Join the GOOGLE +Rubber Room Community

Sunday, July 8, 2012

What is A-421 Chancellor's Regulation "Actual" Acts of Tampering with An Investigation?

The School Construction Authority is, according to informed sources inside of the NYC DOE, the most corrupt agency within the corrupt organization.

The case below, decided in 2011, helps to substantiate this. The School Construction Authority (SCA) was reprimanded by the Appellate Division, First Department, in 2011:

Decided on July 7, 2011
Gonzalez, P.J., Tom, Andrias, Moskowitz, Freedman, JJ. 5055- 13800/07 5056 

[*1]In re Bronx Committee for Toxic Free Schools, et al., Petitioners-Respondents,


New York City School Construction Authority, et al., Respondents-Appellants.

Michael A. Cardozo, Corporation Counsel, New York (Janet L.
Zaleon of counsel), for appellants.
Weil, Gotshal & Manges, LLP, New York (Christopher D.
Barraza and David R. Berz of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 28, 2008, which, to the extent appealed from as limited by the briefs, granted the petition to direct respondent School Construction Authority (SCA) to prepare a supplemental environmental impact statement (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) with respect to long-term maintenance and monitoring of measures for the remediation of contaminated soil and groundwater at the Mott Haven School Campus site, unanimously affirmed, without costs. Order, same court and Justice, entered on or about November 18, 2009, which granted respondents' motion for renewal and reargument and adhered to the original determination, unanimously affirmed, without costs.

Respondents' contentions notwithstanding, the long-term monitoring measures, developed and implemented in their entirety after the final EIS was issued in October 2006, constituted "changes proposed for the project" (6 NYCRR 617.9[a][7][i][a]). Given, among other things, the Department of Environmental Conservation's July 2006 directive to SCA to develop a site management plan, which by definition under the applicable Brownfield Cleanup Program (see ECL tit 14) regulations includes a long-term monitoring plan (see 6 NYCRR 375-1.2[at]; 375-1.6[c][iv]), it is evident that information about long-term monitoring measures was of sufficient "importance and relevance" to warrant the preparation of a supplemental EIS (6 NYCRR § 617.9[a][7][ii][a]).

By failing to make any mention of the need for long-term monitoring in the initial EIS, SCA frustrated the purpose of SEQRA, which is to subject agency actions with environmental impact to public scrutiny (see Environmental Conservation Law § 8-0109; 6 NYCRR 617.1[c]). Indeed, there is no record evidence that SCA took the requisite "hard look" at the issue of long-term maintenance and monitoring of remediation measures until 2008, when it issued its final site management plan (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9
[*2]NY3d 219, 231-232 [2007]). This constitutes a failure of the agency's obligations under SEQRA (see Matter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312 [2005], lv dismissed 7 NY3d 803 [2006]; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342, 349 [1999]).

Nor does the fact that SCA was acting under the Brownfield Cleanup Program (BCP) shield the remediation measures from SEQRA scrutiny. BCP remediation measures that "commit the . . . agency to specific future uses or actions" are subject to SEQRA review (6 NYCRR 375-3.11[b][1][i]). The final site management plan provided that the Mott Haven School Campus site could be used for a school campus only, thus committing SCA to a specific site use. In any event, the BCP remediation measures applied only to the BCP area, whereas most of the site was not subject to the BCP and nonetheless was subject to SEQRA review.

Respondents contend that, because SCA was relying on BCP procedures, it could appropriately defer consideration of long-term monitoring measures until the completion of remediation. As noted, however, SCA's participation in the BCP did not exempt the project's environmental impacts from SEQRA scrutiny, and under SEQRA it was impermissible for SCA to omit a known remediation issue from the EIS with the idea of taking up that issue at a later date (see Penfield, 253 AD2d at 349).

We reject respondents' contention, raised in their motion for renewal and reargument, that SCA's development of the final site management plan (SMP), which entailed circulation of a draft for public comment, obviates any need for a supplemental EIS. The SMP is not a supplemental EIS, and respondents have not established that the development of the SMP followed the procedures for the preparation of a supplemental EIS. Since SEQRA procedures must be strictly complied with (see Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341, 347 [1996]), SCA's issuance of the final SMP did not cure the deficiencies in the final EIS.

The Gotcha Squad is currently charging all tenured teachers brought to §3020-a with "impeding the investigation", and the NYC DOE Attorneys at "legal" are using Chancellor's Regulations A-421 to "prove" interference. Remember, any specification handed to an employee by the Gotcha Squad is automatically a FACT which has to be proven false, rather than the other way around, despite NYC, NYS, and Federal rules, laws and regulations. In June 2009 A-421 was quietly changed so that tenured staff could be charged with "actual" acts of tampering with an investigation.

What does this mean? Im still on the search. I went to federal law, specifically 18  U.S.C. §1503 "unlawful to "influence, obstruct, or impede the due administration of justice" and §1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

Under §1503, a government agent must prove that a defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See United States v Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990).

If you review the Washington Post Special Report: Clinton Accused, Dec. 8, 1998, you will find:

Acting "corruptly": some courts have defined this term as acting with "evil and wicked purposes" see United States v Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v Moon, 718 F2d 1219, 1236 (2d Cir. 1983): United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v Anderson, 798 F.2d 919, 928 (7th Cir, 1986; ) United States v Rasheed, 663 F.2 843, 847 (9th Cir. 1981). Thus it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

Section 1512 specifically applies to "witness tampering": a defendant was proven to have knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. The defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not;
§1512 does not apply to defendants' innocent remarks or other acts unintended to affect the proceeding. See United States v Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Subornation of perjury: 18 U.S.C. §1622: the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. United States v Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is no subornation. 1622 requires that the defendant knows that the testimony of the witness will be perjurious - knowing and wilful procurement of false testimony is a key element of subornation of perjury. See Rosen v NLRB, 735 F.2d 563, 575 n. 19 (D.C. Cir. 1984).
Arbitrators frequently look beneath the surface of an investigation to determine whether the employer made its decision at an earlier stage and then just went through the motions of conducting investigatory interviews and fact-finding. Roxam Graphics, 111 LA 1176, 1185 (Gangle 1998) ("a one-sided investigation, which tends to lead to an overblown assessment of the seriousness of the circumstances and a marshalling of the facts to substantiate a foregone conclusion.that the grievant is guilty as charged, violates the notion of fair play and therefore violated just cause"). When an investigation is found to be inadequate, arbitrators may conclude that the just cause standard has not been met. (Penn Window Co., 120 LA 298, 305 (2004) (no just cause where employer acted without investigation). An inadequate investigation is often considered a denial of due process. See Newspaper Agency Corp., 119LA 926, 934-935 (McCurdy 2004); Chevron-Phillips Chem. Co., 120 LA 1065, 1073 (Neas 2005); Goodyear tire & Rubber Co. 98 LA 941 (Nicholas 1992) (inadequate investigation constituted denial of due process).

However, for now, "actual" tampering means nothing more than whatever the arbitrator thinks it means. This is, in my opinion, a dangerous discretionary power given to a supposedly 'neutral' trier of fact but may not be. So fight for dismissal of this charge using whatever rules, regulations and laws you can use, and expose the DOE and arbitrator for any determination that "actual" tampering occurred, if the arbitrator makes this decision.

And send the decision to me for my research into this area -


Betsy Combier

No comments: