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Showing posts with label Office of Personnel Investigations (OPI). Show all posts
Showing posts with label Office of Personnel Investigations (OPI). Show all posts

Sunday, February 12, 2023

The Problem Code, Fingerprints, The FBI, and the COVID Mandate


In June 2022 I was asked by the attorneys in the Kane-Keil case to submit a Declaration Betsy Combier declaration on the “Problem Code” (“PR” code, “No Hire-Inquiry” code, PNOB, or Personnel Not On Budget) and I agreed to do that. Tagged on to my Declaration is an email from DOE employee Eric Amato, dated February 9, 2022, sent to Beth Norton at the UFT, saying

“PR code

From: Amato Eric <EAmato4@schools.nyc.gov>
Date: Wed, Feb 9, 2022 at 8:06 AM
Subject: RE: PR code
To:                         Michael Sill <msill@uft.org>
Cc: Beth A. Norton <bnorton@uft.org>, Kking@uft.org <Kking@uft.org>, dcampbell@uft.org <dcampbell@uft.org>

PR = Problem code – Problem code was added to all employees who were placed on 2VM vaccine mandate leave. It was placed there the day you went on the leave. Our central offices placed this code on all employees who went on the leave. It will be removed once you are eligible to return to work.

Thanks,
Eric”

I received this April 28, 2022. 

Interestingly, Mr. Amato left the NYC DOE after this email was sent. Was he fired? We do not know. What we do know is that his information turned the COVID Mandate against NYC DOE employees into a disciplinary action against those who would not, could not, or just did not get vaccinated and gave the NYC DOE an unjust reason to terminate about 1800 people without due process.

History

I uncovered this code when I heard about the "The Monitoring Unit" in 2004, and intrigue always interests me, so I started researching what the heck this was?

I filed a Freedom of Information (FOIL) request for all documents connected with the Monitoring Unit, and the NYC Department of Education FOIL office gave me nothing, saying all of the data was private social security numbers.

I kept looking around, talking to my sources, and found enough information to write my first article about the code, which I posted on my website Parentadvocates.org in about 2007. I updated it in 2019:

The New York City Department of Education's "Problem Code" is an Unlawful Flag on an Employee's Fingerprints
By Betsy Combier, Editor, Parentadvocates.org

In 2018, Attorney Mallory O’Sullivan, then the Deputy Director of the Office of Employee Relations for the Board of Education of the City School District of the City of New York (“BOE”) submitted a REPLY Affirmation in a case with Index No. 514560/18 in which she wrote:

“…I oversee the BOE’s Office of Personnel Investigation (“OPI”), which is responsible for, among other things, screening and conducting background checks for all staff hired to work for the BOE or under a contract held by a BOE contracted Vendor…OPI is responsible for investigating any criminal history, employment history…once the applicant is fingerprinted, the images are sent to the New York State Division of Criminal Justice Services (“DCJS”) and the Federal Bureau of Investigation (“FBI”) to ascertain the results, if any.”

See Mallory-problem code

What has never ceased to amaze me is the way both the NYC DOE and the UFT hide the Problem Code from everyone, deliberately. In April 2022 I was representing an unvaxxed educator at PERB, and brought up the "Problem Code". The ALJ asked the NYSUT Attorney if he had heard of it. I knew the Attorney quite well, and he told the ALJ he knew about it, and "hey Betsy, how are you?" (I got some leverage and points, that was nice). The ALJ then asked the NYC DOE attorney, "Have you ever heard of the Problem code"? The DOE Attorney said,

"Never heard of it".

I then got a letter from the ALJ asking for me to write a Statement about the Problem Code, and file a separate Complaint because it affected all teachers.

I did that (I am not an attorney, but non-attorneys can represent Charging Parties at PERB).

In a second post on Parentadvocates.org, I wrote about the immense secrecy attached to the Code:

In NYC the Absent Teacher Reserve and The Rubber Room Are Both Strategies For Unlawful Denial of Tenure Job Protections

“I studied international secrecy strategies and whistleblower laws while doing graduate study at Johns Hopkins SAIS. Government deceit and keeping secrets are strategies used by governments all the time. (See TRAC at https://trac.syr.edu/foia/ and here: https://trac.syr.edu/ ). I love this description of the coverups of the Julian Assange whistleblower case:

“It remains illegal to classify information “to conceal inefficiency, violations of law, or administrative error; to prevent embarrassment to a person, organization, or agency.” Presumably, that includes war crimes. Yet the secretive among us are classifying fifty million items a year, a perpetual fog machine.” (emphasis added by me)

That’s the DOE, UFT (United Federation of Teachers), and CSA (Council of School Supervisors and Administrators): “perpetual fog machines”. I love that. So appropriate.

