Investigating the Investigators and the Gill Commission Final Report

For many years I have looked for the two investigative reports published in March and April 1990 on the corruption inside New York City public schools, aided by the incompetency of the Inspector General Michael P. Sofarelli.



On January 12, 2009, I decided to stop in the Municipal Library (see picture above)at 31 Chambers Street (corner of Centre and Chambers, directly accross the street from the Manhattan Courts and inside the building of the Manhattan Surrogate Court)and see if I could copy the two books that have not, to my knowledge, been posted online:
"Investigating the Investigators: A Report on the Office of the Inspector General of the New York City Board of Education"; and, "Findings and Recommendations Of The Joint Commission On The Integrity In the Public Schools". I was given the approval to copy both reports, and I have made both available in this article on my website:

Two Reports, "Investigating The Investigators", and 'The Gill Commission Report' (1990) Dont Improve New York City Public Schools

These two reports are eye-openers for new parents and teachers and NYC BOE employees, but to old-timers in the system, the names of the people in these reports are well-known. No one who works for the "system" is ever gone for long. A report on the sex crimes of Jerry Olshaker and the cover-up by Howard Tames in the NYC BOE Personnel office is worth reading. And look at Bruce Irushalmi.

James Gill, the father of NYC Commissioner of the Department of Investigation (Rose Gill Hearn, at right), was appointed chair of the Joint Commission On Integrity in the Public Schools in 1989. He was a superb investigator, and produced the two best reports on public corruption that I have ever read. He recommended the removal of Michael P. Sofarelli, the Inspector General of the NYC Board of Education (who, after leaving the NYC BOE, Eliot Spitzer hired to investigate Medicaid fraud. He retired in 2003, and in 2005 Pataki started a new effort to rein in the Medicaid mess).


Ed Stancik (pictured at right) was the first Special Commissioner of Investigation, and he was ruthless in his independence from anyone. (See the report on former District 29 Superintendent Celeste Miller).

Both Rose Gill Hearn and Mayor Bloomberg didn't like this, so in 2002, after Mr. Stancik's death, Mayor Bloomberg changed Executive Order 11 which created the position of Special Commissioner to EXECUTIVE ORDER NO. 15, which allowed a person who was NOT an Attorney to have the job. Newspapers were told to write about how Ed purged schools unnecessarily, and created a 'witch hunt'...but Richard Condon, his successor, has created something much worse, and is commended.


(From left to right) Special Commissioner of Investigation Edward Stancik, District Attorney Richard Brown, and Schools Chancellor Harold Levy announced the indictments of six individuals in what has been called "the fleecing of District 29.

Rose Gill Hearn then appointed her dad's friend Richard Condon. Both Mayor Bloomberg and Rose Gill Hearn made it clear that the investigators had to be under their control. SCI is, therefore, an agency that is not independent of the NYC BOE, despite statements from the investigators and Mr. Condon that they are not controlled by Joel Klein.



Indeed, the website of the Special Commissioner gives misinformation to those who would whistleblow their school or anyone who works there, by stating:
"Whether you work in the system, are a parent, a taxpayer, or a concerned individual, if you suspect wrongdoing at your local public school or elsewhere within the New York City Department of Education, contact us. Your identity can be kept confidential and City employees are protected against retaliation in the workplace."

This statement traps many. Ask yourself this question: "If I say something about the wrong-doing, and there is retaliation against me, what options to I have to remedy this situation, if I am fired, re-assigned, harmed, or my family is harmed?"
Answer: "If you do not have a $trillion dollars or a friend in the Governor's office, your options to fight the retaliation that will be forthcoming are few. Find a national reporter who will expose your school, instead".

As I have written in an earlier post, "News To Use", if you go to the City's Payrolls and type in Richard Condon's name, you weill find that he is paid by the "Department of Education, Administration", the same budget line that pays for Joel Klein and the Parent Coordinators, for starters. I spoke with an employee of DOI at 80 Maiden Lane, and he told me that everyone who works there is very angry that they are not allowed on the floor that Richard Condon's office is located on. See also my previous post, "Workplace Investigations: NYC Employees are in Danger"

We now know the kind of work that Richard Condon takes pride in:

New York City Teacher Theodore "Teddy" Smith and the Perfect Storm of Injustice


Theodore "Teddy" Smith Wins His NY State Supreme Court Appeal To Overturn Arbitrator Howard Edelman's 3020a Decision and Award
by Betsy Combier, Editor, Parentadvocates.org
LINK

New York State Supreme Court Judge Alice Schlesinger throws out arbitrator Howard Edelman's decision to punish excellent teacher Teddy Smith because, she writes, "Mr. Smith is challenging the decision and penalty…of the disciplinary process and finally and most importantly the performance of the second Arbitrator who decided the controversy based solely on the transcript of the proceedings before the first Arbitrator, thereby violating his due process right to a fair and impartial hearing...…It is fundamental to the fact finding process to be present when testimony is given, testimony which constitutes the evidence upon which the determination will be made...When an individual is denied fundamental due process, an argument that substantial evidence supports the decision is irrelevant."

NYC public school teacher Teddy Smith has fought City Hall since 2004 and has won a small but precedent-setting battle against Mayor Michael Bloomberg, Joel Klein, Richard Condon, and New York media who blindly follow the directives of the Special Commissioner and publish false information in order to "get" someone. Anyone. It could be you next time. Teddy refused to give up clearing his name and preserving his future. We salute him.

Theodore (Teddy) Smith was born and raised in Suffern, New York and graduated from Hampshire College with a BA degree, Goddard College with an MA, attended Sarah Lawrence as a special student, and has a BS degree from Empire State College, an obtained certification as a School Administrator from Fordham University. He has lived in New York City for over fifteen years.

He currently works as a account manager and on-air personality working afternoon drive for Central Broadcasting in Worchester County, Massachusetts; on-air personality for WGHT in North Jersey; WTBQ AM/FM in Orange County, NY, and WPAT Multi-cultural Broadcasting in New York. He has also worked full-time in New York City for the Department of Education as a physical education and health teacher, currently with a Supervisory Administrator’s License (SAS), with “satisfactory” service for over ten years, with tenure in 1999. Concurrently, Mr. Smith taught part-time for the United Nations After-school Program as a physical education and martial arts teacher for thirteen years.

Teddy was harassed into teaching a part-time gym class with more than 65 children (often almost 100 at one time) at The Museum School on West 17th street in Manhattan. He also has a heart condition for which he asked his Principal (Lindley Uehling) to be accommodated – although he was and is able to perform his job - but was turned down and his needs were ignored.

Timeline

1)On April 30, 2008, Teddy Smith won a decision from the Supreme Court of the State of New York regarding the attached matter against The New York City Department of Education. Entire file, documents and exhibits are filed at New York Sate Supreme Court, New York County, 60 Centre Street, New York, Index #117051/07. Attorney: Mr. William A. Gerard.

2)Richard Condon, Special Commissioner of Investigation, Gerald P. Conroy, Deputy Commissioner of Investigation and Michael Humphries, Investigator for The New York City Department of Education released a false and fraudulent report regarding Theodore Smith with respect to this same matter and arbitration.

3)First arbitrator, Jack Tillem, colluded and grievously misled the hearing and record by having off-the-record, ex parte conversations with Smith’s former attorney David Kearney of the Law Offices of Neal Brickman in New York, Teresa Europe, Deputy Counsel to the Chancellor of the Department of Education, and Susan Jalowski, Attorney for the Department of the Education. These off-the-record conversations were also held on cell phones at the point of decision and documented in the legal transcripts for the arbitration as well as in the Supreme Court decision reversing a second arbitrator’s, Howard Edelman, decision.

4)The New York Daily News and The Chief newspapers of New York City released falsified, inaccurate and unsubstantiated stories based upon a bogus report supplied by the New York City Department of Education in conjunction with an investigation led by the special commissioner, Richard Condon. The story in the Daily News was written by Carrie Melago. Carrie Melago stated that Mr. Smith made an alleged death threat to the arbitrator Jack Tillem. Jack Tillem never said that Mr. Smith had made a death threat against him. It was Smith’s former attorney David Kearney who falsely told Jack Tillem and the Department of Education attorneys in an off-the-record phone conversation, that Smith had made the alleged threat. Carrie Melago never interviewed Mr. Smith or his present attorney before having the story sent to press. In an email sent to Teddy Smith, Melago stated that she would write a follow-up story when he was vindicated. Smith was never found guilty. Richard Steier from The Chief also wrote a false and misleading story concerning Smith. He wrote that Teddy Smith allegedly threatened to kill the arbitrator, without interviewing Mr. Smith.

5)Lindley Uehling, former principal of the New York City Museum School in Manhattan and now in the Admissions Department of Hunter College High School in Manhattan has testified that Mr. Smith had oversized physical education classes of over 100 students, 75 students and other oversize classes while alone in the gym for months without any help from assistants. Uehling said that this was part of Mr. Smith’s job in documented testimony. Meanwhile, Ms. Uehling was violating the teacher’s contract by not informing the chancellor or teacher in writing that she was overseeing physical education classes in excess of 50 students.

6)Assistants that were assigned to Smith’s oversized classes three months after the school year also often did not report to the classes leaving Mr Smith alone with the oversized classes. Also, some of these assistants that were assigned to these classes were not state certified and were not certified in physical education. Uehling testified that for the first three months of the physical education program there was no gym to hold classes because there was a leak in the ceiling. The physical education classes that Mr. Smith was hired to teach was always considered a part-time program. This was considered an illegal program. In order to justify hiring Mr. Smith fulltime the principal inflated the class periods. Smith had a program where he taught 17 to 18 period per week. Former principal Uehling made the physical education program add up to 25 teaching periods per week by making Smith teach a class alone with over 100 students in the class for close to one year. By teacher’s contract, Smith was required to teach the entire school physical education and health classes at least three times per week. Uehling had him scheduled for only once per week for only one to two periods.

7)Smith and his council asked the arbitrator during his hearing in 2007 in to see the budget during the calendar year 2004-2005 to point out what must be discrepancies when he was teaching under such objectionable and illegal circumstances. They were denied access to the budget in any way by the arbitrator Jack Tillem during the hearing.

8)Teddy filed a Federal law suit against the City of New York Department of Education and individuals asserting disability retaliation, discrimination, retaliation, age discrimination, and slander.

9)Arbitrator Jack Tillem asked Smith’s former attorney David Kearney to bring a check with him for $1,600 to a hearing because Smith was sick the night before the hearing with a doctor’s note. The arbitrator had an ex parte conversation with former attorney David Kearney regarding Smith bringing the check for $1,600. This conversation was never placed in the record.

10)Principal Linda Uehling changed Smith’s grade in June, 2005. Class lists with the true amount of students in his classes were falsified.

11)Ted Smith was denied peer intervention which he requested in writing.

