GRIEVANCE: RINALDI ET AL ADV. STAMFORD BOARD OF EDUCATION ET AL

IN THE MATTER OF: 

MICHAEL RINALDI, INDIVIDUAL GRIEVANT AND STAMFORD ADMINISTRATIVE UNIT, CORORATE GRIEVANT 

ADV. 

 TAMU LUCERO, SUPERINTENDENT OF SCHOOLS AND ROBERT A. STACY, ESQ., SPHR, EXECUTIVE  DIRECTOR OF HUMAN RESOURCES, INDIVIDUAL RESPONDENTS AND STAMFORD BOARD OF EDUCATION, CORPORATE RESPONDENT

APRIL 7, 2020  

Pursuant to Article 18 (“Grievance Procedure”) of the current collective bargaining agreement (hereinafter, “Agreement”) between the Stamford Board of Education (hereinafter, “Board”) and the Stamford Administrative Unit (hereinafter, “SAU”), the Grievants herein hereby complain and say that there has been an abuse, violation, misinterpretation or misapplication by the Respondents, their agents, officers and employees, of specific provisions of the Agreement; to wit: Article 1 (“Board Rights”) and Article 17 (“Protection of Administrators”), paragraph B. 

In furtherance of the foregoing, the Grievants represent that at all times pertinent hereto:

1. The Individual Grievant, Michael Rinaldi, was employed by the Board as the principal of Westhill High School.
2. The Corporate Grievant, SAU, was an employee organization exclusively representing professional employees in the Stamford School District in positions requiring an administrator or supervisor certificate, or the equivalent thereof, including Mr. Rinaldi, who were not otherwise statutorily excluded from SAU representation. (See, C.G.S. §10-153b(a)(1)).
3. The Individual Respondent, Dr. Tamu Lucero, was the Superintendent of the Stamford Public Schools and, per C.G.S. §10-157(a), the “chief executive officer” of the Board; as such, she wielded “executive authority over the school system and the responsibility for its (day to day) supervision.”
4. The Individual Respondent, Robert A. Stacy, Esq., SPHR, was the Executive Director of Human Resources for the Board and was responsible for managing certified and non-certified staff and resources, including human resources and collective bargaining.
5. The Corporate Respondent, Stamford Board of Education, was a local board of education, as well as an agent of the state, charged by law (C.G.S. §10-220) “to maintain good public elementary and secondary schools, implement the educational interests of the state as defined in C.G.S. §10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district.”
6. In the past several months the parties have had to deal with perhaps the greatest challenge to the public well-being in over 100 years, along with past wars and global conflicts … the outbreak of the novel coronavirus (COVID-19), which began in Wuhan China and rapidly spread to as many as 204 countries and territories throughout the world, including the United States.
7. The United States now tops all other affected areas with the highest number of confirmed coronavirus cases worldwide with 332,072, and has 9,619 deaths, as of April 5, 2020. The expectant final death toll in the United States has been estimate by the President and his medical advisors to rise to 100,000 – 200,000 people.
8. The metro area, which is comprised of New York City, parts of New Jersey, and Fairfield County, Connecticut, has been deemed by the government as a COVID-19 “hotspot.”
9. The City of Stamford leads Fairfield County towns and cities by a large margin in confirmed cases of the disease and resultant deaths.
10. As a consequence of the COVID-19 pandemic, Connecticut Governor Ned Lamont, in a series of executive decrees beginning last month, ordered public schools in the state to be closed due to the virus at least through March 31, then April 6, then April 20, and then on March 24, Governor Lamont stated that schools in Connecticut would likely be closed until the fall.
11. However, on March 17, WTNH reported Lamont said on radio station WCBS 880 that it is likely that the state’s schools will be closed through the remainder of the school year. “I really think that is the likelihood. You just look at Italy and you look at Wuhan province, you see what the life cycle was there, and you worry that if people get back too quickly there’ll be a second iteration of this virus, so April 20 is the minimum, probably the school year.”
12. Also on March 17, News 8 reported that it had obtained a letter from the State Education Commissioner that suggested Connecticut public schools may remain closed for the remainder of the school year in response to the COVID-19 virus.
13. Two (2) days later, on March 19, 2020, Mr. Rinaldi participated in a broadcast on Instagram Live during which he gave his personal, “not official,” “reading between the lines,” “opinion” in response to a question that there was “a strong possibility we might not be coming back to school this year.” (Proposed Exhibit A)
14. In the same Instagram Live Broadcast he also praised the Stamford School custodians: “They are the only folks that are here every day … for every school … (T)hey’re trying to keep distance from one another, but … they have to clean areas that they don’t normally clean, to try to assure that any coronavirus spread is minimized or that if there is coronavirus in your school, it’s cleaned. Imagine that. They get up in the morning and they leave their families and they come into our school buildings in Stamford and they clean up… . That’s a big deal… . We can say that’s their job, nah, nope, they didn’t sign up for that, but they’re doing it. … So, whether you know a custodian personally or not, you give them love. If you know them personally, you let them know. And whether you know them or not, you make sure you have respect for them in your heart.” (See, Proposed Exhibit A)
15. The next day (March 20), Mr. Rinaldi was placed on administrative leave with pay; on March 24, an investigatory meeting was held via teleconferencing during which Mr. Rinaldi was grilled for two hours answering 55 questions propounded by a human resources official concerning his comments on the Instagram Live Broadcast.
16. On March 26, Mr. Rinaldi was ordered to attend a meeting with the Superintendent of Schools, who admonished him “that if anything like this happens again we have to consider a demotion or termination.”
17. On March 26, Mr. Rinaldi also received a letter from the Individual Respondent, Robert A. Stacy, Esq., SPHR, Executive Director of Human Resources, who stated that he found “compelling evidence” that Mr. Rinaldi “committed serious violations of the policies and standards of employee behavior of the Stamford Public Schools.” … and that his “comments regarding the potential of a school closure for the remainder of the school year (two days after the Governor’s and State Commissioner of Education’s public predictions) had been transmitted and your comments regarding the role of school custodians as part of the district’s COVID-19 response implicate the following:

Insubordination …       

     Violation of Board Policy  

      Violation of the Connecticut Code of Professional Responsibility for Administrators

… As a result of the findings above, I have determined that just cause exists to mete out discipline as follows. (sic)

 (1)       You will be suspended without pay for three (3) days. … 

(2)       You are directed to work with your Associate Superintendent to create a professional growth plan designed to address concerns regarding your leadership, professional judgment, and any related matters. …

 (3)       You are required to undergo training on the role and use of social media … .” (See, Proposed Exhibit B).

18. The actions of the Individual Respondents in punishing Mr. Rinaldi for audaciously giving his opinion on a matter of great public interest without saying “may I,” and praising workers, who place themselves in the path of danger, such as grocery clerks stocking shelves, truck drivers delivering food, school custodians disinfecting school environments of potential coronavirus or hospital workers, constitutes a shocking abuse of authority.
19. The Corporate Respondent, Stamford Board of Education, acting herein by the Superintendent of Schools, its chief executive officer, and her designees, who are also agents of the said Corporate Respondent, misapplied, violated and abused, Article I (“Board Rights”) of the Agreement in that the Superintendent of Schools and her designees misused her “executive authority over the school system and the responsibility for its supervision,” including “to suspend or dismiss teachers in the matter provided by statute,” in violation of Article 1 (“Board Rights”) and disciplined the Individual Grievant by suspending him and reducing him in compensation and depriving him of potential professional advantage without just cause, in violation of Article 17 (“Protection of Administrators”).

Insubordination and Violation of Board Policy

24. The purported justification for such action by the Respondents was that Mr. Rinaldi “received direction on multiple occasions from the Superintendent during the week of March 16^th that all communications to the public must be cleared with an Associate Superintendent prior to dissemination.” (See, Proposed Exhibit B, p. 1).
25. Policy 4118.7 and Regulation 4118.7R, which implements 4118.7 (See, Proposed Exhibits C and D), are local laws of the Respondent, Stamford Board of Education said to have been violated by Mr. Rinaldi. Each explicitly subjects the authority of the Board, its agents, officers and employees to regulate use of social media by employees, including the employee’s personal use of social media, to the First Amendment to the United States Constitution[1], the Connecticut Constitution, Article 1, Sections 3,4,5 and 14[2], Connecticut General Statutes §31-48d[3], Connecticut General Statutes §31-51q[4], and Connecticut General Statutes §53a-183, which is actually a criminal statute for harassment in the second degree.[5]
26. Because the charges against Mr. Rinaldi reflect upon his professional competence and character, and potentially therefore upon his continued status and pay, not to mention his professional advancement, when a person’s good name and honor and integrity are at stake because of what the government (Board), through its officers agents and employees are doing to him, such charges also implicate a liberty interest entitled to protection under the Connecticut and U.S. Constitutions.
27. The section entitled “Rules Concerning Personal Social Media Activity of 4118.7R states:
28. An employee may not mention, discuss or reference the Board of Education, the school district or its individual schools, programs or teams on personal social networking sites, unless the employee also states that the post is the personal communication of the employee of the school district and that the views posted are the employee’s alone and do not represent the views of the school district or the Board of Education.
29. In light of paragraphs 13 and 14, supra, and Proposed Exhibit A, it is incomprehensible that there could be “compelling evidence” that Mr. Rinaldi violated such policy.
30. Our Supreme Court and arbitrators have consistently held that insubordination is basically a deliberate act; an intentional refusal to obey a bona fide, valid, unambiguous order, both as to its meaning and whether or not it was, in fact, an order; followed by an explicit pronouncement of the penalty that may be imposed by the Superintendent if Mr. Rinaldi had equally as clearly and unequivocally refused to comply.
31. On the contrary, it was the Superintendent of Schools, Dr. Lucero, and Robert A. Stacy, Esq., SPHR who were false and not faithful to their obligation to their employer in not complying with local laws, Policy 4118.7 and Regulation 4118.7R.
32. In point of fact, neither the Superintendent of Schools, Dr. Lucero, nor the Board have the power, without a state decree, to close public schools in their district; obviously, therefore, Mr. Rinaldi was responding with his opinion, based on what he thought the state might do and when they might do it, not on anything he was told in a Superintendent’s meeting.

