NYC Teacher Hipolito Colon Makes History and Sues the NYC BOE, The Panel For Educational Policy, and NYSUT For Violating His Rights
The NYC BOE has systematically thrown teachers, who whistleblow crimes in their schools, into the garbage, by "re-assigning" them to "rubber rooms" without telling them what the charges are, and then terminating them at an Executive Meeting of the PEP that is an illegal entity. Mr. Colon wins an A For Accountability Award for his courage and his determination to change this unfair process. by Betsy Combier
Hipolito, or "Polo" as his friends call him, is dedicated to the implementation of fair and just education policies which give all children an opportunity to achieve. He is nearly 57, and began teaching at the age of 15 in a summer school job as a Teacher's Aide. At age 16 he worked as a Recreational Supervisor, followed by 16 years in Day Care as an Assistant Teacher and Group Teacher and 20 years in the Board of Education of the City of New York, for a total of more than 36 years. In his early adult years, he attended many pro-union, anti-nuclear, and anti-racism demonstrations around the country, and he was one of the participants in Woodstock Nation at the original Woodstock Music Festival. Years later, he sang with a top-flight recording group.
A problem arose when he, a tenured teacher at PS 120 in Brooklyn, saw that the Principal, Liza Caraballo, was not complying with the No Child Left Behind Legislation. Polo believed that as a mandated reporter he was required to expose wrongdoing whenever and wherever it occurred, and he thought that NYC had whistleblower laws that protected him. He also believed that by contacting the Special Commissioner’s Office, and asking for an investigation of Principal Caraballo, he would put an end to what he considered violations of law. He was very wrong.
Parentadvocates has found that the Special Commissioner’s Office is set up to investigate the reporter, not the perpetrator, of wrongdoing. If a parent of a child in any school calls SCI or the Office of Special Investigations and reports anything, from corporal punishment to verbal abuse in the school, by a Principal, the parent will be retaliated against and the child of this parent harmed. The story of the election and financial fraud at Stuyvesant High School is an example.
A teacher who reports wrongdoing by the school Principal is almost always the person investigated. Once a teacher speaks out, if there are no uncles, fathers or relatives who work for the BOE to make “a call”, he or she is immediately harassed, given a U-rating, or forced to resign. SCI and the Office of Special Investigations are two organizations that laugh at innocence. The “detectives” are, for the most part, retired cops who have been able to obtain positions through personal contacts with those who do the hiring, or by connection to an important relative in the Education ‘Family’.
Once a teacher whistleblows anything, the BOE immediately takes action. An example of this is the case of Ronald, a teacher thrown out of his school on false charges of corporal punishment that did not happen, then coerced into signing a stipulation that he would be 'punished' for his 'crime' by losing two months of his salary.
The first step in whistleblower retaliation against a teacher is to remove the teacher as quickly as possible from his/her class or school. The speed of removal is a factor of how verbal the teacher is; how "influential" he/she is within the school or among the students/parents; or, how serious the crimes being exposed are. Sometimes a teacher is harassed out of the system after being given: (1) a class that he/she cannot teach; (2) a class full of the most difficult children, most of whom have special needs that have never been met (the parents are not informed about obtaining services, approving an Individualized Education Plan, etc), (3) a class where there are 40+ kids - many more than the UFT allows, and many are "shadow" students not on the roster for the school, or not listed as attending the class; (4) U-ratings that are not for substandard performance, but are written to get the teacher out of the school.
In other cases, an outspoken teacher must be removed quickly, to keep the school 'safe' from exposure of the wrongdoing. See the article we wrote on "John Doe", as an example.
We met with Polo in September at an Upper East Side coffee shop, and saw immediately that he was not only being railroaded by the BOE, but that he would be terminated by the illegal entity known as The Panel For Educational Policy (“PEP”). We have written before about the PEP and, for that matter, the Community Education Councils (CEC) being illegal pursuant to the U.S. Supreme Court ruling in Kramer v Union Free School District, and discussed with Mr. Colon (“Polo”) the Executive Sessions of the PEP and the process that was throwing him into the garbage without his participation. (The Press Notice of the November 27, 2006 PEP meeting is hyperlinked to show the disdain that Joel Klein has for due process, as he scheduled a secret 'Executive Session' in spite of being sued for doing this - Ed).
Polo asked us to help him stop the termination that would take place on September 19 at the PEP meeting. We provided service of the Affidavit with the Exhibits on Michael Best at approximately 4PM on September 18, 2006. In the AFFIRMATION IN SUPPORT OF A STAY OF PROCEEDINGS IN ORDER TO HAVE A FAIR HEARING, make note of Mr. Best's letter in the exhibits.
