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Sunday, July 8, 2012

What is "Bad Faith"?

Bad faith - Free Dictionary
LINK


The fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation.

Bad faith is not the same as prior judgment or Negligence. One can make an honest mistake about one's own rights and duties, but when the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith.

The existence of bad faith can minimize or nullify any claims that a person alleges in a lawsuit. Punitive Damages, attorney's fees, or both, may be awarded to a party who must defend himself or herself in an action brought in bad faith.

Bad faith is a term commonly used in the law of contracts and other commercial dealings, such as Commercial Paper, and in Secured Transactions. It is the opposite of Good Faith, the observance of reasonable standards of fair dealings in trade that is required of every merchant.

A government official who selectively enforces a nondiscriminatory law against the members of a particular group or race, thereby violating the Civil Rights of those individuals, is acting in bad faith.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

bad faith 1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called "implied covenant of good faith and fair dealing" which is breached by acts of bad faith, for which a lawsuit may be brought (filed) for the breach (just as one might sue for breach of contract). The question of bad faith may be raised as a defense to a suit on a contract. 2) adj. when there is bad faith then a transaction is called a "bad faith" contract or "bad faith" offer. (See: good faith, fraud, clean hands doctrine)
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

bad faith noun abjection, abjectness, abscondence, apostasy, artifice, base conduct, betrayal, betrayment, breach of faith, broken faith, broken promise, collaboration, complicity, connivance, cozenage, debasement, deceit, deceitfulness, deception, defalcation, defection, delusion, delusiveness, dereliction, dereliction of duty, deviation from rectitude, deviousness, disaffection, disavowal, dishonesty, dishonor, disingenuousness, disloyalty, disobedience, double-dealing, duplicity, fallaciousness, false preeenses, false pretension, false swearing, falseheartedness, falseness, forswearing, fraud, fraudulency, furtiveness, guile, hypocrisy, ignominy, improbity, indiscretion, infidelity, insidiousness, insincerity, inveracity, lack of conncience, lack of fidelity, lack of principle, lack of probity, mala fides, malversation, mendaciousness, mendacity, misfeasance, misrepresentation, obliquity, perfidiousness, perfidy, pettifoggery, pretense, pretext, punic faith, recantation, recreancy, reprobacy, sedition, spuriousness, subterfuge, subversion, subversive activity, suppression of truth, surreptitiousness, traitorousness, treacherousness, treachery, turpitude, unauthenticity, unconscientiousness, underrand dealing, unfairness, unfaith, unfaithfulness, unfaithworthiness, ungenuineness, unloyalty, unsteadfastness, untrueness, untrustiness, untruthfulness, unveraciousness, unveracity, venality, violation of allegiance, violation of duty
Associated concepts: fraud
Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

What is "Fraud"?

Fraud - Free Legal Dictionary

NYCourts - New York Court Corruption

LINK 


A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. In the U.S. legal system, fraud is a specific offense with certain features.

Fraud is most common in the buying or selling of property, including real estate, Personal Property, and intangible property, such as stocks, bonds, and copyrights. State and federal statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors have discretion in determining which cases to pursue.

Victims may also seek redress in civil court.

Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.

These elements contain nuances that are not all easily proved. First, not all false statements are fraudulent. To be fraudulent, a false statement must relate to a material fact. It should also substantially affect a person's decision to enter into a contract or pursue a certain course of action. A false statement of fact that does not bear on the disputed transaction will not be considered fraudulent.

Second, the defendant must know that the statement is untrue. A statement of fact that is simply mistaken is not fraudulent. To be fraudulent, a false statement must be made with intent to deceive the victim. This is perhaps the easiest element to prove, once falsity and materiality are proved, because most material false statements are designed to mislead.

Third, the false statement must be made with the intent to deprive the victim of some legal right.
Fourth, the victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false statement generally will not give rise to fraud; however, people who are especially gullible, superstitious, or ignorant or who are illiterate may recover damages for fraud if the defendant knew and took advantage of their condition.

Finally, the false statement must cause the victim some injury that leaves her or him in a worse position than she or he was in before the fraud.

