limited to, witness statements, on a non-Departmentwebsite, including, but not limited to, protectportelos.org.Sustained

The Arbitrator stated “The Department has established that Respondent committed misconduct byposting confidential witness statements on his website protectportelos.org. This wasunprofessional conduct and conduct unbecoming his position. Specification 6 issustained.

The arbitrator found thatposting the falsified witness statements written about me on my blogwas misconduct and I should bedisciplined. Seethe two false witness statements written byRich CandiaandSusanne Abramowitzhere on a page calledDisciplinary Letters

My rebuttal:The statements, that were written by teachers Susanne Abramowitz and former chapter leader Richard Candia, were part of my personnel file. As you may have read on my site, or other sites before, these records are accessible through FOIL and therefore part ofPUBLICRECORDandnot confidential or privileged.

Even SCI Investigator Robert Laino noted that Principal Hill’s attorney, Marisol Vazquez Esq.,stated theyare not confidential. Also, my attorney Christopher Callagy at transcript section T.1694,1697,2598.

Here are the SCI notes where DOE Senior Field Counsel Marisol Vazquez Esq. told SCI “…emails and letter to fileno violation of DOE Policy.

Marisol Vazquez Not Confidential

…emails and letter to file no violation of DOE Policy.

 

The arbitrator also added: “Further, the fact that Respondent spoke to a FOIL records officer, after the fact,and that they may be “FOILable” does not alter my conclusion.” It wasn’t that theymay beFOILable, but rather that they are. I spoke to FOIL only to prove that those documentsare not confidential.

I’m pasting Specification 7 below that was dismissed just so you can compare.

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.

How can Specification 6 be sustained, but 7 is dismissed I can post the principal’s time cards for theworld to see, but if I post witness statements about me I should be disciplined

SPECIFICATION 8:During the 2011-2012 school year, Respondent inappropriately accessed and/’orretrieved Department information, including, but not limited to, a department emailaccount and/or email messages of another Department employee.SUSTAINED

In March of 2012, after the principal told me to shut down the site I owned and created, I realized the data was still there. My whole life was turned upside down. I went from being praised to having investigations, disciplinary letters and more in just two and a half months. So, I decided to acquire more knowledge. I did so by not breaking any regulation, policy or law. I contacted Google. You all know Google, right It’s oneof thelargest companies in the world. The conversation went something like this:

Me: “Who is the owner ofdreyfus49.com

Google Support: “You areMr. Portelos.”

Me: “…and who owns all thedata on this site, such as emails”

Google Support: “You do Mr. Portelos.”

Me: “So I can go in and access emails”

Google Support: “Yes Mr. Portelos. When users sign in, they are accepting our privacy policy which states the owner has the right to access information and again, you are the owner.”

To this day I still owndreyfus49.com. Go ahead and click the link. How can this be called a “department email account” when it is clearly not

Some of you may disagree with my actions, but it came down to I was David and I was going up against a large group of unknown Goliaths. Something was going on and I had to find out what. Therefore,after the site was already shutdownand the school had created a new one,I went into my former chapter leader’s account.

Among other things I found this beauty of an email. It was from Richard Candia to Principal Hill listing alleged supporters of mine. Yes, the UFT chapter leader did this. During my hearing my attorney referred to it as “The Hit List.”

Richard Candia Email

The arbitrator stated “Even though Respondent was the legal owner of the contents of the site, itshowed poor judgment to search Dr. Candia’s email account. The fact that his searchyielded information that was relevant for his defense does not excuse the conduct- theend does not justify the means.Accessing and retrieving theemail of another teacher was inappropriate, unprofessional and conduct unbecominghis position.Specification 8 is sustained.

The specification was written as Department email and Department information and it is not. It is wrong just on its face.

