Saturday, November 30, 2013

Updated: Ruling on Portelos Right to Attend SLT Meetings as Chapter Leader

Jeff Kaufman reports another nail in the rights of the union at EdLawFaqs blog. 

This ruling impacts on the rights of the teachers to have an effective chapter leader. The fact that Portelos has to hold meetings through Skype and by standing in front of the school should be challenged by the UFT. I think that may be a separate issue.

This ruling says: [T]he law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious.

But what if the decision to remove Portelos from the school WAS "arbitrary and capricious," something not yet decided? That is the essence of the Portelos defense.

Portelos did have a court win recently as chronicled on his blog: where the DOE  legal has refused to recognize him as the elected CL and when the arbitrator ruled in his favor they did not honor that, forcing him to go to court. How is that ruling affected by this one?

Here is Jeff's summary and a link to his blog.

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.
Read the case here:  Portelos v. NYCDOE

This ruling has no effect on the current hearing to fire him  - there are 2 dates scheduled this week and I'll try to get to an in-depth update on the Portelos hearing.

Here's the point -- even if he wins on every single charge, the DOE STILL claims the right to ban him permanently from his school and turn him into an ATR. The UFT doesn't even fight these decisions, saying that if a 3020a is won by the teacher, all the DOE has to do is give than a job not their old job back (Christine Rubino after a two-year suspension without pay is sitting in an office). And if that job is washing the floors with a toothbrush, that is probably OK too.

The courts are basically stacked against us even if a teacher wins once in a while, which is why when people press for spending lots of dough on high-priced lawyers, I urge caution. The way to stop this is to take a weak-kneed union and turn it into a tiger. And that means organizing people into a potent force inside the union.

Sermon of the day over.


  1. If Mr. Portelos does beat all his charges...he will not teach a class in the NYCDOE ever again....

    1. That is assuming DOE Legal is allowed to have the same attitude as in the past. And it well may be allowed to do so especially of someone like Kathy Cashin is chancellor -- her history shows that she would go after Portelos with no less rigor because in her world "protocols" are more important than good teaching -- believe me, I know from personal experience with a friend.

  2. The New York State Public Employment Relations Board (PERB) has a lot of information about the UFT.

    Any problems involving the UFT should be brought to PERB's attention, either formally or informally.


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