A statement of belief is not a statement of fact and thus is not fraudulent. Puffing, or the expression of a glowing opinion by a seller, is likewise not fraudulent. For example, a car dealer may represent that a particular vehicle is "the finest in the lot." Although the statement may not be true, it is not a statement of fact, and a reasonable buyer would not be justified in relying on it.

The relationship between parties can make a difference in determining whether a statement is fraudulent. A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge. For example, if the seller of a car with a bad engine tells the buyer the car is in excellent running condition, a court is more likely to find fraud if the seller is an auto mechanic as opposed to a sales trainee. Misleading statements are most likely to be fraudulent where one party exploits a position of trust and confidence, or a fiduciary relationship. Fiduciary relationships include those between attorneys and clients, physicians and patients, stockbrokers and clients, and the officers and partners of a corporation and its stockholders.

A statement need not be affirmative to be fraudulent. When a person has a duty to speak, silence may be treated as a false statement. This can arise if a party who has knowledge of a fact fails to disclose it to another party who is justified in assuming its nonexistence. For example, if a real estate agent fails to disclose that a home is built on a toxic waste dump, the omission may be regarded as a fraudulent statement. Even if the agent does not know of the dump, the omission may be considered fraudulent. This is constructive fraud, and it is usually inferred when a party is a fiduciary and has a duty to know of, and disclose, particular facts.

Fraud is an independent criminal offense, but it also appears in different contexts as the means used to gain a legal advantage or accomplish a specific crime. For example, it is fraud for a person to make a false statement on a license application in order to engage in the regulated activity. A person who did so would not be convicted of fraud. Rather, fraud would simply describe the method used to break the law or regulation requiring the license.
Fraud resembles theft in that both involve some form of illegal taking, but the two should not be confused. Fraud requires an additional element of False Pretenses created to induce a victim to turn over property, services, or money. Theft, by contrast, requires only the unauthorized taking of another's property with the intent to permanently deprive the other of the property. Because fraud involves more planning than does theft, it is punished more severely.

Federal and state criminal statutes provide for the punishment of persons convicted of fraudulent activity. Interstate fraud and fraud on the federal government are singled out for federal prosecution. The most common federal fraud charges are for mail and wire fraud. Mail and wire fraud statutes criminalize the use of the mails or interstate wires to create or further a scheme to defraud (18 U.S.C.A. §§ 1341, 1342).

Tax fraud against the federal government consists of the willful attempt to evade or defeat the payment of taxes due and owing (I.R.C. §7201). Depending on the defendant's intent, tax fraud results in either civil penalties or criminal punishment. Civil penalties can reach an amount equal to 75 percent of the underpayment. Criminal punishment includes fines and imprisonment. The degree of intent necessary to maintain criminal charges for tax fraud is determined on a case-by-case basis by the Internal Revenue Service and federal prosecutors.
There are other federal fraud laws. For example, the fraudulent registration of Aliens is punishable as a misdemeanor under federal law (8 U.S.C.A. § 1306). The "victim" in such a fraud is the U.S. government. Fraud violations of banking laws are also subject to federal prosecution (18 U.S.C.A. §§ 104 et seq.).

The Federal Sentencing Guidelines recommend consideration of the intended victims of fraud in the sentencing of fraud defendants. The guidelines urge an upward departure from standard sentences if the intended victims are especially vulnerable. For example, if a defendant markets an ineffective cancer cure, that scheme, if found to be fraudulent, would warrant more punishment than a scheme that targets persons generally, and coincidentally happens to injure a vulnerable person. Federal courts may require persons convicted of fraud to give notice and an explanation of the conviction to the victims of the fraud (18 U.S.C.A. § 3555).

All states maintain a general criminal statute designed to punish fraud. In Arizona, the statute is called the fraudulent scheme and artifice statute. It reads, in pertinent part, that "[a]ny person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions" is guilty of a felony (Ariz. Rev. Stat. Ann. § 13-2310(A)).