12)A report by the Department of Education confirms that during the 2004-2005 school year when Ted Smith was teaching 15 out of 21 left the school that year. The report shows that the school was in total chaos throughout that year.

13)An e-mail dated January, 2005 was sent from Department of Education Fay Pallen on her Blackberry device that was supposedly supposed to be sent to former principal Lindley Uehling. This e-mail was sent to Mr. Smith by mistake. The nature of this e-mail is entirely about the subject of how to simply get rid of Ted Smith by finding reasons giving him 2 unsatisfactory yearly ratings. Also, to get Victor Ramsey the former Director of Physical Education Region 9 in Manhattan, to write a negative evaluation about Mr. Smith. Mr. Ramsey did just this, however he explained personally that the class that he had observed was excellent. Upon questioning by Smith, subsequent to the bad report, he issued an updated report that was good.

14)Arbitrator Jack Tillem informed Smith’s former attorney David Kearney in front of Smith at the end of the Department of Education’s presentation of witnesses, before Mr. Smith had a chance to bring in his witnesses, that he had already made up his mind against Mr. Smith with a three to six month suspension. Smith sent a letter to the arbitrator at his office protesting this, explaining that the arbitrator was tilted, biased and partial by making such a statement before Smith even had a chance to call in his own witnesses.

15) A new Arbitrator, Howard Edelman, was assigned to Smith’s case in June of 2007. Mr. Smith’s new attorney William Gerard asked Mr. Edelman to hold another hearing because the previous record and hearing had obviously been biased and tainted. And, that in fairness the new arbitrator must hear the case himself to correctly substantiate the validity of testimony of the witnesses. This was a point in question that the Supreme Court Judge used, among others, to rule against arbitrator Edelman who without hearing any testimony ruled against Mr. Smith. The punishment was one year without pay and benefits and upholding the principal’s bogus “unsatisfactory” rating. This unsatisfactory rating, which would make it impossible to be again hired in the school system, was the only such in over ten years with tenured service for the New York City Department of Education.

16) Edelman ignored all the evidence and principal Uelhing’s own testimony that put her in gross violation of the United Federation of Teachers contract, putting the students in jeopardy with safety issues by ordering Mr. Smith to teach the oversized classes.

17) Smith wrote letters of complaint to Mayor Michael Bloomberg, and Chancellor Joel Klein, and his complaints were responded to by sending Mr. Smith to the Teachers Reassignment Center, notoriously known and vehemently written against about in the press, as “The Rubber Room,” located at 333 Seventh Avenue, 8th Floor, in New York City.

Read Investigating the Investigators (86 pages) and Findings and Recommendations of the Joint Commission and you will see how the system "works", even today. In fact, the corruption and fraud that you can read about in these documents are nothing compared with what is going on right now, in the hallways, offices, and closets of our public schools by administrators of the "new" Board of Education, nicknamed the "Department of Education" so that people are misled into thinking that Mayor Bloomberg legally changed the name. He didn't. We dont have any school board to complain to.

Teachers for the most part see and hear everything that goes on in a school building. Administrators who want to hide something try their best to harass those who work in their building so that no one tells anyone anything.

Teachers know that they are "mandated reporters" and must report what they see and hear, or they will be punished. The sad irony here is that teachers who report wrong-doing are punished, if the Principal has not been given a directive to do otherwise. The Online Occurrence Reporting System (OORS) is, after all, color-blind and doesn't know who's who in the "protected" category. That is why some teachers are removed immediately from their classrooms without cause (and may never know why) and some stay. Who stays and who goes really is not related to how "nice" the teacher is, or how good, or whether or not the kids love him/her. The decision is made randomly by a Principal and the "higher-ups", the people who read the OORS emails. Then the name is checked for political connections, potential whistleblower status, credentials, age, previous allegations, convictions, etc. Questions such as "How much salary is this teacher making?" "Does any politician want to give this person's job to someone?" become relevant. Tom Robbins of the Village Voice looked briefly at Regina Loughran, a Deputy at SCI, in 2005:

"Law and Disorder: Special Victims Unit
Investigators say the city's independent schools watchdog has often failed to bark
Tom Robbins, The Village Voice, December 06, 2005

Back in 1997 police arrested a man named Ronald Taylor, who worked as an assistant public school principal in Harlem. Taylor, 50 years old at the time, easily ranked as a parent's worst nightmare. His arrest came after the mother of a student walked into a local police precinct and reported that Taylor had lured her 15-year-old son to his apartment with an offer to play with his video game collection. He then proceeded to sexually molest him. When cops went to investigate they found Taylor had tricked up his West Harlem apartment as a kids' game room. They also found some 400 X-rated videos.

Unlike a score of school-personnel sex-abuse cases from that era, Taylor's arrest got little news play. The Times ran a short item on an inside page and the Daily News carried one as well, on page 79. The lack of attention was partly because the arrest did not emanate from the efficient publicity machine of Edward Stancik, the late special commissioner for investigation for city schools.
For 12 years until his death in 2002, Stancik's gaunt features were a staple on TV newscasts as he told of corrupt bureaucrats and twisted sex abusers nailed by his office. Such cases made Stancik wildly unpopular in the teachers' union offices and the old Board of Education headquarters on Livingston Street in Brooklyn, where he was viewed as a merciless inquisitor, a publicity hound whose investigations were measured mainly for their TV and news-ink potential.
On the other hand, many politicians, journalists, prosecutors, and parents adored him, viewing Stancik as a valiant warrior against an intractable bureaucracy. So what if he knew how to use the media? What better way to send a message to the public and bad guys alike that wrongdoing won't be tolerated? When Stancik died at age 47 of heart failure in March 2002, there were some misgivings expressed about his occasional overzealousness. But the editorial call was to make sure the watchdog office he'd led didn't lose its fangs.
But a few months after Stancik's death, something unusual in the world of law enforcement happened. A former top investigator in his office, an ex-detective who had been a supervisor there for five years, sat down and wrote two lengthy letters to city officials alleging that a top Stancik deputy named Regina Loughran had dropped the ball in several important cases, either delaying arrests or letting the bad guys get away altogether. In some instances, it was alleged, Loughran had changed cases from being "substantiated" to "unsubstantiated."
The complaints were investigated by city attorneys, and several were confirmed. Yet Loughran today remains as powerful as ever, serving as the $151,000 number two official in the special investigators' office. Former and current investigators, both men and women, who spoke under condition of anonymity, told the Voice they were puzzled by the inaction. "If we had caught someone in the education system behaving this way, they'd be long gone," said one former investigator.
Among the cases the investigators cited was that of Ronald Taylor.
According to the former detective and others familiar with the case, nearly a year before Taylor's arrest by police, investigators in Stancik's office had asked permission to launch a probe of the school official. The request was made after a prison social worker contacted the investigations office to say that an inmate was claiming to have been sexually abused by Taylor, his former teacher. Investigators initially dismissed the charge as one more prisoner trying to reduce his sentence. But the details of the story were disturbingly precise: Taylor had asked the student, then 15 years old, to carry a crate of milk up to his apartment. Once he got him inside, Taylor had sexually assaulted him. The inmate described the apartment in detail.
Investigators drove to upstate Green Haven Correctional Facility to interview the inmate, who convinced them that a sexual predator was loose in the schools. The statute of limitations had expired on the earlier assault, but the inmate said he was willing to wear a recording device to a meeting with Taylor to see if he could get him talking about other victims. The investigators relayed that offer to Loughran, then the attorney-in-charge of the child sexual-abuse unit and a key figure in the office. Loughran refused.
"The issue for her seemed to be, 'Why spend the time and money to get this kid out of jail and wire him up for a case that's too old,' " a former investigator told the Voice. "We argued that if we have this one person there are probably others out there at risk."
Loughran was adamant. But the investigators, most of them retired NYPD detectives who lived by chain of command, declined to appeal the decision over her head. The case was closed. Nine months later, the outraged mother of another victim filed her complaint with police. Taylor was immediately arrested and later sentenced to serve up to three years in prison. Under questioning, he said something that chilled both cops and school investigators. He said he was HIV-positive.
________________________________________
Ed Stancik's public posture was of a manager with a stern "the buck stops here" policy. But according to the former detective and others, the often ailing commissioner ceded wide authority to Loughran, a hardworking former sex-crimes prosecutor whose ability to turn out clearly written reports was highly prized by Stancik and his successor.
Investigators said Loughran was also often tempestuous, given to sudden rages and sulks. What made their jobs most difficult, however, was her apparent skittishness about dealing directly with outside prosecutors who were needed for any criminal referrals. "She just seemed intimidated or something," said one veteran ex-detective who worked in the office for years. "If we had a tape we needed to get to the D.A. she would have you drop it off with the officer in the lobby, rather than make a call to the prosecutor personally."
As a result, the investigators said, the case of the predatory assistant principal was just one of the instances in Stancik's old office where the system simply broke down.
There was the case of the art instructor accused of having displayed nude photos of himself to disabled students, confiding that "what a girl wants is a big dick." (The photos weren't found, and Loughran decided the students' testimony was "problematic," ordering investigators to change their findings from "substantiated" to "unfounded." When Board of Ed administrators asked for investigators to testify against the teacher to bar him from further employment, Loughran refused to allow it.)

