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Friday, April 24, 2015

Why Do Grievants Lose Their Grievance Hearings? Hearing Officer Marcel Kshensky Explains

Most people who have been through the grievance process at either 49-51 Chambers Street, 6th floor, or at 65 Court Street in the offices of Appeals and Reviews , leave thinking one or the other of the statements below are true:

1. Gosh, my UFT/DC37/CSA Rep. did a great job!! I'm sure that I won!!

2. There is something wrong with this process, the principal/AP/Respondent didn't show up and just spoke by telephone, and I was not allowed to speak/enter documents/have witnesses.

And then, after several weeks or months, you find out you lost.

The grievance procedure is a scam, charade, theatrical performance, etc., played out by all parties excluding you, the grievant, who may be thinking that all due process rights are being honored. Nope, not at all, sorry. The reps and hearing officers know this. But no one challenges the status quo. I want to add that this is in no way an attack on the individuals who hear/represent/testify at these hearings. They do their job. I expose the process they use, and the rules or policies they use to justify their actions.

See Marcel Kshensky, Susan Holtzman, and "Sham Closings"

Here is what the public knows about Hearing Officer Pedro Crespo: 
An Investigation Into Misconduct in Community School District 7

Susan Vairo

In 2013 I was hired as the paralegal at a 3020-a of a UFT Chapter Leader at C.S. 133 who was charged with 3020-a after the principal, Susan Vairo, took all employees off of the ATS and allowed access only after classes were over for the day. A teacher with a full program was given the duty of getting on the ATS for any employee who needed to view the information. This was a severe hardship for everyone. My client, the Respondent, spoke to the Principal as the Chapter Leader, and he questioned this policy. He was retaliated against and charged with 3020-a.

The arbitrator, Roy Watanabe, asked us - the attorney (Fred A.) and paralegal (me) to provide him with a brief on the Chapter Leader's First Amendment rights to speak within the school as the elected Chapter Leader, and we did this. Watanabe did not agree that the CL had any right to question Ms. Vairo, who was removed from the school by Superintendent Gale Reeves

Superintendent Gale Reeves
 and given a desk job at Tweed. The CL was given a fine and made an ATR.

Before the CL was charged with 3020-a, he grieved what the Principal was doing to him as the CL, and was shocked to find that he lost the grievance. He testified that he was not allowed to have any witnesses.

Marcel Kshensky

The DOE Attorney at the 3020-a, Lisa McFadden, (49-51 Chambers Street, Room 604, 212-374-4204)

brought in the Hearing Officer as a rebuttal witness. The Hearing Officer was Marcel Kshensky, a person who, in my opinion, should not be a hearing officer.  Ms. McFadden asked Mr. Kshensky to testify about how the grievance procedure worked.

I uploaded Kshensky's testimony at the CL's 3020-a on January 7, 2013 (I re-formatted the testimony so that it would not be in columns).

His testimony was that he is a consultant for the Office of Labor Relations but he does not work for the Department of Education.

Huh? I really don't get that. So who pays him?

And there are several shocking bits of information in the pages below which Grievants probably don't know.

1. Karen Solimando, Deputy Director of the Office of Labor Relations under David Brodsky, signs the Chancellor's name on all decisions after she writes them. The paperwork for every part of the grievance is done at OLR, and never leaves the building or goes to anyone outside of the Department of Education .In my opinion, this is not fair to the grievant, because Ms. Solimando does not attend the hearings, cannot determine credibility, and has only the scribbled notes of the hearing officer to work with. It seems to me that the decision is made in an arbitrary and capricious manner, without basis in the facts, only the paperwork submitted by the DOE Principal.

And then there is Hearing Officer Pedro Crespo.

Labor Relations

The Office of Labor Relations (OLR) provides daily support and guidance to both school-based and non school-based supervisors citywide concerning all labor relations matters including contract interpretation and employee performance/discipline. OLR advocates on behalf of principals and other DOE supervisors at contract arbitration hearings, as well as administers the Expedited Time and Attendance Process, which is an effective tool for principals to address tenured pedagogues in their schools with problematic time and attendance records.
David Brodsky
2. The Department of Education, Office of Labor Relations, and the UFT all know that the UFT Collective Bargaining Agreement does not allow anyone to grieve a letter to file, yet all of the above parties allow the grievant to go to Step 3(2?) at 49-51 Chambers Street, anyway. What a waste of time and money.

I have spoken to several UFT Reps who are not happy with this grievance procedure, but tell me, "that's the way it is".

Also, there is a limited number of grievances allowed to be heard each school year. I heard that the number is 200. If you are 201, forgetaboutit.

Francesco Portelos has also written about this process, see:

UFT and DOE agree: If it’s not in the contract, you could be made an ATR at anytime. Francesco writes about Marcel Kshensky:

Listen carefully as Marcel Kshensky asks “Where is that written?” in reference to the statement that a teacher cannot be made an ATR based on a 3020-a hearing.  When my rep states it’s “not in the contract,” Marcel responds “Right, but it doesn’t prohibit it.” <——-?

Again, the chancellor’s representative is basically saying if the contract doesn’t say the DOE can’t do something, then therefore it can.

Make sure you catch the so-called "signature" of Carmen Farina on his grievance.

That is not her signature, it's Karen Solimando, writing Carmen Farina's signature.

Betsy Combier 

Carmen Farina

Arbitration Advocacy - Excerpts

Thursday, April 23, 2015

James Calantjis, Proponent of School Leadership Teams and Participatory Democracy, Welcomes Supreme Court Decision That SLTs are Open Meetings

From Jim Calantjis:

This is a great victory and strong decision in keeping SLTs open to the public rather than hid in secrecy. However, just as important, was the statements made by the judge on page 9 of the decision. The judge affirmed that:

     "If it is filling its statutory role, a school's SLT is not  a mere advisor to the principal."

     " The role of an SLT in formulating its school's CEP is one of decision maker."

      "In fulfilling this role, the SLT acts in conjunction with and not subordinate to, the school's principal."

We should be communicating these facts to our SLTs, to embolden them to take back control of the process from the principals.
Dear Ms. Jackson-Chase,
Chief Legal Advisor for DOE)
Courtenaye Jackson-Chase

 It was a great pleasure to see the DOE's efforts to further marginalize School Leadership Teams defeated in today's court decision, Thomas v. DOE. ( 

  It is shameful that parents and teachers had to take the DOE to court to make the NYS Open Meetings Law applicable to SLTs. The legal department of the DOE has consistently tried to limit the powers and responsibilities of SLT's throughout the years, by deliberately misinterpreting State law or not enforcing it. This benign neglect even applied to its Chancellor Regulations (A-655,B-801) concerning the Comprehensive Educational Plan (CEP) and budget responsibilities of SLTs. 

 Under the mission of "principal empowerment", lip service has been given to parental and teacher involvement in school governance, that is required through School Leadership Teams.

  It is important to note the following statements in the court decision, all on page 9:
"The role of an SLT in formulating its school's CEP is one of decision maker"
"In fulfilling this role, the SLT acts in conjunction with and not subordinate to, the school's principal"
"If it is fulfilling its statutory role, a school's SLT is not a mere advisor to the principal"
 School Leadership Teams are barely functioning with little or no training in CEP and budget matters, even though it is required by law. Principals have turned SLT's into  "informational Sessions" rather than shared decision making bodies concerning the development of CEPs as required.The DOE consistently refers to SLTs as advisory bodies.

Public Advocate Letitia James, who assisted Michael Thomas
 While the DOE was successful in taking away shared decision making in the development of the budget, SLTs still have budget responsibilities that are ignored. SLTs are to align the budget with the CEP in an active way as the law intends, not passively approve an alignment by the principal. They are also to advise the principal on all budget spending. This requires budget transparency and not secrecy,so that  SLTs can do their job.
 I realize that the legal department is working on behalf of the Chancellor and DOE leadership,who must accept primary responsibility for these many legal abuses that are intended to disempower SLT's. 

James Calantjis
From Editor/Reporter Betsy Combier:

Carmen Farina made up her own rules for the SLT at PS 6: the group was made of 4 people. Carmen did not like the thought that anyone could challenge her authority as Principal, certainly not when it came to money - use of, secrecy in giving, paying out, etc.
I, a new parent to public schools for my children, reported her in 2001 for this violation of SLT rules, and the DOE reprimanded her:

Then she came after me, but was removed as principal.

Betsy Combier

Wednesday, April 22, 2015

Joe Baranello Says Pay or You Dont Get To Play (F11,129)

NYC DOE Joe Baranello
TO: Courtenaye Jackson-Chase, Esq.
       General Counsel
        FOIL Appeals Officer
       Robert Freeman
       Committee on Open Government

Dear Ms. Jackson-Chase,
Today, I received, once again, an email from your Records Access Officer Joseph Baranello which delays the release of records, digitally stored data, and documents pertinent to your meeting held at your office on February 24, 2015, at 4 PM with NYSUT/DOE attorneys and arbitrators currently working on §3020-a cases in New York City:

Pursuant to the Freedom of Information Law, I am appealing this constructive denial of access by Records Access Officer Joseph A. Baranello, Esq. 
The advisory opinion by Robert J. Freeman which was cited by Mr. Baranello, FOIL-AO-19021, is here:

From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 15, 2013 3:00 PM
Cc:       ''
Subject:           RE: FOIL Request Control No. 1315
Dear :
            I have received your note - - the response to your request by SUNY regarding fees is not, in my view, entirely clear. 
            Section 87(1)(c) of FOIL authorizes an agency to establish a fee based on the actual cost of reproducing records that are maintained electronically.  If it takes 2 hours or more to prepare the records sought, an agency may charge a fee based on the hourly salary of the lowest paid employee able to do so, plus the cost of the storage media.  If it takes less than two hours, the actual cost would involve only the storage media.
            The issue with respect to the response involves the term “prepare.”   We agree that the effort needed to extract records or data involves the preparation of records.  If redaction is accomplished electronically, that, too would likely be found by a court to reflect the preparation of a record.  However, if, for example, records are extracted and exist in paper form, and if redactions are made manually, the process of redacting would not, in our opinion, constitute the preparation of records; the records would already have been prepared, and the agency would redact or delete portions of those records already prepared in order to disclose the remainder.  No fee may be charged in that latter circumstance.
I hope that I have been of assistance.
For comparison purposes, I am in possession of similar FOIL requests made by me that the New York State Education Department, when responding to a request for records which may require a fee, writes:
"SED charges the statutorily permitted fee of $.25 per page for duplication of records requested under FOIL (Public Officers Law §87[1][b][iii]). There is no provision in law or regulation requiring the waiver of this fee. Payment must be made to the NYS Education Department by check or money order. Do not send any payment until you are notified that your request is granted and informed of the charge for your request. If your request is for electronic records and your requested is granted, the records will be provided to you in that format.
If your request is granted one of the following will happen:
1. If your request can be filled immediately, and the total duplication fee is under $25.00, staff will forward the requested records to you with a statement of what you owe for the duplication fee. Or:
2. If the total duplication fee for your request is $25.00 or more (100 pages), you will be advised of the page count and duplication fee owed in advance of duplicating the records. Upon receipt of payment, staff will duplicate and mail the requested records. Or:
3. If it will take time to locate and/or duplicate the records you have requested, you will be given a date by which you will be told the page count and duplication fee for your request."

This seems very reasonable to me, and I am seeking an analogous response from you when you determine this appeal of  the delay and constructive denial of access of the records requested in F11,129.

I obviously know that you called this meeting.  It was held in your offices at Tweed.  I know when it occurred and how the people invited were told about the meeting.

I have sent emails to the FOIL Unit and posted my requests on my blog for a specific and detailed invoice for the records relating to F11,129 be given to me before I commit to paying an amount which may or may not cover all the records from this plenary meeting.

Mr. Baranello is stonewalling me.

I am appealing to you, as the organizer of the plenary meeting on February 24, 2015, and as the Records Appeals Officer, to please detail how much I will be charged, and the number of (1) electronic records and (2) documents this fee includes, so that I may choose to pay all or part of the amount you demand.  My advocacy for teachers who are undergoing, or about to undergo, §3020-a hearings is harmed by this delay. 

Please reply within the ten (10) days required by the Freedom of Information Law. Thank you for your
attention and consideration!
Betsy Combier

 Betsy Combier Asks FOIL Officer Joe BaranelloTo Clarify the Fees of $29.95/hr For F11,129
Betsy Combier Files a Freedom of Information Request to Obtain the Information Given Out At The NYC DOE February 24, 2015 Secret Meeting on 3020-a Hearings
NYC Rubber Room Reporter

Tuesday, April 21, 2015

Joe Baranello and His New Facebook Comment on the City, as Well as His Refusal to Answer Betsy Combier's FOIL Request #11,129

I have a problem with Joseph Baranello, NYC DOE Records Access Officer: he will not give me any records of a secret DOE meeting held on February 24, 2015 at Tweed, 52 Chambers Street, unless I pay someone $29.95/hr. for the storage media and emails connected with this meeting (see my related posts, below). He has never responded to me about how many documents I am supposed to pay for.

Another Request Sent By Betsy Combier Concerning F11,129 For Records of the Mandatory 3020-a Meeting Held on February 24, 2015

Betsy Combier Asks FOIL Officer Joe BaranelloTo Clarify the Fees of $29.95/hr For F11,129

Betsy Combier Files a Freedom of Information Request to Obtain the Information Given Out At The NYC DOE February 24, 2015 Secret Meeting on 3020-a Hearings

 Tomorrow, the date I was to get the response to F11,129, will be the day that I Appeal to Mr. Baranello's Supervisor Courtenaye Jackson-Chase, if I do not get all the documents I requested.

By the way, take a look at Joe Baranello's Facebook page (he works for the City of New York):


NYC Department of Education Attorney Joseph Baranello Uses Facebook To Comment About The "Douchebags" On The L Train

Meanwhile, I found the article on Federal Agencies hiding records requested under FOIA due to alleged budget constraints, interesting.

IRS Ordered to Make Non-Profit Form 990s Available In a Useful Electronic Format


Federal agencies cannot avoid their obligation to disclose public records in modern electronic formats merely by invoking budgetary constraints, a judge has ruled in a rare decision exploring the scope of the Electronic Freedom of Information Act (“E-FOIA”).
United States District Judge William H. Orrick of the Northern District of California ordered on January 29, 2015, that the IRS had to produce a set of records to plaintiff Public.Resource.Org in the machine-readable format that the organization specified in its FOIA request. Public.Resource.Org v. IRS, 2015 WL 393736 (N.D. Cal. 2015). The court rejected the IRS’ argument that complying with the request would be unduly burdensome in light of its limited resources, explaining that the “fact that an agency may be under significant financial distress because it is underfunded does not excuse an agency’s duty to comply with the FOIA.”
The litigation concerns Public.Resource’s request for the electronically filed Form 990s for nine tax-exempt charitable organizations. Form 990s are filed by all non-profit organizations and include information about the finances and activities of nonprofit organizations. The IRS uses the information to enforce the rules governing nonprofits’ tax-free status. There is no dispute that Form 990s are public records already subject to disclosure, but the IRS refused to produce them in a machine-readable format, even where the records were originally e-filed with the agency in that manner. Instead, the IRS has only made the documents available in an image format akin to a low-resolution photograph.
Public.Resource, a nonprofit organization dedicated to improving public access to government records and the law, filed suit under E-FOIA, a 1996 amendment to the Freedom of Information Act which requires federal agencies to provide copies of public records “in any form or format requested… if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B).
Public.Resource argued that the IRS’ production of the records in a non-machine-readable image format frustrated efforts by watchdog groups, journalists, academics, and other government agencies to monitor the IRS’ performance by making it extremely difficult to process and analyze information from Form 990s. It submitted declarations about the public benefit of accessing Form 990s in machine-readable form from experts including its president, Carl Malamud, who has worked to make the IRS Exempt Organizations database more widely accessible while also scrutinizing the IRS’ breaches of taxpayer privacy; the former United States Deputy Chief Technology Officer; the CEO of Charity Navigator; and journalists with the Center for Investigative Reporting and ProPublica, among others. Public.Resource also invoked President Obama’s Executive Order 13642Making Open and Machine Readable the New Default for Government Information which sought to “ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.” 78 Fed. Reg. 28111 (2013).
The IRS moved to dismiss the case at an early stage on the grounds that FOIA did not apply at all because the disclosure of Form 990s is governed by a separate provision of the Internal Revenue Code. Judge Orrick rejected this argument and denied the IRS’ motion to dismiss, holding that FOIA was not superseded, and that given the law’s “pro-disclosure purpose,” it cannot be supplanted by another federal statute absent express language to that effect. Public.Resource.Org v. IRS, — F. Supp. 2d —-, 2014 WL 2810499 (N.D. Cal. 2014).
Following this threshold ruling, the IRS argued that it should not have to produce the records in the desired format because it would be too burdensome. While it did not dispute that it receives and maintains e-filed Form 990s in a machine-readable format, the IRS explained that it has an established process for converting the records into image files for processing, which includes redacting certain information which is exempt from public disclosure. The agency argued that it would have to develop new protocols and train new staff to redact sensitive information from Form 990s in machine-readable format. It estimated that such efforts would cost $6,200 to produce the nine Form 990s at issue in the desired format, although virtually all of its evidence focused on the overall costs of producing all Form 990s in a machine-readable form.
In his January 29 Order, Judge Orrick denied the IRS’ motion for summary judgment and granted Public.Resource’s cross-motion. The judge explained that under E-FOIA, to avoid disclosure in a requested format, the “agency’s evidence of burden… must be not only compelling, but also demonstrate that compliance with a request would imposes a significant burden or interference with the agency’s operation.” As a matter of law, the judge held, the IRS’ evidence failed to meet this burden: “That the IRS will have to develop new protocols and train staff to respond to’s request does not somehow excuse its need to comply with E–FOIA. If that was a valid excuse, anytime there was a request for production in a format that the agency has not accommodated before, the agency could argue undue burden.”
The court also dismissed the IRS’ argument that its existing production process was sufficient because Public.Resource’s format request was “unique.” As the court explained, the “IRS cannot defeat’s request for disclosure of information in the [machine-readable] format by relying on its own prior practices that are inconsistent with the E–FOIA amendments” – particularly because it was likely that the request was unique because the IRS had previously made clear that it would only produce the records in image format.
The court’s ruling was based on the burdens of producing the nine specific Form 990s at issue in the litigation. However, the judge suggested that after incurring these “one-time expenses” to establish the necessary protocols for producing machine-readable records, responding to similar requests in the future would be significantly less costly. The judge ordered the IRS to produce the requested records within 60 days of the order.