States further criminalize fraud in a variety of settings, including trade and commerce, Securities, taxes, real estate, gambling, insurance, government benefits, and credit. In Hawaii, for example, fraud on a state tax return is a felony warranting a fine of up to $100,000 or three years of imprisonment, or both, and a fraudulent corporate tax return is punished with a fine of $500,000 (Haw. Rev. Stat. § 231-36). Other fraud felonies include fraud in the manufacture or distribution of a controlled substance (§ 329-42) and fraud in government elections (§ 19-4). Fraud in the application for and receipt of public assistance benefits is punished according to the illegal gain: fraud in obtaining over $20,000 in food coupons is a class B felony; fraud in obtaining over $300 in food coupons is a class C felony; and all other public assistance fraud is a misdemeanor (§ 346-34). Alteration of a measurement device is fraud and is punished as a misdemeanor (§ 486-136).

In civil court, the remedy for fraud can vary. In most states, a plaintiff may recover "the benefit of the bargain." This is a measure of the difference between the represented value and the actual value of the transaction. In some states, a plaintiff may recover as actual damages only the value of the property lost in the fraudulent transaction. All states allow a plaintiff to seek Punitive Damages in addition to actual damages. This right is exercised most commonly in cases where the fraud is extremely dangerous or costly. Where the fraud is contractual, a plaintiff may choose to cancel, or rescind, the contract. A court order of Rescission returns all property and restores the parties to their precontract status.

Fraud is also penalized by administrative agencies and professional organizations that seek to regulate certain activities. Under state statutes, a professional may lose a license to work if the license was obtained with a false statement.

One particularly well publicized area of fraud is Corporate Fraud. Corporate fraud cases are largely governed by the Securities Exchange Act of 1934 (15 USCA §§ 78a et seq.), along with other rules and regulations propagated by theSecurities and Exchange Commission. These laws were a response to the market turmoil during the 1930s and well-publicized corporate fraud cases.

The Securities Exchange Act and the SEC regulate anything having to do with the trading or selling of securities and stocks. They govern fraudulent behavior ranging from stock manipulation to insider trading. They also provide for civil and criminal penalties for corporate fraud.

Despite the act and the SEC, in the early part of the twenty-first century, corporate fraud began to seem endemic. Such well-known companies as energy trader Enron, Telecommunications company WorldCom, cable provider Adelphia, and other lesser-known firms went into Bankruptcy as a result of corporate fraud. In light of these events, Congress decided to tighten up corporate fraud requirements with the passages of the Sarbanes-Oxley Act of 2002 (U.S. PL 107-204).

Among other features, Sarbanes-Oxley required expanded and more frequent disclosure by public companies of their finances to prevent fraud. It created a Public Company Accounting Oversight Board to register and regulate accounting firms and accounting practices. It also enhanced the SEC's power to monitor and investigate compliance with securities laws, adding stiff penalties for fraudulent behavior by corporations, their officers, and their accountants.

Further readings
Clemency, John. 2002. "Corporate Fraud: Where Should the Buck Really Stop?" American Bankruptcy Institute Journal 21 (November).
Ribstein, Larry. 2002. "Market vs. Regulatory Responses to Corporate Fraud: A Critique of the Sarbanes-Oxley Act of 2002." Journal of Corporation Law 28 (fall).
Cross-references
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

fraud n. the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. A party who has lost something due to fraud is entitled to file a lawsuit for damages against the party acting fraudulently, and the damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud. Quite often there are several persons involved in a scheme to commit fraud and each and all may be liable for the total damages. Inherent in fraud is an unjust advantage over another which injures that person or entity. It includes failing to point out a known mistake in a contract or other writing (such as a deed), or not revealing a fact which he/she has a duty to communicate, such as a survey which shows there are only 10 acres of land being purchased and not 20 as originally understood. Constructive fraud can be proved by a showing of breach of legal duty (like using the trust funds held for another in an investment in one's own business) without direct proof of fraud or fraudulent intent. Extrinsic fraud occurs when deceit is employed to keep someone from exercising a right, such as a fair trial, by hiding evidence or misleading the opposing party in a lawsuit. (See: constructive fraud, extrinsic fraud, intrinsic fraud, fraud in the inducement, fraudulent conveyance) damages)
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.