On September 19, 2006 there was an Executive Session held before the PEP meeting began, which is a violation of the New York State Open Meetings Law, Section 105, but Polo was not terminated. He read a statement at the meeting:
"I am here representing myself, as well as the many employees of the New York City Department of Education, who have been unfairly, arbitrarily and capriciously deemed disposable, routinely relegated to the designation of incompetent and/or insubordinate and regularly deprived of their procedural due process rights, with impunity, in deliberate violation of their constitutionally protected civil rights.
There is a flagrant rubber-stamping of people's cases and lives in and out of "rubber rooms", in order to attempt to intimidate them and to break their will and spirit, in order to silence those that may dare to speak out.
It is fairly disgusting that a POW in a foreign land may actually have more quality due process protection than an employee of the DOE, and that the rules of engagement protect the wrong-doer over the whistle-blower, as evidenced by the lack of action taken against the law breaker.
Rather than applauding and appreciating those brave enough to expose nepotism and corruption, the DOE proves itself to be insubordinate itself to the rule of constitutional rights of its employees, citizens of these United States of America, and it is blatantly incompetent, as obviously displayed in its-well known and documented failures to the students, parents and teachers of the entire school system."
and Chancellor Joel Klein said,
“ I am an Attorney, so I know all there is to know about due process…you will get your charges and your hearing.”
Immediately following this meeting, Polo met with well-known lawyer Julia Cohen, who told him that there was nothing he could do until he received his charges. Polo decided he had to file a lawsuit and stop the process that found him guilty before he knew what he had done, a violation of his procedural due process rights.
Mr. Colon filed a lawsuit in the New York State Supreme Court on October 13, 2006, and an Amended Complaint on November 9, 2006:
Hipolito Colon, Plaintiff, v New York City Board of Education, Joel Klein, Chancellor; Michael Best, General Counsel for the NYCBOE; The Members of The Panel For Educational Policy, all In Their Individual and Official Capacities; PS 120 Principal Liza Caraballo; James R. Sandner, Esq., General Counsel. NYSUT, and
Claude I. Hersh, Assistant General Counsel, Defendants.
Below is his story, in his own words. We give Polo Colon an “A For Accountability” Award for his amazing courage.
What he would like people to know is that: "this lawsuit is more than just about me; I am a people-person who loves children...I was blessed to be there at times when I was able to save the lives of 5 individuals; among my greatest accomplishments has been to make my students into lifelong learners by helping them to really love to learn; one of my proudest accomplishments has been to raise my daughters as a single custodial parent for the past 12 years and among my happiest accomplishments, to have made my family proud of me, as well as to have tried my best."
Hipolito Colon wrote the following letter on October 25, 2005:
To those whom it may concern,
I am a New York State certified, tenured and senior teacher at P.S. 120, 18 Beaver Street, Brooklyn, New York, 11206 in District 14, Region 8. I have been employed there since 1989. I served as Teacher of Pre-K 102 for the school year, September, 2004 through June, 2005. I am reporting the illegal actions of Ms. Liza Caraballo, Principal of P.S. 120.
Ms. Caraballo deliberately and illegally placed an educational assistant in the position of a state certified and licensed teacher for a period of an entire year without license.
Ms. Caraballo thereby violated federal, state and city requirements that a fully licensed teacher be appointed in such a position when she placed Ms. Lydia Arnold***, Educational Assistant, in the position of Pre-Kindergarten Teacher, heading the class known as Pre-K 104 for the school term, September, 2004 through June, 2005. ***(This is not to be construed as a negative reflection upon Ms. Arnold or her character, as she was simply serving in such capacity as directed by her supervisor.)
Ms. Caraballo announced this appointment to the school staff in its first meeting of the new term and the staff thereon recognized that Ms. Arnold had been appointed head teacher and worked in such capacity the whole school term.
Ms. Caraballo placed Ms. Arnold on the organization sheet for the school term of 2004-2005 and it was circulated.
.Ms. Caraballo had Ms. Arnold conducting the Pre-K class on a daily basis, teaching, in loco parentis, including the daily supervision of outdoor play.
Ms. Caraballo presented Ms. Arnold to the Pre-K parents of P.S. 120 as a new Pre-K teacher in charge of Pre-K 104.
Ms. Caraballo scheduled Ms. Arnold in the formal observation schedule for the school’s head teachers.
Ms. Caraballo had Ms. Arnold meet with the head Pre-K Teachers on all Pre-k weekly planning sessions, of which I was a participant.
Ms. Caraballo sent Ms. Arnold to all of the region-conducted workshops as head teacher of one of our Pre-K classes, and Region 8 recognized her as a head teacher.
Ms. Caraballo had Ms. Arnold sign requisitions and arrival orders of supplies as a licensed teacher of authority.
Ms. Caraballo had Ms. Arnold plan and supervise curricular and educational plans, including field trips, community-walk trips and all fire drills, etc.
Ms. Caraballo gave Ms. Arnold daily preparation periods afforded to head teachers.
Ms. Caraballo had Ms. Arnold attend all of the bi-weekly staff development meetings as head Pre-K teacher.
