Saturday, December 28, 2013

Preponderance of Evidence: What Does This Mean?

Tuesday, June 28, 2011

UPDATE-Preponderanceof evidence a term worth Repeating

This is a legal term worth repeating. And this particular post, please do pass on, since it relates to the amount of "Proof" needed, depending on the Court. I have taken the definition from our NFPCAR online Legal Definitions>> I hope this helps, since, believe it or not, many lawyers aren't aware of the differences, but hopefully, we can ask a few questions to them to see if they are. (Related Power Point Presentation on Admin. Hearings>> FPLS-Administrative Law Presentation ) Plus other training>> and )

Do you know the difference between:

*Preponderance of Evidence
*Clear and Convincing
*Beyond a Reasonable Doubt?
If Not, you better do your homework. Since depending on the court system, the level of proof depends on these terms.

I'm not a lawyer, but here are some basic "unlegal" thoughts, depending on the court system:
Administrative Hearing: By some only 51% proof "If it could have happened, it probably did."
Family/Civil Court: To initially remove a child, usually little proof needed. However, for TPR to occur, proof must be "Clear and Convincing". which is a sliding scale between proof needed in Admin. Hearing, for example to "Beyond a Reasonable Doubt", depending on the judge.
Criminal Court: "It damn well better have happened!!" "Beyond a Reasonable Doubt"

· For those who can remember the trials of OJ Simpson?? Every wonder why he won in Criminal Court, but lost in Civil Court??

So here is the definition for Preponderance of evidence:

Preponderance of evidence A standard of proof that must be met by a plaintiff if he or she is to win a civil action.

In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.

The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.

The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.

Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents' due process rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 [1987]). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children. 2/08-GPC)(Related Reading: Burden+of+Proof+Begone.pdf (added 8/09)

Related Blog>>Preponderance of Evidence VS Clear and Convincing. What is better???
Finally, here is the: Model State Legislation -Parental Due Process Act << I highly recommend that you pass this on to others, since it has many ideas on what is needed primarily in our Family Courts... We, as parents and/or any who care for children, must have our "Fair Day in Court". Please keep in mind, the judge makes their decision on "What Proof is presented" which may not be the Truth of the full story.

Sunday, December 15, 2013


Cary HERSHKOWITZ, Plaintiff-Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellant.
-- May 27, 2008


Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for appellant.Wolf & Wolf, LLP, Bronx (Edward H. Wolf of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered January 8, 2007, which, to the extent appealed from as limited by the briefs, denied defendant the New York City Department of Education's (DOE) motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

In 1999, DOE commenced a disciplinary proceeding pursuant to Education Law § 3020-a, charging plaintiff, a tenured teacher, with 12 specifications of sexual misconduct and other inappropriate interactions with respect to several students.   Plaintiff moved to suppress his written confession, in which he admitted to sending “many” instant messages to a female student explicitly discussing and soliciting various sexual acts.   The hearing officer suppressed the statement as violative of the collective bargaining agreement between DOE and the United Federation of Teachers (UFT), and thereafter dismissed all the charges against plaintiff and ordered him reinstated.   Supreme Court vacated the determination and directed a new hearing, at which the written statement was to be considered;  we affirmed (Board of Educ. of City of N.Y. v. Hershkowitz, 308 A.D.2d 334, 764 N.Y.S.2d 254 [2003], lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38 [2004] ).

Following the new hearing, at which the written statement was admitted and plaintiff declined to testify, the hearing officer sustained six of the charges, and as a penalty imposed a one-year suspension without pay.   DOE commenced a special proceeding pursuant to CPLR article 75 and Education Law § 3020-a, challenging the penalty as inadequate.   Supreme Court granted DOE's petition to the extent of remanding for a new hearing before a different hearing officer.   A reading of the detailed, 15-page decision reveals that Supreme Court upheld the factual determination that plaintiff was guilty of the six sustained charges and remanded only on the issue of the penalty.   Supreme Court ruled that the penalty of a one-year suspension was “totally irrational” and “against New York's strong public policy of protecting children,” in that it:

“not only defies logic given the seriousness of [plaintiff's] admitted sexual misconduct ․, but it is offensive to the disciplinary process negotiated by [DOE] and [UFT]. Indeed, to suspend [plaintiff] for one year actually tells him and everybody else that these perverted and insidious acts are not serious.   Importantly, it also tells [the female student] and her mother that [the student's] resolve and her mother's courage used in withstanding and reporting [plaintiff's] persistent and improper advances were for naught.   In fact, [the student's] resolve is being used against her by those responsible for ensuring her safety as an attempt to minimize the heinous nature of [plaintiff's] acts ․ [T]his Court chooses to call this teacher's acts for what they are-an abuse of trust of the most serious kind ․

