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Monday, January 4, 2021

NYC Department of Education Crashes and Burns With the Case of a Student Given Fake Report Cards But Never Registered

Cobble Hill School of American Studies

The New York City Department of Education has a plethora of employees who are either incompetent, lazy, careless, insensitive, and just plain unaccountable for their actions, or all of these at the same time.

One example relevant to this post is the profile of the Principal of the Cobble Hill School of American Studies:
Principal Mule says her school has the best students in all of NYC, so I am sure that everyone has seen that she names her school "the Cobble Hill School of American Stuies".

Can't the DOE hire her a proofreader? I am a proofreader, and I will do it for $100/minute. 

If the NYC DOE were a private company, they could probably alter enough records to keep the entity afloat, but they are not private. They are a public institution, they get Federal, State, and City funding - taxpayer money  - to waste and squander. The culture that has built up over time is a "Who cares?" attitude for misspent public money, as long as nothing is made public and the plunder remains hidden. 

Lack of accountability and "I don't know about this", "I will call you back (never)", "You should contact Jane DOE, but she's not in right now, so leave a message" (never to be returned) and "This is a mistake" (so don't contact me again) are common coverup words that are used to get rid of pesky people who keep calling to find out why their child is being tortured in his/her class, why a Principal can scream at students and staff, why this or that. See the answers I came up with as "blog Editor" below. Feel free to use them.

The NYC DOE is well known for their efforts to stop, block, challenge or lie about alleged "mistakes", then threatening the person who said there was something wrong from going further.

That's when the media can help. So thank you NY  POST!

The story posted on January 2, 2021, below, has all the elements of fraud and deceit that we have seen over the past 22+ years of advocacy for parents and teachers. Let's take the last part and dissect the absurdity:

Hoa Tu

Hoa Tu is t
he deputy superintendent for Brooklyn North schools. She had a rough start when she founded and became Principal of the Business Technology Early College High School. Perhaps Dr. Tu has a problem with transparency, supervision, or delegation from way back:

Residents say CEC 26 residents left out of application process
A meeting intended to ease local tensions over a controversial co-location in Queens Village’s Martin Van Buren High School on April 24 wound up enraging area residents who supported the new school but then may have had their own children shut out of the enrollment process.

Hoa Tu, who is slated to be principal at the Business Technology Early College High School in September, dropped by the monthly meeting of Community Education Council 26 to introduce herself and to talk about plans for September.

But when talk turned to the enrollment process by which the 108 members of the school’s first freshman class were selected, some residents said their neighborhoods’ children had no opportunity to even apply for the school that will offer a high school diploma and an associate’s degree in some advanced technical fields.

“We supported this school,” said Bob Friedrich, president of the Glen Oaks Village co-op community, indicating himself and representatives of two other civic groups in the room at Little Neck’s MS 67.

“I represent 3,000 families,” Friedrich said. “We weren’t made aware of the process, so our kids couldn’t apply.”

Students, parents and teachers staged protests last year when word of the possible co-location began leaking out.

Not all civic leaders in the area opposed the technical school. Friedrich and other residents who supported it were roundly booed at a public hearing last year when they were called on to speak.

If Tu thought explaining the application process back in March would smooth things over, she was mistaken.

She said first that DOE employees were under instructions not to discuss the school publicly until March 12.

While the school is intended to attract only two students, two education fairs at which the application process was discussed were held on March 18th and 19th.

In Manhattan.

It was not until March 20 that the third and final event was hosted at Queensborough Community College.

Tu said of the 108 students accepted into the first class, 10 are from within CEC 26 boundaries, with the rest from throughout Queens.

“It sounds like our children were ignored,” said CEC Member Susan Shiroma.

“They were ignored,” said Rhonda Kontner, the education committee chairwoman at Community Board 13, who was sitting in the audience a few feet away.

CEC member Anastasio Poltidis had a question of his own when asked about the logic or common sense behind Manhattan-based meetings to publicize a school for Queens students.

“You’re talking about the DOE, right?” he asked.

Friedrich, both last week and at Monday night’s meeting of Community Board 13, wasn’t in a mood to laugh.

“It was an epic failure, beyond belief,” he said on both occasions.

A DOE spokesman did not respond to emails requesting information on the enrollment process and the name of the person who set the meetings in Manhattan.