There was the 48-year-old male teacher who admitted driving a 17-year-old female student to a funeral home parking lot in the Bronx and asking her, "What if I told you I wanted to go down on you?" (The teacher said he was trying to help her learn to fend off improper advances. The principal vouched for the teacher, and the girl later admitted she'd neglected to say they were also drinking beer at the time. Loughran said her testimony was inconsistent and ordered the case dropped.)
And there was Paul Kerner, a 61-year-old teacher at Sheepshead Bay High School who romanced an 11th-grade girl, taking her to Atlantic City casinos and a motel where he coerced her into performing fellatio and other sex acts. The investigator on the case urged Loughran to make a quick criminal referral to prosecutors, but the deputy balked. "I don't know what to do, let's hold off," she said, according to a report of the incident.
The office dithered so long that the victim called the investigator, complaining that Kerner was now stalking her, and asking why he hadn't been arrested yet. The investigator asked Loughran for permission to take the case to a friend at the FBI. Loughran expressed skepticism that the bureau would be interested, but reluctantly agreed. But when the FBI came seeking the backup documents for the case, Loughran balked again, forcing agents to get a grand jury subpoena. (Kerner was eventually convicted in federal court, where he received a 33-month sentence. Annoyed at the investigator who had called the bureau, Loughran allegedly had him transferred out of the sex-crimes unit.)
Yet another disturbing case posed an investigative challenge, one that Stancik's former detectives readily accepted, given the stakes, but which Loughran flat-out rejected. In that instance, a former city high school student, now a grown man and a member of the Army Reserves, called the office to say that his former principal had repeatedly sexually abused him a few years earlier. According to his story, he had been a fatherless youngster whom the principal had taken under his wing, bringing him on camping trips to Lake George and elsewhere where he had repeatedly molested him. On the advice of his therapist, the man had decided to confront and report his abuser. Once he did, the principal immediately resigned.
The Stancik investigators were able to get a consensually recorded telephone conversation in which the principal admitted his sexual abuse of the former student. Like the Ronald Taylor case, however, the acts were too old to prosecute. But investigators said the ex-principal (a Boy Scout troop leader who still lived with his mother) fit the profile of "a classic pedophile," and they believed he had to have preyed on others.
The next step, they proposed to Lough-ran, would be to wire up the ex-student and have him meet with the former principal to see if they could pick up leads on other victims. They would also talk to teachers and students at the principal's school to find out if other boys had been similarly "befriended." Loughran wouldn't hear of it. According to two former investigators, she said, "He is out of the system. Shut it down." (Loughran has denied using those words.)
In an effort to try to breathe new life into the case, one of the investigators reached out to a federal prosecutor he knew who was familiar with sex-crime statutes to ask if there was any other law the ex-principal might have violated. Loughran later said she was "upset" and "embarrassed" by the call, which she said duplicated her own research and had been made without her permission. Investigators said it was much more dramatic than that. "She was livid," said one of them. When the investigator was asked why the call had been made, he responded: "Because I'm trying to catch the son of a bitch."
________________________________________
According to the investigators, Lough-ran retaliated by shifting one of the two probers who had worked the case, considered one of the office's most productive teams, out of the sex unit. Loughran later insisted the assignment change had been made by Stancik, not her.
But it still wasn't over. The former principal, concerned at possible civil liabilities, offered to purchase a $250,000 house for the victim in exchange for a promise not to pursue further legal action. When Loughran learned of the offer, she allegedly said that the victim might be arrested for extortion, a suggestion that appalled the investigators. (As it happened, the deal fell through.)
"He had been a principal for 20 years, he had such power," said one of the investigators recently. "All he had to do was find another weak kid. We felt there had to be other victims. It was so egregious to shut it down. Pedophiles don't do it once and then go home. You don't have to be Columbo to figure that out."
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The two letters detailing the complaints about the bungled past cases landed on the desk of city department of investigations commissioner Rose Gill Hearn in early 2003.
Hearn technically oversees the schools investigation unit (its offices are located in the same Maiden Lane building as DOI), but because of its sensitive mission it operates largely independently. Still, Hearn took the complaints seriously, assigning a pair of senior attorneys to look into them. Over the course of several months, the attorneys interviewed 10 current and former employees of Stancik's old special commissioner's office, including Loughran. During the interviews, the attorneys turned up another instance, in which a complaint about a Bronx teacher accused of sodomizing several young male students had been confirmed by the Stancik office but had somehow never been referred to prosecutors.
Those findings were in turn forwarded to Stancik's successor, Richard J. Condon, a former police commissioner who in the past headed investigative squads for the Manhattan and Queens district attorneys. When Condon took over in June 2002, he retained Loughran, bumping her up a notch to first deputy commissioner. A DOI spokesperson, Emily Gest, said the office hadn't ordered any changes or discipline for Loughran, but had "shared the facts and findings of its investigation, for Commissioner Condon to take any necessary remedial actions."
Condon said that he too took the complaints seriously, spending hours wading through old investigative files. "I was not a witness to this history," he said. "Most of these things happened years before I got here."
The standard he used in examining the cases, Condon said, was whether Loughran had had a "rational basis" for her decisions. In two instances—that of the art instructor who had shown the nude photos, and the teacher who had posed the obscene remarks to the student—Condon said he disagreed with Loughran's actions, but cautioned that even this conclusion was "probably unfair."
As for the failure to make a criminal referral in the Bronx sodomy case, Condon said the explanation was simple. "She screwed up. It happens." He noted that the office had handled a total of 1,800 cases during the period under review. Loughran also later told DOI's inquiry that she was "baffled" how she had failed to make the referral, but said if she was to blame so were her former bosses, Stancik and Robert Brenner, who served as Stancik's first deputy commissioner. (Brenner, now with the investigations firm Kroll Inc., did not return calls.)
At the end of the day, however, Condon said he chalked up the complaints to honest disagreements. "I am used to investigators and prosecutors arguing over whether cases should be prosecuted," he said.
Condon told the Daily News' Kathleen Lucadamo, who asked about the probe last month, that he considered Loughran "one of the straightest, most hardworking prosecutors I have ever worked with."
He told the Voice that he'd encountered none of the erratic behavior by Loughran described by the investigators. "I have been here three and a half years working next door to this woman and I have never seen the behavior these people describe," he said.
In a letter to DOI, however, Condon said he had changed office procedures to make sure he personally reads all complaints that come into the office and examines "every substantiated and unsubstantiated case."
Loughran, who declined to speak to the Voice, wrote Condon a lengthy defense of her actions, insisting that her decisions at the office had been "common-sense based and not capricious by any rational standard."
The investigators, past and current, remain unconvinced. "This isn't just disagreeing over cases," said one. "Yeah, there's always tension [in other investigative offices] between the investigators and the prosecutors. But it's always motivated by respect, and everyone understands they're a team. Here, you don't get that. And they're supposed to be about helping the kids."



I personally have brought documented proof of wrong-doing to SCI about the financial affairs at Stuyvesant High School (I was a parent member of the PA from 1999-2007), and then, in 2006, I received a telephone call from SCI Deputy Commissioner Thomas Fennell, who yelled, "SCI "would NEVER look into Stuyvesant High School's financial affairs, ever, and dont ever bring Stuyvesant back to this office."

So, when a teacher asks a question that should never be asked, such as "Where is Jane's IEP?", a Principal has to make a decision to end this teacher's career immediately or not, by reporting something into the OORS which goes to the Special Commissioner of Investigation. The person whose name is entered is now marked as 'trouble'.

How we got here is available in postings that I and others have made on this blog, my website (parentadvocates.org) and in various local newspapers. You will not find the information in the New York Times, the NY Daily News, the NY Post, Newsday, or any other newspaper owned, operated or aligned with either Rupert Murdoch or Mortimer Zuckerman.

A Look at 'Reasonable' Accommodation and "Undue Hardship"

Reasonable Accommodation And The Issue of "Undue Hardship"

An employer is not required to make an accommodation if it imposes an "undue hardship" on the employer. The term "undue hardship" is defined as an action requiring significant difficulty or expense - that is, an action that is unduly costly, extensive, substantial, or disruptive, or that will fundamentally alter the nature of the program.



In determining whether a particular acommodation would impose an undue hardship on the operation of the entity, a number of factors may need to be considered:

* the nature and cost of the accommodation need under the Americans with Disabilities Act (ADA),
* the overall financial resources of the facility involved in the provision of the reasonble accommodation including the number of persons employed, the effect on expenses and resources, and the impact of the accommodation,
* the overall financial resources of the employer including the overall size of the entity with respect to the number of its employees, and
* the type of operation of the covered entity, including the composition, structure, and functions of the work force.

What is apparent is that Congress intended that the weight given to each factor in making an undue hardship determination will vary depending on the facts of a particular situation and on both the nature and cost of the accommodation in relation to the employer's resources and operations.

If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. In fact, the EEOC guidance on this subject suggests that to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with the disability if he or she will pay the difference.

An employer cannot claim undue hardship based on employees' or customers' fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Employers, however, may claim undue hardship where a reasonable accommodation would be unduly disruptive to other employees' ability to work.

Here are some other previously written posts regarding this subject that you may wish to read.

Frequently Asked Questions About Reasonable Accommodation

The Americans with Disabilities Act requires a covered employer to provide reasonable accommodation for individuals with disabilities, unless it would cause undue hardship. If you, as an employer, were suddenly faced with a request for reasonable accommodation from one of your employees, would you be prepared to respond correctly to this request?

It is quite likely that no two reasonable accommodation requests are the same - that each issue may present a "gray area" when it comes to what you are legally required to do. It is therefore a good idea to review your ADA policies (if you have any) and to have your HR Manager discuss with supervisors how best to respond should they receive a request. Failing to respond or responding inappropriately will create bigger problems.

To help you evaluate your preparedness, here are five of the most frequently asked questions (with answers) regarding reasonable accommodation and undue hardship.

1. Must the employee's request for reasonable accommodation be in writing? An employee must let his or her employer know that s/he needs an admustment or change at work for a reason related to a medical condition. Such requests do not need to be in writing. However, as an employer, you may choose to write a memorandum or letter confirming the request.
2. Must an employer provide the reasonable accommodation that the employee wants? An employer may choose among reasonable accommodations as long as the chosen accommodation is effective - that it removes the workplace barrier at issue. The employer may also offer alternative accommodation suggestions as long as each alternative removes the workplace barrier.
3. Is restructuring a current job considered a reasonable accommodation? Yes. Such restructuring may include (1) shifting responsibility to other employees for job tasks that an employee is uable to perform because of a disability and (2) altering when and/or how a job task is performed.
4. When an employee requests leave as a reasonable accommodation, can the employer provide accommodation that requires him/her to remain on the job instead? Yes. If the employer's proposed reasonable accommodation would be effective and eliminate the need for leave.
5. Does an employer have to reassign an employee who can no longer perform his/her job because of a disability to a vacant position? Yes, unless the employer can show that it would be an undue hardship. Other considerations also apply such as (1) if the employee "qualified" for the position, (2) it does not require other employees to be "bumped" and (3) the position is relatively equal is pay and status.

You might like to check out an employment law blogsite we've recently discovered. It's called Employment Law Bits. There's an excellent article on "Telemarketing: A Reasonable Accommodation?" that's very informative and addresses a growing issue in the workplace. This and other articles on the site are worth a read.

There's also a new employment law guidebook, written by Louis P. DiLorenzo and Sheldon I. London that lists 15 frequently asked questions (with answers) regarding reasonable accommodation and undue hardship. These questions and answers offer some terrific guidance on how to respond to employee requests.

Disability Discrimination: Good Intentions Can Produce Bad Law

Five Questions Regarding Reasonable Accommodation Employers Should Know The Answers To

In March 2007, we wrote a post listing five frequently asked questions about reasonable accommodation as it relates to the Americans with Disabilities Act. Here are five additional questions that every employer should know the answers to. Fortunately, I've included some answers as well.

Q. What must an emploer do after receiving a request for reasonable accommodation? A. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.

Q. How quickly must an employer respond to a request for reasonable accommodation? A. An employer should respond promptly to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, it too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation.

Q. Is providing leave necessitated by an employee's disability a form of reasonable accommodation? A. Yes, absent undue hardship, providing unpaid leave is a form of reasonable accommodation. However, an employer does not have to provide more paid leave than it provides to other employees.

Q. Is a modified or part-time schedule considered reasonable accommodation? A. Yes, absent undue hardship. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain job tasks are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave.