“To be sure, the fact that physical contact apparently did not occur here ․ is a tribute to the student's resolve, not [plaintiff's] exercise of restraint.   For his part, it is clear that he tried ․

“Last, considering the seriousness of [plaintiff's] conduct, a one year suspension is not justified by the fact that [he] had a clean record prior to this incident ․ He not only tried extremely hard to seduce [the student] into a clandestine and inappropriate relationship, but systematically dismantled the systems a parent puts in place to protect her daughter, namely honesty and open communication.”

The new hearing officer misconstrued the order as directing a de novo hearing on the merits of the charges as well as the appropriate penalty.   The parties relied on the record established at the prior hearings, and the hearing officer found plaintiff culpable of the same six charges previously sustained, and directed him to be dismissed from service.

Thereafter, plaintiff commenced this action to recover back pay and benefits for the period of time between the award suspending him for one year, which was annulled, and the final order terminating his employment.

The complaint should be dismissed for failure to state a cause of action, since the matter was remanded solely for a redetermination of the penalty and plaintiff ultimately received a harsher penalty (see Matter of Lugo v. City of Newburgh, 209 A.D.2d 414, 618 N.Y.S.2d 420 [1994];  Matter of DeMartino v. Meehan, 149 A.D.2d 703, 704-705, 540 N.Y.S.2d 500 [1989] ).   The fact that the second hearing officer erroneously believed that he was to make a redetermination as to the charges is immaterial.

NYC Department of Education and Retaliation: The Case of Francesco Portelos

Why the Case of Francesco Portelos is Important to NYC Teachers

Below is a post from Francesco on how his principal, Linda Hill, violated the Chancellor's Regulations on the writing and submission of the PS 49Comprehensive Education Plan.

The details and the retaliation against Francesco Portelos is exactly what happened to me and countless other parents, teachers, and members of School Leadership Teams throughout New York City over the past 12 years.

I, too, detailed my story about exposing the theft at Booker T. Washington MS 54 at 108th and Columbus Avenue in Manhattan (the post is dated 2004). I was PTA President and on the SLT in 2000-2001, 2001-2002 school years. Larry Lynch was principal. I had just entered the public school system in 1996 with my oldest daughter when I was asked to run for PTA President and won the position in May, 1998. I understood that I would be on the new entity called "School Leadership Team", and like most parents elected to a position of leadership, I studied the law, rules, and regulations under which we, the SLT were to perform our duties. One of the most important was to write the CEP, which was a detailed account of the money spent at the school. Almost immediately I realized that the principal of MS 54 at the time, Larry Lynch,would not give us any facts about the special needs kids.

I nicely brought this up at meetings, and told everyone that I would discuss with Larry about this and about how we must have this data before we handed in our CEP to the District 3 office, under the supervision of Superintendent Patricia Romandetto and her lackey and enabler, DJ Sheppard. A parent involved at the school for a long time told me, "You better not say anything, you will be retaliated against". I did not believe her.

When it came time to submit the CEP and we still had no data for the special needs kids, and several other items, in 2001, Larry told us that we should just hand it in without signing the signature page. I told him that this was not ok, as we did not have the data. I wouldn't sign as PTA President. Then, about a week later at the beginning of March 2001, I got a call from a source within the District 3 office, and this person told me that Larry had submitted the CEP. I went over to the District 3 office and was handed a copy of the CEP he had handed in. He had filled in missing data with numbers that I and the rest of the SLT had never seen, and which I knew not to be true, like the number of students in special education, the number of providers in the building on what days, etc. Also, he stapled to the front the signature page of everyone copied from the previous year, with the date whited out.

The next year Pat Romandetto, DJ Sheppard, and their allies at MS 54 (white parents) voted to remove me as PTA President, and I started my My oldest daughter, at Stuyvesant with an IEP, had her IEP ripped up, the AP Jay Biegelson put his name on the attendance sheet as her father so that I would never know what happened, and my daughter was told that her mom could not be found. I was the Editor of the PA Bulletin at Stuyvesant, and in the school every day. All four of my daughters were attacked by the DOE and parent/district personnel/administrators who the DOE "convinces" they must be allies in order to attack whistleblowers. Secrecy is the number 1 priority.