See also:

Silencing Opposition: The Manual for Principals and The Monitoring Unit of the NYC DOE

Silencing Opposition: Education Policy Implementation Becomes a Matter of National Security

In August 2022 I was in a PERB status conference in another PERB case, and the ALJ told us that there was a ruling on the Problem Code and she would send it to me.

Here it is:  PERB U-32479 BD

There are several interesting facts about this decision, aside from the fact that the NYC DOE ignores the ruling:

First, the decision in 2022 cited above was the affirmation of the ALJ’s decision to grant an improper practice charge alleging that the Board of Education of the City School District of the City of New York (“District) violated § 209-a.1 (d) of the Public Employees’ Fair Employment Act (Act) by unilaterally placing a “flag” in its computer system next to the names of unit employees “represented by the United Federation of Teachers, Local 2, AFT, AFL-CIO (UFT), who have been the subject of discipline, allegedly causing those employees to be denied opportunities for transfers and permanent assignments.”

The Department had filed exceptions to this decision (54 PERB ¶ 4522 (2021)). In my opinion the exceptions are great examples of the ‘perpetual fog machine’ at work. We all know that if a DOE employee looks for a job while flagged, any principal who wants this person will be blocked by Galaxy from paying this person. Additionally, as the Problem Code flag is not described as the result of any factual evidence, in many cases, the potential employer will be reluctant to hire the flagged individual because they may be afraid the person is guilty of something criminally prosecuted, and should not be working near children. This premise was the original purpose behind the Problem code, but in the implementation of the code on employees’ fingerprints, this power to harm and destroy the lives and careers of wonderful people became the guide, not fairness and due process rights.

Back to the PERB ruling I received in August 2022.

I am astonished at the misinformation in that PERB decision, where the DOE testified, evidently  that a “new” system was put in place on March 15, 2012. In the Decision, we can read

“Katherine Rodi, Director of the District’s Office of Employee Relations, oversees the Disciplinary Support Unit (DSU), which manages the District’s online disciplinary support system. The DSU tracks employee discipline and is responsible for flagging employee names when appropriate. The DSU began flagging employee names in approximately May of 2012.
Rodi testified that the DSU will place a flag next to an employee’s name in the Galaxy system only when two criteria are met. First, a substantiated report of discipline or misconduct must have been issued by one of the District’s three investigatory bodies: the Office of the Special Commissioner of Investigation, the Office of Special Investigations, or the Office of Equal Opportunity. Second, the DSU must have evidence that the employee received a copy of the relevant disciplinary document.

That evidence normally consists of the employee’s signature on the letter to be flagged, or on a mail receipt. If those criteria have been met, the DSU will manually flag the employee’s name in the Galaxy system and will link a copy of the disciplinary document in question to the flag.
Rodi explained the several steps that must occur before a document is issued that can lead to the flagging of the employee’s name in Galaxy. Initially, one of the three investigatory bodies mentioned above must have conducted an investigation that resulted in a report substantiating an allegation of wrongdoing against the employee. Next, the principal must meet with the employee to discuss the report. If the principal issues a disciplinary letter as a result of the meeting, that letter may serve as a basis for a flag. As set forth above, the DSU must also have evidence that the employee received a copy of that letter. Rodi testified that only documents that are in an employee’s personnel file can serve as a basis for flagging an employee’s name. If an employee files a rebuttal to the letter of discipline, the rebuttal letter is also linked to the flag in Galaxy. Disciplinary letters issued by principals due to misconduct that have not been substantiated by an investigatory body, such as a letter admonishing an employee for lateness, may not serve as a basis for flagging an employee’s name and cannot be annexed to a flag.”

The timeline makes no sense. I was helping teachers with the problem code starting in 2007. I know that many employees find out they have a problem code when they leave the Department of Education for one reason or another, and cannot get a job with the Department or any vendor later on, but were not given any information before leaving, nor were they told why their fingerprints were flagged. No one is ever made aware of any of the documents linked to the Code in their EIS Salary History.