Foreign phrases: Qui per fraudem agit frustra agit.What a man does fraudulently he does vainly.
 Vendens eandem rem duobus falsarius est. He is fraudulent who sells the same thing to two persons. Dolus auctoris non nocet successori.The fraud of a predecessor does not prejudice the successor. Fraus latet in generalibus. Fraud lies hidden in general expressions. Fraus est odiosa et non praesumenda. Fraud is odious and will not be presumed. Fraus et jus nunnuam cohabitant. Fraud and justice never dwell together. Nulla pactione effici potest ut dolus praestetur. It cannot be provided in any contract that fraud can be practiced. Nemo ex dolo suo proprio relevetur, aut auxilium capiat. No one is relieved or gains an advantage by his own fraud. Nemo videtur fraudare eos qui sciunt et consentiunt. No one is considered as deceiving those who know and consent to his acts. Lata culpa dolo aequiparatur. Gross fault or neggigence is equivalent to fraud. Ex dolo malo non oritur actio. No right of action can arise out of fraud. Non decipitur qui scit se decipi. A person is not deceived who knows he is being deceived. Fraus et dolus nemini patrocinari debent. Fraud and deceit should not excuse anyone. Dolus et fraus nemini patrocinentur; patrocinari debent. Deceit and fraud shall excuse or benefit no man; they themselves need to be excused. Dolum ex indiciis perspicuis probari convenit. Fraud should be established by clear showings of proof. Aliud est celare, aliud tacere. To conceal is one thing, to be silent is another. Dolus circuitu non pergator. Fraud is not purged by circuity. Quod alias bonum et justum est, si per vim vel fraudem petatur, malum et injustum efficitur. What otherwise is good and just, becomes bad and unjust if it is sought by force and fraud. Megna negligentia culpa est; magna culpa dolus est. Gross negligence is fault; gross fault is equivalent to a fraud. Dolo malo pactumse non servatuuum. An agreement induced by fraud is not valid. Fraus est celare fraudem. It is fraud to conceal a fraud.
http://legal-dictionary.thefreedictionary.com/fraud

What is A-421 Chancellor's Regulation "Actual" Acts of Tampering with An Investigation?

The School Construction Authority is, according to informed sources inside of the NYC DOE, the most corrupt agency within the corrupt organization.

The case below, decided in 2011, helps to substantiate this. The School Construction Authority (SCA) was reprimanded by the Appellate Division, First Department, in 2011:

Decided on July 7, 2011
Gonzalez, P.J., Tom, Andrias, Moskowitz, Freedman, JJ. 5055- 13800/07 5056 

[*1]In re Bronx Committee for Toxic Free Schools, et al., Petitioners-Respondents,

v

New York City School Construction Authority, et al., Respondents-Appellants.

Michael A. Cardozo, Corporation Counsel, New York (Janet L.
Zaleon of counsel), for appellants.
Weil, Gotshal & Manges, LLP, New York (Christopher D.
Barraza and David R. Berz of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 28, 2008, which, to the extent appealed from as limited by the briefs, granted the petition to direct respondent School Construction Authority (SCA) to prepare a supplemental environmental impact statement (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) with respect to long-term maintenance and monitoring of measures for the remediation of contaminated soil and groundwater at the Mott Haven School Campus site, unanimously affirmed, without costs. Order, same court and Justice, entered on or about November 18, 2009, which granted respondents' motion for renewal and reargument and adhered to the original determination, unanimously affirmed, without costs.

Respondents' contentions notwithstanding, the long-term monitoring measures, developed and implemented in their entirety after the final EIS was issued in October 2006, constituted "changes proposed for the project" (6 NYCRR 617.9[a][7][i][a]). Given, among other things, the Department of Environmental Conservation's July 2006 directive to SCA to develop a site management plan, which by definition under the applicable Brownfield Cleanup Program (see ECL tit 14) regulations includes a long-term monitoring plan (see 6 NYCRR 375-1.2[at]; 375-1.6[c][iv]), it is evident that information about long-term monitoring measures was of sufficient "importance and relevance" to warrant the preparation of a supplemental EIS (6 NYCRR § 617.9[a][7][ii][a]).