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

 “It was all a very bad mistake,” Tomasi said Tu told her."

 blog Editor: Yes, it really was a 'bad' mistake. So, now that everyone has recognized this fact, that a "bad mistake" happened, what are the remedies? The family of John Tomasi can, of course, sue the NYC DOE. I believe they could win on fraud, deceit, and the negligent infliction of emotional harm. They may choose not to go this route.

As for the NYC DOE employees, nothing will happen, at least immediately. Part of the hidden agenda of the NYC DOE is never, never admit to doing anything improper or outright illegal. Cover it up, deny it, pin it in a teacher or staff member, but don't admit you did anything. There must be a secret handbook on how to lie when a wrong thing/act/comment is uncovered. I have been fascinated at the lies that people come up with - I mean Superintendents, principals, and other higher-ups, including investigators for OSI, SCI, and OEO - who in any matter may sign off on false reports backed up with pre-dated or post-dated documents. The challenge is to unravel these sometimes cunning deceptions.

Cobble Hill School of American Studies sent fake report cards to John Tomasi.                      
                                                 [photo: Helayne Seidman]

The NYC DOE waits until the media spotlight fizzles, and then fires the employee or gives them a do-nothing title in some office to make sure that they don't speak to the media and give away company secrets.

John and Margaret Tomasi
 “It was all a very bad mistake,” Tomasi said Tu told her."

'her'
is Margaret Tomasi, victim John Tomasi's mother.

Congratulations to Margaret Tomasi for keeping records of her contacts with the NYC DOE when she tried to fix the "bad mistake" but failed, no blame on her for trying. Record-keeping efforts to resolve an issue are the keys to winning any remedies for incidents of wrong-doing.

"The Department of Education said in a statement, “This should not have happened.”

blog Editor: This is the culture speak we hear all the time when a DOE higher-up is revealed as implicit in some way with an incident of misconduct by someone they have a responsibility to monitor. We hear things like "oh, I see that something went wrong. Sorry"...and the episode is left at that. The word sorry is the end of it.

Sorry, NYC DOE, but I don't think so.

"Before reporting a family for suspected child neglect, “DOE staff should first make multiple attempts to contact a family,” officials said."

blog Editor: Ah, this is the truth of the matter. It is indeed unfortunate that the NYC DOE uses the Administration for Children’s Services (ACS) as their weapon of choice when they want to get a parent into line whom they believe is doing something harmful to their child(ren). However within the NYC DOE there are no "investigators" who find the truth, only agents of the Principals who go out and look into parents they are already told are doing something bad. The "investigators" are supposed to substantiate the bad acts.

When teachers are accused of false acts, no one does an in-depth investigation. My question to the Associate General Counsel of the UFT in 2004 was, "Why doesn't the UFT have investigators?" I kept asking over the years, but received no answer except that the Department has investigators and the UFT cannot "interfere".

 Countless times I have received a call from a parent saying ACS showed up at their door, what should they do? Well, don't let them in unless they have reason to interview you. Or, let them in, but get the person's name, job title, and the complaint that they are investigating. It amazes me that anyone can call ACS and make an anonymous complaint about anyone, and start this ball rolling.

PE Teacher George Kaliampos
"The report cards “were issued in error, ” the DOE said, blaming one unidentified person. “A staff member made a mistake when filling out report cards.”

blog Editor: Whaaat? Who filled out the report cards? A staff member? The janitor? A para? A teacher? The lack of accountability is outrageous. 


"The gym teacher, George Kaliampos, gave John the highest mark: “ME,” for “exceeds standards.” 

blog Editor: Who told him to do this? Why would he give a student high grades for 100% absences - what line in the budget is there for "no seat time"?. We the public need to know. I hope they (the higher-ups at the NYC DOE) don't decide to charge you with 3020-a for misconduct, to get them off the hook! George - call me.

"A DOE spokesman did not explain why Chancellor Carranza, Principal Mule, and other Cobble Hill staffers did not respond to Tomasi’s messages."

blog Editor: the poor spokesperson for the DOE has to come up with something rational for this 4-month fiasco. Let's see what that might look like:

"The Department was so worried about COVID-19 infecting their computers that they did not use them in the headquarters (52 Chamber Street, Manhattan) or at Cobble Hill School due to fear of their computers getting the virus and infecting everyone". No computers can be used at the NYC Department of Education headquarters or district offices until everyone who works in any building is vaccinated.

"When the school got the names of students enrolling at the Cobble Hill School of American Studies, the staff was able to input the names of students only up to the letter "S". After that letter, it was just assumed that students were enrolled because no one was showing up anyway and time had to be made for finding a new remotely-taught curriculum for each subject rather finding out who would be in each class."