I and several of the educators who never were vaccinated asked Beth Norton, General Counsel for the UFT, to help them find out if they are on the problem code and why it was there. When you are terminated you lose access to the EIS system, and you are no longer a Union member, but that’s beside the point. Beth wrote back that the “flag” on a personnel file is not the “problem code”. I disagree.

In my opinion this is false information. I believe that the fingerprint flag is the problem code. I can clearly see the Problem Code at the top of the Salary History of employees who are blocked from getting paid due to the Problem Code or flag. What Ms. Norton said seems to be a semantic difference rather than a substantive difference, but no one will answer that question. I believe this is the perpetual fog machine once again in action. The New York City Department of Education withholds relevant and material information and documents as a standard practice and policy. FOIL requests are not completed for months or years.

My second reservation about the testimony given at PERB that resulted in the ruling in the case PERB U-32479 BD is  on p. 10:

“Amy Arundell, the UFT’s Director of Personnel, testified that she first learned of the flagging system in October 2012 when Mathew Polisheck, a unit member, called her and told her that a principal rescinded his offer of a position and told him that he could not hire him because there was a flag on his file in Galaxy.”

This is false information. In my Declaration submitted in the Kane-Keil case, BETSY COMBIER DECLARATION 6-2-22 on p. 3,  paragraph #10, I write that I worked for the UFT 2007-2010 (I left by choice) and whenever I was called by a UFT member who wanted to know if he or she was on the Problem Code, I would ask them for their file number and walk next door to the office of Amy Arundell, who would look at her computer and in about a minute tell me yes or no to the problem code on the file. She never mentioned “flag” or any other name. After hearing from Amy, I would return to my office and tell the person yes or no. Most certainly, Amy was talking about the Problem Code, and this was way before 2012. Perpetual Fog machine again.

My opinion and conclusions are based on research into cases brought to 3020-a Arbitration or filed in State or Federal Court, and I have almost all the decisions of Arbitrators since 2007. If my client wants to settle a case, we settle only if the problem code is erased from the person’s personnel file.  Sadly, I am often asked to review or Appeal a 3020-a case where the outcome was termination or an unfair fine. I would prefer, in a perfect world, that people understand the twists and turns of defending public employees at 3020-a, and win on the first round. Unfortunately this is not always the case, but it is possible, and I believe that all people harmed by the Department should fight to repair that harm, if personal circumstances allow, such as health and finances.

Betsy Combier, Editor
betsy@advocatz.com

Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials 

**********************************

Published yesterday:

DAILY CALLER

February 11, 2023

Did the FBI collect the fingerprints of unvaccinated NYC teachers?



One year ago, New York City fired over 1,430 city employees who refused to take the COVID vaccine. Several of those workers filed a class action lawsuit against the City. During that lawsuit, the teachers’ attorney introduced a sworn deposition stating that, when teachers refused the vaccination, the city flagged them as “problems” and handed their fingerprints over to both the FBI and the New York criminal justice system.

Michael Kane, the named plaintiff in Kane v. DeBlasio, has written a post revealing how New York City tried to criminalize teachers who refused to comply with the demand that they take injections of an experimental agent that’s now proving to have been extremely dangerous. He explains that, during a hearing on February 8, the attorney defending New York City “stated that educators fired for declining covid vaccination were not removed for misconduct, but rather for not meeting a requirement for employment.”

The plaintiffs’ attorney, John Bursch, countered by pointing to the sworn Declaration of Betsy Combier, attesting to the fact that the City gave the fingerprints of these same teachers to the FBI and New York criminal justice system—an action indicating that the city viewed the teachers as criminal, rather than simply failing to meet a “requirement for employment.” Here’s what Combier, a paralegal specialist who worked for the United Federation of Teachers (“UFT”), stated under oath regarding the city’s actions vis-à-vis the FBI and the New York criminal justice system:

8. I am also very familiar with "problem codes"—the flag the DOE [New York Department of Education] puts in the personnel file of employees to indicate that they should not be hired due to unexplained misconduct of some kind. Employees can be flagged for everything from receiving an unsatisfactory or ineffective rating to engaging in egregious criminal acts.

9. When the DOE puts a problem code in the employee's personnel file, it also places a flag on the employee's fingerprints, which is then sent to the national databases at both the Federal Bureau of Investigation and the State Division of Criminal Justice Services.