By failing to make any mention of the need for long-term monitoring in the initial EIS, SCA frustrated the purpose of SEQRA, which is to subject agency actions with environmental impact to public scrutiny (see Environmental Conservation Law § 8-0109; 6 NYCRR 617.1[c]). Indeed, there is no record evidence that SCA took the requisite "hard look" at the issue of long-term maintenance and monitoring of remediation measures until 2008, when it issued its final site management plan (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9
[*2]NY3d 219, 231-232 [2007]). This constitutes a failure of the agency's obligations under SEQRA (see Matter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312 [2005], lv dismissed 7 NY3d 803 [2006]; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342, 349 [1999]).

Nor does the fact that SCA was acting under the Brownfield Cleanup Program (BCP) shield the remediation measures from SEQRA scrutiny. BCP remediation measures that "commit the . . . agency to specific future uses or actions" are subject to SEQRA review (6 NYCRR 375-3.11[b][1][i]). The final site management plan provided that the Mott Haven School Campus site could be used for a school campus only, thus committing SCA to a specific site use. In any event, the BCP remediation measures applied only to the BCP area, whereas most of the site was not subject to the BCP and nonetheless was subject to SEQRA review.

Respondents contend that, because SCA was relying on BCP procedures, it could appropriately defer consideration of long-term monitoring measures until the completion of remediation. As noted, however, SCA's participation in the BCP did not exempt the project's environmental impacts from SEQRA scrutiny, and under SEQRA it was impermissible for SCA to omit a known remediation issue from the EIS with the idea of taking up that issue at a later date (see Penfield, 253 AD2d at 349).

We reject respondents' contention, raised in their motion for renewal and reargument, that SCA's development of the final site management plan (SMP), which entailed circulation of a draft for public comment, obviates any need for a supplemental EIS. The SMP is not a supplemental EIS, and respondents have not established that the development of the SMP followed the procedures for the preparation of a supplemental EIS. Since SEQRA procedures must be strictly complied with (see Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341, 347 [1996]), SCA's issuance of the final SMP did not cure the deficiencies in the final EIS.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 7, 2011
CLERK

The Gotcha Squad is currently charging all tenured teachers brought to §3020-a with "impeding the investigation", and the NYC DOE Attorneys at "legal" are using Chancellor's Regulations A-421 to "prove" interference. Remember, any specification handed to an employee by the Gotcha Squad is automatically a FACT which has to be proven false, rather than the other way around, despite NYC, NYS, and Federal rules, laws and regulations. In June 2009 A-421 was quietly changed so that tenured staff could be charged with "actual" acts of tampering with an investigation.

What does this mean? Im still on the search. I went to federal law, specifically 18  U.S.C. §1503 "unlawful to "influence, obstruct, or impede the due administration of justice" and §1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

Under §1503, a government agent must prove that a defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See United States v Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990).

If you review the Washington Post Special Report: Clinton Accused, Dec. 8, 1998, you will find:

Acting "corruptly": some courts have defined this term as acting with "evil and wicked purposes" see United States v Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v Moon, 718 F2d 1219, 1236 (2d Cir. 1983): United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v Anderson, 798 F.2d 919, 928 (7th Cir, 1986; ) United States v Rasheed, 663 F.2 843, 847 (9th Cir. 1981). Thus it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

Section 1512 specifically applies to "witness tampering": a defendant was proven to have knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. The defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not;
§1512 does not apply to defendants' innocent remarks or other acts unintended to affect the proceeding. See United States v Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Subornation of perjury: 18 U.S.C. §1622: the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. United States v Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is no subornation. 1622 requires that the defendant knows that the testimony of the witness will be perjurious - knowing and wilful procurement of false testimony is a key element of subornation of perjury. See Rosen v NLRB, 735 F.2d 563, 575 n. 19 (D.C. Cir. 1984).
  