Q. Does a reasonable accommodation include changing a person's supervisor? A. No. The ADA may, however, require that supervisory methods, such as the method of communicating assignments, be altered as a form of reasonable acommodation.

[The format for the above questions and answers is based upon information contained in the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA.]

ADA Mediation Program

Information and Technical Assistance on the Americans with Disabilities Act

Is It Possible To Have A Rule or Law of Credibility?

I think the case posted below is interesting because the United States Court of Appeals For the Second Circuit overturned the Second Circuit District Court and the Board of Immigration Appeals on the issue of the credibility of the Petitioner, Dong Zhong Zheng, and granted him political asylum.

When Michael Mukasey became US Attorney General there were many people in New York City who were very unhappy with this choice, due to Mr. Mukasey's decisions made prior to his appointment. (Mukasey's predecessor Alberto Gonzales had his own difficulties with the justice issue).

Mukasey (pictured at right) told the American Bar Association on August 12, 2008:
"Violations of the law are not always crimes...not every wrong, or even every violation of the law, is a crime", with "only violations of the civil service laws" being found among hiring practices during Gonzales' tenure as Attorney General. Oh, really?

In disciplinary hearings, the "preponderance of the credible and admissible evidence" is the deciding factor to which supposedly all hearing officers must adhere. So, if the NYC BOE Attorney assigned to the case cannot "find" or "produce" evidence, let's say the records of a child who assaults a teacher in the classroom, then I would think that the Attorney defending the teacher would make notice of an "adverse inference" from this omission. Then it is up to the hearing officer to determine whether or not sufficient effort has been made to get these records, and here is the randomness factor: what if the hearing officer finds that the records are "not necessary"? What does that mean? Well, perhaps the hearing officer has already decided the case, or, the matter will be decided based upon the credibility of the people who testify. Again, this is a subjective decision. There is no "rubric" for "credibility". My question is, "Can we make one?"

CIVIL PROCEDURE, IMMIGRATION LAW
Zheng v. Mukasey, No. 07-1073
Petition for review of a BIA decision affirming an order denying Chinese native's applications for asylum and related relief is granted, and the BIA decision vacated, where the IJ committed errors both as to the timeliness of petitioner's application for asylum and in finding that petitioner had not testified credibly in support of his claims.

Read the decision:

Zheng v. Mukasey, No. 07-1073

On the ABA website, you can read the following statement by Mr. H. Thomas Wells, Jr.:

Statement of ABA President H. Thomas Wells, Jr. on Department of Justice
Decision Regarding Ineffective Assistance of Counsel for Immigrants
WASHINGTON, D.C., January 9, 2009 - "For anyone whose future and freedom is at stake, it’s important we offer a fair shake in the courts and a chance for serious wrongs to be righted. That's why immigrants whose cases were botched through incompetent legal representation must have a way to fix their situation.

Yesterday's decision by the attorney general may adversely impact such individuals by significantly narrowing, if not foreclosing, their opportunity to seek redress in these cases.

The ABA strongly believes that the substantive and procedural rights of applicants for immigration relief should be protected when they are victimized by the ineffective assistance of counsel, and urges the government to set rules that clearly uphold such fundamental principles of fairness".

More on Mukasey:

DHS quietly expands border search policies
09/23/2008 @ 3:49 pm
Filed by Nick Juliano
LINK

The Department of Homeland Security quietly expanded its authorization to examine, copy and archive an array of documents and electronic files from citizens and visitors crossing US borders, according to reams of internal documents released Tuesday.

The changes implemented last year reverse a two-decade-old policy requiring border agents to have reasonable suspicion of a crime before reading documents someone is bringing into the country; probable cause was required before documents could be copied.

Those standards have been thrown out the window in favor of lenient standards that allow Customs and Border Patrol agents to read or copy essentially anything they would like from a person entering the United States. The new policies also make it easier for CBP to share documents it copies or confiscates with other law enforcement agencies.

Civil liberties advocates say the new standards raise troubling questions about protecting citizens' First Amendment rights and could lead to customs agents serving as and end-run around the Fourth Amendment by conducting searches that would be prohibited from other agencies.

"For more than 20 years, the government implicitly recognized that reading and copying the letters, diaries, and personal papers of travelers without reason would chill Americans' rights to free speech and free expression," said Shirin Sinnar, a staff attorney with the Asian Law Caucus. "But now customs officials can probe into the thoughts and lives of ordinary travelers without any suspicion at all."

The ALC and the Electronic Frontier Foundation filed a Freedom of Information Act lawsuit against DHS to obtain more than 600 pages of internal documents outlining its policies concerning document collection and interviews conducted at the border. The organizations obtained the documents this summer and published the documents Tuesday.

In an interview Tuesday, Sinar said she hoped the documents' release would spur Congress to enact clearer and stricter standards governing border searches.

The documents themselves were heavily redacted, and the organizations are continuing to appeal for fuller disclosures, she said. DHS does not reveal the procedures or equipment it uses to search electronic equipment. Such disclosures could reveal its use of the CSI Stick, which allows for the quick and easy extraction of cell phone call logs, phone books, text messages and more information.

"We don't know if customs is using that or other programs," she told Raw Story, "but I suspect that they would be."

According to an analysis of the documents (pdf) published by EFF and ALC, DHS reversed several key components of border search guidelines that were instituted in 1986 and updates to the policy made in 2000.

Where customs officers previously could only "glance at documents to see if they were merchandise," the latest policy allows officers to "review and analyze" any documents in a traveler's possession with no suspicion at all. Previous prohibitions on copying documents without a traveler's permission or probable cause also were eliminated, allowing customs to "detain documents or copies for a 'reasonable period of time to perform a thorough border search.'" (Emphasis in original.)

DHS's border search policies have come under scrutiny particularly as they relate to electronic devices and information. Sen. Russ Feingold (D-WI) has raised concerns about the government's ability to copy the contents of travelers' laptops, cell phones, digital cameras and PDAs.

"The invasion of privacy represented by a search of a laptop differs by an order of magnitude from that of a suitcase," Feingold said during a June hearing on the laptop searches. " I guarantee you this: neither the drafters of the Fourth Amendment, nor the Supreme Court when it crafted the 'border search exception,' ever dreamed that tens of thousands of Americans would cross the border every day, carrying with them the equivalent of a full library of their most personal information."


A Feingold spokesman said the senator would have no immediate comment on Tuesday's release of the documents.

DHS refused to send anyone to face questions from Feingold during the June 25 hearing. Instead the agency passed along some superficial prepared testimony from a deputy DHS commissioner in charge of customs. The testimony included some anecdotes about stopping pedophiles at the border but did little to address the privacy concerns regarding the department's extraordinary search authorities. The department also provided the committee with a copy of its border search policy.

The policy provided in June, as well as the wider cache of documents made public Tuesday makes clear that DHS has wide latitude over how and when it can share the information it collects. For example, customs agents can hand over collected documents or files if they need "technical assistance" to translate or decrypt computer files or to determine whether the documents provide reasonable suspicion of a crime.

The border search policy reads, in part:

Officers may encounter information in documents or electronic devices that is not in a foreign language or encrypted, but that nevertheless requires referral to subject matter experts to determine whether the information is relevant to the laws enforced and administered by CBP.

Once the information is in the hands of another agency, that agency can keep a copy of it "to the extent that it has the independent legal authority to do so."

Such a set-up makes it quite easy for other agencies to access copies of private documents from travelers.

"It's quite easy to say you need technical assistance," Sinnar said.

Once they see what's in those documents they can rely on that information to decide whether they have the authority to hold on to them, she added.

DHS says its expanded authority is necessary. An official justified the policy to the Washington Post, which reported on the new policies Tuesday.

DHS spokeswoman Amy Kudwa said the updating of policies reflects an effort to be more transparent. In an e-mail, she wrote that the decision of U.S. Customs and Border Protection (CBP) "to change some of the standards in its old policies reflects the realities of the post-9/11 environment, the agency's expanded mission and legal authorities, and developments in the law, including the Homeland Security Act of 2003. Although certain aspects of the policies have changed, the policies have always reflected the notion that officers have the constitutional authority to inspect information presented at the border" without requiring suspicion of a particular traveler.

Civil liberties groups like EFF and ALC, though, say too many innocent Americans are getting caught up when they try to enter the country.

Amir Khan, an IT consultant who lives in the Bay Area, says he has spent between 20 and 25 hours detained by customs agents when returning from five separate trips abroad. Khan's travels took him mostly to Europe for business and once to visit family in Pakistan.

He said a border agent demanded to examine files on his laptop and quizzed him on the books he was reading, including some religious texts.

"I asked many times, 'What can I do to resolve this?'" he told Raw Story. "They told me there's nothing I can do."

Excellent Teacher Becomes a "Potential Killer"

The following story was told to Betsy Combier over more than 4 hours, with every step documented; the teacher wants to remain anonymous.

