Saturday, August 31, 2013

Francesco Portelos Holds Arbitrator Carol Wittenberg Accountable For Denying His Grievance


Dear Arbitrator Wittenberg, DOE Evidence Not Needed?
by Francesco Portelos on August 7, 2013 in Uncategorized

LINKhttp://protectportelos.org/dear-arbitrator-wittenberg-doe-evidence-not-needed/

*Note: I had to jump out of vacation mode here in Greece for this one.

I cashed in my American Airlines miles and came here with my family in attempt to unwind and relax. Now since I came to Greece, I’ve really gone almost cold turkey as far as education reform and my own battle goes. I really haven’t been on Twitter and I temporarily unsubscribed from many education reform lists. I’ve archives many other emails to read when I get back to “work.” However, I was at the beach a few weeks ago and jumped on the beach bar’s Wi-Fi. I remember staring at the blue Mediterranean and being relaxed when my phone buzzed. It was an email from the United Federation of Teachers. I thought to open this email as I knew it was the reassignment location decision by Arbitrator Carol Wittenberg. It’s like not buying cigarettes when you’re trying to quit, but occasionally bumming one from a friend. The NYC Department of Education had violated their own regulation by reassigning me out of my district in Staten Island and banishing me 20+ miles away for over a year. It was a simple decision as the DOE had no proof or supporting documentation, and I, as always, was armed to the teeth with evidence.

I skimmed the email and saw ” Unfortunately, the arbitrator did not agree with our position and ruled in favor of the DOE. I put the phone down and picked up my wine glass instead and started out to the water to find my family playing. Greece was working, but the gears in my head were also on the move. I thought to download the attached PDF later.

Over the last three weeks I had read and re-read the really bizarre decision by an arbitrator who was known to be “fair” (or so I’ve heard), and exchanged some emails with my attorney and the UFT. Then, as I laid down on a hammock, under the shade of grapes and grape vines I decided to write the below email to Arbitrator Carol Wittenberg. I inserted the attached emails below the respective paragraphs.

—————–

From: “Mr. Portelos”





Date: Aug 5, 2013 11:48 AM





Subject: Carol Wittenberg Decision





To:

Madam Arbitrator Wittenberg,

I have reviewed your latest decision that pertains to my reassignment location case. Prior to our hearing date I had not only read up on your vast and commendable history, but was also verbally told of your fair decisions by others. I’ll admit that with your history of fairness, my extensive and detailed evidence supporting my case and the Department of Education’s lack of supporting evidence, I left the hearing thinking I would be back in Staten Island and this case was “in the bag”. This makes your decision to uphold the Department’s violation of Chancellor’s Regulation C-770, and keeping me 20+ miles away, a much harder pill to swallow.

I’d like to go over some of the key elements of the case and see where we might disagree.

The issue before you was:

“Did the Department of Education violate Articles 20, specifically Chancellor’s Regulation C-770, when it reassigned Francesco Portelos to a location outside of his community school district consistent with the limitations of the collective bargaining agreement? If so, what shall the remedy be? ”

CHANCELLOR’S REGULATION C-770
5. Assignments for Suspended Employees Suspended employees are to be assigned within their own districts or divisions. Requests for a temporary change of assignment because of extraordinary circumstances must be directed in writing to the Executive Director of the Division of Human Resources, with supporting statements for the request. The Executive Director shall confer with the Office of Legal Services regarding this request. The employee is not to be reassigned from the district or division until written authorization has been granted.

I believe we can agree that the dominant document here is Chancellor’s Regulation C-770 and it states that the department may “temporarily” reassign an employee out of their district due to “extraordinary circumstances” and have “supporting documents.” My first question to you Madam Arbitrator is “Do you feel 450+ days can be considered as ‘temporary’?”

Now I’d like to move to the “extraordinary circumstances” phrase.

The Department’s attorney, Kerri Crossan, introduced Michelle Nacht, an administrative assistant who is involved in reassigning employees, to give testimony. Ms. Nacht stated that Greg Bowen, a deputy network leader with no involvement in my school or network, told her that in the day and a half I was at the Petrides complex in Staten Island I was a “wanderer” and in a room with computers and “little supervision.” He also claimed that I was seen “eavesdropping outside the superintendent’s office”. Supposedly I was also told to “remain in my assigned room”, but in over a year we were never told by who or shown any documentation of this request. For these reasons Ms. Nacht decided to move me two boroughs away. She didn’t decide to move me to a room with more supervision, but to a basement two boroughs away where my supervisor was three floors above me. I have to add that my initial assignment at Petrides was just one room away from my supervisor, Ms. Kristine Broschart. Do you see the issue here? I went from a few steps from supervision within my district to three floors from any supervision. This all came out during the hearing though, so it should have been in your notes.

Ms. Krossan presented into evidence an email thread between the executive director of human resources, the chief executive director of human resources and Ms. Nacht that took place after the initial violation and my reassignment to Ozone Park, Queens. In the thread we can deduce that the executive directors had no idea as to why I was reassigned out of my district. Lawrence Becker even stated “not sure what reason to give.” See attached pictures. That poses the question “How was CR C-770 adhered to if there was no written request made to the executive director?” You mentioned this in your decision here, but considered it unnecessary now. ” With regard to the technical violation, the only appropriate remedy is to require the Department to reissue its written authorization, a remedy that is required under the Feldman award. However, since the Department complied with this requirement in May 2012, such a remedy is moot.” Although I agree with you that the written authorization is a moot point now, would you agree that it shows mishandling of my case and disregard for regulation and policy?





The union and I presented into evidence an excerpt of the sworn federal testimony of Andrew Gordon. I’ve attached that as well, but you should have it in your file. At the time of my reassignment he was the executive director of human resources and Ms. Nacht’s immediate supervisor. Mr. Gordon indicated that he received a call from Superintendent Erminia Claudio about my alleged “wandering” and “eavesdropping”. There was no mention of Ms. Nacht or Greg Bowen. This contradicts Ms. Nacht’s testimony and the union asked for this reason you should dismiss her testimony entirely. Apparently you did not dismiss it at all and instead took it to be fact. Two opposing testimonies from the Department and this did not phase your decision making process at all? Did you even read the deposition of Andrew Gordon? DEPOSITION EXCERPT HERE

I think my next question is also a good one. Why weren’t Greg Bowen and Superintendent Erminia Claudio called in to give testimony about this alleged wandering and eavesdropping? Perhaps because their testimony would be under oath? Since they made false accusations, that would put them in hot water. I want to add that Greg Bowen and Superintendent Erminia Claudio are currently under investigation for violation of NYC Charter section 1116. Assigned case 2013-3720 R-OSI.

I’d like to go over the allegations of wandering and eavesdropping. Madam Arbitrator did you take detailed notes during my testimony? Just to reiterate the main entrance to the complex was through a security entrance. The superintendent’s office, as I stated under oath, was seven to ten feet away and in view of the guard and security camera. (See attached picture taken a year later). How can I possibly eavesdrop even if I wanted to? Wouldn’t I be seen by the guard or recorded by one of the many cameras? Was there any video recording submitted of this wandering or eavesdropping? No, because it doesn’t exist. Actually was there any “supporting documentation” to support the claim for “extraordinary circumstances” as required by CR C 770? No there wasn’t, but you stated in your decision that the Department did provide it. “First, the Grievant helped create the circumstances leading to his reassignment by not remaining in the room to which he was assigned, giving the Superintendent cause for concern based upon two things: one, the Grievant’s access to the district’s computer system; and two, his “wandering” around in the vicinity of her office, raising concerns that he might be eavesdropping on her conversations” Again what evidence was submitted to show this? Madam Arbitrator, how did you expect me to enter and exit the building?



I also stated that I would need to go down two long hallways and three flights to get to my assigned room across the complex. Inclusive of lunch, I would do that trip four times a day. See attached schematic depicting the route. Was that the “wandering” Greg Bowen was speaking of?



You also added this as supporting the extraordinary circumstances: “… given the Superintendent’s concern, there was no other location within Staten Island that accepted reassigned employees. Therefore, the lack of another location within Staten Island in proximity to the Grievant’s home served as an additional “extraordinary circumstance” supporting the Department’s decision to reassign the Grievant to his Network office in Queens” That’s not true. A teacher in my school was alleged to have bent back the finger of a pupil and tear the shirt of another. They were reassigned to the main office answering phones. The main office of my same school that is. I was alleged of hacking my own website and was sent twenty miles away from my home and family for over a year?

In your decision you also made mention of the allegations against me. You were given a copy of the SCI report. Did you read the part where the DOE’s Chief Information Security Officer made mention that the DOE had no recourse over what people do with websites they own? Did you read their conclusion that was vague and didn’t indicate what they found I had done wrong? You also made mention that I had access to the district’s network system and was unsupervised. I was actually in a room with broken computers and had no access to any district computer or network. Although other “unsupervised” reassigned teachers in my room did have full access to computers. See attached picture. They were alleged to have been teaching under the influence of drugs and scolding children, and they were left in their reassigned district. Again, I was alleged to have hacked my own website and was sent several districts away. Does that make sense?

Finally we also included an email from Ms. Broschart, my supervisor at Petrides, that indicates she had no involvement in my reassignment. My supervisor located one room away had no knowledge of my wandering and eavesdropping? Then who told me to remain in my room? You seemed to have omitted all this information from your decision. Actually you omitted a lot of my evidence from your decision. Again, very surprising coming from the Carol A. Wittenberg.

In conclusion, Madam Arbitrator Wittenberg it appears there might have been other factors that affected your decision as facts from the Department simply did not exist.

You may also find this post of interest.

http://protectportelos.org/angela-who-is-greg-bowen-and-why-is-he-so-concerned-with-printer-ink-levels

And this ARBITRATOR SUBVERSION

-Francesco Portelos
mrportelos@gmail.com
educatorfightsback.org
Parent
Educator
UFT Chapter Leader IS 49
“In the end, we will remember not the words of our enemies, but the silence of our friends.” -Martin Luther King Jr.
*sent from my Galaxy S3. Please pardon any typos

Back to vacation mode…

Monday, August 26, 2013

Fraud: The Free Dictionary

Fraud
The Free Dictionary
LINK





A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.
Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. In the U.S. legal system, fraud is a specific offense with certain features.