Violation of the “Code of Responsibility of Administrators”

28. The Respondents also claim that Mr. Rinaldi’s reply to an inquiry by giving his opinion, which coincided with the previously public expressions of the Governor and the Commissioner of Education, somehow violated the “Code of Responsibility of Administrators.”
29. This claim is equally as inapt as the previous reasons of insubordination and violation of board policy. The standards of professional conduct set forth in the administrator’s code are so impermissibly vague that any reliance upon them would violate fundamental due process (an important component of just cause) relative to fair notice and fair enforcement. Its definition depends on the idiosyncrasies of the Individual Respondents and the individual members of the Corporate Respondent, thus increasing the inherent potential of arbitrary and discriminatory enforcement, as was realized in this case.
30. “Although individuals in these professions are expected to follow these principles, neither the code (teacher or administrator) prescribes the manner in which the principles are to be followed … and any particular manner of performance … . The preamble to the codes themselves recognize that the principles are intended to guide conduct rather than prescribe any manner of performance. … ‘The code recognizes the ability of the members of the profession to make administrative decisions that are in the best interests of the students and all individuals associated with the school district in which the members serve.’”[6]

Just Cause

31. Just cause is generally understood to equate to whether or not the employee has been treated fairly by the employer. This entails determining 1) whether or not the employee violated an unambiguous order or policy and 2) if so, was the degree of discipline reasonably related to the seriousness of the employee’s proven offense and the employee’s past record.
32. Mr. Rinaldi has been an employee of the Stamford Board of Education for 32 years as a teacher, assistant principal and principal. He has never received an evaluation that was not proficient or higher and he has never been disciplined. He has lived in Stamford his entire life.
33. Providing a personal opinion on a matter of great public concern based on information already in the public domain provided by the highest state officials who actually are the only ones who have the power to act on such information, did not violate any instruction not to divulge public school information.
34. Since no “crime” was committed, there was no occasion for discipline, and any discipline (not to mention the penultimate penalty in the employment world (suspension), imposed by the employer would be excessive, arbitrary and a misapplication of Article 17B of the Agreement; that is, a violation of just cause.

RELIEF REQUESTED:

1)         That the Corporate Respondent and the Individual Respondents, individually and in their representative capacities, cease and desist from violating the Agreement, Board policy and Board regulation, state and federal constitutions, and other state laws as heretofore set forth; 

2)         That any papers, documents, reports, investigations, emails, anecdotal or personnel notes/letters pertaining to the Individual Grievant, this grievance and the disciplinary memo (Proposed Exhibit B) be expunged from the Individual Grievant’s “personnel file,” wherever geographically located in the School District, including but not limited to, the Individual Respondents’ respective offices and those of assistant superintendents, to the extent permitted by law, or by having noted thereon, that they are null and void, of no force and effect, and that they shall not be introduced or relied upon in any future proceedings, evaluations or actions involving the Individual Grievant, including for professional advancement or for purposes of “progressive discipline”; 

3)         That the Individual Respondents cease and desist from harassing the Individual Grievant; 

4)         That the Individual Respondents cease and desist from treating the Individual Grievant disparately;

 5)         That the Individual Grievant be made whole, including lost wages, and the status quo ante restored, by rescinding his three day suspension, mandating the development of a leadership and professional judgment growth plan, and training on the role and use of social media;

 6)         Such other and further relief as may appertain in equity and at law.  

MICHAEL RINALDI, INDIVIDUAL GRIEVANT

-AND-

STAMFORD ADMINISTRATIVE UNIT, CORPORATE GRIEVANT 

  _____________________________

 BY: JOHN M. GESMONDE,  Their Attorney

 [1] First Amendment provides: “Congress shall pass no law … abridging the freedom of speech … .” 

[2] Section 4 states that: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

 [3] Connecticut General Statutes §31-48d requires employers engaged in electronic monitoring to give prior notice to employees.

 [4] Connecticut General Statutes §31-51q imposes liability on the employer for discipline of an employee on account of employee’s exercise of certain constitutional rights, such as freedom of speech.

 [5] “A person is guilty of harassment in the second degree when: … (2) with intent to harass, annoy or harm another person, he communicates with a person by … mail … by computer network … or by any other form of written communication in a matter likely to cause annoyance or alarm.

 [6] Darcy v. Plainville Sch. Dist., 2017 Conn. Super. LEXIS 4186 at p. 3.