"I was a talented educator with a stellar reputation on the East Side of Manhattan for 8 years, in a new magnet school that I had helped to put on the map because of the reading scores and writing skills, of my seventh grade students whom I taught Communication Arts. I was adored by most of my students and their parents, because my adolescent students thrived and were accepted to the top high schools. My successful teacher-practice was observed by the University of Pittsburgh's LRDC (Learning and Research Development Center), the educators who "know what learning looks like," and thus, they were chosen to go into the classrooms of the hundreds of schools in the 12 districts- across the nation- that were chosen to participate in Harvard's research on teacher-practice, which became known as The New Standards.
In 1998, based on the assessment by the LRDC, I was awarded the NYSEC (New York State English Council) "Educator of Excellence of Award," a much coveted and PRESTIGIOUS award. The comments and compliments of administrators (including the very ones who would, months later, put out charges of incompetence), colleagues, parents, & students were submitted to NYSEC. It did not matter to the people who went after me. They knew about me. They rose to national prominence on the standards project, which I had helped attract to our district.
It is interesting to note the words of the principal who eventually documented me as "incompetent," after my return from the ‘rubber room'. Regarding my successful program, she had at one time stated: "I showed your work at the standards workshops and they went crazy over it!" However, upon my return, she stuck me in a new program that was deliberately doomed to failure so she could find me "incompetent." She knew the quality of my work because she was the point man for the Standards project in our district as Director of Curriculum, and head of staff development. She had begun, at my school, as a district’s staff developer, and loved to visit my classroom, bringing prestigious visitors (educators, publishers and administrators) to see my innovative work. Thus, she had to devise a failing program in order to prove I was an incompetent teacher.
The only purpose for doing so, when the evidence of not only competence, but of excellence is so overwhelmingly documented, is to harass a teacher into retirement. My case proves it all! To my face, and in front of the union rep, and the Director of Secondary Education at the time, the superintendent of district 2, said to me, “You are 58, why don't you retire?" This from a woman, who 8 years earlier had asked me if I wanted to teach in her school, when she was a mere principal.
The superintendent charged me with “corporal punishment” based on an alleged verbal assault, which even if it had been true, did not rise to corporal punishment under the Education Law. The rubber room was my first stop in the road to persecution.
Heinous charges were made against me, among some others (all of which are criminal in nature), all of which were outrageous and false, and designed to remove me and all teachers, similarly situated, immediately and without access to the union grievance procedure.
This is such a simple thing to grasp. You see, if allegations and complaints are put through the investigations and grievance procedures AT THE SITE, they will be resolved in the teacher’s favor, since the petty and grievous nature of these allegations will be revealed. It has to be a complaint that rises to the level of “criminal” in order to rip a teacher out of her classroom and doom her to the fate that the administration desires.
I never returned to that wonderful learning environment, with the 1000 books, AND FABULOUS ART MATERIALS that I had purchased with my own money, or to the outstanding curriculum that I alone had created at my middle school, and which included not only literature, media studies, reading and writing, but a full NYS seventh grade art curriculum. I was thrust into a windowless storeroom - the ‘rubber room’ and incarcerated there for six months with no information as to the reason.
In an act that stands alone in its arrogance and contempt for the law, THE SUPERINTENDENT OF THE DISTRICT in collaboration with a person at the DOE's Special Office of Investigation, took it upon herself to publish a letter that I had been found guilty of Corporal Punishment. I had no hearing and no opportunity to meet my accuser, or to defend myself when I was summoned to the meeting room in the District Office where this letter was read - despite the fact that the investigatory procedure that is carefully spelled out in the teacher contract had NOT taken place. They accused me and sabotaged my career based on a calculated interview of six 12 year-old children, where only two girl friends of the accuser, out of thirty children present at the time of the alleged event, backed her tale. The students were listed as “student B and student E, from an alphabet soup of students A through F. Can you imagine such a witness to a crime in a court of this land, which I thought was America.
My attorney, hired at a cost to me of over $25,000, filed a lawsuit and he made it clear that the charges must be dropped.
It said: "Discipline her, or send her back," and they did send me back but not to my proven curriculum. I was now a “pull-out” teacher, handed a list of kids, and a time schedule, by this woman whom I had known for years, as she gave me her back, and took me to a filthy storeroom, which was to be my new "classroom.” I was given no materials and one day to get it ready. This made it easy for this ex-director of curriculum, now principal to "document my incompetence.” But it backfired, because I did a good job, and students annoyed her with requests to be assigned to my program.
Ignoring my attorney's command to expunge the false guilty charges, or face a 40 million dollar lawsuit, the letter stating my guilt had been published to my school, before I arrived, and despite dire warnings in the lawsuit papers that no supervisor, or employee should use the letter or any reference to the heinous allegations, this principal used the allegations in that egregious letter of "guilt" to humiliate me in front of parents, students, office staff and colleagues - many of whom I had mentored.
On my first day back, this woman whom I had known for years, entered the dirty storeroom on the fourth floor, which I was endeavoring to turn into a learning environment. I had covered the glass window on the door, because so many of my former students were wandering from their fifth floor classes, to wave hello.
The principal entered and tore the construction paper from the glass. I tried to explain, but she screamed in my face. “ Shut-up. You just shut-up, or I will be forced to tell everyone you were found guilty of corporal punishment!”
Despite there being direct evidence of abuse presented by my attorney, and the lawsuit, nothing detered the administration from slandering me.
This woman holds a PhD, would go on from this ‘interim’ job, to the superintendent of a Brooklyn school district, yet knew how to bully a fine teacher. This was the beginning of six months of humiliation designed to send me packing. I had been taping my log when she entered, and so, for all eternity, her words are there for me to remember.
When I went looking for some of the 1000 books she had redistributed to classroom libraries, she entered the room where I was looking through a bookcase, and humiliated me in front of the young teacher and the kids, screaming and ordering me into the hall as if I was a delinquent child.
Eventually re-assigned by her, as a “push-in,” I had no classroom of my own, and was assigned to the all-purpose room, another filthy room on the fourth floor, which contained a table, a few computers, and stacks of cartons and litter. Occasionally, a teacher might take a break here, working on some lesson plans.
I was given a student desk and chair in a corner by an unlocked closet. Before and after photos show that I removed the litter, put out a variety of periodicals and books on the now clean windowsill, and used the little unused bulletin board by the closet, to put up a photo of my family.I added some attractive literacy posters to the closet door, and flowers to my “desk.”
For my efforts she placed a letter in my file claiming insubordination. She claimed that I was infringing on the rights of the other teachers who used that room. The truth was, that my colleagues could not face me, and even when I made a small luncheon, inviting them to this now cheerful room, not one of them came. I ate alone.
The ‘push-in’ program she created made me an unwelcome intrusion into the rooms of the very colleagues whom I had mentored when they first came to our school as novice teachers. With no instructions, it was easy for her to find fault with what I did. One egregious moment stands out, because she entered with the Supervisor of Principals, a director at the district level. I was actually addressing the class, with an additional piece of information about the ongoing discussion on Greek history. Not only did this occasion an outburst of monumental proportions, she placed a letter in my file, charging insubordination, claiming that I had no right to speak to the class, and that my job was to assist students. MY sixty-thousand dollar salary, and several college degrees, my training in the standards notwithstanding, I was expected to do the work of a para. The visitor, months later, would meet me in the halls of the district office and apologize for witnessing that abuse. “I know your work,” she said sadly.
The videos of my former CA classroom, made for the LRDC capture a vibrant classroom and a dedicated talented teacher. Yet, her assessment of me in this degrading assignment was the ‘documentation’ that administration would try to use to destroy me, having failed to harass me into a rubber room, with the corporal punishment charges.
I became a pariah, and my reputation on Manhattan's East Side, and elsewhere, as a premier educator was shattered. I lost a book deal, too. Robbing me of my career was not enough to seal my fate. To remove me once again, a charge was put out that I allegedly had “threatened to kill the principal.” Putting out such charges are just a ruse, to push a teacher into a rubber room, but this one pushed me to the edge of nervous collapse. My blood pressure, when I stopped at a doctor’s office on the way home with a banging headache, had skyrocketed.
Thus, in the course of a little more than a year, I had fallen from a celebrated educator to an abuser of children and a potential killer. And this was not enough, either. With my return to the rubber room on that insane, new charge of threatening the principal, charges of incompetence were "put-out" for the very years that I had been observed and filmed by the LRDC.
Even after I was allowed a medical leave, thanks, finally, to the intervention of Randi Weingarten, the superintendent (before she left NYC for a job in California where her abusive methods to staff were also condemned) mailed the charges, week after week, in packages containing all the bogus charges and "documentation” in the form of those "observations" and scores of file letters, made during the bogus ‘pull-out’ and ‘push-in’ assignments. When I began returning these POISON PACKAGES unopened, the superintendent sent to my door, a young law clerk from the DOE, holding red-balloons to trick me into opening my door, so he could give them to me.
How could this happen? At the site level, my union rep - assigned to teach physical education, not what she had transferred to the school to teach - did not help me. I have e-mails that I received, at that time, from former students, asking why this woman was saying that I “had ruined the lives of two girls.”
The superintendent entered the fateful meeting on the day that the ‘’guilty verdict” was read, and kissed this union leader, hello, so as to ‘show me’ her power. This illegal and shameful ‘verdict’ was read, not by her, but by the Director of Secondary Education -- with eyes lowered. He knew me, too, having witnessed my talent and expertise many times.
Through all the grievances, NYSUT, the state umbrella union was not much better; it simply encouraged me to settle. I eventually went to state arbitration, and knowing what would happen if I returned, I resigned, taking what little sanity and self-esteem remained, and returning to a wonderful family, with a new grandson, to recover.
During my experience in the rubber room I learned:
• that Habeas Corpus does not exist for teachers; that lies and harassment are the rule and that perjury is justified if it is done by administration.
• that criminals often run the schools and that with no accountability, their crimes have gone beyond petty and egregious to criminal.
• that the DOE is not interested in educating children, but only with maintaining its own power.
• that the children of NYC mean nothing to them, and teachers have absolutely no human or civil rights, AND THAT THE AMERICA WE KNOW DOES NOT EXIST IN THE RUBBER ROOMS.

ADMINISTRATORS who abuse power and ignore the law for decades, come to believe that they are above the law, and finally that they ARE the law. The time has come to show administrators that the schools are failing, even as governments do when the rule of law disappears and the business of the people, in this case --the nation's children-- become second to their need to remain in power as tyrants with absolute power to rule the domain... and destroy the lives of teachers, even as they destroy the hope of a great education for children."

Workplace Investigations:NYC Employees are in Danger

In New York City, employees of the City of New York are in danger. My personal opinion is - and I have been victimized, threatened, and my kids have been harmed - that we must look at the personnel records of Department of Investigations Rose Gill Hearn (pictured below) and of Special Commissioner of Investigation Richard Condon (pictured at right).


New York City's Commissioner of the Dept. of Investigation Rose Gill Hearn listens to a report during a Dept. of Investigation Comm Stat meeting, Friday Aug. 15, 2008. Under the leadership of Hearn, 46, a blunt former federal prosecutor, the DOI has moved aggressively to counter any impressions that it wasn't willing to tackle serious cases - ones that could potentially embarrass a mayoral administration.

Both these people say that they are independent of the City of New York, yet they are both paid by the City. Richard Condon, for example, is paid by the Department of Education, just like Joel Klein and the Parent Coordinators are. Go to my blog at "News to Use: New York City Government Payroll, FOIL, PERB, Budget, and more", then click "Payrolls", "Search City Government", and Branch/Entity: New York,
Agency: Education Admin, Dep. and Sub-Agency: Education Admin, Dep., then "Condon, Richard". You can do the same for Joel Klein, your school's Parent Coordinator/"Community Associate", etc.

Proof, I believe, that Richard Condon is NOT independent and cannot be impartial in any investigation. News to use.

We parents, teachers and interested taxpayers are buying the services of an 'investigator' paid by the very agency who is victimizing and harming our lives and careers?

Why dont we all do something?

I have put together an article on the generalities involved in a "fair" - unbiased, impartial - investigation, and will write about Mr. Condon and his colleagues Rose Gill Hearn and Thomas Fennell soon.

Betsy Combier

NYS Department of Labor



Workplace Investigations - Who Should Conduct The Investigation?
LINK

In determining who should conduct a workplace investigation, the nature of the conduct alleged, the persons accused, and persons available with the necessary level of investigation training and experience must be considered. The investigator must be fair and impartial with respect to the issues and the parties. Common choices in the selection of an investigator include human resources personnel, attorneys, outside consultants, and law enforcement personnel. Here are some advantages and disadvantages of each choice.

Human Resources: HR personnel will likely be familiar with the employees involved and have extensive knowledge of the employer's policies, practices and culture. However the openness of communication could be impeded and cause a fear of retaliation.