Fraud is most common in the buying or selling of property, including real estate, Personal Property, and intangible property, such as stocks, bonds, and copyrights. State and federal statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors have discretion in determining which cases to pursue. Victims may also seek redress in civil court.

Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.

These elements contain nuances that are not all easily proved. First, not all false statements are fraudulent. To be fraudulent, a false statement must relate to a material fact. It should also substantially affect a person's decision to enter into a contract or pursue a certain course of action. A false statement of fact that does not bear on the disputed transaction will not be considered fraudulent.

Second, the defendant must know that the statement is untrue. A statement of fact that is simply mistaken is not fraudulent. To be fraudulent, a false statement must be made with intent to deceive the victim. This is perhaps the easiest element to prove, once falsity and materiality are proved, because most material false statements are designed to mislead.

Third, the false statement must be made with the intent to deprive the victim of some legal right.

Fourth, the victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false statement generally will not give rise to fraud; however, people who are especially gullible, superstitious, or ignorant or who are illiterate may recover damages for fraud if the defendant knew and took advantage of their condition.

Finally, the false statement must cause the victim some injury that leaves her or him in a worse position than she or he was in before the fraud.
A statement of belief is not a statement of fact and thus is not fraudulent. Puffing, or the expression of a glowing opinion by a seller, is likewise not fraudulent. For example, a car dealer may represent that a particular vehicle is "the finest in the lot." Although the statement may not be true, it is not a statement of fact, and a reasonable buyer would not be justified in relying on it.

The relationship between parties can make a difference in determining whether a statement is fraudulent. A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge. For example, if the seller of a car with a bad engine tells the buyer the car is in excellent running condition, a court is more likely to find fraud if the seller is an auto mechanic as opposed to a sales trainee. Misleading statements are most likely to be fraudulent where one party exploits a position of trust and confidence, or a fiduciary relationship. Fiduciary relationships include those between attorneys and clients, physicians and patients, stockbrokers and clients, and the officers and partners of a corporation and its stockholders.

A statement need not be affirmative to be fraudulent. When a person has a duty to speak, silence may be treated as a false statement. This can arise if a party who has knowledge of a fact fails to disclose it to another party who is justified in assuming its nonexistence. For example, if a real estate agent fails to disclose that a home is built on a toxic waste dump, the omission may be regarded as a fraudulent statement. Even if the agent does not know of the dump, the omission may be considered fraudulent. This is constructive fraud, and it is usually inferred when a party is a fiduciary and has a duty to know of, and disclose, particular facts.
Fraud is an independent criminal offense, but it also appears in different contexts as the means used to gain a legal advantage or accomplish a specific crime. For example, it is fraud for a person to make a false statement on a license application in order to engage in the regulated activity. A person who did so would not be convicted of fraud. Rather, fraud would simply describe the method used to break the law or regulation requiring the license.

Fraud resembles theft in that both involve some form of illegal taking, but the two should not be confused. Fraud requires an additional element of False Pretenses created to induce a victim to turn over property, services, or money. Theft, by contrast, requires only the unauthorized taking of another's property with the intent to permanently deprive the other of the property. Because fraud involves more planning than does theft, it is punished more severely.

Federal and state criminal statutes provide for the punishment of persons convicted of fraudulent activity. Interstate fraud and fraud on the federal government are singled out for federal prosecution. The most common federal fraud charges are for mail and wire fraud. Mail and wire fraud statutes criminalize the use of the mails or interstate wires to create or further a scheme to defraud (18 U.S.C.A. §§ 1341, 1342).

Tax fraud against the federal government consists of the willful attempt to evade or defeat the payment of taxes due and owing (I.R.C. §7201). Depending on the defendant's intent, tax fraud results in either civil penalties or criminal punishment. Civil penalties can reach an amount equal to 75 percent of the underpayment. Criminal punishment includes fines and imprisonment. The degree of intent necessary to maintain criminal charges for tax fraud is determined on a case-by-case basis by the Internal Revenue Service and federal prosecutors.

There are other federal fraud laws. For example, the fraudulent registration of Aliens is punishable as a misdemeanor under federal law (8 U.S.C.A. § 1306). The "victim" in such a fraud is the U.S. government. Fraud violations of banking laws are also subject to federal prosecution (18 U.S.C.A. §§ 104 et seq.).

The Federal Sentencing Guidelines recommend consideration of the intended victims of fraud in the sentencing of fraud defendants. The guidelines urge an upward departure from standard sentences if the intended victims are especially vulnerable. For example, if a defendant markets an ineffective cancer cure, that scheme, if found to be fraudulent, would warrant more punishment than a scheme that targets persons generally, and coincidentally happens to injure a vulnerable person. Federal courts may require persons convicted of fraud to give notice and an explanation of the conviction to the victims of the fraud (18 U.S.C.A. § 3555).

All states maintain a general criminal statute designed to punish fraud. In Arizona, the statute is called the fraudulent scheme and artifice statute. It reads, in pertinent part, that "[a]ny person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions" is guilty of a felony (Ariz. Rev. Stat. Ann. § 13-2310(A)).