"The NYC DOE must get funded for students who show up as well as students who never show up. You understand that, right?"

"The Department does not know how this happened. No staff, teachers, or other employees of the Department have entered the school since mid-August, so there must have been a break-in or some kind of take-over by unlicensed hackers."

"A student with the same name registered with the school right before all the telephone numbers in the building were changed at the beginning of September due to fear of a hacker getting students' private information. Nothing, absolutely nothing with the students' or family data was put into the online computers at the NYC DOE or the school, but unfortunately, there was a fire at the school and all records were burned to a crisp.No NYC DOE personnel were harmed, and all the fire alarm equipment at the school have now been updated and turned on. Before September 1 2020 the school did not have any working fire alarms, but now the school is fully stocked."

You get my point.

Betsy Combier


NYC DOE school ordered abuse probe, issued report cards for boy who wasn’t a student there

Susan Edelman, NY POST, January 2, 2021
 
amule@cobblehillhighschool.org

I have joyfully worked for the Department of Education as a teacher, coach, and administrator since 1998. I strongly believe in the power of educating the whole child, helping students uncover their passions, pursue their interests, and unlock their potential. I am passionate about education, history, reading, cooking and art, and being a mom! I am so proud to be the school leader of the Cobble Hill School of American Stuies - in my opinion, the best school with the best students in all of NYC!


The city Department of Education turned John Tomasi into a phantom student — and not only gave him fake report cards but wrongly put his family under investigation for child abuse.

The 14-year-old never enrolled in Cobble Hill School of American Studies in Brooklyn. He never attended a single class, in person or remotely.

Yet this fall, the public school created two report cards for John, both including teacher comments.

His physical-education teacher twice gave John the highest grade: “ME” for “exceeds standards.”

His algebra teacher cited “progress toward … understanding the connection between proportional relationships, lines, and linear equations,” among other skills.

After two months, Cobble Hill put John on a missing-student list. On Nov. 4, the school alerted the city Administration for Children’s Services (ACS), which opened an investigation of  “suspected child abuse or maltreatment,” the agency said in a letter.

“On Nov. 5, I got a knock on my door at 5 p.m. from an ACS worker stating that my son has not been attending Cobble Hill High School,” John’s mom, Margaret Tomasi, told The Post. “It was very traumatizing and shocking.”

That’s because John was earning a spot on the freshman honor roll at Xaverian HS, a private Catholic prep school in Bay Ridge — where he has not missed a day of in-person and online classes since September.

The Tomasi family’s ordeal spotlight’s the DOE’s spotty attendance system during the COVID-19 pandemic, its failure to keep track of students listed in remote or in-person classes, and the practice of keeping “phantom students” on school rosters, which generate taxpayer funds.

The ACS investigator asked John’s parents if they used drugs, were ever arrested, been on welfare, or had a history of domestic violence. The worker asked many personal questions, including what religion they practiced, and looked inside their kitchen cabinets, refrigerator, and freezer to check for sufficient food.

The investigator asked John to lift his shirt, pull up his pant legs, and remove his socks to look for bruises or other injuries.

The next day, a Friday, Margaret Tomasi called Cobble Hill HS to ask why the school never contacted them before alerting ACS.

No one answered the phone.

She then left a series of individual voice messages for Principal Anna Maria Mule, two assistant principals, a guidance counselor and a dean.

“Somebody needs to get in touch with me. There’s a huge mistake with my son,” she said in her messages, noting the ACS visit.

“He’s not enrolled in your school,” she continued. “He attends Xaverian High School. The admissions office can immediately clear this up. Please contact me.”

No one called back, Tomasi said.

The mom also wrote to Principal Mule on Nov. 9 at an email address listed on the school website. “I received a letter from your school in October with a schedule,” she wrote. “I tried to call but could not get anyone on the phone. How did one letter become a child neglect case (and) now an open investigation?”

The email bounced back saying, “There was a problem delivering your message.” She tried again, to no avail.

Meanwhile, ACS contacted Xaverian HS, which confirmed John was attending that school all along. Case closed.

Margaret was ready to forget the whole fiasco until the family received not one but two Cobble Hill report cards for John.

A report card for the first marking period, which arrived in mid-November,  gave John grades of “NX,” which means “incomplete,” or “NL,” which means “recent admit,” in listed classes:  English, Algebra, Principals (sic) of Biomed, Living Environment, Mindfulness and Global Studies.