Arbitrators frequently look beneath the surface of an investigation to determine whether the employer made its decision at an earlier stage and then just went through the motions of conducting investigatory interviews and fact-finding. Roxam Graphics, 111 LA 1176, 1185 (Gangle 1998) ("a one-sided investigation, which tends to lead to an overblown assessment of the seriousness of the circumstances and a marshalling of the facts to substantiate a foregone conclusion.that the grievant is guilty as charged, violates the notion of fair play and therefore violated just cause"). When an investigation is found to be inadequate, arbitrators may conclude that the just cause standard has not been met. (Penn Window Co., 120 LA 298, 305 (2004) (no just cause where employer acted without investigation). An inadequate investigation is often considered a denial of due process. See Newspaper Agency Corp., 119LA 926, 934-935 (McCurdy 2004); Chevron-Phillips Chem. Co., 120 LA 1065, 1073 (Neas 2005); Goodyear tire & Rubber Co. 98 LA 941 (Nicholas 1992) (inadequate investigation constituted denial of due process).

However, for now, "actual" tampering means nothing more than whatever the arbitrator thinks it means. This is, in my opinion, a dangerous discretionary power given to a supposedly 'neutral' trier of fact but may not be. So fight for dismissal of this charge using whatever rules, regulations and laws you can use, and expose the DOE and arbitrator for any determination that "actual" tampering occurred, if the arbitrator makes this decision.

And send the decision to me for my research into this area - betsy.combier@gmail.com

Thanks!

Betsy Combier


Saturday, July 7, 2012

From Assailed Teacher: The Killing of Mary Thorson

Throughout America right now, people are being attacked by others for no reason. And people are dying. By their own hands.

Before you lose it, PLEASE try to talk with someone!!! A living dead person is a person without hope. Call a relative, a friend, a person who isnt a friend, me, other advocates.

This story comes from a blog called assailedteacher:


