Ladies and gentleman, I’ve been known to push the envelope a bit, especially when it comes to ensuring a proper environment for our students, by defending their teachers. I also like seeing the DOE legal army working on their creativity. Last March I received a “non-letter to file.” have you ever heard of that? It was a letter, that was disciplinary in nature (I think), but it was not placed in my personnel file. So where did it go?
Now, all the cool kids in the UFT know that a disciplinary letter cannot be placed in a member’s personnel file after 3 months have passed since the alleged incident. Article 21 of the contract uftsolidarity.org/contract.
So what happened? In a nutshell, I assisted others in exposing large scale grading changing at DeWitt Clinton High School in the Bronx. See the information here: DOE Investigative Office Finding Challenged in Court
In exposing these acts, redacted student documents were posted on our UFT Solidarity website in an article called “Former Deputy Chancellor Shows How Easy It Is To Fix Grades” Since the website is registered in my name, the DOE Office of Special Investigations (OSI) found me guilty of violating the Federal Educational Rights and Privacy Act (FERPA). This despite great care going into hiding all personal information of students. Instead of issuing me a letter of discipline in October 2016, when the case concluded, the DOE legal team knew I would file a First Amendment suit for retaliation, due to bringing up matters of public concern. One part of a suit would be showing adverse employment action. Well, since they strategically let time run out, and let the three months pass, they knew they could not give me a letter to file. Hence, no real adverse action.
Pretty smart, huh? My hats off to DOE Legal.
So where does this letter go then? Where does a letter that is disciplinary in nature, but also states that it will not be placed in my file, go?
Well, I asked the ATR Field Supervisor and he told me he has a copy of it in his file for me. I asked who else has a copy and he responded that he also gave a copy of the letter to his supervisor. So now this letter, that is disciplinary in nature, is not in “my personnel file,” but has cloned itself and is spreading like a virus throughout 65 Court St. I emailed my supervisor’s supervisor, Chanette Shaw, and this is the response I received:
From: Francesco Portelos [mailto:firstname.lastname@example.org]
Sent: Friday, May 19, 2017 8:55 AM
To: Shaw Chanette <CShaw2@schools.nyc.gov>
Cc: Sean Rotkowitz <email@example.com>; Adam Ross <firstname.lastname@example.org>; Ellen Procida <email@example.com>; Debra Penny <firstname.lastname@example.org>
Subject: Letter from Mark Ryan re OSI Case held in at least two locations
Good morning Ms. Shaw,
Could you please confirm that you have in your possession a copy of the attached disciplinary letter?
Francesco A. Portelos
From: Shaw Chanette <CShaw2@schools.nyc.gov>
Date: Tue, May 23, 2017 at 11:14 AM
Subject: RE: Letter from Mark Ryan re OSI Case held in at least two locations
To: Francesco Portelos <email@example.com>
Cc: Sean Rotkowitz <firstname.lastname@example.org>, Adam Ross <email@example.com>, Ellen Procida <firstname.lastname@example.org>, Debra Penny <email@example.com>
I believe I do.
Office of Support and Supervision
And there you have it. A letter of discipline not in my file, but stored safely in at least two other locations, ready to be pulled out and used against me while bypassing our contract.
Did I file a grievance pursuant to Article 21 of our UFt contract? Of course. I can file a grievance blindfolded at this point.
My grievance was scheduled for June 2017 at my favorite kangaroo court…The Office of Labor Relations at 100 Gold Street.
The entertainment began before the grievance even did. The chair of the grievance was none other than former Assistant District Attorney Susan Mandel. She was the one to decided the fate of my non-letter to gile and it’s bizarre existence in folders around the DOE. In the past, she has been a superintendent’s representative and fighting against me at past grievance hearings. When I introduced myself to her two years ago, Susan Mandel responds, “Oh you don’t want to shake my hand. I am the enemy.” OK, so what is the enemy doing here acting as a neutral in this kangaroo court?
In any case, I flipped on my phone’s recorder app, an act I had not done in quite some time by the way. I turned it on for “quality and control” purposes. If you know my story, you will remember that a reason I am still teaching is because I fought their lies by recording conversations with those that were against me, and fabricated allegations, that the recordings contradicted.
Grievance Chair Susan Mandel asked if anyone is recording and I said I was. I wasn’t even hiding it. I wanted them to know that I was exercising my right. (YES, IT IS ABSOLUTELY LEGAL TO AUDIO RECORD IN NY STATE AS LONG AS ONE PARTY IN THE CONVERSATION KNOWS ABOUT IT). I told everyone that I was recording and it then it became more of a kangaroo court with DOE Labor Relations members leaving and others taking their place. “Bring in the cavalry!” The hearing abruptly ended with Susan Mandel canceling the grievance, but not before she committed attorney ethics violations by stating the DOE had a “policy” that recordings are not allowed.