The algebra teacher cited progress in three areas: “using properties of rational and irrational numbers,” “understanding solving equations as a process of reasoning and explaining the reasoning,” and “solving systems of equations.”

Under the DOE’s 2020-21 grading policy, eased due to the pandemic, students who don’t show up or don’t do work must be graded “NX.” Attendance is not required and failing grades are prohibited.

Had the Tomasi family never objected, John could have passed 9th grade at Cobble Hill.

Cobble Hill gym teacher George Kaliampos gave John the highest mark: “ME,” for “exceeds standards.”

 A report card for the second marking period arrived Dec. 19. The same grades — including “exceeds standards” in phys-ed — were repeated, but with more teacher comments.

His Mindfulness teacher noted, “Frequently does not submit course work.”

The Algebra teacher cited two additional areas of “progress” by John: “understanding the connection between proportional relationships, lines, and linear equations,” and “representing and solving equations and inequalities graphically.”

But she added: “Insufficient work is available to determine the student’s grades despite multiple attempts to contact the student and family.”

That last comment “put me over the edge,” said Margaret Tomasi, who insists the family never got a call from the teacher.

The frustrated mom sent an email on Dec. 21 to Chancellor Richard Carranza with the subject line, “Cobble Hill High School’s Gross Negligence.” She wrote that a phone call could have prevented them from being dragged into the child-welfare system.

She added, “I received a report card from Cobble Hill. In case you were wondering, it said (John) was doing well in gym class. Since then we received yet a second report (card) from Cobble Hill and this one had comments on it. How is this possible?”

A Cobble Hill teacher blamed the school’s “general incompetence and inability to function properly,” saying administrators gave the faculty a bad contact list: “There were countless students with wrong phone numbers.” Administrators also refused to make home visits to look for kids who could not be reached, the teacher told The Post, asking to remain anonymous to avoid retaliation.

As for the report cards, administrators instructed teachers to choose from a list of canned comments. Citing “progress” is a gentle way to indicate failure, the teacher said.

Of John’s high mark in phys-ed, the teacher wasn’t surprised: “Everybody passes that class.”

Investigating the snafu herself, Tomasi learned that John’s 8th-grade teacher at his grammar school, St. Joseph the Worker Catholic Academy in Brooklyn, routinely sends the DOE a list of graduates who might go to public high schools. This is done even for kids planning to go to private schools, as a back-up.

But the St. Joseph teacher later neglected to notify the DOE that John would not attend any public high school, and had accepted a seat at Xaverian.

Cobble Hill HS apparently didn’t get the message that he wasn’t coming.

Tomasi finally reached a staffer in the DOE’s enrollment office who assured her they would remove John from the system.

But when the family received the second Cobble Hill report card — a week after ACS deemed the child-abuse suspicions “unfounded” — she became worried that the case might be reopened.

Tomasi contacted The Post to tell the family’s story in hopes of “closure with Cobble Hill,” and improving the DOE system.

“We don’t want this to happen to anybody else,” she said.

On Thursday, shortly after The Post questioned the DOE, the deputy superintendent for Brooklyn North schools, Hoa Tu, called Tomasi to assure her the case was closed, and to apologize.

“It was all a very bad mistake,” Tomasi said Tu told her.

The Department of Education said in a statement, “This should not have happened.”

Before reporting a family for suspected child neglect, “DOE staff should first make multiple attempts to contact a family,” officials said.

The report cards “were issued in error, ” the DOE said, blaming one unidentified person. “A staff member made a mistake when filling out report cards.”

A DOE spokesman did not explain why Chancellor Carranza, Principal Mule, and other Cobble Hill staffers did not respond to Tomasi’s messages.

Thursday, December 31, 2020

New York Education Hearings Suddenly Are Cancelled Due To Ransomware Attack

Howard Friedman, NYC DOE General Counsel

The New York City Law Department and NYC Department of Education have many hearings going on at any one time: the 100 Gold (3rd floor) Manhattan Office of Legal Affairs (3020-a/3012/Time and Attendance) arbitration, 65 Court Street (Office of Appeals and Reviews, OAR) and 131 Livingston Street (Impartial Hearings) in Brooklyn. All hearings are recorded and the transcripts are given to each party, usually within two weeks of the date the testimony was heard. Ubiqus, a global company located at 61 Broadway in New York City, has been on contract to prepare the transcripts for more than ten years.