Attorneys: Attorneys will likely be aware of legal boundaries, but may or may not be a good investigator or interviewer. They also may be unfamiliar with the employer's policies, practices and culture. An attorney may be more useful as an overseer of the entire investigative process.

Outside Consultant: An outside consultant may appear more objective and neutral than insiders, particularly if upper management is accused. There is also less risk of a confidentiality breach. However, as with attorneys, an outside consultant may not be familiar with the employer's policies, practices, and culture.

Law Enforcement Personnel: A law enforcement personnel must provide Miranda warnings and other constitutional protections to the accused. Also, the employer looses a great deal of investigative control when using law enforcement personnel. Lack of familiarity or interest in the organization's policies, practices, and culture could be considered a negative. Plus, due to a reasonable doubt standard of proof, there may be a need to impose higher investigative standards than necessary.

Whoever is selected to investigate, it should be someone who:

* understands the purpose of the investigation,
* appreciates the legal and practical issues,
* knows the employer's practices, policies, and culture,
* has good interviewing skills,
* is credible, respected and impartial,
* would be effective as a witness,
* is able to maintain confidentiality,
* pays attention to detail, resolves inconsistencies, addresses all open issues and prepares good documentation, and
* can weigh competing and conflicting information, make a recommendation to the decision make and support it.

And finally, a good investigator is someone who can execute the plan but is flexible enough to adapt to the twists and turns that arise during workplace investigations.

Shango Blake Loses His Appeal After Being Terminated

Mr. Shango Blake was Principal of I.S. 109, and was accused of stealing money, assaulting a child, even running into two teachers with his car. He was terminated by the New York City Department of Education, and then he appealed to New York State.
Below is the decision of Commissioner Mills - who says no, you are not getting your job back.

Appeal of SHANGO BLAKE, from the determination of Joel I. Klein, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to terminate him as Principal of I.S. 109.

Decision No. 15,856
(December 18, 2008)

Bernbach Law Firm PLLC, attorneys for petitioner, Jeffrey M. Bernbach, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Robert Katz, Esq., of counsel

MILLS, Commissioner.--Petitioner (also referred to as “appellant”) appeals the determination of Joel Klein, Chancellor of the New York City Department of Education (“the Chancellor” or “respondent”), implementing an arbitrator’s decision to terminate petitioner from his position as Principal of I.S. 109. The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7). It further provides that the Commissioner shall review any appeals brought according to the terms of such agreements.

Pursuant to Education Law §3020(3), on December 16, 1999, the Council and the District entered into an initial agreement providing for modified disciplinary procedures. The parties then entered into a successor agreement (the “Agreement”), dated April 20, 2007, covering July 1, 2003 through March 5, 2010. For allegations of misconduct with respect to principals, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures. Specifically, the Agreement provides that at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action. Thereafter, the Chancellor may, at the request of the principal, review the arbitrator’s decision. If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in conduct unbecoming his position, neglect of duties, and criminal conduct. Petitioner was charged with 14 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, an allegation of corporal punishment against a student, failing to report an incident, hindering an investigation and causing widespread negative publicity to the District.

An arbitration hearing was subsequently conducted on several dates in February, March, April, May and June 2008, and the arbitrator rendered his final decision on September 30, 2008. The arbitrator found petitioner guilty of the charges alleged in specifications 2(b), (c), (d), (e), (f) and (g), 4(e) and (f), 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) through (h), and 11 [throwing or pushing a student into a radiator, threatening the student by stating words to the effect of “don’t you f****** say something about my son or I’ll break your neck” and punching and choking the student], but not guilty as to the remaining specifications. He concluded that petitioner should be terminated from his position as Principal of I.S. 109, based on the corporal punishment of the student.

Upon receipt of the decision, petitioner requested the Chancellor’s review of the arbitrator’s findings and conclusion that petitioner should be terminated from his position for inflicting corporal punishment on a student.

By decision dated October 24, 2008, the Chancellor agreed with the arbitrator’s determination and decided to implement it.[1] Petitioner then commenced this appeal by serving the Community Superintendent and the Chancellor on October 30 and 31, respectively, at their offices. Petitioner requests that I reverse the Chancellor’s decision and the arbitrator’s determination to terminate petitioner from employment, for inflicting corporal punishment on a student, on the grounds that they are irrational, arbitrary and capricious and unsupported by substantial evidence.

Initially, I must address whether service of this appeal was proper. Section 281.6 of the Commissioner’s regulations specifically addresses the service requirements for appeals to the Commissioner pursuant to Education Law §3020(3). Section 281.6 provides, in pertinent part, that an appellant shall institute an appeal to the Commissioner by effecting personal service of a copy of the appeal upon;

1. the chancellor, or a person designated to accept service on behalf of the chancellor; and
2. the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service.

In this case, the affidavits of service reflect that petitioner served the appeal on Monica Davis, a clerk to the Chancellor, and Camelia Brogdan-Cruz, the District Family Administrator for District 29. Respondent maintains that these persons are not authorized or designated to accept service on behalf of the Chancellor or the superintendent, and that the only agent authorized to accept service on their behalf is the New York City Law Department. It is undisputed that petitioner failed to serve the Law Department. Therefore, I am constrained to dismiss the appeal for improper service (Appeal of Tchoukanine, 47 Ed Dept 334, Decision No. 15,715; Appeal of Harmon, 43 id. 478, Decision No. 15,057; Appeal of Malley, 31 id. 149; Decision No. 12,601).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The issues in this appeal are whether the arbitrator’s finding of guilt on the corporal punishment charge is supported by the record and whether that finding warrants termination. I find that the record supports both the finding of guilt and the penalty.

This case turns on the credibility of petitioner, the student and the other witnesses who testified before the arbitrator. The Commissioner will not ordinarily substitute his judgment for that of a hearing officer with respect to the credibility of witnesses (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Grihin, 38 id. 399, Decision No. 14,064; Appeal of Bd. of Ed. of Community School District #22, 30 id. 238, Decision No. 12,448). In order for the Commissioner to substitute his judgment for that of a hearing officer, there must be clear and convincing evidence that the hearing officer’s determination of credibility is inconsistent with the facts, or that the hearing officer’s decision is contrary to the weight of evidence and the hearing officer has not adequately explained his rejection of otherwise convincing testimony (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Gibbs, 33 id. 684, Decision No. 13,196; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391, Decision No. 12,864). Upon my review of the record, I find no reason to substitute my judgment for the arbitrator’s determinations regarding the witnesses’ credibility or his factual findings based thereon.

The arbitrator heard testimony from a number of witnesses for both sides, including petitioner. A review of the arbitrator’s 68-page decision reveals that he assessed and evaluated the testimony of all witnesses, including petitioner, and provided detailed reasons for crediting certain testimony and not others. The arbitrator’s decision summarized each party’s position, discussed every specification individually, outlined both sides’ arguments and referred to specific pages of the more than 3,300-page transcript to support his determination.

With respect to the corporal punishment charge, the arbitrator credited the testimony of the student and the District’s witnesses. The student testified that on June 26, 2006, petitioner pushed the student’s hat off his head and threw it to the floor, that “he pulled [him] to the radiator and ... choked [him]”. The student then testified that petitioner told him “‘you say anything about my son again, I’m going to break your neck,’ and he started punching [him] with his arms.” According to the student, petitioner then punched him in the chest. After the incident, the student testified that he looked at the two other eye-witnesses, Troy Edwards (“T.E.”) and James Holder (“J.H.”), and said “‘you’re not going to do anything about this?’” and petitioner said to T.E. and J.H., “‘did you see anything’” and both replied, “‘no, I didn’t see nothing. I don’t have a problem.’” When the student returned home that day, he testified that he noticed red marks on his neck. The student’s written statement supports his testimony to the extent he indicates that petitioner threw him into the radiator, punched him in the chest and choked him.

In addition, the student’s recollection of the events that day was corroborated by other witnesses. Linette Edwards (L.E.), petitioner’s secretary, was seated at her desk outside the principal’s conference room and she testified that she heard petitioner say to the student “‘if you threaten my son, I’ll break your damn neck’”. After they exited the conference room, L.E. also heard petitioner say “‘I didn’t see or hear anything, [J.H.], did you” even before the student made any accusation that petitioner had punched or choked him. When the student heard J.H. say he didn’t say or hear anything, L.E. testified that the student asked J.H. how he could lie and stated, “‘you know you saw [petitioner] choke me.’” She further testified to observing fingerprint marks on the student’s neck.

Ernest Alvarez, the program director at Project HOPE, a program that the student attended regularly, testified that when the student arrived at the program on June 26th, he observed fingerprints on the student’s neck and when he asked the student “what happened to your neck?”; the student told him that petitioner grabbed him.

Moreover, two other employees at the school testified that petitioner admitted that he choked the student. Susan Druss, the Purchasing Secretary at the school, testified that two days after the incident petitioner called her into a conference room and brought up the incident with the student. At this time, petitioner told her that he lost it and blacked out and that he “put [the student] up against the wall, and ... choked him until he couldn’t breathe.” In addition, Tesha Forbes, the School Treasurer, testified that on June 30, 2006, petitioner called her into the main office and raised the incident and explained that “he didn’t realize it, but he went off on [the student] ... [and] started to choke him”.

Even though petitioner denies pushing, punching or choking the student and two other eye-witnesses, J.H. and T.E., deny that petitioner had any physical contact with the student, the arbitrator chose to credit the testimony of the student and the District’s witnesses, and upon my review, I find no basis to disturb the arbitrator’s determination, which I find to be supported by the preponderance of the evidence.

Moreover, I find no merit to petitioner’s argument that the Chancellor improperly relied upon the arbitrator’s decision because the arbitrator made two erroneous statements in his determination. While I agree that the arbitrator misstated that T.E. testified that petitioner “screamed he would break [the] student’s neck”[2] and that petitioner testified that he “was not angered by [the student] when he threatened [petitioner’s] son”, I find that these misstatements did not affect his overall findings, and any error in the language of the decision was de minimis.

In determining whether to substitute my judgment for that of hearing officer, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 603; Appeal of the Bd. of Educ., Wellsville CSD, 35 Ed Dept Rep 523, Decision No. 13,620; Appeal of the Bd. of Ed., City School District of the City of New York, 35 id. 35, Decision No. 13,455). An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of the Bd. of Educ., Greenburgh CSD No. 7, 34 Ed Dept Rep 506, Decision No. 13,397). The verbal and physical abuse of a student by an administrator is wholly inappropriate and intolerable. In light of the seriousness of petitioner’s conduct, I find that termination of his employment is warranted, and I will not substitute my judgment for the penalty imposed by the arbitrator and Chancellor (see Matter of Pell v Bd. of Educ., 34 NY2d 222, 233; Appeal of Blumenblatt, 33 Ed Dept Rep 249, Decision No. 13,041).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE
[1]I note that the Chancellor’s decision refers to the prior collective bargaining agreement entered into on December 16, 1999; however, a review of that agreement and its successor agreement reveal that the terms of both agreements relating to modified disciplinary procedures for principals are substantially the same.