There is more. Ready So the NYC Department of Education charged me with going into this account and retrieving email. You know which city agency asked me to do the same exact thing after this NYC Corporation Counsel. As part of discovery, the attorneys, defending the city in my Federal lawsuit,directed me to retrieve emails from the same dreyfus49.com accounts. I furnished to them over 67,000 pages of those emails I am charged for retrieving. T. 2614. I was charged with misconduct by the cityand then I was asked to do thesame exact thing by the city. Makes sense

Speaking of “the fact that his searchyielded information that was relevant…”,later on we found emails showing Principal Hill had emailed Superintendent Erminia Claudio that she was out sick in November 2011 and she was somehow still making overtime. Yes, making overtime while she was home sick. Don’t worry though taxpayer. The DOE’s Office of Special Investigation has been investigating this for over 880 days. SeeDOE Admins Not So Confidential Emails Part 4 Sick Day OT

Yes, I went into the accounts I owned. Yes, I was asked to do it again and furnish67,000 pages by city attorneys. Yes, I still own the site and thedata. Yes, thedata contained evidence of corruption. Should I pay a fine for it Well, should I be arrested for breaking into my own house

SPECIFICATION 9:During the 2011-2012 school year, Respondent inappropriately accessed a Departmentemail account and/or email messages of another Department employee.SUSTAINED

Specification 9 was a duplicate of Specification 8. Dreyfus49.com was not Department email.

SPECIFICATION 25:On or about January 28, 2012, Respondent, without consulting, notifying, and/orseeking authorization from Principal Hill or the I.S 49 administration, accessed theschool website, www.Dreyfus49.com, as a site administrator and manipulated thesettings to revoke the administrative rights and/or privileges of all individuals previouslygranted such administrative access.SUSTAINED

What happened was that after a very intense week, I was told to shut up at a UFT meeting by former Chapter Leader Candia, I am kicked off the UFT Consultation Committee and told to resign…all in three days. I was clueless as to what was happening. In addition, the next morning, Saturday January 28, 2012, as I am getting ready for an 8 hr administrator class, I find that my dreyfus49.com account was disabled. I’ve explained this 100 times on this blog. I went in with a secondary account that also happened to have admin access and I restored my access. In addition, following protocol for what I thought was a possibly a security breach, I temporarily disabled only theadmin access of the other accounts. I did this to prevent more disruption to accounts until we could sort it out. I did not know that Principal Linda Hill was involved in disabling the account of thewebsite I owned. Had I known, I wouldn’t have touched anything until we sort it out.

The arbitrator seemed to have a difficult time understanding the technology involved here. At no point did the principal lose access to her emails or anything. This was simply disabling theaccess to disable access over a weekend.

The arbitrator stated :”Although he initially stated that he built a firewall around the system because of apossible security issue,he later testified he thought that revocation of his administratorrights could have been a form of discipline imposed by Dr. Candia because he sawthere was email activity between Dr. Candia and Principal Hill over the weekend.T.2543-2547, 2914-2922. He further testified he did not want to disturb the Principal at6:30 a.m. on a Saturday. Nonetheless, he could have easily contacted the Principallater in the morning to let her know of his concerns before he unilaterally rescinded herand the other teachers’ administrator privileges.

Respondent also admitted in his cross-examination that control of the Dreyfuswebsite had become a “power struggle”. T. 2907. His vacillating testimony does notadequately explain or justify his unilateral action to rescind the rights of all otheradministrators, including the Principal. This action by Respondent to rescind otherpersonnel’s administrator privileges was outside his authority as an employeeevenone who had been granted administrator rights.”

The underlined part above is not true. I did not know that there was communication between Hill and Candia overnight and therecord does not show that. This implies that I disabled the principal’s admin accessbecause I witnessed collusion. I did mention thatperhapsI was being disciplined by Candia, but I justdid not know what happened.