Betsy Combier

Friday the 13th – Exactly Two Years Since I First Raised Issues at SLT
by Francesco Portelos on December 13, 2013 in Uncategorized

It was December 13, 2011. A group of adults had pushed several student’s desks together and sat around them in room 129 of Berta Dreyfus Intermediate School 49. The group was comprised of teachers and parents and they were there for only two reasons – 1) To set the goals of the school by writing the Comprehensive Education Plan (CEP) 2) To align the goals with the school’s budget. According to Chancellor’s Regs A-655, that was it. They were paid to meet after school, on a monthly basis, and do that job.

The problem was…they weren’t. It was December and since September, there were no discussions or review of the CEP or $7.7 million budget. So at one point, after SLT Chairperson Susanne Abramowitz finished her agenda items, I interject and raise my right hand, like a student, while my left was still on the iPad where I was typing the minutes below. “Hey, are we going to go over the CEP or the budget at all?” I asked. What happened next was a bit unexpected to me, the newcomer on the team. The parents, UFT Chapter Leader Richard Candia and parent coordinator, all people who have been on the team for awhile, started voicing their opinions as well. It was almost as if there was a balloon that was inflating and inflating for some time, and I just popped it. “Yeah, why aren’t we looking at that? Shouldn’t it be out on the table at every meeting?” A parent to my left asked. A teacher on the team started discussing the budget and saying I think it’s online. I searched and found it and placed it in the meeting minutes below.

Excerpt of Dece. 13, 2011 SLT Minutes
December 13, 2011


I. Welcome and Sign in

II. Reading November minutes

III. Old Business -

Meeting dates for 2012

January 10

February 7

March 13

April 3

May 8

June – time and place TBA

Senior Rings

Senior Pictures and 6th & 7th grade pictures

Quality Review- December 13-14

Toy drive – continues through 12/16

IV. New Business

CEP – SLT members feel that we speak about calendar events more than we do about the CEP. Our sole goal is to discuss the CEP as per chancellor regulations.

Members feel that we not only need to but have to take a more active role in the budget as well.

You can kind of see where I was hearing about Toy Drives, Senior Pictures, Senior Rings and then had enough and raised this concern. It’s basically stated right there in the minutes in order.

There was one person that was a unusually quiet. That was SLT Chairperson Susanne Abramowitz. She was hearing what was going on and knew this was on her. She is the chairperson after all and has the job of writing the agenda and running the meetings. “Well, we can ask Ms. Hill about it.” she throws in to the discussion.

Principal Hill was across the hall in her office. She was with the State Quality Review person that just evaluated the school earlier that day. Almost on Que, Principal Hill walks in a few minutes later. It was our holiday meeting and some of us had gotten up to grab some empanadas a parent brought in.

I remember I was by the window eating and facing the tables. Principal Hill was looking down at her food, eating, when Susanne Abramowitz nervously stated “We were discussing the CEP and budget and–” “CEP?” Principal Hill interjected, still chewing, and not looking up. She waves one hand and says “That was due December 1st. I already submitted it.”

Well at that point you could cut the tension with a knife in there. I remember scanning the room and seeing the popped balloon, now deflated. I remember parent Jensen rolling her eyes. PTA President Peterkin also gave a look of disappointment. There was a general feeling of “We were close. We were close in doing the right thing.” The final kick came from SLT Chairperson Abramowitz who quickly, and with a sigh of relief, said “Oh ok…we’ll just work on next year’s now.”

I don’t think so. I had a 6 month old son, zoned for IS 49, living 1.5 miles away. I didn’t join the SLT and recently become UFT Delegate just for the title. I set out to make my community better for the students and my own son. I too shook my head and went to sit down and continued typing minutes. However, I open up the iPad’s browser and started searching for SLT and CEP. I came across James Calantjis’ website

So I don’t repeat two years worth of unbelievable saga and retaliation, you can read what happened next here:

However, you should be interested to hear this that I have not share yet. As I continued to question the issue of the CEP and the violation to not only the chancellor’s regs, but NYS Ed Law 2590-h as well, the principal, SLT chairperson, and even former Superintendent Erminia Claudio stated “Oh …that CEP submitted on December 1st was just a draft. The SLT continued to work on it for the next few months. They signed and submitted it in April 2012.” That was the story they tried to play out to cover themselves. They continue with that false narrative to this very day.