At least there were many hearings at any of these offices before they all shut down from March to October 2020 due to the coronavirus. The transcripts are the lifeblood of any hearing. Any party who appeals a decision or sues in State or Federal Court cannot use anything that is not on the record. When the pandemic hit NYC and hearings at 100 Gold Street in Manhattan were put on hold, I was wondering what would be the game plan.

The problem in NYC is that all hearings in 3020-a cases are held on the 3rd floor of 100 Gold, filled with city agencies, with usually long lines waiting to go through the security in the lobby. Also in the lobby are Section 8 tenants or people looking to obtain Section 8 housing. Social distancing would be practically impossible to manage. Also, the hearings all take place on the third floor, where each hearing room is small, with a conference table filling up most of the space. The windows do not open. There is only one room that is large enough to consider placing 4+ people in safely, but the windows do not open there either. 

In October, we heard that Zoom would be the platform used to allow us to do our cases. We resumed two of our current 5 3020-a cases, now heard by an arbitrator via zoom. I have posted the new Memorandum signed by the UFT and the DOE, below. The arbitrators, we were told, went through training with the Department of Education on how to conduct Zoom 3020-a cases, create breakout rooms, and have the hearings taped from start to finish by two Ubiqus transcriptionists, one in New York City, and the other upstate.

We had dates scheduled for witnesses in December, but suddenly all hearings were canceled. Why? Because on December 4, 2020, Ubiqus was hacked, and all their data held as ransomware.

A ransomware attack is a form of malware attack in which an attacker seizes the user’s data, folders, or entire device until a ‘ransom’ fee is paid. Ransomware attack exploits the open security vulnerabilities by infecting a PC or a network with a phishing attack, or malicious websites.

Ubiqus issued a statement on the cybersecurity incident at Ubiqus Group:

December 4th

The Ubiqus Group was hit by a ransomware-type cybersecurity incident in the morning on the 4th December 2020.
As a precautionary measure, we have shut down all our IT systems across all our operating sites.
Ubiqus is in close contact with the competent authorities as well as our clients and partners.
We are working on a technical recovery plan with key IT-partners and cybersecurity specialists.
We continue to assess and manage the situation to minimize the impact on our operations, clients, and partners from the current situation.

Update: December 11th

To ensure secure email exchanges with our clients, we have chosen to use an email service that is hosted on a professional platform with enhanced security measures.
This new inbox has been in operation since Tuesday 8 December 2020. It is secure and nothing has been retained from the previous version.
All emails received from Ubiqus from 8 December 2020 are completely secure: replying to them or opening attached files does not present any risk.

To investigate further, I called the NY State Education Department (NYSED) where I was told that a forensic cyberteam was investigating what happened and by whom, but since the beginning of December, no hearings have been held. This event has affected 3020-a hearings throughout New York State, not just NYC, and is very serious, as the transcripts hold people's lives and careers in their clutches. Transcripts don't clutch, of course, but anyone that speaks into the record and/or reads each transcript cover to cover as I do knows how important this record evidence is when an educator is charged.

We have no updates, but we have been told that no data already given has been lost, even though we do not have the transcripts. 

Gosh, I sure hope this is accurate information, that no data has been lost! The two cases we are doing right now have had the testimony of the Respondents and their witnesses, and we got really good stuff.

I'll let you know what the deal is. Hopefully soon.

Susan Edelman at the NY POST posted this today:

Ransomware attack cripples NYC DOE’s teacher disciplinary system


Betsy Combier

Agreement Signed by NYSUT and NYC DOE General Counsel On How To Proceed With 3020-a Hearings During COVID-19 Danger

                          NYC DOE General Counsel Howard Friedman         
Memorandum of Agreement between the
Board of Education of the City School District of the City of New York and the United Federation of Teachers, Local 2, AFT, AFL-CIO

1. 3020-a Hearings:

a. Nothing in this Memorandum of Agreement (“MOA”) shall constitute a waiver or modification of any provision of any memorandum of agreement, collective bargaining agreement (and the documents incorporated therein by reference), letter, or other agreement between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers, Local 2 (“UFT”), or past practice except as expressly set forth herein.