States further criminalize fraud in a variety of settings, including trade and commerce, Securities, taxes, real estate, gambling, insurance, government benefits, and credit. In Hawaii, for example, fraud on a state tax return is a felony warranting a fine of up to $100,000 or three years of imprisonment, or both, and a fraudulent corporate tax return is punished with a fine of $500,000 (Haw. Rev. Stat. § 231-36). Other fraud felonies include fraud in the manufacture or distribution of a controlled substance (§ 329-42) and fraud in government elections (§ 19-4). Fraud in the application for and receipt of public assistance benefits is punished according to the illegal gain: fraud in obtaining over $20,000 in food coupons is a class B felony; fraud in obtaining over $300 in food coupons is a class C felony; and all other public assistance fraud is a misdemeanor (§ 346-34). Alteration of a measurement device is fraud and is punished as a misdemeanor (§ 486-136).

In civil court, the remedy for fraud can vary. In most states, a plaintiff may recover "the benefit of the bargain." This is a measure of the difference between the represented value and the actual value of the transaction. In some states, a plaintiff may recover as actual damages only the value of the property lost in the fraudulent transaction. All states allow a plaintiff to seek Punitive Damages in addition to actual damages. This right is exercised most commonly in cases where the fraud is extremely dangerous or costly. Where the fraud is contractual, a plaintiff may choose to cancel, or rescind, the contract. A court order of Rescission returns all property and restores the parties to their precontract status.
Fraud is also penalized by administrative agencies and professional organizations that seek to regulate certain activities. Under state statutes, a professional may lose a license to work if the license was obtained with a false statement.

One particularly well publicized area of fraud is Corporate Fraud. Corporate fraud cases are largely governed by the Securities Exchange Act of 1934 (15 USCA §§ 78a et seq.), along with other rules and regulations propagated by theSecurities and Exchange Commission. These laws were a response to the market turmoil during the 1930s and well-publicized corporate fraud cases.

The Securities Exchange Act and the SEC regulate anything having to do with the trading or selling of securities and stocks. They govern fraudulent behavior ranging from stock manipulation to insider trading. They also provide for civil and criminal penalties for corporate fraud.

Despite the act and the SEC, in the early part of the twenty-first century, corporate fraud began to seem endemic. Such well-known companies as energy trader Enron, Telecommunications company WorldCom, cable provider Adelphia, and other lesser-known firms went into Bankruptcy as a result of corporate fraud. In light of these events, Congress decided to tighten up corporate fraud requirements with the passages of the Sarbanes-Oxley Act of 2002 (U.S. PL 107-204).

Among other features, Sarbanes-Oxley required expanded and more frequent disclosure by public companies of their finances to prevent fraud. It created a Public Company Accounting Oversight Board to register and regulate accounting firms and accounting practices. It also enhanced the SEC's power to monitor and investigate compliance with securities laws, adding stiff penalties for fraudulent behavior by corporations, their officers, and their accountants.

Further readings

Clemency, John. 2002. "Corporate Fraud: Where Should the Buck Really Stop?" American Bankruptcy Institute Journal 21 (November).
Ribstein, Larry. 2002. "Market vs. Regulatory Responses to Corporate Fraud: A Critique of the Sarbanes-Oxley Act of 2002." Journal of Corporation Law 28 (fall).

Sunday, August 25, 2013

Employment Due Process PROTOCOL

American Arbitration Association

The following protocol is offered by the undersigned individuals, members of the Task Force on Alternative Dispute Resolution in Employment, as a means of providing due process in the resolution by mediation and binding arbitration of employment disputes involving statutory rights. The signatories were designated by their respective organizations, but the protocol reflects their personal views and should not be construed as representing the policy of the designating organizations.

Genesis
This Task Force was created by individuals from diverse organizations involved in labor and employment law to examine questions of due process arising out of the use of mediation and arbitration for resolving employment disputes. In this protocol we confine ourselves to statutory disputes.
The members of the Task Force felt that mediation and arbitration of statutory disputes conducted under proper due process safeguards should be encouraged in order to provide expeditious, accessible, inexpensive and fair private enforcement of statutory employment disputes for the 100,000,000 members of the workforce who might not otherwise have ready, effective access to administrative or judicial relief. They also hope that such a system will serve to reduce the delays which now arise out of the huge backlog of cases pending before administrative agencies and courts and that it will help forestall an even greater number of such cases.

A. Pre or Post Dispute Arbitration
The Task Force recognizes the dilemma inherent in the timing of an agreement to mediate and/or arbitrate statutory disputes. It did not achieve consensus on this difficult issue. The views in this spectrum are set forth randomly, as follows:
Employers should be able to create mediation and/or arbitration systems to resolve statutory claims, but any agreement to mediate and/or arbitrate disputes should be informed, voluntary, and not a condition of initial or continued employment.
Employers should have the right to insist on an agreement to mediate and/or arbitrate statutory disputes as a condition of initial or continued employment. 
Postponing such an agreement until a dispute actually arises, when there will likely exist a stronger re-disposition to litigate, will result in very few agreements to mediate and/or arbitrate, thus negating the likelihood of effectively utilizing alternative dispute resolution and overcoming the problems of administrative and judicial delays which now plague the system. 
Employees should not be permitted to waive their right to judicial relief of statutory claims arising out of the employment relationship for any reason. 
Employers should be able to create mediation and/or arbitration systems to resolve statutory claims, but the decision to mediate and/or arbitrate individual cases should not be made until after the dispute arises. 
The Task Force takes no position on the timing of agreements to mediate and/or arbitrate statutory employment disputes, though it agrees that such agreements be knowingly made. The focus of this protocol is on standards of exemplary due process.