It’s partially true. We did continue to work on it. If you read January, February and March’s SLT meeting minutes, there is discussion about editing and adding goals. However, that was just a waste of the parent’s time and to appease any one who questioned it. Susanne Abramowitz and Principal Hill literally had us sit for hours discussing items that were never, ever, going to be added. The reason they weren’t going to be added? The final copy, written by Principal Hill and the Children First Network was submitted on December 1, 2011.

Don’t take my word for it. See here:

1. Go to the official NYC DOE website for IS 49.

2. Click on Statistics and Budget on the left side bar

3. Scroll down to Comprehensive Educational Plan 2011-2012

4. Download it by clicking it and clicking save or just right clicking and clicking save.

5. Open it. Search for the key terms we allegedly wanted added during the February 7, 2012 meeting CEP Review- We will add to the CEP the new programs at Dreyfus. They include: 49 Strong, Kids Connect, Love the Skin U R In (St. John’s students), Transitional Coaches, Children’s Aid Society, and the Jewish Board (a bilingual program).

I’ll save you some time. Those programs are not in there. Why? Maybe because the final version was submitted on…December 1, 2011.

Wait… there is more!

Since you have the file open. Click File and then Properties. Look at the date this official document was created and last modified. I’ll save you some time…

Official 2011-2012 CEP

Pretty interesting, right? For months we were given the impression that we were working on something and it was nothing, but a waste of time and cover up. Dirty and corrupt cover up.

Perhaps that is the reason they kept trying to shut me up when I wanted to add a fourth goal to the CEP. Can’t add anything. It’s already been submitted. They didn’t say that though. Instead Principal Hill barked at me “WHAT’S YOUR POINT MR. PORTELOS?”

Wait…there is more!

It actually gets worse…if you can believe that. Each CEP has a signature page and every member from the SLT has to sign to show they were involved. State Law. Sometime in late December 2011 or early January of 2012, I was on line to sign out and leave school at dismissal. I was next to another teacher and SLT member. Principal Hill stops us and asks “Can you two please sign this?” It looked like the signature page (page 2 of CEP). “What is it?” I asked skeptically. I noticed UFT Chapter Leader Richard Candia and Susanne Abramowitz already signed it. ”It’s just a form to say we discussed something about a computer program.” she responded. Back then I trusted the two and we both signed as well and that was that.

But where is the official signature page? I never signed one. I even FOILed it and simply requested just that page that is supposed to be readily available at the principal’s office. The response from the principal’s attorney, Marisol Vazquez esq., was “A diligent search has been conducted for the records you seek. I have been informed that no records have been located. As such, our response to your FOIL request is concluded.”

I appealed that FOIL response to DOE’s General Counsel Courtenaye Jackson-Chase and her response was basically “We can’t provide what can’t be found.”

“But Mr. Portelos, did you reach out to the CEC, FACE or NYS to get assistance?” Yes. It’s exactly two years later. Nothing from CEC President Sam Pirozollo. Nothing from our SLT liason Mike Riley. Nothing from FACE Director Jesse Mojica. Nothing from FACE’s Cluster 2 liaison Pedro Rivera. Who I would like to add sent this email out after I asked for help again.


From: Rivera Pedro

Sent: Monday, January 14, 2013 04:56 PM

To: Mckeon Jean CFN 211

Subject: PS 49 SLT

Heads up!

The SLT members of PS 49 (the UFT) will be expecting to see the SLT view of their budget at tomorrow’s meeting.

Can you please remind the school to use this at tomorrow’s meeting. FYI Portelos has been talking again.

Pedro A. Rivera

Division of Family & Community Engagement

Family Engagement Initiatives Director, Cluster 2

Parents & Families

212-374-6854 /718 281-3255

BB 917-603-0865

49-51 Chambers Street, Suite 503

Manhattan, NY 10007

“Schools would have to spend $1,000 more per pupil

to reap the same gains that an involved parent brings”


Is this issue duplicated countless times across the DOE’s 1,800 schools? Yes. Just ask any SLT member. I’ll leave you with that to think about.

I actually have to get ready for my termination hearing now. Today, Friday the 13th is my 13th day of hearings before an arbitrator. She will decide my fate, to an extent, in the upcoming months. My first three witnesses are set to come in today, with several more in the upcoming weeks. It’s open and public. Stop by if you can to see this saga unfold. My hearings alone have cost the taxpayer over $30,000 and that is just since September.

“Mr. Portelos, knowing what you know now, would you still ask that same question if you could go back in time?”