b. This MOA is intended to address the extraordinary conditions presented by the novel coronavirus pandemic and the risk of COVID-19. This MOA will sunset on June 30, 2021, unless both parties agree to extend, in writing, this MOA no later than May 1, 2021, or upon such time as school resume full in-person instruction, whichever is earlier. Notwithstanding the foregoing, either party may terminate this MOA for cause on 10 days’ notice, provided however that, prior to provision of such notice, the party seeking to terminate must have first raised the issue in question in consultation under Section 1(d) of this MOA and have escalated the issue to the General Counsel of the DOE and the General Counsel of the UFT. If no agreement is reached, the Chancellor and the UFT President will decide. For the purposes of this MOA “cause” is defined as either (a) an order issued by the Governor of New York in which all 3020-a hearings are held in abeyance; (b) an order or directive issued by the Chancellor pursuant to which schools are closed and staff are not working remotely, or (c) the Chancellor and UFT president agree that hearings cannot proceed in a manner consistent with this MOA and Education Law Section 3020-a.

c. The parties acknowledge that the situation regarding reopening offices is fluid and that New York City began Phase One reopening as described in Governor’s Executive Orders on June 8, 2020, and has proceeded and may proceed through reopening phases, or not, depending on a number of factors including the rate of new infections of the virus. The parties agree that as they transition back to holding hearings in person, there may be a need for one or more of the participants to appear remotely, resulting in a hybrid in-person/remote hearing. To the extent possible and permitted under all existing DOE safety rules as determined by the joint DOE/UFT Central Committee, the parties will proceed with in-person hearings. However, if in-person hearings are not possible then the parties will proceed remotely for the term of this MOA, whether with a hybrid model or completely remote.

d. The Director of the Administrative Trials Unit (“ATU”) and the Director of the Teacher Performance Unit (“TPU”) shall meet monthly with the UFT or the UFT’s designee to consult regarding the implementation of this MOA.

2. Remote Hearings (Process and Protocols)

a. The parties are committed to having these cases heard in an expeditious manner. The parties agree to conduct remote hearings according to the protocols set forth in this MOA so that all issues are fully and fairly litigated.

b. If a Respondent requests, the UFT will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If the UFT is unable to provide a Respondent with a location on a given hearing date, counsel for the Respondent will make every effort to provide the DOE with two (2) days’ notice and the DOE will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If UFT and the DOE are unable to provide a location to the Respondent, the hearing will be canceled, and the parties will split any cancellation fees. If a hearing is scheduled within 48 hours of the hearing date (e.g., as the result of a settlement of another matter), and the UFT is unable to provide Respondent with a location, the UFT will notify the DOE as soon as possible. Under these circumstances, should the DOE be unable to provide a private and secure location the parties agree to mutually reschedule the hearing date?

c. The parties agree to make every effort to pre-mark exhibits, identify witnesses, stipulate to undisputed facts, and minimize the issues of fact to be tried remotely.

d. Remote hearings for both ATU and TPU cases will resume and proceed in the order of their case queues/case assignments before their current hearing officers in a manner that is consistent with the Collective Bargaining Agreement. To the maximum extent possible the parties agree to ensure that the cases are managed timely.

e. In the event, a hearing is canceled or interrupted as a result of an individual party’s technical issues, including but not limited to the party’s failure to have the proper equipment, that party will bear the cost of any cancellation fees for the hearing date.

3. Platform:

a. The parties agree that all remote hearings will occur on a single platform: Zoom Pro.

b. The Hearing Officer (hereinafter “HO”) will be responsible for costs of using the Zoom Pro platform.

4. Procedures:

a. Subject to paragraph 2(b), each party shall be responsible for ensuring their own equipment is properly functioning prior to the hearing date.

b. The HO shall ensure that the court reporter can access the hearing to make the transcript of the hearing.

c. The HO shall be the only “host” of the proceeding on the chosen platform and will ensure that each party has a confidential virtual break out room.

d. The HO as host will ensure that the following participants will have access to virtual breakout rooms and that additional breakout rooms are made available for other participants/parties as needed, including:

o Respondent and Counsel

o Counsel and Witness

o Counsel and Counsel

o Counsel and HO

e. A party shall be allowed to disconnect from the hearing to attend to administrative matters and the amount of time by a party spent off the record shall be in accordance with the CBA.

f. Counsel shall make every effort to minimize any delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.

g. The parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants with a right to such access.

h. The SED official transcription service shall be the sole method of transcribing the proceeding. The SED official transcription company shall only access the audio recording feature of the platform and shall be prohibited from accessing the video recording feed of the platform.

i. No party, witness, or other participant in the hearing may record via audio or video, transcribe, or photograph the proceeding.

j. No party, witness, or other participant in the hearing shall use any chat feature of the chosen platform.