B. Right of Representation
1. Choice of Representative
Employees considering the use of or, in fact, utilizing mediation and/or arbitration procedures should have the right to be represented by a spokesperson of their own choosing. The mediation and arbitration procedure should so specify and should include reference to institutions which might offer assistance, such as bar associations, legal service associations, civil rights organizations, trade unions, etc.
2. Fees for Representation
The amount and method of payment for representation should be determined between the claimant and the representative. We recommend, however, a number of existing systems which provide employer reimbursement of at least a portion of the employee's attorney fees, especially for lower paid employees. The arbitrator should have the authority to provide for fee reimbursement, in whole or in part, as part of the remedy in accordance with applicable law or in the interests of justice.
3. Access to Information
One of the advantages of arbitration is that there is usually less time and money spent in pre-trial discovery. Adequate but limited pre-trial discovery is to be encouraged and employees should have access to all information reasonably relevant to mediation and/or arbitration of their claims. The employees' representative should also have reasonable pre-hearing and hearing access to all such information and documentation.
Necessary pre-hearing depositions consistent with the expedited nature of arbitration should be available. We also recommend that prior to selection of an arbitrator, each side should be provided with the names, addresses and phone numbers of the representatives of the parties in that arbitrator's six most recent cases to aid them in selection.

C. Mediator and Arbitrator Qualification
1. Roster Membership
Mediators and arbitrators selected for such cases should have skill in the conduct of hearings, knowledge of the statutory issues at stake in the dispute, and familiarity with the workplace and employment environment. The roster of available mediators and arbitrators should be established on a non-discriminatory basis, diverse by gender, ethnicity, background, experience, etc. to satisfy the parties that their interest and objectives will be respected and fully considered.
Our recommendation is for selection of impartial arbitrators and mediators. We recognize the right of employers and employees to jointly select as mediator and/or arbitrator one in whom both parties have requisite trust, even though not possessing the qualifications here recommended, as most promising to bring finality and to withstand judicial scrutiny. The existing cadre of labor and employment mediators and arbitrators, some lawyers, some not, although skilled in conducting hearings and familiar with the employment milieu is unlikely, without special training, to consistently possess knowledge of the statutory environment in which these disputes arise and of the characteristics of the non-union workplace.
There is a manifest need for mediators and arbitrators with expertise in statutory requirements in the employment field who may, without special training, lack experience in the employment area and in the conduct of arbitration hearings and mediation sessions. Reexamination of rostering eligibility by designating agencies, such as the American Arbitration Association, may permit the expedited inclusion in the pool of this most valuable source of expertise.
The roster of arbitrators and mediators should contain representatives with all such skills in order to meet the diverse needs of this caseload.
Regardless of their prior experience, mediators and arbitrators on the roster must be independent of bias toward either party. They should reject cases if they believe the procedure lacks requisite due process.
2. Training
The creation of a roster containing the foregoing qualifications dictates the development of a training program to educate existing and potential labor and employment mediators and arbitrators as to the statutes, including substantive, procedural and remedial issues to be confronted and to train experts in the statutes as to employer procedures governing the employment relationship as well as due process and fairness in the conduct and control of arbitration hearings and mediation sessions.
Training in the statutory issues should be provided by the government agencies, bar associations, academic institutions, etc., administered perhaps by the designating agency, such as the AAA, at various locations throughout the country. Such training should be updated periodically and be required of all mediators and arbitrators. Training in the conduct of mediation and arbitration could be provided by a mentoring program with experienced panelists.
Successful completion of such training would be reflected in the resume or panel cards of the arbitrators supplied to the parties for their selection process.
3. Panel Selection
Upon request of the parties, the designating agency should utilize a list procedure such as that of the AAA or select a panel composed of an odd number of mediators and arbitrators from its roster or pool. The panel cards for such individuals should be submitted to the parties for their perusal prior to alternate striking of the names on the list, resulting in the designation of the remaining mediator and/or arbitrator.
The selection process could empower the designating agency to appoint a mediator and/or arbitrator if the striking procedure is unacceptable or unsuccessful. As noted above, subject to the consent of the parties, the designating agency should provide the names of the parties and their representatives in recent cases decided by the listed arbitrators.
4. Conflicts of Interest
The mediator and arbitrator for a case has a duty to disclose any relationship which might reasonably constitute or be perceived as a conflict of interest. The designated mediator and/or arbitrator should be required to sign an oath provided by the designating agency, if any, affirming the absence of such present or preexisting ties.
5. Authority of the Arbitrator
The arbitrator should be bound by applicable agreements, statutes, regulations and rules of procedure of the designating agency, including the authority to determine the time and place of the hearing, permit reasonable discovery, issue subpoenas, decide arbitrability issues, preserve order and privacy in the hearings, rule on evidentiary matters, determine the close of the hearing and procedures for post-hearing submissions, and issue an award resolving the submitted dispute.
The arbitrator should be empowered to award whatever relief would be available in court under the law. The arbitrator should issue an opinion and award setting forth a summary of the issues, including the type(s) of dispute(s), the damages and/or other relief requested and awarded, a statement of any other issues resolved, and a statement regarding the disposition of any statutory claim(s).
6. Compensation of the Mediator and Arbitrator
Impartiality is best assured by the parties sharing the fees and expenses of the mediator and arbitrator. In cases where the economic condition of a party does not permit equal sharing, the parties should make mutually acceptable arrangements to achieve that goal if at all possible. In the absence of such agreement, the arbitrator should determine allocation of fees. The designating agency, by negotiating the parties' share of costs and collecting such fees, might be able to reduce the bias potential of disparate contributions by forwarding payment to the mediator and/or arbitrator without disclosing the parties' share therein.

