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Wednesday, April 4, 2012

Christine Rubino Wins Her Appeal In New York State Supreme Court

New York State Supreme Court Overturns Arbitrator Randi Lowitt's Decision To Terminate Christine Rubino For Facebook Comments by Betsy Combier
Christine Rubino taught for 15 years and was, according to the Principal of her school, an "excellent" teacher. On June 23, 2010 Christine posted on her Facebook page to her 120 friends early in the morning that she felt terrible about a young girl drowning while on a trip with her class the previous day, as reported in the newspapers. Later that afternoon, she posted a comment that her kids were the "devil's spawn", which she took offline a few days later, not thinking that anyone outside of her friends had seen it, and knowing that she did not treat her students abusively and that her comment was not reflective of her work, herself, or her feelings about her students. A single arbitrator, Randi Lowitt, terminated Ms. Rubino under what seems to be a "zero tolerance" mandate in NYC. On February 1, 2012 New York State Supreme Court Judge Barbara Jaffe vacated the termination pursuant to an Article 7511 appeal. 

   Christine Rubino   
Christine Rubino taught for 15 years and was, according to the Principal of her school, an "excellent" teacher. On June 23, 2010 Christine posted on her Facebook page to her 120 friends early in the morning that she felt terrible about a young girl drowning while on a trip with her class the previous day, as reported in the newspapers. Later that afternoon, she posted a comment that her kids were the "devil's spawn", which she took down a few days later, not thinking that anyone outside of her small circle of adult friends had seen it, and knowing that she did not treat her students abusively and that her comment was not reflective of her work, herself, or her feelings about her students. 

A single arbitrator on the UFT-NYCDOE 3020-a Arbitration Panel, Randi Lowitt, terminated Ms. Rubino under what seems to be a "zero tolerance" mandate in NYC for tenured teachers, no matter how well or badly the tenured employee does in any classroom. Am I saying that arbitrators in NYC on the 3020-a panel chosen by, supposedly, NYSUT, the UFT and the DOE, are not "neutral" as required by statute and the rules of the American Arbitration Association?

Yes, I am.

I am not an Attorney and I do not, therefore give "legal" advice, so my opinion is just that, my opinion, and nothing more than that, except I have sat in on 3020-a hearings for nine (9) years, taking notes as a journalist/reporter. My goal is to write a book on whether or not the due process rights of the NYC tenured employees charged and brought to 3020-a were honored and preserved. I attended every hearing date for Christine, at her request as well as at the request of her 3020-a Attorney, Mr. Brian Glass, who asked for my help and assistance. In 2004 I wrote an article for my website on how no one, not parents, not students, and not teachers, had any rights in NYC public schools anymore ("
Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man") where I posted links to the policy statement of Mike Bloomberg on why he removed the vote from public school constituents and anyone else. I followed this with the articles about how the NYC Department of Education set up tenured teachers to lose their jobs at Section 3020-a arbitration hearings, the "employee trials" in NYC. Another post that is relevant to my argument is the video of Dennis Walcott, the "pretend" Chancellor, wherein he states that "Just Cause" must be dropped as a standard of review at arbitration....he wants to get rid of everyone who is charged with anything, quickly.

During the hearing Christine spoke to a reporter at the New York Post, Susan Edelman, about her case, and Christine wanted Sue to attend. So, Ms. Edelman came to the hearing as a member of the public to observe. The hearing was "open and public", as the UFT contract states is a right teachers have. I'm in favor of this practice, due to the fact that if people are exposed to the light, those who deliberately harm other people run for cover. I believe that a "good" hearing (where all relevant evidence is presented, there is proper notice, a thorough and fair investigation, and all contractual rights are honored) - is worth observing, and an Attorney and arbitrator do a better job if someone not under his or her direct control is watching.

I have spoken with many arbitrators in New York City on the UFT-DOE panel about this issue, and the "good" arbitrators always support an open and public hearing. Two arbitrators (maybe more) have specifically asked for me to attend their 3020-a hearings, or wondered aloud if a Respondent could ask me to be there. They both know that I value their respect for procedural and substantive due process, even when an employee is terminated, if warranted by a preponderance of the evidence. The NYC DOE has the burden of proof at 3020-a.

I was shocked to see Arbitrator Randi Lowitt attack Sue Edelman at the hearing. She seemed genuinely angry that Sue was there. From that day forward NYSUT Attorneys have told their clients not to have an open and public hearing because "Betsy Combier" and "reporters" may come and you, Mr. or Ms. employee will be terminated because of that.