Apparently, at 10:30 PM, the educational leader of a school decided to just disable the account of a teacher on a website he owns. Her actions were unbecoming of an administrator. My story did not vacillate (go back and forth), but rather….I simply did not know what happened and I took actions to rectify the situation. If you want to reference the DOE Social Media Guidelines it states that the principal of a schoolhas to be an administrator of all school sites. That’s great, but:

1. The Social Media Guidelines were created AFTER the fact.

2. Not only amI beingdisciplined for not following the guidelines, that did not exist yet, but the Q&A of the current guidelines themselvesstate: these are guidelines andno one will be disciplinedfor failure to follow the guidelines.

Finally, Arbitrator Bustoalso states “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 28:On or about February 2012, Respondent refused to transfer control and/or ownership ofthe school website, www.Dreyfus49.com, to Principal Hill, I.S. 49, and/or theDepartment after agreeing to do so at a meeting with Principal Hill and SuperintendentErminia Claudio.SUSTAINED

I was never directed to transfer the ownership of the site. Although I believe that a site used by a school should be run and operated by the school, their were issues in this case that could not be ignored. Yes, I was the owner, but as the owner I was also liable for any issues that arose and any violations that took place within the site. I spoke to an attorney and it came up as “If cyber-bullying took place via email accounts students were using through the site, who would be responsible” Would I, as thelegal owner be sued by the parents Also, the issue arose as to if we were violating the Childrens Online Privacy and Protection Act (COPPA). We had 10 and 11 year olds with email addresses and we NEVER obtained the parents permission. Was I responsible Would theDOE represent me There were many factors and although I sent several emails to the DOE legal department and the DOE Information department, they could not tell me and instead told me something like “This is new and we are working on updating our Internet Acceptable Use Policy and create Social Media Guidelines.

In fact, my attorney advised me to shut the entire site down in February of 2012. Something I could not bring myself to do as it contained so much student work, information and teacher lessons. Instead, the site continued as I emailed Superintendent Erminia Claudio and Principal Hill that I need more time to work it out with my attorney. By the time we, the DOE lawyers, myself and my attorney, could sort it out, I was directed to shut down the site and I did as of March 19, 2012. All this is on thehearing record.

The arbitrator stated “Respondent and Principal Hill testified that ownership of the Dreyfus site was notan issue until the events regarding the website previously discussed in Specifications 24and 25 occurred. T. 55-57, 255-257, 2586-2587, 2686-2687. Over that weekend, bothRespondent and Principal Hill were in contact with Google and were reminded thatRespondent was the legal owner of the domain Dreyfus49.com website since he had paid the initial fee for the domain in 2009 and for the renewals thereafter.

The arbitrator also stated “On February 16, 2012, Respondent informed the Principal that hisintellectual property attorney had advised him to hold off on the transfer until he couldreview the legalities of the matter. In his email, he advised the Principal that this was a”short term” delay until he could receive the advice of his attorney. He also informedher that he was not attempting to hold the site hostage. Dept. Ex. 14.

After February 16, 2012, Respondent was continuing to research legal ownershipand privacy issues by speaking to the Department’s technology personnel and torepresentatives of Google. Dept. Ex. 14. On March 8, 2012, Respondent sent an emailto Principal Hill and Superintendent Claudio advising them of concerns. The issues thathe raised in this email regarded adherence to COPPA, FERPA and the DOE’s InternetAcceptable Use Policy (“lAUP”) which he had recently downloaded. He suggested thatthe website have a “service down” page temporarily until these issues could be sortedout. Neither the Principal nor the Superintendent replied to Respondent’s email.

The Department then referenced a similar case where a teacher would not relinquish ownership to a school site that was owned by the teacher’s husband. In that case (DOE v Tillem) the school had actually reimbursed theteacher. Perhaps not a big difference, but I assure you that the plan was not a hostage takeover of a site used by the school, but rather clarity about liability and protocol before transferring.

Finally, it didn’t matter that the DOE legal and IT department did not know how to handle this. It did not matter that Social Media Guidelines stemming from cases like this were created after thefact. It does not matter that those same guidelines, that are not regulations, state there can be nodisciplinary action taken for violation. It did not matter that I owned and worked on the site during the summer, weekends and holidays without being reimbursed. It did not matter that to this day the files and emails within that site are part of evidence of investigations against the principal and others and part of a federal lawsuit. I was still disciplined.