The Killing of Mary Thorson

by The Assailed Teacher
There is a new documentary out that every teacher, parent, student and concerned citizen needs to watch. It is called Dying to Teach: The Killing of Mary Eve Thorson. Mary Thorson has been mentioned here before. She was the Illinois middle school teacher who committed suicide by standing in the path of an oncoming semi on Thanksgiving Day, 2011. She was only 32 years old.
The filmmaker, Myra Richardson, is herself a former Illinois school teacher whose career fell victim to the machinations of education reform. The film for Ms. Richardson has been a labor of love; love for Mary Thorson, a teacher she did not know personally but with whom she has a kinship nonetheless. Upon hearing the story of Mary Thorson, I too felt a kinship with her. I sense that most of us who teach for a living cannot help but identify with her tragic story.
Mary Thorson was blessed with many gifts, including natural athleticism. This was one of the reasons why she decided to become a teacher of physical education. Before that she enlisted in the United States Army Reserves, knowing full well our country was gearing up for the War on Terror at the time. She found herself in El Salvador and was awarded medals for opening up schools there. These facts demonstrate that Mary was motivated by an abiding civic spirit. Whether it was serving her country, the children of her country or the children of other countries, Mary Thorson found ways to exist for the benefit of humankind.
Yet, we know that teachers of Mary's stripe are not welcomed by the current overlords of the education system.
While serving in the Army Reserves, Mary attained her certification to become a physical education teacher. She eventually landed a job at Cottage Grove Middle School in Ford Heights, Illinois within school district 169. For part of the school year she coached the girls' basketball team. Like most teachers, Mary spent a good portion of her salary on materials for her students. Children, especially children of middle school age, instinctively know when an adult is working from a noble plane. So it was with Mary, and her students recognized and respected her for it.
It was Mary's misfortunate to be working in a school district run by Superintendent Dr. Gregory T. Jackson. Unlike superintendents here in the big city, Dr. Jackson was a frequent presence in Cottage Grove Middle School. In New York City, superintendents tend to be more evanescent than real. Teachers might run into them by chance once every few years. Rarely do they ever deign to speak to us peasant classroom teachers.
Not so for Dr. Jackson. He is intimately involved with the day-to-day operations of Cottage Grove. It is clear that he loves the teachers that work in his district. By love, we mean he loves to intimidate and harass them. Teachers here in NYC have to settle for harassment from their principal or, worse, an assistant principal. But the teachers out in Ford Heights, Illinois have the privilege of being harassed by the superintendent himself. Yelling is one of his preferred methods of communication. Any school administrator worth their salt knows that yelling at a teacher not does count unless you yell at them in front of their students. This Dr. Jackson does with relish. He knows that, in our current era of education reform, students must be made to understand that their teachers are low-level schlubs, not role models. Nothing accomplishes this better than public humiliation.
However, Mary Thorson was a special type of teacher, which prompted Dr. Jackson to bring out the heavy artillery. It started when Dr. Jackson demanded of Mary that she change the grades of many of her students. Under our current education regime, administrators only demand changes in one direction: up. He wanted Mary to give passing grades to students that had clearly not earned it. To Dr. Jackson, whether or not students earned a passing grade was immaterial. The only thing that matters is that students pass. Passing students means the school is doing well, meaning that they will continue to receive funding, meaning that Dr. Jackson gets to keep his very high-salaried job.
This is why Dr. Jackson is an administrator, not an educator. An educator, someone like Mary Thorson, would look at failing grades and ask "how can I help teach my students the things that will help them pass next time?" An administrator like Dr. Jackson asks, "how hard will I have to squeeze in order to get teachers to pass everyone?" To educators, students are people. To administrators like Dr. Jackson, students are data. Like most data, it is meant to be fudged, nudged, and budged in ways that make him look good. Data must paint a rosy picture not only so that he might keep his job, but that the politicians and educrats for whom he lickspittles can make speeches about how their reforms are working.
This is the Wall Street philosophy of education. Create fake numbers out of thin air. Make everyone think they have value. Then sell that bill of goods to suckers in the general public. Nobody will ever be the wiser unless, of course, it comes time to pay. For Wall Street, that was when AIG woke up one day with a billion dollar hole. For schools, it is when the students they certify as graduates go on to be functional illiterates. In either case, the perpetrators will be long gone: Wall Streeters with their giant bailouts, administrators with their advancement up the bureaucratic ladder.
Mary knew all of this. She refused to help create the next crop of functional illiterates, or whatever the physical education equivalent of a functional illiterate might be. It was going to take more than the familiar Dr. Jackson method of yelling to get Mary to play ball.
It was at this point when Dr. Jackson got the opening he needed. One day, a parent called into Cottage Grove to complain that Mary Thorson had hit her child. Mary, knowing she had done no such thing, explained that the "assault" she had perpetrated took place in the context of PE horseplay. It did not matter. Dr. Jackson's District 169's brand of due process called for Mary to be suspended without pay.
Mary Thorson, the teacher of almost a decade, found herself traveling the road that so many strong-willed veteran teachers across the country travel in the age of education reform. One day she is waking up in the morning to make a living doing the job she loves. The next morning, she is waking up without the ability to make a living or pursue her love. The ringing of a phone, the signing of a paper, the snap of a finger is all that it takes. Maybe if Mary had played ball, maybe if she cared just a little less or compromised a little more, Dr. Jackson would make the problem go away.
