In case you haven’t heard by now, my federal lawsuit did not end the way we wanted it to. By “we” I do not mean just me, my lawyers and family, but rather “we” as also a countless group of educators, across the country, who needed a win against corruption and harassment in our public schools. “We” as in a growing number of education whistleblowers who need protection under the constitution when our unions continue to fall short in defending us.
The jury verdict came in on August 23, 2016, but there were a few reasons I did not post this explanation until now, a month later.
- It was an exhausting week of trial and I needed to catch up with my family the last two weeks of summer vacation.
- Time. I didn’t want to give a rush explanation and found it difficult to sit and write when so many other things were taking place and school began.
- My attorney Bryan Glass, (ghnylaw.com) and I were working on a post trial motion requesting a new trial before we submitted an appeal. Yes we are definitely fighting this. “You don’t truly lose until you stop fighting.“
So what happened
This is a question that has been asked by many. Friends, family, teachers and even police officers who have analogous cases. One assistant principal told me that a police officer friend of his called him at 2:30 am, the day after the verdict, to tell him he “couldn’t believe Portelos lost.” This case would have helped many public servants and not just teachers.
OK, imagine you have a First Amendment case that contained instances of speech that spanned over a year. Imagine you have over 4,000 pages of emails where you are mentioned by top DOE directors, deputy chancellors, lawyers and superintendents. Imagine that you then also have over 7,000 pages of investigative files where the NYC Special Commissioner of Investigation (SCI), the DOE’s Office of Special Investigation (OSI) and the DOE’s General Counsel have whitewashed allegations you made and pushed forward strongly for cases made against you. Also, imagine that you have about 300 articles on your public blog that through protected speech raises concerns about grand fraud and corruption in the system.
Now imagine that a federal judge gives you only 2 hours to put on direct testimony to bring this evidence in.
Now imagine that the judge precludes bringing in investigative files showing governmental failure in connection to retaliation and also drops the City of NY and the DOE as a defendant.
Now imagine you have evidence, including audio recording, that will show that your supervisor was aware that you were involved in an investigation regarding her fraud as early as January 30, 2012, but the judge prevents you from bringing that into the evidence and the jury only hears about a March 26, 2012 supplemental complaint. You lose two full months of protected speech that a jury cannot connect to the adverse action taken against you prior to that speech date. Again, she was found guilty of that allegation and Superintendent Claudio was responsible for approving her overtime for the double dipping.
Imagine you spoke up about other fraud as part of a volunteer group called the School Leadership Team (SLT), but because you were paid a nominal $270, you lost your constitutional right to the First Amendment and were considered speaking as an employee. The whole premise of the December 2011 SLT speech, regarding violations by Principal Linda Hill, was dismissed and could not be brought before the jury at all.
In addition, attorney Bryan Glass argued that union speech can be protected speech under the First Amendment. He cited Pekowsky vs Yonkers School Board. The judge allowed us to plead that union speech was protected, but when we argued that my speech as a delegate on January 27, 2012 was of public concern, the judge dismissed it (see our post trial motion below). In fact most of our alleged instances of speech were dismissed and not brought before the jury in the jury instructions.
Principal Linda Hill was caught in lies on the stand. Superintendent Erminia Claudio was caught in lies on the stand. City attorney Jessica Giambrone tried to catch me in lies, during my cross questioning, but when I challenged her with my answers, she looked at a thick book of my hours of deposition and said “I will abandon this line of questioning.” My story has never changed.
What was a jury to do at the end when the timeline was chopped up and they only heard the tip of an iceberg We spoke to a member of the jury, after the verdict, who indicated that they believed there were things missing and the timeline they were given by the judge, on the day of deliberation, mucked up their connection between free speech and adverse retaliatory action.
Couple these with other issues like NYC Corp Counsel Attorney Jessica Giambrone objecting 118 times during my testimony. I searched for the phrase “Ms. Giambrone: Objection” in my direct testimony transcript. At one point I was asked how old my children are and she objected to that too. Mostly it was an effort to not allow the truth to get out which led to many, many sidebar private conversations out of the ear of the jurors. Although she may have a right to do it, there is also something called “being an obstructionist.” The supporters in the gallery, during the break, told me they nicknamed her the “Objection Queen.”
This is not the first time attorney Jessica Giambrone has taken this approach. In an NYPD case defending the city:
After repeatedly objecting to questions, Judge Block warned city lawyer Jessica Giambrone that she was on the verge of being held in contempt of court.
With the jury dismissed, Judge Block offered advice to Giambrone: I guess if I was in your shoes Id want to make a good impression on the commissioner, but try to temper that. I have to rein you in.
There is more that we are arguing and it has been included in our Post Trial Motion Here:
In case you are not really familiar with the case though, the background is below.
Here’s a brief summary of the case from its inception.
My attorney Bryan Glass and I filed this First Amendment claim in June 2012. Six months before that point I had spoken up against Principal Linda Hill’s budgetary violations, NYS Education Law violations, chancellor’s violations and her theft of service. Prior to that I had an unblemished and stellar record.
After I raised these matters of public concern, and up to the point of filing the suit, I had over twenty investigations lodged against me, my first unsatisfactory classroom observation, three disciplinary letters in ten days, investigators confiscating computers from my class and home and was reassigned to a basement storage room twenty miles from the school. Again that all happened within a short six month period.
After filing the complaint, the NYC Corporation Counsel filed a Motion to Dismiss. Bryan Glass and I went before Judge Mauskopf in the fall of 2012 and argued my speech was made as a public citizen with children slated to go to IS 49, living one mile from the school, not as just an employee.
NYC Attorney Christopher Seacord was representing they city at the time, but he left Corporation Counsel shortly after our conference with Judge Mauskopf.
[Enter city attorney Jessica Giambrone, Esq. stage left.]
Corporation Counsel trial attorney took over the case in November 2012 and has been on it ever since. There have been about four other attorneys that have come and gone in this case, but Jessica Giambrone was always still connected to it. I have to say that I personally found Attorney Jessica Giambrone to be unethical. From telling us there are no emails from HR directors with my name in it and then furnishing 1,400 pages after pressure from the court, to actually testifying herself during depositions when she was supposed to only object. At one point she even blurted out that the 2011-2012 Comprehensive Education Plan (CEP) of IS 49 was only submitted as a draft during a deposition, when in fact it was submitted without the consent of the SLT. Knowingly defending corrupt people is something I could never do, but I get that there a jobs out there where one has to do that.
In early 2013, we survived Ms. Giambrone’s motion to dismiss and discovery opened up. This meant that we traded documents. As I stated above, we received over 10,000 pages of emails and investigative notes. In turn we shared over 60,000 pages of emails and other documents.
Due to my 3020-a termination hearing, there was a long pause in my case and we resumed in 2014. We amended the complaint once, adding Superintendent Claudio after reading many of her cover up emails provided to us. We attempted to amend again after my false arrest and assignment as an ATR, but it was denied. I believe the court wanted this over and not to drag on. My false arrest will be a separate complaint.
My case then remained dormant for awhile and was revived when a new judge was assigned to the case. Judge Roslynn Mauskopf was replaced by Judge Leshann Dearcy Hall. Judge Hall called a conference in Spring 2016 and informed us that we will be going to trial. The city attorneys filed a motion for summary judgement to prevent this from happening. Judge Dearcy Hall dismissed some points and granted others. Part of the dismissed points have been covered in out post trial motion linked above.
Jurors were selected in early August and the trial began on August 15, 2016. It was an up and down roller coaster. Long sleepless nights renting hotel rooms near the court to get additional paperwork ready as the case continued to be modified based on the court’s decisions. My wife and other family members came as well as many educators that have been following the case.
The rest is covered above.
We continue to fight on. My goal is to continue to build UFT Solidarity and attack corruption and harassment through a weak UFT leadership as well as approach this from the legal angle and help connect educators with the best legal information.
[UPDATE: Shortly after we submitted our post trial motion, and this blog post was published, we received this from city attorney Jessica Giambrone asking us to pay $14,727 in some legal fees.
UPDATE 2: Back to court for oral arguments.