See transcript where DOE Attorney Jordana Shenkman and the Arbitrator Felice Busto discuss this:

Social media Hearing officer

The arbitrator finally wrote “Under these circumstances, I find that Respondent should haverelinquished his ownership of the Dreyfus49 site because it was created for the schooland functioned as the school’s website. Respondent’s failure to transfer ownership andcontrol of the Dreyfus site was unprofessional, conduct unbecoming his position andneglect of duty. By refusing to do so, the school was required to create a new website.This caused administrative burden, embarrassment for the Principal and hardship to thestaff. T. 255, 3162-3166. Specification 28 issustained.”

SPECIFICATION 29:On or about November 2012, Respondent, withoutconsulting, notifying, and/or seekingapproval from Principal Hill or the I.S 49 administration, altered the websitewww.welearnandgrowtogether.com, which Respondent had created for the school withPrincipal Hill’s approval, to automatically transfer visitors to his alternative website, https://sites.google.com/site/occupywarrenstreet/, which contained derogatoryinformation about I.S. 49, Principal Hill, and/or the Department.SUSTAINED

I have a lot to say about this, but on it’s face the charge is wrong and should be dismissed. The websitewww.welearnandgrowtogether.comwas bought before I even became a teacher. The school let the site expireand did not use it for three years.I bought it for $6. It’s a great name for collaboration. I then created a site to mobilize thecommunity and since I owned the link in question, forwarded that linkto another. I can be disciplined for trying to mobilize a community with a site name that was not used for THREE YEARS Go ahead and click it.welearnandgrowtogether.com

The arbitrator states “Respondent testified that the I.S. 49 website “welearnandgrowtogether.com” hadbeen created by another tech teacherprior to Respondent’s arrival at I.S. 49. Respondent testifiedthat over the years, the site was devoid of content and forwarded visitors to theDepartment of Education website. T. 2637-2639.”

So if thecharge is that I took a site I created for the school with the principal’s approval, and therecord does not show that to be true, how can it be sustained

“Respondent testified that in June 2012, he bought the domainwelearnandgrowtogether.com which was available at that time. He admitted that inOctober 2012, he redirected visitors from welearnandgrowtogether.com to anotherwebsite he had created, occupywarrenstreet.com (OWS). I.S. 49 is located on WarrenStreet. T. 2639. On OWS, Respondent posted information available from theDepartment of Education that showed that the school’s rating had deteriorated over thepast few years. At the top of his article which preceded the statistics, there is a photo ofthe school sinking into water. To the bottom right of the photo is a life-preserver.” (Arbitrator Bustoleft out what the preserver had written on it, so I am adding it below.)

Canada Sinking Ship

“Respondent testified that he was trying tomobilize the community, to bringattention to the school’s failing scores and being rated persistently dangerous two yearsin a row. T. 2639-2641. The first page of the posting advertises a meeting for membersof the community. The site also contains a slide show of Principal Hill’s time cards andstates that there “appears to be financial misconduct.” Dept. Ex. 15. Respondent notesthat “[e]ven with the horrible data above, the DOE continues to give the principalsatisfactory ratings. Dept. Ex. 15.

She also adds “Was this because he planned to launch it as aneducational tool The answer is no. To link another school website to the OWS website was making mischief andembarrassment for the administration. Even though the Department had no legalrecourse to “stop” Respondent, it does not mean it waived the right to discipline him.Once again, because something may not be illegal, the Department may disciplineRespondent for engaging in conduct that he should have known would thwart orundermine the school’s mission. This was conduct unbecoming his position andprejudicial to the good order, efficiency or discipline of the service. Specification 29 issustained.”

Was this because he planned to launch it as aneducational tool The answer is no.” –The truth is it was an educational tool actually. To educate thepublic.

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

About Francesco Portelos

Parent and Educator fighting for the student and the teacher.

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