[2]The entire statement reads “[Petitioner’s] own witness Troy Edwards confirmed [petitioner] was angry in the face of [the student’s] threat. Troy Edwards agrees [petitioner] screamed he would ‘break [the student’s neck’, if [the student] threatened his son.”

More on Blake:

New York City Board of Education Reports That Principal Shango Blake Misused School Funds and Punched a Student


October 14, 2007
Queens Village
The Two Shango Blakes
By EMILY BRADY, NY TIMES

ONE of the unusual works at last year’s Tribeca Film Festival was a rap video titled “Tuck That Shirt In” that was written, produced and performed by the students, parents and staff of Intermediate School 109 in Queens Village.

The star of the video is Shango Blake, the school’s 37-year-old principal. Mr. Blake, who is built like an N.F.L. linebacker, is seen bobbing down a school hallway, dressed in a sharp black suit and gold tie, rapping about the school uniforms he established when he took over in 2003.

The uniforms — pastel shirts neatly tucked into navy blue pants or skirts — symbolize the changes Mr. Blake has been credited with bringing to the school. After his arrival four years ago, reading and math scores increased, and new programs, like the one that used the production of rap videos as a learning tool, were introduced.

As one student raps at the end of the video, “Mr. Blake changed the school we call 109; now we look like the school where it’s time to shine.”

In the two years since the video was made, Mr. Blake’s professional role has continued off camera — and lately it has taken a dark turn.

In a report issued Aug. 13, the Office of Special Investigations of the city’s Department of Education found that Mr. Blake had mismanaged more than $30,000 in school funds, most of which had been collected from parents and students for school lunches, class trips and graduation events. The report, which followed an 18-month investigation, also said that Mr. Blake had punched and choked a 13-year-old student who had made negative remarks about Mr. Blake’s son.

After the findings were issued, Schools Chancellor Joel Klein — who made a cameo appearance in “Tuck That Shirt In” — suspended Mr. Blake and began proceedings to fire him.

The story might have ended there were it not for a large group of parents, community leaders and elected officials who are rallying around Mr. Blake and demanding that he be reinstated and allowed to defend himself.

“We take pride in Shango,” Archie Spigner, a former city councilman from southeast Queens, said this month. “He’s to be commended, not condemned.”

And Representative Gregory Meeks of Queens is so supportive of Mr. Blake that he honored him with an Educator’s Award at an Oct. 5 fund-raising dinner in Queens Village at which Gov. Eliot Spitzer was the guest speaker. Before an audience of 800 that included two dozen I.S. 109 students, Mr. Blake was given a plaque and a standing ovation.

“We don’t know what the facts are, other than he turned the school around, the parents love him and want him back, the kids love him and want him back and the community loves him and wants him back,” Mr. Meeks said after the event. “He’s worth fighting for.”

These feelings are shared by many other local officials, seven of whom, including Mr. Meeks, sent a joint letter to Mr. Klein on Sept. 13 saying Mr. Blake had been denied due process and should be reinstated immediately.

Jeffrey Bernbach, Mr. Blake’s lawyer, described the charge involving the misuse of funds as “absolutely untrue.” As for the accusation of assaulting a student, Mr. Bernbach said, “He doesn’t deny he became angry and yelled at the kid, but he never laid a hand on him.”

According to Dina Paul Parks, a spokeswoman for the Department of Education, Mr. Blake will have a chance to defend himself at a disciplinary hearing. No date for the hearing has been set.

Meanwhile, with a new interim principal in place at I.S. 109, many parents are afraid that changes instituted under Mr. Blake will disappear.

“We don’t see the same vigilance now,” said Kangela Moore, president of the school’s Parents’ Association and the mother of a seventh grader. In recent weeks, Ms. Moore said, the number of fights outside the school has increased; she attributes the increase to Mr. Blake’s not being there to patrol the block as he used to.

An emergency parents’ meeting was held after a fight in a school hallway on Oct. 5 left one student with a concussion, Ms. Moore said, and two seventh graders were subsequently arrested.

In response, Ms. Parks said that while she understands parents’ concerns, she is confident in the acting principal, Miatheresa Tate.

Ms. Moore said that she had faxed to the chancellor’s office letters from 600 parents in support of Mr. Blake, and that more than 400 parents showed up at a prayer vigil held in the principal’s honor at the Embury United Methodist Church in Jamaica.

“The overwhelming sentiment was that we need him to come back to the school,” Ms. Moore said. “We needed him back, like, yesterday.”

'SKIMMING' KIDS' MILK MONEY
By YOAV GONEN, New York Post
LINK

August 14, 2007 -- A flamboyant Queens principal who has been hailed by Chancellor Joel Klein once used students' lunch money to help foot the bill for limos to the premiere of a school-produced rap video, investigators charged yesterday.

School probers said the funds were among more than $30,000 misappropriated by Shango Blake, the four-year principal of IS 109.

Blake, 37, of Queens, allegedly misused funds he had collected from students and parents for school lunches, snacks and graduation expenses between May 2005 and June 2006.

"Shango Blake's financial mismanagement and inappropriate conduct makes it clear that he has no place in New York City public schools," concluded the report by the Office of the Special Commissioner of Investigation.

The report found that even as the school was accumulating more than $18,000 in debts to the Office of School Food, its treasurer was handing Blake up to $600 in cash per week to pay various other expenses. There is no indication he used any of the funds for himself.

When education officials asked Blake about the lack of payments, he reportedly said he had spent money on limousines to shuttle students to the premiere of the hip-hop video, "Tuck That Shirt In."

The video was screened at the 2006 Tribeca Film Festival.

Investigators found nearly $11,500 in expenses tied to that school digital production, as well as another.

Department of Education spokeswoman Dina Paul Parks said the agency was taking steps to ax Blake.

Reached by phone, Blake's wife declined to comment.

Officials also charge that the principal is a bully.

Blake, who was once cited by Klein for improving school safety, punched, choked and threatened a 13-year-old student last year for making remarks about his son, who also attended IS 109, officials said.

According to the report, the unidentified student told investigators that after being confronted by Blake about a discipline problem, he made a passing remark about Blake's son that set the principal off.

The student claimed that in the presence of two school employees, Blake threw him against a radiator and threatened to break his neck if he mentioned his son again.

When Blake challenged him to repeat the remark, the student did - leading Blake to punch him in the chest three times, grab his neck and choke him, the student said. While Blake and the two employees refuted the student's version of events, investigators found witnesses who corroborated the account.

Additional reporting by John Mazor and Erin Calabrese

yoav.gonen@nypost.com

Principal To Be Removed After Beating, Theft Accusations
By ELIZABETH GREEN, Staff Reporter of the Sun | August 14, 2007
LINK

A Queens principal accused of using corporal punishment against a student who insulted his son and misusing thousands of dollars in students' lunch money is being removed from his middle school weeks before school starts, the Department of Education said yesterday.

The student who was allegedly attacked, a 13-year-old male, was first sent to his principal's office for using "the �f' word" over a cafeteria sound system late last June, the report said. While walking out of the office after being reprimanded, the 13-year-old told investigators he said to the principal, Shango Blake, "Have a good life you and your son."

He said Mr. Blake then punched him three times in the chest and choked him, leaving fingernail marks on his neck that were observed by several witnesses, according to the report.

Mr. Blake's son also attended the middle school, the Jean Nuzzi Intermediate School, or I.S 209, in Queens, the investigators wrote. Of the four people who were in Mr. Blake's office at the time - the principal, the student, and two staff members - only the student claimed an attack occurred. Mr. Blake, whose attorney did not respond to a request for comment, denied that any abuse occurred during an interview conducted under oath, calling the student an "emotionally disturbed kid" who "had lied in the past," the report said.

Investigators cited several other witnesses who confirmed the 13-year-old's report. One, a secretary, said she heard through a conference room door Mr. Blake threatening to break the student's neck and then watched the student walk out with marks on his neck. A school treasurer said Mr. Blake told her he pushed the student up against an air-conditioner in his office and choked him "until he heard the boy gasping for air." The investigators, who work for the Department of Education's special commissioner of investigation, Richard Condon, also alleged that Mr. Blake had misappropriated $30,000 in funds � money students turned in to pay for school lunches, snacks, and graduation expenses � between May 2005 and June 2006.

A Department of Education spokeswoman, Dina Paul Parks, said the city is pursuing Mr. Blake's termination and will discipline the two other staff members in the room that day.

Term Limits Lawsuit Continues in Court

Attorney Randy Mastro, right, argues for the plaintiffs, while Corporation Counsel Stephen Kitzinger, left, representing the city, listens, Wednesday, Oct. 22, 2008 in New York as Mastro argues to stop a proposed Oct. 23 vote that could alter term limits for some of the city's elected officials, including Mayor Michael Bloomberg. Judge Jacquelyn Silbermann denied the request to block voting on Mayor Bloomberg's proposal to change the term-limits law so he can run for a third term.

January 6, 2009
Term Limits Get Reprise, This Time in Court
By FERNANDA SANTOS, NY TIMES

A decisive round in the battle over who can run for re-election in New York City in November played out on Monday in a packed courtroom in Brooklyn, where lawyers for the city and for a group challenging an extension of term limits argued their cases before a federal district judge.


Each side tried to make its case, and the judge, Charles P. Sifton, (pictured at right) acknowledged how difficult a decision this might be for him.

“We’re talking about different interests,” said Judge Sifton, whose ruling will essentially decide the makeup of the citywide ballot. “It’s difficult to convert into some common denominator.”

Two months have passed since Mayor Michael R. Bloomberg signed the law allowing him and most other elected city officials to seek third terms, circumventing two plebiscites that set two consecutive four-year terms in public office as the limit for all of them.

One primary issue in the lawsuit filed by the challengers is whether the law extending term limits violated the voters’ constitutional rights to free speech, by annulling a decision they had endorsed at the polls, and their due process, by giving two-term incumbents an unfair advantage over challengers.

Arguing on behalf of the city, Stephen Kitzinger, (above) senior counsel in the city’s Law Department, said the claims “have no merit whatsoever” and added, “This law does not preserve an incumbent’s position for another four years.”

With that, Mr. Kitzinger apparently hoped to discredit some of the lawsuit’s other claims, including one that called it a conflict of interest for politicians to vote on a law expanding their own time in office. When Judge Sifton asked about the salaries and pensions a three-term incumbent might earn, Mr. Kitzinger replied impatiently, “They still have to be re-elected.”

Randy M. Mastro, the lead lawyer for the plaintiffs, squarely disagreed.

“A term-limited mayor and a term-limited City Council majority made a conscious choice out of naked incumbent protection to vote themselves the opportunity for a third term,” Mr. Mastro said.

