Can a Chapter Leader, excluded from his school pending disciplinary charges, be prevented from attending School Leadership Team meetings?

Yes. Francesco Portelos, the duly elected Chapter Leader at IS 49 in Staten Island, was reassigned pending a SCI investigation and, by letter, notified that he was not to return to IS 49 without prior written permission and that any school activities he had participated in would remain suspended until the resolution of the matter.

As Chapter Leader Portelos is a mandated member of the School Leadership Team and commenced an Article 78 proceeding to challenge his exclusion from the Team. Justice Cynthia Kern initially ruled that the petition was time-barred since it was filed almost one year after he was excluded from the meetings.

Kern ruled that even if the petition was timely she would denied the relief requested because DOE’s policy of exclusion was rational and in accordance with its policies and procedures. Chancellor’s Regulation A-655 provides that mandatory members attend the meetings the regulation “does not confer a right upon such member if they are prohibited from entering the school or participating in school activities due to administrative reassignment and/or pending charges of misconduct.”

Portelos also argued that the school violated the Open Meetings Law, POL Section 103 by excluding him. Kern ruled that School Leadership Teams were advisory in nature and not subject to the Open Meetings Law.

Portelos v. NYCDOE

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Will the failure to appear at a U rating appeals proceeding, without explanation, of an immediate supervisor, defeat the DOE’s motion to dismiss a petition to reverse a U rating?

Yes. Paul Bridgwood, a 34 year veteran mathematics teacher with the GED PLUS program at the Jamaica Learning Center site in Queens, New York, brought a petition to reverse a U-rating for the 2010-2011 school year.

During this school year he was assigned to teaching for which he had no certification. He was observed by Assistant Principal Dannette Miller and was given 4 observations, each rated unsatisfactory. Bridgwood was also provided with a professional development plan which included inter-classroom visitation, regular meetings with the Assistant Principal, and a coach.

At the end of the school year Bridgwood was rated unsatisfactory and he appealed. At the hearing the Assistant Principal did not appear. Principal Robert Zweig appeared and testified about Bridgwood’s performance but could not testify to any personal knowledge he had about the observations.

Justice Donna M. Mills found that while the DOE’s by-laws provide for the summoning of witnesses to the hearing and for the hearing to proceed without such witness, if necessary, no explanation was given as to why  Miller did not appear. Mills wrote that it was too early to determine if Miller’s testimony was required and ordered the DOE to answer Bridgwood’s petition.

BRIDGWOOD

Will a “u”-rating be upheld when the rated teacher claims that her rating was based on retaliation for her grievance about an OEO finding against her?

Yes. In 1991 Tracey Elcock began working for the DOE as a para and was appointed as a special education teacher in 2001. From her appointment until an allegation about her uttering a racial slur and reported by a guidance counselor she received satisfactory ratings.

After an investigation the OEO found that Elcock had violated the Chancellor’s Regulations and recommended that a letter be placed in her personnel file.

Elcock grieved the letter and at the end of the school year received a “u”-rating. She claimed that her rating was in retaliation for her grievance.

The DOE argued that the rating was based on attendance and on a incident in which she allegedly belittled her special education students.

Justice Joan Lobis found that Elcock had not met her burden of demonstrating that the principal’s action was either arbitrary or capricious despite the fact that only two students complained about her alleged statements and that their statements were inconsistent. Justice Lobis observed that it was not the Court’s function to determine credibility.

In the Matter of an Article 78 Proceeding TRACEY ELCOCK, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YON, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No., SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30537U; 2011 N.Y. Misc. LEXIS 950, February 18, 2011

Can a probationary teaching assistant utilize the state whistleblower law to defeat a school district’s motion to dismiss her petition for reinstatement?

Yes. Civil Service Law Section 75-b, the public sector component of the state’s whistleblower law, protects public employees from termination if they report a violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. The provision applies to tenured employees only in so far as it may be raised as a defense in a disciplinary arbitration (where a contract calls for that) and applies to probationers if they seek reinstatement from court.

Maureen Sheil began her probation as a teaching assistant in the Merrick Union Free School District in 2009. One of her colleagues was removed from her school after he was charged with possession of child pornography. Sheil became concerned that another of her colleagues, who still kept ties with the removed teaching assistant, supported the removed teaching assistant in such a way that she believed he presented a danger to students at her school. Sheil reported her concerns to the school’s administration only to be later targeted for what Sheil charged was retaliation for her complaint. Sheil was eventually dismissed by the school district.

Sheil raised Civil Service Law Section 75-b to claim that the dismissal was taken in retaliation for her reporting the association of her colleague with the removed teaching assistant.

Justice Denise Sher of Nassau Supreme Court found that Sheil had made a a viable claim and ordered the school district to answer her petition.

In the Matter of the Application of MAUREEN SHEIL, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules, – against – DR. RANIER W. MELUCCI, Superintendent of Schools, Merrick Union Free School District, BOARD OF EDUCATION OF MERRICK UNION FREE SCHOOL DISTRICT, and MERRICK UNION FREE SCHOOL DISTRICT, Respondents, SUPREME COURT OF NEW YORK, NASSAU COUNTY, 2011 NY Slip Op 31242U; 2011 N.Y. Misc. LEXIS 2208, April 28, 2011