Ms. Caraballo had Ms. Arnold accept at least one Pre-K child that was not old enough to be admitted into the Pre-K classes.
Ms. Caraballo had Ms. Arnold pose as head teacher in all parent-teacher conferences, meetings and events and the children did recognize Ms. Arnold as their teacher. In such capacity, under the aegis of Ms. Caraballo’s directive, Ms. Arnold executed such additional legal documents as student assessments, student profiles, cumulative files and daily attendance and lateness recorded on the ATS forms, where Ms. Arnold was indicated to be the teacher in charge. (*Please see attached supporting documents.)
Therefore, I, Hipolito Colon, affirm that Ms. Caraballo knowingly and certainly violated federal, state and city ordinances, as well as those of the United Federation of Teachers, especially and specifically with regard to the use of unlicensed teachers in place of licensed teachers, which were available.
October 25, 2005
As a result of my whistle-blowing, I was summarily assigned/reassigned to a regional office in retaliation, and without due process. There has been harassment and intimidation before , during and following my report.. The Deputy Superintendent, Mr. James Quail, met with me at the school during a workday, in which I was relieved of my class by the principal, Ms. Caraballo. Mr. Quail asked my union chapter leader, Dr. Lenora Owens, (whom I had summoned as a witness) to leave, so that he could speak with me privately and confirm the charges that I had made in the report. He told me that he was given the assignment of investigating the charges I made and thus, wanted to confirm, item by item, what I had reported. He did so asking me many questions and I did confirm them.
About 2 months later, without conference or explanation at the end of my workday, I was ordered to immediately report to the regional office the very next morning. Since my assignment/reassignment I have neither received any report of the status of the investigation, nor have I been asked to come forth as a witness to support the facts, nor have I received any indication as to a specific reason for my assignment/reassignment to the regional office.
Seven months have elapsed since my initial report was made, and I have not heard an iota concerning my status and the status of the investigation, and I suspect that a cover-up has been taking place. Please also investigate the continuation and expansion of admitting and promoting underage children for this school year (2005-2006) as well as last year, misuse of Magnet School Program funds, and the misadministration of the mandated bilingual education program. I would greatly appreciate hearing from your office, as I have once again stepped out to make this report and imperiled my career and livelihood in order to protect the integrity of sound school administration and supervision against the renegade recklessness of actions taken by this principal that endangered the young children of our school.
As I was undergoing the harassment by this incompetent principal, she violated the law, demonstrating that she was the incompetent and any reasonable person would conclude: how can an incompetent rightly determine that an employee of many years (in good standing) is an incompetent? Her harassment began, I recall, immediately after I received my Supervisory certification, and I believe that she was worried I would apply for the Assistant Principal position open at the school.
I have not been given any due process, as I was sent a packet from the NYC Board of Education after the 2005 school year ended and I had left the state on vacation. When I returned, I tried to get the certified mail, but the post office told me the package had been sent back to the sender. Then, at the end of August 2006, Michael Best, General Counsel for the BOE, sent me a letter telling me that I had waived my right to a hearing, and that The Panel For Educational Policy would be conducting a hearing and would be probably terminating me on September 19, 2006!!
The 3020-a rules state that teachers being “disciplined” (is this what is happening?) must be served the charges during the school year, not during summer vacation. I never received the charges.
Additionally, shouldn’t I, and all teachers similarly situated, be served charges personally before being reassigned, and shouldn’t there be an assumption of innocence, rather than an assumption of guilt until proven innocent?
I want to contend for the removal of that self-serving loophole which the DOE one-sidedly benefits from, when teachers are "afforded" a mere 10 days to respond and ask for a hearing, or they will lose their right to a fair hearing by default. This needs to be challenged constitutionally, and I am willing to be used to change 3020a in that regard.
The absurd assumption on the DOE's part is very troubling, namely that an employee might be willing to waive their right to a fair hearing! The obvious assumption must be that any employee would want to have his or her day in court.
On October 16 I told the Panel For Educational Policy:
Good evening, distinguished members of the Panel and audience. I am here, because as you may recall, at the Sept. 19th meeting at the Tweed Courthouse, Chancellor Klein said that he would assure me of a proper hearing and that my situation was postponed for a month, and once again I have not received any information at all.
I am also here to protest that I have been reassigned, rather than the principal that I reported for violating the “No Child Left Behind Act”. It has been an entire year and I have heard from no one about this. Has there been a cover-up as well as an attempt made in retaliation to silence me?
I want to bring to your attention the declaration that this Panel is illegal and in direct violation of a Supreme Court decision made by Chief Justice Earl Warren in 1969, Kramer v Union Free School District; since you’re all appointed , rather than elected, therefore, this panel must be disbanded!
In sum, the real issue and the most important one is due process: knowing why you are being threatened with termination before being removed from your employment, (except for the case of a clear and present danger), so you, or I, or any good teacher with tenure can defend ourselves against false claims .