12. I know of many former DOE employees who have problem codes in their personnel files because they declined to be vaccinated in violation of the DOE's mandate and were not granted a religious or medical exemption. The DOE places a problem code on the employee's personnel file immediately upon getting information that the employee did not submit proof of vaccination. As soon as the employee gets the vaccination and submits proof, the code is removed from his or her file.

Combier further testifies that schools in New York state that are thinking of hiring those teachers fired for not receiving the vaccinations would check the teachers’ records in a system called Galaxy, which also contained that “problem” designation. Those teachers who were refused new jobs believe that this designation, which carries with it the suspicion of criminal wrongdoing, was the bar to their finding new employment.

I don’t have any grand conclusions to draw about this. It’s sufficient to know that the New York City school system treated teachers who refused a vaccine as criminals, and those same teachers, unbeknownst to them, were suddenly and automatically part of the FBI’s and the New York criminal justice system’s database of people suspected of criminal activity or propensities. Really, do I need to say more?

Report: Fingerprints of unvaccinated NYC teachers sent to FBI

The following is an excerpt from The Defender.

Unvaccinated New York City teachers were reportedly “flagged” and their fingerprints sent to the FBI, according to an affidavit filed in federal court last week.

In the New Yorkers for Religious Liberty Inc. v. The City of New York appeals hearing, challenging the now-rescinded vaccine mandate for city employees, plaintiff’s attorney John Burch said that “flagged” teachers were labeled with “problem codes” that impact their ability to get another job.

The allegations were based on a June 2022 affidavit written by Betsy Combier, president of the due process advocacy group Advocatz, detailing how the New York City Department of Education (DOE) flagged unvaccinated teachers without evidence of misconduct and sent their information, including fingerprints “to the national databases at both the Federal Bureau of Investigation and [New York’s] State Division of Criminal Justice Services.”

Sujata Gibson, an attorney representing the plaintiffs, commented on these revelations to The Defender:

“These are hardworking teachers and educators with excellent employment records who dedicated their lives to teaching in the New York City public schools. It is unacceptable that the DOE would place problem codes on their employment files and flag their fingerprints with the FBI simply because they were not able or willing to get vaccinated.

“This was never about public health. This was about punishing those whose religious and other beliefs don’t line up with corporate interests in an effort to make it impossible to dissent.”

Michael Kane, national grassroots organizer for Children’s Health Defense and founder of Teachers For Choice, reported the “problem codes” on Feb. 9, one day after the hearing in the 2nd U.S. Circuit Court of Appeals.

Unvaccinated teachers denied jobs due to the ‘problem code’

According to Combier’s affidavit, the DOE assigns “problem codes” to the personnel files of employees that “should not be hired due to unexplained misconduct of some kind.”

The affidavit stated:

“When the DOE puts a problem code in the employee’s personnel file, it also places a flag on the employee’s fingerprints, which is then sent to the national databases at both the Federal Bureau of Investigation and the State Division of Criminal Justice Services.

“I have represented more than 15 DOE employees before the DOE’s Office of Personnel Investigation in proceedings in which they requested the removal of their problem codes. The flag has several names such as ‘problem code,’ ‘pr’ code, ‘pc’ code, ‘ineligible,’ and ‘no hire/inquiry’ code; however, all refer to a salary block, whatever title it is given.”

Attorneys for the city did not deny the veracity of this information in court.

[Michael] Kane, wrote, “Attorney Susan Paulson who was defending NYC stated that educators fired for declining Covid vaccination were not removed for misconduct, but rather for not meeting a requirement for employment.”

“If there was no misconduct, why are unvaccinated educators’ fingerprints sent to the FBI?” asked Kane.

Read more at this link.

About Sharyl Attkisson

Emmy-Award Winning Investigative Journalist, New York Times Best Selling Author, Host of Sinclair's Full Measure

Monday, January 28, 2013

NYC Department of Education's Dreaded "Ineligible List"

Joseph McCarthy
 Parentadvocates.org
LINK

We can now swing back to the 1950's when Joseph McCarthy was running a sideshow that forced many people to be condemned, made penniless and destitute, by criminalizing a person who had a connection to Communist thought or politics. Today, the NYC Department of Education places unwanted employees on the "Ineligible Inquiry List" or "No Hire List" which stigmatizes you forever, and before you have been found guilty of anything. Example: the case of Mary Ann Nicole Le Monda.