5. Exhibits:

a. Proposed exhibits in the format in which the exhibit will be entered shall be emailed, using a secure platform, to opposing counsel five (5) days in advance of the entry of the exhibit.

b. Counsel for the parties shall confer two (2) days prior to the hearing date to make best efforts to stipulate to the exhibit’s entry. If the parties agree to the entry of an exhibit, the exhibit shall be pre-marked. If the parties are unable to stipulate to the entry of the exhibit, the proposed exhibit shall also be pre-marked.

c. Prior to the hearing, counsel responsible for entering the exhibit shall email, using a secure platform, to the HO and opposing counsel, any exhibits which have been pre-marked and/or stipulated to. The provision to the HO of a pre-marked exhibit for which the parties have not agreed to entry shall be without prejudice to arguments or objections as to admissibility, weight, and/or relevance. Nothing herein prevents either party from introducing an exhibit or witness that was not pre-marked or identified.

6. Mediation:

a. The parties agree to mediate as many cases as possible or appropriate from ATU and TPU.

b. The mediations shall also be remote and shall be complete by December 21, 2020. A second round of mediation will take place in 2021. Once the first round of mediation has concluded, the DOE will make every effort to identify additional cases for mediation to begin in March 2021.

c. The arbitrators will be chosen by mutual selection of the parties.

9/22/20 
Beth Norton, NYSUT General Counsel 
 Howard Friedman, General Counsel, NYC DOE

NY POST January 3, 2021:


Sunday, December 27, 2020

Do Employees Who Become Activists Have Job Protection?


In New York City, teachers, educators at all levels, and school staff members are angry, confused, demoralized, and unhappy with the policies currently put into place by the Mayor and the schools' Chancellor. All sides are grumbling.

I'm not referring to the COVID-19 pandemic 2020. This anger, frustration, and yes, despair, started about 16 years ago when the online rumor mill and mobbing became weaponized.  The internet allowed a single person the ability to alter and/or destroy another person's life and ability to get employment after a false report of misconduct was cited. Truth does not matter, computer skills and social media connections, do. I work in this area and have been documenting how this works with NYC teachers, school administrators, and Courts, both State and Federal.

The Society for Human Resource Management (SHRM) addresses this problem and also the question of what speech is actually protected in the workplace. See the post below.

Betsy Combier, betsy.combier@gmail.com
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When Employees Become Activists

By Cristina Rouvalis, SHRM, June 29, 2020

In recent months, a surge in activism has seen thousands standing up for causes such as Black Lives Matter or protesting COVID-19 government shutdowns. Are employees who participate risking their jobs each time they take to the streets or post politically charged comments on social media?

The answer varies depending on what they do and where they work. For example, it may not pose a problem for employees to protest off-hours. But employees who skip work to protest do risk termination. Many private employers have the right to fire employees "at will," but employment lawyers caution companies to tread carefully when disciplining employees for political activism outside of the office.

States including California, Colorado, Louisiana, and New York protect an employee's right to engage in political activity. But most states do not have such protections.

What employees say in the workplace and at protests could be a problem, as well.  "For private companies, you do not have a First Amendment right to free speech in your place of employment," said Aaron Holt, an employment lawyer with Cozen O'Connor in Houston. "So employers have wide latitude to limit speech that might be offensive to others or affect the company's reputation or value." (See "What Employee Speech Is Protected in the Workplace?" for more information.)

In general, he said, most employers don't discipline employees for marching in peaceful protests outside of work hours. The exception is when it goes against the company's values. If someone is caught making racist remarks or otherwise violating the company's discrimination or conduct policies, the employer is within their rights to fire or discipline the employee for their off-duty conduct. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. If the company has notice of discriminatory off-duty conduct of its employees and fails to address it, and another incident occurs in the future, the company could be held liable for tolerating a hostile work environment, he said. 

Betsy Carroll, an employment lawyer at Davis Wright Tremaine in Los Angeles, said in most states, employers can fire someone at will but not for an illegal reason. "Is there any way that taking action against someone for political reasons could be a proxy for something else—a protected class like race or national origin? You have to be mindful that someone is not perceiving that they are singled out," which could open the door to a discrimination suit.

The key is consistency. "If an employer doesn't have a problem with someone taking off work to go to a protest about the pandemic shutdown, but they do have a problem with someone going to a Black Lives Matter protest, that's a problem," Holt said. "Employers can't pick and choose who they want their policies to apply to."