Baloney. What NYSUT does not want outside eyes to see are the deals and frame-ups that occur at 3020-a. If you want to get rid of your NYSUT Attorney, just suggest or demand an open and public hearing. Some NYSUT Attorneys (yes, I know who you are) will remove him or herself from the case, and you will get another Attorney). Remember what happens to cockroaches when you turn on the kitchen light? Also remember that over the past 9 years I have seen great work by NYSUT Attorneys as well. So dont think for a minute that I have dumped all NYSUT Attorneys into any garbage can. Every case is unique and different, and involves an array of circumstances that should be carefully examined. That's what I do. 

Theresa Europe

 Back to the 3020-a arbitration hearing of Christine Rubino: the after Sue Edelman came to the hearing, Gotcha Squad member Theresa Europe started attending on a daily basis. The only explanation that Christine and I could think of for this participation by Ms. europe was that Christine's case was already decided, a 'done deal' by the DOE, and Lowitt wanted no media eyes on her actions. When we received Lowitt's decision to terminate Christine we thought that this was further proof of deliberate harm being done to Christine. This is very strange, because Joel klein evidently hired Steve Brill to write the article on the Rubber Room for The New Yorker Magazine after he came to the hearing of LM, told the arbitrator (Jay Siegel) to call him, and left after 5 minutes. No one at the DOE had a problem with that. He labelled LM one of the "worst" teachers in NYC because that was what he was paid to do, unsubstantiated by the evidence. Jay Siegel ran the hearing as if he was paid to terminate, which was, indeed, the outcome, and the NYSUT Attorney told me and LM that Siegel's decision was "political".

This part of the story about Christine Rubino has already been done on this website and on my blog, NYC Rubber Room Reporter. See, 
The True Story of Teacher Christine Rubino And Her Prosecution By The New York City Department of Education

We did not know at that time that David Senatore would be in trouble soon.

I recently became aware of the approximately 3 years of complaints that parents and staff had made against teacher David Senatore, the teacher who was a "friend" on Christine Rubino's Facebook page and who printed out her comments which got her charged and gave them to the principal. I made some calls after receiving the news that Mr. Senatore was removed from PS 203 on March 14, 2012, after a complaint was made against him by a child who knew he was taking boys home with him in his car after school and after the afterschool program, OST. Then Principal Lisa Esposito was absent for several days, and no one said where she was.

This begs the question, did Senatore's removal and current investigation have anything to do with Christine's removal from her teaching position? Was this the reason why David Senatore gave Principal Esposito Christine's Facebook comments, and Esposito did nothing about the comments until the end of November 2010 when "legal" told her to go after termination for Christine? Did the Principal and "legal" know that the staff at 203 were talking about the complaints against Senatore, and "they" wanted to scare the staff into silence?

What we do know is that NYSUT and the DOE "allow" only the alleged incident to be explored at 3020-a in cases of misconduct (incompetency cases in front of the Teacher Performance Unit or TPU are very different) and Christine was not permitted to put into the record any evidence of Senatore's motives for giving the Facebook comments by Christine to Principal Esposito. Esposito probably was reprimanded by "legal" for putting into the record the fact that she didnt want to terminate Christine, "legal" was forcing her to go for this remedy.

My conclusion about all that I have observed and worked with at 3020-a is that the procedural and substantive rights are randomly, arbitrarily, and capriciously allocated according to the political need as relayed by the Attorneys and parties -UFT, NYSUT, DOE- involved to terminate/suspend/settle/exonerate the employee charged.

In light of my continued research into this case and the issues involved of freedom of speech rights for employees, I signed up to be a participant at an American Arbitration Association seminar called "Get the Cure: Remedy in Labor Arbitration" given at the AAA on March 26, 2012, with Randi Lowitt as moderator of the 3-person panel. When the discussion got to how a proper remedy reflects the contractual rules and regulations, I asked, "What happens if there are no contractual guidelines, as in the DOE And UFT contracts and regulations that have no internet policy in them, nor what to do if a teacher posts an improper comment on Facebook?" The question was handed over to Randi, who I could tell was furious. She answered with, an arbitrator must consider all the circumstances and evidence that would point to a proper remedy "as if" there was a clause detailing Facebook posting guidelines. Another panelist jumped in at that point and said that it basically boiled down to a careful look at "Just Cause."

In my view, Randi Lowitt certainly did not answer my question in accordance with the remedy she gave to Christine's 3020-a. I will continue to believe that she was influenced by the Gotcha Squad and the Department wanting to make an example of Christine Rubino without the seven tests of "Just cause", and no examination of First Amendment rights.

Christine appealed to the New York State Supreme Court, where Judge Barbara Jaffe vacated the termination pursuant to the Article 7511 appeal.