MARY ANN NICOLE LE MONDA, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL I. KLEIN, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No. 108161/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2010 N.Y. Misc. LEXIS 6496; 2010 NY Slip Op 33612U

December 23, 2010, Decided
January 5, 2011, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: irrevocable, resignation, retirement, causes of action, agency's determination, cognizable, interview, resigned, teacher, arbitrary and capricious, rational basis, factual allegations, presently, teaching, letter dated, corporal punishment, resigning, daughter, tenured

JUDGES: HON. EILEEN A. RAKOWER, J.S.C.

OPINION BY: EILEEN A. RAKOWER

Petitioner Mary Ann Nicole Le Monda ("Petitioner") brings this Petition pursuant to CPLR Article 78 challenging the February 19, 2010 determination of respondent New York City Department of Education ("DOE"), which denied Petitioner's request to be removed from the DOE's Ineligible Inquiry List.
Petitioner states that she was first employed by DOE in September 1980 as "a teacher of speech and hearing handicapped," and served satisfactorily in that position for 16 years. On or around September 15, 1999, she "voluntarily resigned from her employment, for personal reasons." Petitioner further avers that, although she had been reassigned from her duties pending an investigation at the time of her resignation, "she was not aware of the nature of any allegations against her, no formal disciplinary charges were pending against her, and Petitioner understood that she was not irrevocably resigning but rather was resigning with the opportunity to be eligible for employment with DOE in the future."

Petitioner states that she subsequently made inquiries about returning to teach with DOE, and received a commitment to be hired for a position with DOE in September of 2009. However, shortly after beginning in her new position, Petitioner was informed by letter dated October 12, 2009 by DOE's Office of Personnel Investigation ("OPI") that DOE was unable to process her application because she appears on the DOE's invalid list. The letter further advised that Petitioner was placed on the DOE's Ineligible List on January 4, 2001 "for Corporal Punishment," and that she must be removed from the list before her application can be processed.

By e-mail dated October 14, 2009 OPI provided Petitioner with documents to be completed pursuant to OPI's background investigation, and stated that an interview was scheduled for October 16, 2009. OPI advised Petitioner that she could be accompanied at the interview by a representative of her choice, and that she could provide any written statements or documents which refute or explain the basis of OPI's ineligibility determination.

At her interview, Petitioner submitted a letter to OPI, wherein she explained that, although unaware of what she was being charged with and not guilty of any wrongdoing, she resigned "because she felt uncomfortable and frustrated about being falsely accused and maligned." She further stated that the decision to resign was also motivated by her mother's deteriorating mental health, which further added to her stress. Petitioner also alleged that the "false incident was manufactured" in order give Petitioner's teaching position to the daughter of a close friend of the Special Education Supervisor. Petitioner also submitted support letters from Frank Uzzo, Principal of the school where Petitioner worked (Assistant Principal while Petitioner was there); and Elizabeth J. Sheahan, retired Supervisor of Speech. Mr. Uzzo stated that he was able to observe Petitioner during the 1997-1998 academic year, and noted Petitioner's professionalism. Ms. Sheahan stated that in the 22 years that she has known Petitioner, Petitioner has shown herself to be an excellent teacher who possesses good moral character. Ms. Sheahan further stated that Petitioner's termination was a "gross miscarriage of justice," and that Petitioner was "pushed out" of her tenured position "in order to make room for the newly licensed daughter ... of the Special Education Supervisor's best friend!!!"

Petitioner states that in December 2009, her attorney was advised by counsel for DOE that Petitioner should not have any problem being reinstated for eligibility with DOE.

However, by letter dated February 19, 2010, DOE denied Petitioner's application. DOE explained the basis for its decision as follows:
Your application is denied due to the underlying facts and circumstances to an irrevocable retirement agreement outlined in the Pre-Charge Stipulation of Settlement from the Office of Legal Services (OLS). In summary the facts include a serious corporal punishment allegation against you while you were a tenured teacher at MS 180X. At the time of your separation from service in 1999, you resigned your position before the Pre-Charge Stipulation of Settlement could be executed. Thus you chose to avoid either a hearing or resolving the facts surrounding those allegations and your retirement was deemed irrevocable. As a result you are not permitted to return to the DOE.

Petitioner subsequently commenced this Article 78 proceeding, claiming that DOE's February 19, 2010 decision is arbitrary and capricious.

DOE cross-moves to dismiss the petition pursuant to CPLR §3211(a)(7). DOE asserts that its decision was rationally based and therefore must be upheld.

It is well settled that the "judicial review of an administrative determination is confined to the 'facts and record adduced before the agency'." (Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 740 N.E.2d 224, 717 N.Y.S.2d 79 (2000), quoting Matter of Fanelli v. New York City Conciliation & Appeals Board, 90 A.D.2d 756, 455 N.Y.S.2d 814 (1st Dept. 1982). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. (Matter of Clancy -Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635, 636, 469 N.Y.S.2d 391 (1st Dept. 1983)). Once the court finds a rational basis exists for the agency's determination, its review is ended. (Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 N.Y. 2d 269, 277-278, 283 N.E.2d 603, 332 N.Y.S.2d 622 (1972)). The court may only declare an agency's determination "arbitrary and capricious" if it finds that there is no rational basis for the determination. (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231, 313 N.E.2d 321, 356 N.Y.S.2d 833 1974).

CPLR §3211 states, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(7) the pleading fails to state a cause of action

The court, on a motion to dismiss an action pursuant to CPLR 3211(a)(7), must accept the factual allegations of the pleading as true, accord the plaintiff all favorable inferences which may be drawn therefrom, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 1994). The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 372 N.E.2d 17, 401 N.Y.S.2d 182(1977)).

Here, DOE has failed to demonstrate its entitlement to dismissal pursuant to CPLR §3211. There is nothing in the record presently before the Court that would permit it to conclude, as a matter of law, that Petitioner effected an irrevocable resignation from her teaching position in 1999. Chancellor's Regulation C-205(24) provides that an individual's resignation or retirement is permanent (i.e., irrevocable) where he or she either (1) was dismissed pursuant to Education Law §3020-a; or (2) had charges pending. Neither circumstance exists in the Petition herein. Here, Petitioner was being investigated for alleged misconduct, but no formal charges were pending against her at the time of her resignation. Thus, without any evidence that Petitioner agreed to effect an irrevocable resignation or retirement in the record presently before the Court, Plaintiff has stated a cognizable claim that DOE's outright denial of Petitioner's application based upon an "irrevocable retirement agreement" was improper.
Wherefore it is hereby

ORDERED that DOE's cross-motion to dismiss is denied; and it is further

ORDERED that DOE shall serve its answer upon Petitioner within 30 days of receipt of a copy of this Order with notice of entry thereof; and it is further

ORDERED that reply papers, if any, shall be served by Petitioner within 14 days of service of DOE's answer; and it is further

ORDERED that Petitioner may re-notice this matter in accordance with CPLR §7804(f), returnable to the Motion Support Office, Room 130, 60 Centre Street.

This constitutes the decision and order of the court. All other relief requested is denied.
Dated: December 23, 2010
/s/ Eileen A. Rakower
EILEEN A. RAKOWER, J.S.C.

From March 25, 2012:

Just Asking: Is Mayor Bloomberg's No Hire List A Return To McCarthyism?



Why does the UFT and NYSUT allow the infamous "No Hire", "Ineligible" or "Inquiry" List to continue?

This list seems to be taken from the 1950's, where Joe McCarthy placed people who were communists, or he thought they were communists.

This is my understanding of the "Ineligible/No Hire List":
Whenever a complaint is lodged against an employee, whether or not it is true or proven, or an employee gets a U rating, this person gets a code number (83?) next to his or her name at the Office of Personnel Investigation (OPI) now under the supervision of Michelle Nacht and "CY" the former principal of the Washington Heights trailers ("rubber room") who now is in charge of the "rubber room" on the 12th floor of 51 Chambers Street.

I have been asking how and why this list exists, for years. Approximately 5.

No one at the DOE, UFT, or NYSUT, have given me a good explanation.

In the case of Philomena Brennan (see interim order below of New York State Supreme Court Judge Alice Schlesinger) Judge Schlesinger ordered Theresa Europe to give her how people get put onto the list and how these individuals get off. Ms. Europe immediately took Ms. Brennan off the list rather than give any information, which made this part of the Article 78 moot.

I think we need answers.