D. Scope of Review
The arbitrator's award should be final and binding and the scope of review should be limited.

Dated: May 9, 1995

Signatories

Christopher A. Barreca, Co-Chair
Partner
Paul, Hastings, Janofsky & Walker
Rep., Council of Labor & Employment Section, American Bar Association

Max Zimny, Co-Chair
General Counsel, International
Ladies' Garment Workers' Union Association
Rep., Council of Labor & Employment Section, American Bar Association

Arnold Zack, Co-Chair
President, Nat. Academy of Arbitrators

Carl E. VerBeek
Management Co-Chair Union Co-Chair
Partner
Varnum Riddering Schmidt & Howlett
Arbitration Committee of Labor & Employment Section, ABA

Robert D. Manning
Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C.
Union Co-Chair
Arbitration Committee of Labor & Employment Section, ABA

Charles F. Ipavec, Arbitrator
Neutral Co-Chair
Arbitration Committee of Labor & Employment Section, ABA

George H. Friedman
Senior Vice President
American Arbitration Association

Michael F. Hoellering
General Counsel
American Arbitration Association

W. Bruce Newman
Rep., Society of Professionals in Dispute Resolution
Wilma Liebman
Special Assistant to the Director Federal Mediation & Conciliation

Joseph Garrison, President
National Employment Lawyers Association

Lewis Maltby
Director - Workplace Rights Project, American Civil Liberties Union

Saturday, August 10, 2013

NYC Department of Education Alleged "Chancellor" and the Strange Case of His So-Called "Contract"

NY State Education Law Section 2590-h says that "The office of chancellor of the city district is hereby continued. Such chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract. The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract." You will be surprised that the NYC DOE believes this so-called "contract" is not public, and is an undated letter. Who are they kidding? The Second Who Are You Kidding Award goes to Dennis Walcott, the pretend NYC Chancellor.
           
   Betsy Combier   

When Joel Klein was the so-called "Chancellor" of the NYC Department of Education ("DOE"), I filed a Freedom of Information request for his contract, because Education Law Section 2590-H says that:

Education

* § 2590-h. Powers and duties of chancellor. The office of chancellor of the city district is hereby continued. Such chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract. The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract. The chancellor shall receive a salary to be fixed by the mayor within the budgetary allocation therefor. He or she shall exercise all his or her powers and duties in a manner not inconsistent with the city-wide
educational policies of the city board. The chancellor shall have the following powers and duties as the superintendent of schools and chief executive officer for the city district, which the chancellor shall exercise to promote an equal educational opportunity for all students in the schools of the city district, promote fiscal and educational equity, increase student achievement and school performance and encourage local school-based innovation, including the power and duty to"....:

and then the law lists all the powers and duties of the person titled "Chancellor". Reading this, I saw that Joel needed a contract. So, I filed a request for that contract. Joel Klein never received a contract, according to the Department of Education.See "The Who Are You Kidding??" Award Goes To Joel Klein The New York City Department of Education Pretender". In my opinion, Mike Bloomberg hired Joel Klein as a front for the actions he felt necessary, namely, to violate Education Law in the area of labor and employment, namely tenure rights.

Susan Holtzman, the former Records Access person in charge at the NYC DOE Tweed building (52 Chambers Street, lower Manhattan), sent me the response that Joel had no contract, and she compensated for his not having a contract by sending me the contracts of two former NYC Chancellors, Harold Levy - who is an Attorney like Joel, and also received a waiver from New York State, but ALSO a contract - and Rudy Crew, who did not need a waiver, but did get a contract. By the way, after Ms. Holtzman sent me this news, she was re-assigned to the position as Attorney for District 75 at 400 Second Avenue. Maybe she was not supposed to tell me that Joel had no contract. See what happened with my request for the contract of Dennis Walcott, the "new" chancellor after the disaster ofCathie Black ended.

When Cathie Black was run out of town, Deputy Mayor and token African American Dennis Walcott was given a waiver by New York State Commissioner Steiner to become "Chancellor" of the NYC public school system. This was around April 2011. I made a formal request for his contract in September, 2011, which was not filled until June 27, 2013. Joe Baranello, the current NYC Records Access person, has a problem with me because I posted his Facebook page on my blog NYC Rubber Room Reporter when I saw that he made fun of people dressed as Santa Claus and Jewish people. He is a gay man, and should know better than to make fun or judge anyone, but as far as I know he was not disciplined for his comments. No one who works for the "chief" - the Chancellor - is given any reprimands, it seems. But we don't know.

Anyway, as I am now a paralegal working in the compulsory arbitration known as "3020-a", I go by the letter of the law. The Education Law states that in order for the NYC Chancellor to have the power to charge/discharge an employee, he/she/ must have a contract (Section 2590-H)

Here is my Appeal to Courtenaye Jackson-Chase of my request for Walcott's contract, pursuant to FOIL, and Ed Law 2590-H after almost 2 years of delays and DOE "Gotcha Squad" Attorney Adrienne Austin gave Arbitrator James A. Brown the "contract" in camera because, she insisted, the "contract" was not public:

Appeal of Deliberate, Arbitrary and Capricious Delay in Responding To FOIL #7990

Dear Ms. Courtenaye Jackson-Chase: June 7, 2013

I am hereby appealing the denial of access to the contract of Dennis Walcott, Which was requested in a Freedom of Information request filed by me in September 2011 and given the number F7990 by your Records Office and Mr. Joseph Baranello.

Here is my Freedom of Information request:
From: Betsy
Date: Sat, Sep 10, 2011 at 12:54 AM
Subject: FOIL request "Walcott"
To: Baranello Joseph , FOIL@schools.nyc.gov
Cc: Betsy Combier
Parentadvocates.org
Betsy Combier, Editor, Reporter
betsy.combier@gmail.com
September 10, 2011

Mr. Joseph A. Baranello
Central Records Access Officer
Office of Legal Services
New York City Department of Education
52 Chambers Street
New York, NY 10007

JBaranello3@schools.nyc.gov
FOIL@schools.nyc.gov
Dear Mr. Baranello:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request to inspect records or portions thereof pertaining to:

1) The entire online and hard copy personnel file of New York City Board/Department of Education employee Dennis Walcott. I request all records at all locations of the New York City Board/Department of Education, including 65 Court Street, the Department of Investigation, the Corporate Counsel, and all payments made to him from an expense account and/or paid to another employee, arbitrator, etc.

2) All references and education history listed in Dennis Walcott’s resume

3) The employment contract of Dennis Walcott with all appendices and with a complete listing of his duties and responsibilities, schedules of performance reviews, and to whom he must report for the performance review.

4) any emails letters or documentation from or to Patrick Sullivan that mention the name “Betsy Combier”.

If the records have been removed from their original locations, please cause a diligent search to be conducted of all appropriate file rooms and storage facilities. Please include the label “Walcott” in all correspondence that refers to this FOIL request.

If any record has been redacted, please identify which categories of information have been redacted, and cite the relevant statutory exemption(s).

If you have any questions relating to the specific record(s) or portion(s) being sought, please phone me.

RELEVANT ADVISORY OPINIONS

www.dos.state.ny.us/coog/ftext/f13952.htm

www.dos.state.ny.us/coog/ftext/f14287.htm

RELEVANT LOCAL LAW

Rules of the City of New York -- Title 43 -- Mayor -- §1-05(c)(3)
"If a request does not adequately describe the records sought, the records access officer shall notify the requesting party in writing that his request has been denied, stating the reasons why the request does not meet the requirements of this section and extending to the requesting party an opportunity to confer with the records access officer in order to attempt to reformulate the request in a manner that will enable the agency to identify the records sought."

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

Sincerely,


Betsy Combier


Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Director, Theaterkids, Inc.
President, The E-Accountability Foundation

Since September 2011 the extensions of time to complete my request #F7990 are:
October 7, 2011
December 8, 2011
January 9, 2012
February 7, 2012
April 12, 2012
May 24, 2012
January 18 2013
February 19, 2013
March 19, 2013
April 16, 2013
May 14, 2013
You can easily verify these dates by going to your colleague, Joseph Baranello, with whom you work at Tweed.

It is indeed disturbing that Ms. Adrienne Austin, Esq., an Attorney under your Supervision, would inform me and the Attorney I am working with in the case of N.K. , that the Walcott contract we requested in or Motion To Dismiss - and we stated that there was none - does indeed exist, and would be immediately given to Hearing Officer James Brown for in camerareview because we, Attorney David Barrett and myself, could not see it. Ms. Austin's email to us is below. Please make note of the fact that Ms. Austin sent us the email with the " " around the word contract, we did not write this:

From: Austin Adrienne
Sent: Thursday, May 16, 2013 10:26 AM
To: Jim Brown; David Barrett, esq.
Subject: RE:

Good Morning,

I have a copy of the Chancellor's "contract." I will provide it for an in
camera review by Mr. Brown, but I will not be turning it over as it is part
of a confidential personnel file.