Added Peter Shapiro, an employment lawyer at Lewis Brisbois Bisgaard & Smith in New York City, "If you only discipline the minority and you don't discipline the majority, you have a pretty good lawsuit on your hands. But it has to show adverse actions, such as being demoted, fired, or suspended." 

The more egregious the behavior, the better the case for the employer to step in, lawyers said. If an employer can prove a pattern of behavior, rather than just one offensive tweet, it will have a stronger case for taking disciplinary action.

But there are limits to how much employers can ask about political activity—especially in states with protections. "In California, employers may not ask about arrests that do not lead to a conviction, and so if someone gets arrested at a protest, most of the time, you wouldn't be able to ask about it," Carroll said. But discipline may be allowable if the individual was caught on camera being violent. (See "What to Do If an Employee Is Arrested During a Protest" for more information.)

Employees also have to make sure that their political activity doesn't interfere with job performance. If they skip work to march, they could be disciplined for absenteeism or failing to do their jobs, lawyers said. "You have to do it on your own time," Shapiro said.  

Aside from the legalities of disciplining an activist employee, companies also have to consider the public relations of shutting down an employee's political expression. Terminating an employee for his or her political position could result in an unhappy workforce and could lead to backlash in the community. 

While employees at private companies don't have many legal safeguards on free speech, those who work for public companies are protected by the First Amendment if the speech relates to a "matter of public concern." But even that right is not unfettered, Holt said. "There's a balance between the employers' right to maintain a disruption-free and productive workplace and the employees' rights to speak on matters of political, social, or other concern to the community."

Cristina Rouvalis is a freelance writer based in Pittsburgh.

What Employee Speech Is Protected in the Workplace?

Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations.

The First Amendment guarantees citizens the protection of free speech from intrusion by the federal government, explained Grant Alexander, an attorney with Alston & Bird in Los Angeles. "The First Amendment does not apply to private actors, and employers are private actors."

Thus, government employees do have some First Amendment protections. "Employees working in the private sector often [don't understand] that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses," said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.

But that doesn't mean that businesses can curb all employee speech. For instance, private-sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA). This applies to workers in both union and nonunion settings.

The NLRA protects employees' right to discuss the terms and conditions of their employment, said Steve Hernández, an attorney with Barnes & Thornburg in Los Angeles. For example, workers are protected if they discuss their wages with each other, decide they're not being paid enough and seek raises from their employer.

Employees also have the right to talk about possible unlawful conduct in the workplace. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations, and other issues. "However, employees don't have the freedom or right to express racist, sexist or other discriminatory comments where such comments constitute violations of these laws," Olmsted noted.

Social Media

Employers should be mindful of how social media and policies affecting the use of social media interact with employee rights, Alexander said. In certain states, employees have the right to engage in lawful conduct when they are off the clock, and that may impact how social media policies are crafted and implemented, he added.

[SHRM members-only toolkit: Managing and Leveraging Workplace Use of Social Media]

Employers must also be careful not to run afoul of the NLRA when disciplining employees for their social media activities, Hernández noted.

An employee's posts on social media platforms might be considered protected concerted activity if the employee is discussing working conditions and other labor relations matters. In recent years, the National Labor Relations Board (NLRB) and courts have found that social media posts might be protected even if they contain profanities or sound disloyal to the business.

Thus, employers should ensure that their social media policies and practices can't be reasonably perceived as restricting such discussions.

Now that the NLRB has a Republican majority, it has shifted a bit in its stance to a more employer-friendly position, Hernández noted. But employers still can't stop workers from discussing the terms and conditions of their employment, he said.

State Laws

State laws may also enhance workers' rights to discuss certain topics. State laws protecting lawful off-duty conduct vary, so employers should check the laws in their states to see what is covered.

Although private employers may regulate political speech in the workplace without violating the Constitution, some state laws specifically protect political expression. In California, employees cannot be discriminated against based upon their political affiliation or political activity, Alexander noted. However, the protection does not necessarily give employees a right to speech in the workplace, he added.

In Oregon, the Worker Freedom Act prohibits employers from forcing workers to attend political meetings and distribute political communications.

Most states have a presumption of at-will employment, which means either the employer or the worker can terminate the employment for any lawful reason, but employers should be mindful that employees still have certain rights in the workplace that cannot be curbed, Alexander said.