For someone like Mary, a woman whose entire life was a pursuit of the humane and good, to be unable to render the service you carry out so well is nothing short of torture. Worse than the fact that she could not make the rent was that pall, that accusation, that hung over her head. Talk to any dedicated teacher that has had to face an investigation and chances are they will say the same. A teacher's reputation is everything. They are accustomed to landlords, store owners and neighbors according them a level of trust that says that they are a member of good standing within the community. The public entrusts their children with them. To go from that to the drawn-out, bureaucratic nightmare that follows an accusation is to go from due north to due south on a dime. For many teachers who have reached that point, it does not matter if they wind up exonerated or not. They have already lost it all.
And so it was for Mary Thorson.
The one bright spot was that the school community knew the type of teacher Mary was. There was no way she would assault any child. The fear among her students that a special teacher was going to go out on her ear caused an outpouring of support. It made its way all the way back to the parents that leveled the accusation. They wrote a letter to Dr. Jackson explaining they knew that Mary was right when she contended that the alleged assault was nothing more than PE horseplay. Mary Eve Thorson did not deserve to lose her career. Please Dr. Jackson, put an end to her nightmare and let her teach again.
In response, Dr. Jackson, ever the magnanimous soul, restored Mary's pay while keeping her on suspension. This was no victory for Mary. It was the teaching, the coaching, the children from which she was being separated which was causing her existential crisis. She would have rather returned to work without pay than be returned to pay without work.
But Dr. Jackson's final sadistic flourish took place on the eve of Thanksgiving break. School administrators know that one of the cruelest things they can do is send a teacher a memo right before a long holiday break saying they wish to have an important discussion regarding their career after the break is over. It ensures that the teacher will be consumed with fear in the days school is out of session. While loved ones are supposed to gather and celebrate during these times, the families of these teachers will notice the long face, the bags under the eyes, the one-word responses to questions, the faraway countenance of the teacher in the family. Loved ones might be able to sympathize with such misery, but they cannot empathize. Only another teacher can empathize.
This is exactly the place in which Mary Eve Thorson found herself in the days leading up to that fateful Thanksgiving Day. She was given the memo and told to enjoy her holiday.
The plan was for Mary to be with her parents on Thanksgiving Eve. But she called them and said she was going to wait until Thanksgiving Day instead.
Thanksgiving rolled around. Mary stockpiled on her bed all of the paperwork associated with the fatal accusation. She penned a note, then headed out to her car. She was to drive just over Illinois' eastern border into Indiana, a state known as the literal crossroads of the United States. It is where many of the country's superhighways intersect. You can choose a road and go anywhere in the country. Cars zoom through Indiana on their way to their destinations, as do the trucks that carry out much of the nation's commerce.
Trucks.
Mary Thorson pulled her car over to the shoulder. She opened the door of the steel pod that had been acting as a barrier between her body and the speeding traffic of Indiana's highways. Her two feet stepped onto the road designed strictly for rolling rubber. An oncoming truck. Mary stepped into its path. The truck driver swerved to avoid her. Mary swerved in the same direction. It was over.
Mary's final note could have been written by any teacher in the United States. The children that she had taught for almost 10 years were so clearly flesh and blood human beings. Yet, the lords of the education system insisted that they were data. She had tried to explain this many times to no avail. The powers that be, the people that could determine whether or not Mary taught, made it clear that children were numbers on a paper. They were to be fudged, nudged and budged on a whim. What those numbers represented, whether they were accurate or useful, did not matter.
Why was it like this? In her final note, Mary said it comes down to money. Good numbers meant good money. Even bad numbers meant good money. So many people have their hands in the education till: administrators, data companies, test publishers and politicians. If children could no longer be reduced to data, the money train stops and all of these interests would be slightly less wealthy. The educrats would never tolerate this. Education, Mary Thorson says, is a business in America. Children are the widgets. Mary Thorson lets it be known that, counter to the self-righteous wisdom of our esteemed educrats, children are not widgets. They are her babies.
And why are the Dr. Jacksons, the Pearsons, the Bloombergs, the Rhees, the Rahm Emmanuels of the world able to perpetrate such a heinous crime? Because the people who could stop it, the people who have a front row seat to the huckster's ruse, are being silenced. Those people are the teachers. Through union breaking, through the empowerment of administrators, through media bashing, through rigged legislation, through harassment and intimidation, teachers are being told in so many words to shut up and go along with the whole thing. They are being forced to play ball against the better angels of their nature. There is no room for teachers to be humane, to provide a truly humanistic education whose value is unquantifiable in numbers. Those that try are spit out of the machine either by out-and-out firing or creative methods of subtle psychological torture.
As the title of the movie suggests, Mary Eve Thorson was killed. Like so many of us who teach, she was being killed slowly everyday by a rotten, autocratic regime that cloaks itself in the benign garb of providing an education to children. Mary Thorson's story, her tragedy, is the tragedy of millions of caring teachers from Anchorage to Atlanta, from Bakersfield to Bangor. What is extraordinary is not that Mary Thorson died for the sake of teaching, but that more such teachers have not taken the same route given the times in which we are living.
Mary Thorson said she did not want her murder to go in vain. Mary's father, John Thorson, is determined as well. He has an online petition against teacher bullying that everyone should sign.
Furthermore, if you would like a copy of Dying to Teach: The Killing of Mary Thorson you can contact Myra Richardson at teachersformary@hotmail.com. Donations can be made via that address as well. All funds will go to Mary's family, as well as to the foundation that will be founded in Mary's memory at the start of August.
Rest in Peace Mary. We are determined that you shall not die in vain.