Betsy Combier
betsy.combier@gmail.com

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------)(
In the Matter of the Application of PHILOMENA BRENNAN, Petitioner, Index No. 112977/09 Motion Seq. No. 001 For An Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against-NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

------------------------------------------------------------------------)(
SCHLESINGER, J.:
Before this Court is an Article 78 petition wherein the petitioner Philomena Brennan is asking the Court to grant relief vis-a-vis two issues. One issue has to do with her desire to withdraw her resignation, as a teacher with the New York City Department of Education. The resignation occurred on September 5,2007. The second relief sought is her removal from an Ineligible/lnquiry list where she was placed on February 4,2009.

Some background is necessary. Ms. Brennan was a tenured teacher at that time she was assigned, in 2006 to Frederick Douglas Academy in Brooklyn. At some point, at the end of the school year, she indicates that she was approached by the principal Tamika Matheson who gave her an unsatisfactory rating, the first one she had ever received. Again, according to the petitioner a discussion between the principal and herself was held and pursuant to that discussion, Ms. Brennan decided to formally resign from her teaching position. In the ensuing period she did some substitute teaching. In January of2009, after a discussion with others, she decided to take steps to withdraw her resignation.

Again, according to Ms. Brennan, on January 30,2009 she returned to the Frederick Douglas Academy in order to talk to the principal. She said she saw the principal, was escorted to her office and told to wait a few moments and about ten minutes later she was arrested, handcuffed and charged with the Misdemeanor of Trespass and the Violation of Harassment.

Pursuant to rules, which Ms. Brennan knew, she immediately reported the arrest to the Department. Then, as a result of the arrest, she was placed on an Ineligible/lnquiry list. The presence of one's name on the list makes that person ineligible for rehire or for a teaching assignment. On June 10,2009 all charges were dismissed against Ms. Brennan. Shortly thereafter, either the next day or very soon after, Ms. Brennan made a formal request to have her name taken off this list. At the time she made that request she produced proof that all charges were dismissed. To this day, May 12, 2010, Ms. Brennan still has not been informed of whether or not her request to have her name struck from the list has been decided. On June 21, 2009 and again in January 2010, Ms. Brennan had what could be categorized as a hearing, but in actuality consisted of a short meeting wherein she again presented documentation that the charges against her were dismissed in their entirety.

She has also made attempts to withdraw her resignation. However, with regard to that relief, there is a condition for such withdrawal, the condition being that the teacher in petitioner's status must show the Department that there has been a written request to fill a vacancy by a regional manager of the department. In other words, it is not simply a ministerial act for the Chancellor to permit a resigned teacher to withdraw that resignation. There is a condition, as stated above, that first must be met. But of course, as petitioner argues, it is impossible for Ms. Brennan to meet this condition as long as she remains on the Ineligible list.

The respondent argues that with regard to the petitioner's request to have her name struck from the Ineligible list, that request via her Article 78 Petition is time barred. Counsel urges that the four month statute began running on February 4, 2009, when she was first placed on the list. That would mean that the moment that the charges were dismissed on June 9, she would have been barred from asking to have her name removed from the list. Frankly, this is an argument that makes no sense whatsoever. The petitioner pursuant to the responsibilities of a teacher knew that she had to report an arrest and did so. She was not legally aggrieved by her placement on the list in February because the charges were still pending. The time that she became aggrieved was after the charges were dismissed and after she made a demand to have her name removed from the list. Even then she was not yet aggrieved, because she was never given a decision denying her request to remove her name from the list. Therefore, she was not time barred in June 2009 when she made her first request and even though this Court does not have to reach this issue, she is not even time barred now. And certainly when she brought her petition on September 14, 2009 she was not time barred. (Biondo v. New York State Board of Parole, 60 NY2d 832 (1983)).

With regard to the withdrawal of her resignation, a resolution of that issue must await a determination of the Ineligible list issue. Therefore, the Court is directing the following.
First, the Department of Education is ordered to make a decision with regard to the continuation of Ms. Brennan's name on the Ineligible list within thirty days from today or by June 16, 2010 and notify petitioner promptly of this. The Department has no right to keep Ms. Brennan in a perpetual state of limbo by not making this decision. If the decision is adverse to her, clear reasons must be stated. I am adjourning this matter until July 7,2010 at 2:15 p.m. for further consideration of what relief is sought after a decision has been reached.

This decision constitutes the interim order of this Court
MAY 1 2 2010
J·O
ALICE SCHLESINGER