Overturning the law extending term limits would most likely cause chaos in the city’s political world, compelling politicians who would be forced out of office to come up with new plans and candidates who had given up running against entrenched officeholders to rethink their strategies.

Judge Sifton, who last month denied a city request to have the case moved to Manhattan and combined with another lawsuit challenging the law, did not set a date for his decision. “I’ll issue a written opinion as fast as I can,” he said.

A total of 25 elected officials, aspiring politicians and other people filed the lawsuit on Nov. 10, charging that the term limits extension was unconstitutional.

In a written response submitted late last month, city lawyers scoffed at the notion, calling it a “startling premise” and a “radical proposal” that would essentially undermine the power of legislatures to amend or revoke laws passed by referendum.

The bill sparked one of the most divisive battles in the city’s recent political history, at one point pitting Mr. Bloomberg against some of his top aides, who advised him against a re-election bid. It also sparked countless protests on the steps of City Hall, prompted petition drives and nearly split the City Council in half.

The Council passed the bill on Oct. 23 in a 29-to-22 vote and Mr. Bloomberg signed it into law 11 days later, after sitting through almost five hours of emotional — and often harshly critical — public testimony.

The mayor said that he wanted to run for a third term to give voters the option of choosing a seasoned leader during a period of extraordinary fiscal hardship for the city.

He has also said that a charter revision commission could revert to the two-term limit as early as next year.

November 11, 2008 10:30 AM
Gibson Dunn's Mastro Leads Term Limits Suit Against Bloomberg
Posted by Dimitra Kessenides
From The Am Law Litigation Daily
LINK

A diverse group of folks has filed a suit against New York mayor Michael Bloomberg, challenging the constitutionality of the recently passed legislation that will permit him to run for a third term. The coalition suing the mayor includes elected officials, private citizens, and public interest groups. Not surprisingly, one of the group's lawyers is Randy Mastro of Gibson, Dunn & Crutcher, who once served as Rudy Giuliani's deputy mayor. As we reported last month, (see below - Ed.) Mastro first signed on to represent two City Council members who had filed a petition for a temporary restraining order to halt the Council's October 23 vote.

Given his loyalty to Giuliani, Mastro's work on the legal campaign to block Bloomberg's efforts had already raised eyebrows even before he coauthored the coalition's complaint. "If Mastro succeeds in derailing Bloomberg's plan for another four years, he'd embarrass [Bloomberg]," wrote Jacob Gershman in a recent New York magazine story. "Taking Bloomberg down a peg could only help Giuliani, who's positioning himself to mount a comeback by seeking to unseat [New York governor] David Paterson in 2010."

In the same article, one veteran political operative jokingly described Mastro as the "Luca Brasi" of the term limits operation. But Mastro denied that his firm's pro bono work in support of term limits was influenced by his ties to Giuliani. "It has nothing to do with anyone I worked for in the past," Mastro told the magazine.

Mastro sees the term-limits move by Bloomberg and the Council members supporting it as "an assault on our democracy," he told The Am Law Daily last month.

The complaint also lists Gibson attorneys Jim Walden, Richard Bierschbach, and Gabriel Herrmann, and solo practitioner Norman Siegel. Lovells attorney Pieter Van Tol is listed as counsel to the New York Public Interest Group.

Download Term Limits Complaint

Comments (1)

There does not seem to be much difference between what Hitler did to gain power and what Bloomberg is doing. If Mr. Bloomberg thinks with his large ego that he is the only one to save NYC, then why cant he volunteer his services. I am sure that if another person was mayor they would listen to his advice. Or is it the 1st rule of power, which is to keep it. A referendum is the voice of the people, which in the past Mr. Bloomberg was all for. That is until it got in the way of his ambitions. Dictator: a person exercising absolute power, esp. a ruler who has absolute, unrestricted control in a government without hereditary succession. One who imposes or favors absolute obedience to authority. A ruler who is unconstrained by law.
Does it sound familiar Mr. Bloomberg, or should people start calling you mien fuehrer instead of mayor.

Comment By Ogel - November 11, 2008 at 2:44 PM

October 22, 2008 5:44 PM
NYC Judge Green Lights Term Limit Vote
Posted by Rachel Breitman
LINK

A New York City judge said Wednesday that a City Council vote on extending term limits can move forward as planned. Earlier in the day, two New York City Council members, represented by Gibson Dunn & Crutcher's Randy Mastro, filed a petition for a temporary restraining order to halt Thursday's scheduled vote.

Mastro, co-chair of Gibson Dunn & Crutcher's litigation practice and crisis management groups, argued that council members who stand to benefit from term extensions have a conflict of interest in voting on the matter. The former deputy mayor under Rudolph Giuliani was tapped to represent Brooklyn council members Bill de Blasio and Letitia James, both outspoken critics of Mayor Michael Bloomberg's plan to extend his term.

"We think some of the council members' personal interests in extending term limits are self-serving," Mastro tells The Am Law Daily. "It's an assault on our democracy," he says. Gibson Dunn is handling the case pro bono.

The suit tried in vain to slow the trajectory of Bloomberg's fast-moving campaign for a third term. Bloomberg announced October 2 that he would seek a change to the term limits rules, and said there wasn't enough time for a citywide vote on the matter.

Mastro previously locked horns with Bloomberg in a lawsuit over the city's controversial West Side Stadium project.

Stephen Kitzinger, senior counsel from the New York City Law Department, represented the rest of council, arguing that the city's legislative body has the power to change the term limits without opening the matter up to the public.

"We are gratified the court ruled in favor of the City's position, thus allowing the council to vote on this critical issue," Kitzinger said in a statement.

Under the current term limits law, passed by a city referendum in 1993, New York City's elected officials can serve only to two four-year terms. Under the current law, two out of three council members will be looking for work once their terms end come 2009, including Speaker Christine Quinn. Quinn supports the vote.

A recent op-ed by Mastro published in the New York Times argued that Bloomberg's only legitimate path to a third term would be through the approval of city residents in a special election referendum.

Barring a reversal by the appellate division Thursday, the council will move forward with a scheduled vote.

October 6, 2008 5:36 PM
Lawyers Debate Legality of Opening Door to a Third Bloomberg Term
Posted by Rachel Breitman
LINK

Even before Mayor Michael Bloomberg formally declared his desire to serve a third term last Thursday, lawmakers and lawyers had begun questioning the legality of the plan.

Conceding that there wasn't enough to time to give the public a chance to vote on whether to amend the city's term-limit law, the mayor said the City Council should be allowed to make the decision.

"The [City] Charter allows the Council to change the law - and it doesn't favor one method of adoption over another,” Bloomberg said in a statement. The mayor added that he expected Council Speaker Christine Quinn (pictured at right) --also set to be term-limited out of office next year--to lead the charge on the matter.

But council members, good-government advocates and politicians eyeing higher office expressed skepticism about the validity of using a council vote to undo the 1993 term limit law, which was passed via public referendum and caps at two the number of four-year terms that elected officials may serve. Critics -- some of whom gathered at City Hall on Sunday to protest any move to extend term limts -- note that voters already rejected a move to overturn the limits by defeating a 1996 referendum on the issue.



Opposition to Bloomberg's third-term push could build inside City Hall this week, fueled in part by the efforts of council members with designs on higher office. Queens Councilmember -- and announced comptroller candidate -- David Weprin (pictured above) plans to introduce a bill shortly that would require a public vote in advance of any term-limit changes. Brooklyn Councilmember Bill de Blasio, a borough president hopeful, has teamed up with Councilwoman Letitia James, (pictured at right) whose term runs through 2011, on a bill that would place the question before voters in a special spring referendum.

A term limit bill could also face legal challenges from other mayoral hopefuls, including City Comptroller William Thompson Jr., a Democrat who has labeled Bloomberg's move “an attempt to suspend democracy,” or supermarket magnate John Catsimatidis, a potential GOP candidate.

“The people voted on term limits twice, and the will of the people should stand,” Catsimatidis spokesman Robert Ryan tells The AmLaw Daily.

Norman Siegel, director of the New York Civil Liberties Union from 1985 to 2000, tells The AmLaw Daily that he would be keen to help out with a legal challenge to the mayor. “The people have spoken two times by public referendum,” says Siegel, who is planning a third run for public advocate next year. Siegel has previously challenged the Bloomberg administration over such issues as citywide parade rules and mourners' access to Ground Zero. “The question is whether you can allow a legislative body to undo the people’s will by legislative fiat.”

Siegel downplayed the 1961 court decision in Benzow v. Cooley--often cited by Bloomberg supporters as a powerful precedent---when the New York State Court of Appeals upheld Buffalo city council’s right to overturn term limits. “The Buffalo decision is limited and not controlling in this case,” says Siegel.

The mayor's backers point to a 2003 New York City appeals court decision, which supported the council's power to tweak the 1993 term limits bill for candidates elected during mid-term special elections.

“It is absolutely clear that the city council can change the term limits, and it does not require a referendum,“ Robert Joffe, a partner in Cravath Swaine and Moore's litigation department, who represented the city council in the 2003 case, tells The AmLaw Daily. But he says there will still be debate over what a new term limit law might look like. “The question is, would they abolish term limits outright? Change the limits to three terms for all elections, or just this one because of fiscal emergency?”

Another potential wild card could be cosmetics heir Ronald Lauder, a longtime term-limits proponent and the driving force behind passage of the original law. Lauder says he will only support a one-time extension to the term limits bill, and will actively campaign against any council bill that would permanently change term limit restrictions.

The mayor has, however, won the support of several prominent lawyers, including Candace Beineke, chair of Hughes Hubbard & Reed and Martin Lipton, a founding partner of of Wachtell, Lipton, Rosen & Katz. The two joined 28 corporate executives in an open letter that was published in several New York City newspapers on Thursday supporting a third Bloomberg term.

“I am not an expert on term limits,” Beineke tells The AmLaw Daily. Nonetheless, she believes New Yorkers should see Bloomberg on the ballot next year. “I think the voters ought to have a chance to give Bloomberg a third term because it is the most democratic option.”
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I wanted to update your readers. After the City Council's introduction of two pieces of legislation relating to this matter yesterday, New York City Comptroller William C. Thompson, Jr. issued the following statement: "Today, the New York City Council introduced two measures, one that would allow the Council and the Mayor to single-handedly grant themselves the ability to run for a third term. The other measure would allow New York City voters to make the decision. The choice is clear: People must come before politics. It is inappropriate for the Mayor and City Council to pass legislation that ignores the will of the voters. A government should serve its people and not itself. New Yorkers deserve nothing less."

Comment By Jeff Simmons - October 8, 2008 at 2:26 PM

Why was the Mayor afraid to put in a referundum before the Sept. 24th deadline....No answer from him. WHY

Comment By james wachowiak - November 3, 2008 at 1:50 AM