Adrienne Austin | Agency Attorney
Administrative Trials Unit
NYC Department of Education
49-51 Chambers Street, Rm. 600
New York, New York 10007
T: (212) 374-6884
F: (212) 374-1229
aaustin4@schools.nyc.gov

Some time between May 16 and May 30, 2013, Ms. Austin gave Arbitrator James Brown, Esq., the "contract". On June 3, 2013, Arbitrator Brown stated in the record of the 3020-a Hearing of N. K., at which the Attorney is David Barrett, Esq., and I am the paralegal, that he, Brown, had reviewed the "contract" dated April 18, 2011 and found that Dennis Walcott was indeed able to delegate probable cause to Superintendents and Principals. His denial of the Motion To Dismiss is based upon his review of this "contract". His opinion, with the date of the "contract" as April 18 2011 was uploaded to TEACH on May 30, 2013.

As I did file a FOIL request of Joel Klein's "contract" and received two answers, which were (1) Klein never had a contract; and (2) Klein had a contract - basically a letter welcoming him to the Chancellorship. See my article, " The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender".

Susan Holtzman sent me the employment contracts of Rudy Crew and Harold Levy, both of which were submitted in our Reply to Ms. Austin's oral argument made in opposition to our Motion To Dismiss, all these documents are available on the TEACH website under the case of N.K.
Below are some of the supporting opinions of Robert Freeman, in reference to the contract being a public document:

http://docs.dos.ny.gov/coog/ftext/f8582.htm

http://docs.dos.ny.gov/coog/ftext/f7687.htm

http://docs.dos.ny.gov/coog/ftext/f18075.html

http://docs.dos.ny.gov/coog/ftext/f14257.htm

If Ms. Austin put the quotation marks around Dennis Walcott's "contract" because she believes it is not really a contract but an agreement or welcoming letter such as Mike Bloomberg sent Joel Klein, it is still discoverable:

Geneva Printing Co. and Donald C. Hadley v. South
Seneca School District, Supreme Court, Monroe County,
July 12, 1982 --
"Memorandum of Understanding" between superintendent and
principal found to be available following in camera inspection;
since the memorandum detailed direction and instructions regarding
the performance duties, it was found to constitute instructions to staff
that affect the public and a final agency determination; disclosure would
not result in an unwarranted invasion of personal privacy, as record
was clearly relevant to the performance of official duties; cited opinion
of Committee. Current Law: §§87(2)(b), 2(g)(ii), (iii)

(copied from: http://www.dos.ny.gov/coog/caselaw_foil.html)

On the issue of stalling me from receiving the documents requested under FOIL #7990 and all the others, I will be filing a Notice of Claim against Mr. Joseph Baranello and others who are, I assume, willingly, recklessly, and arbitrarily treating me in a way that not only does not comply with the law, but is different from other members of the public and the press. I may have information that your press office has given out the April 18, 2011 letter/contract for Dennis Walcott to other people requesting the "contract", prior to today, and may have given me the "contract" to which Ms. Austin refers.

The law gives you 10 days to send me the documents, including the contract, of Dennis Walcott. My email address is betsy.combier@gmail.com. I expect to have the documents on or before June 24, 2013, as I know, from my sources, that all the documents requested are held at Tweed under your control. Please cease and desist from this disparate treatment.
Thank you for your attention and cooperation.

Sincerely,

Betsy Combier
betsy.combier@gmail.com
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice

Ms. Austin also told Attorney Barrett and me that we had to file a Freedom of Information ("FOIL") request for the "contract" if we wanted a copy. This means that she knew the contract was, indeed, a public document. Gosh, so confusing!!!!!

On June 27, 2013, two (2) days past the 10 day deadline for responding to my appeal, DOE Attorney Jackson-Chase had the Baranello team send me Dennis Walcott's "contract" under the heading "released June 27, 2013". They did not title the letter as a "contract".

Here is is:

Contract of Dennis Walcott

Please note that there is no term for Walcott, as in end of his employment, and he did not put a date under his signature, if indeed he signed it at all. Additionally, there is no reference at all about Walcott's authority to be the employing board with powers to hire and fire employees.

What a scam.

Betsy Combier
Betsy Combier is Editor of Parentadvocates.org

Friday, August 9, 2013

Labor "Agreements" Cannot Waive Constitutional Rights

Constitutional Rights Cannot Be Waived


The issue here is: NYSUT and the UFT tell tenured members that they do not have the "right" to rely on any rule, law, or regulation which may be contained in Education Law 3020-a, only Article 21G, and the memorandum of agreements (MOA) signed by the UFT and the Department.

I started questioning this in 2005, and continue to do so. How can Constitutional rights be waived?

See the case below.

Justia.com Opinion Summary: 

Boaz began working for FedEx in 1997, under an agreement that stated: “To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.” She began took on additional responsibilities, previously handled by a male employee, without corresponding compensation, 2004-2008. Boaz sued FedEx in 2009, asserting claims under the Fair Labor Standards Act, 29 U.S.C. 201, and the Equal Pay Act, 29 U.S.C. 206(d). The district court held that, although the claims were timely under the statutes, they were barred by the agreement. The Sixth Circuit reversed, based on Supreme Court precedent prohibiting an employee from waiving rights under those laws.

PDF file