Judge Jaffe concluded that the decision to terminate in the Rubino case was not justified, and remanded the case back to the Department of Education for a lesser, more fair penalty. Immediately, the Corporation Counsel filed a Notice of Appeal which put a stay on the Jaffe decision. This stay would prevent Christine from going back on salary for at least another 10-11 months, a true hardship. So, Attorney Glass requested an expedited Appeal and a lifting of the stay on Jaffe's decision by the DOE. On March 27, 2012, the Appellate Division First Department granted the vacatur of the statutory stay, but not the expedited appeal.

Christine Rubino goes back on salary at the NYC Department of Education.

Grade school teacher’s aide fired for refusing to hand over Facebook password
By Tecca | Today in Tech 

Kimberly Hester, a grade school teacher's aide in Michigan, was fired for refusing to hand over her Facebook password to her supervisors. Hester posted a picture of a co-workers' shoes and pants bunched around her ankles on Facebook in April 2011 with the caption, "Thinking of you." She posted the picture in jest, but a parent who's on her Facebook friend list saw the image and reported it to Frank Squires Elementary where Hester was employed, prompting the investigation.

Teachers have gotten in trouble for Facebook status messages before, but in Hester's case, it's her refusal to hand over her password that actually got her fired. One of the supervisors from the Lewis Cass Intermediate School District (ISD), the regional service center for education in Michigan, even wrote her a letter when she refused to give them her password for the third time. Part of the letter read: "... in the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly." Lewis Cass wanted to put Hester on a paid administrative leave before they fired her, but she chose to go on an unpaid leave because she believes she did nothing wrong. She plans to use the letter she received to sue the school district.

An increasing number of companies and schools have started asking employees and students for their Facebook passwords. The practice has been growing at such an alarming rate, that Facebook released its official stance on the issue, telling its users that they have the right not to comply with their employers' request. Several politicians including Michigan's own State Representatives Aric Nesbitt and Matt Lori have been pushing for bills that will make the breach of privacy an illegal practice. Unfortunately, it hasn't been going very well for them — the House of Representatives recently rejected a legislation that would protect your passwords from employers' prying eyes.

This article was written by Mariella Moon and originally appeared on Tecca

Could employers begin asking for Facebook passwords on applications?
Job seekers asked to throw their privacy out the window

by Mike Wehner, November 30, 2011

Teacher Trouble: Facebook posts get educators in hot water
More and more teachers could lose their jobs for posting controversial status updates on Facebook

by Mariella Moon

Union Sues City Education Department to Obtain E-mails

What law gives the NYC Department of Education the right to put off answering Freedom of Information requests for months, years?


April 3, 2012, 5:47 p.m.
The United Federation of Teachers filed suit in state Supreme Court on Tuesday to force the Department of Education to hand over copies of official e-mails that it has been requesting since May 2010.
The union wants to see e-mails between various city officials and education groups regarding proposals to phase-out failing schools and to open new charter schools. The suit accuses the city of violating the state’s Freedom of Information Law by repeatedly saying it needs more time, calling that a “constructive denial” of the requests for information.
The union’s president, Michael Mulgrew, issued a statement noting that Mayor Michael R. Bloomberg “rushed” at the chance to release teacher ratings to the media with the names of individual teachers.
“His lawyers in that case claimed that the people’s right to know is ‘basic to our society,’” Mr. Mulgrew said. “But when it comes to a simple request about City Hall’s correspondence with charter school proponents, it’s delay after delay after delay. You’d think City Hall had something to hide.”
A spokeswoman for the city’s Law Department said the agency had not yet been served with any papers, and therefore couldn’t comment on the suit.
The union and the N.A.A.C.P. won a lawsuit in 2010 when the city tried to close 19 struggling schools. The city tried again in 2011 andsucceeded in phasing out a total of 22 schools. The union, however, hasnever given up that battle.
According to court papers in the lawsuit over the e-mails, the union sent a request to the city on May 28, 2010, seeking copies of e-mails between and among Department of Education higher-ups, including then-Chancellor Joel I. Klein, several deputy chancellors, Deputy Mayor Howard Wolfson, the C.E.O. of the New York City Charter School Center, the leadership of Democrats for Education Reform, and political consultant Bradley Tusk.
In its response a month later, the Education Department argued that the request was not “reasonably described” with sufficient details to locate and identify the records the union wanted. The city then continued to report back each month that it needed more time to deal with the “expansive nature” of the union’s requests.
In a letter on March 22, the Education Department’s general counsel, Michael Best, told the union that a search of Mr. Klein’s and Deputy Chancellor Kathleen Grimm’s e-mails alone “has resulted in approximately 10,000 potentially responsive e-mails.”
Beth Fertig is a senior reporter at WNYC. Follow her on Twitter @bethfertig