I still wanted a resolution to my problem of the “non letter to file” as it would not only hurt me, but can also be used as a tool to hurt other educators.
I sent the following email below to every involved attorney I could think of, as well as copying many UFT employees.
I am informed that the UFT has requested the “no audio recording policy” that allegedly exists at the DOE Office of Labor Relations. I very much doubt that one exists. This poses a big problem, as the attached audio has several members of OLR, including attorneys, stating that one truly exists.
As I can be heard stating in the recording, I do not record because I am “bored.” I was interrupted several times by Elenor Radzivilover, who apparently ran the meeting and called the shots, as can be heard. What I was going to explain, before being rudely and consistently interrupted, was that the reason I, and actually many other grievants, record, is to expose the circus kangaroo court that OLR has become in the last decade. Contractual violations disturb the educational atmosphere at the school. The fact that chancellor’s reps and superintendent reps swap roles would be comical if it weren’t so sad and so arbitrary and capricious. To the DOE staff copied here, know that your constant actions that entail denying grievances hurt people. Those actions and decisions hurt families and school communities. We cannot allow that to continue. I also attach disparaging discussions by former HR Director Gordon and former OLR rep Gary Laveman.
We requested, via FOIL, the number of grievances filed and denied over several years. It’s upsetting that there are even more grievances under Mayor de Blasio/Chancellor Farina than the previous Bloomberg administration.
I cut out all the side talk and saved only the pertinent, and probably unethical statements, of OLR staff. Sorry John Torres, but I couldn’t realistically cut you out. Thank you for your representation though.
11 seconds- Susan Mandel, Esq. states there is no recording allowed at a Step 2 conference and that it is against “policy.”
30 seconds Pedro Crespo makes a statement that he cannot take part in the hearing as superintendent representative as Mr. Portelos sent an email stating Mr. Crespo has previously twisted words to deny a grievance. Note: he has no decision making authority
3:20 Phyllis Waltuch, OLR Investigator states that these proceedings cannot be recorded.
3:50 Elenor Radzivilover introduces herself as Pedro Crespo’s replacement and begins to run the meeting and “steer the ship.”
5:19 Elenor Radzivilover states that she is “charge.”
6:45 Susan Mandel brings up my Mr. Portelos’s history as the reason she asked if he was taping.
7:37 Susan Mandel, Esq. states that grievant Francesco Portelos spoke about her in an unflattering manner in an email, but as decision maker in this hearing, she will not “recuse herself.”
10:00 Susan Mandel, Esq. reiterates that Phyllis Waltuch stated this Step 2 cannot proceed if it is being recorded.
10:20 Eleanor Radzivilover continues to be out of order and keeps interrupting Mr. Portelos.
10:55 Elenor Radzivilover states “We are going to terminate the hearing.”
11:30 UFT Rep makes a request for written policy prohibiting recording.
12:35 Susan Mandel, Esq. asks how this meeting should be memorialized and wrongly asserts that it was the union who requested it be postponed.
13:00 Elenor Radzivilover states that the 2nd Circuit Federal Case that prohibits employers from prohibiting recording “does not apply to these proceedings.”
14:20 Elenor Radzivilover interrupts again and request the hearing is over.
14:40 Susan Mandel, Esq. repeats that she is following “the policy of the office.”
The non-letter to file by Mark Ryan, as well as the OSI complaint that is untimely (CBA Article 21c), should be eradicated from my personnel file and all my records. Please confirm that both records are removed and we can agree this grievance is moot.
I hope no one doubts that an investigation that began in June 2016 was not reduced to writing and given to me within 6 months, as I received it in March 2017.
3. Incidents investigated by the Chancellor or by a governmental investigatory agency must be reduced to writing by the appropriate supervisor within 6 months and 12 months respectively from the date the incident either occurred or should have been discovered by the appropriate school officials. Employees must receive a complete copy of any such writing and an opportunity to answer in writing and to have such response attached. The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.
Look forward to a swift resolution.
I heard nothing for months. Emails I sent to both the DOE and UFT about continuing the grievance were somewhat ignored, by both parties. Finally I was told that the UFT will be taking my “non letter to file” to arbitration. It has been tentatively scheduled for December 19th. Let’s see what comes from it. The last time I went to AAA for an arbitration, Arbitrator Carol Wittenberg heard no factually based evidenced from the DOE and still decided in their favor. “Arbitrator Carol Wittenberg Doesn’t Need DOE Evidence” Let’s hope, for the sake of all UFT members, that we have a fair outcome and the DOE cannot bypass the contract for anyone.