Ms._Rubino-2

THE STATE EDUCATION DEPARTMENT THE UNIVERSITY OF THE STATE OF NEW YORK

In the Matter of NEW YORK CITY DEPARTMENT OF EDUCATION

v. CHRISTINE RUBINO

Section 3020-a Education Law Proceeding (File #17,116)

DATE: February 28, 2011

TIME: 10:00 a.m. to 12:30 p.m. 1:30 p.m. to 5:30 p.m.

LOCATION: NYC Department of Education Office of Legal Services 49-51 Chambers Street New York, NY 10007

BEFORE: RANDI LOWITT, ESQ. HEARING OFFICER

SHEET 1 2-28-11 In the matter of Ms. Rubino

Ubiqus Reporting, Inc. 2-28-11 In the matter of Ms. Rubino

INDEX APPEARANCES:

FOR THE COMPLAINANT: JEFFREY GAMILS, ESQ., of Counsel NYC Department of Education Office of Legal Services 49-51 Chambers Street New York, NY 10007 Telephone: (212) 374-6741

FOR THE RESPONDENT: BRYAN GLASS, ESQ.

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INDEX W I T N E S S E S

Name: Page: R. Caiati:

Sworn 102 Direct by Gamils 101 Voir Dire by Glass 108 Direct (cont.) by Gamils 108 Voir Dire by Glass 120 Direct (cont.) by Gamils 121 Voir Dire by Glass 129 Direct (cont.) by Gamils 134 Voir Dire by Glass 145 Direct (cont.) by Gamils 146 Voir Dire by Glass 150 Direct (cont.) by Gamils 151 Voir Dire by Glass 154 Direct (cont.) by Gamils 156 Voir Dire by Glass 162 Direct (cont.) by Gamils 164 Voir Dire by Glass 166 Direct (cont.) by Gamils 167 Cross by Glass 168

D. Senatore: Sworn 248 Direct by Gamils 248 Cross by Glass 274 Re-direct by Gamils 310 Re-cross by Glass 313 Re-direct by Gamils 314

E X H I B I T S RESPONDENT DESCRIPTION I.D. IN EV. 2 Facebook Posting 179 181 3 Investigative Notes 216 217 4 Email to O'Mahoney 225

INDEX DEPARTMENT OF EDUCATION DESCRIPTION I.D. IN EV.

2 Daily News Article Dated 06/23/10 90 3 NY Post Article Dated 06/23/10 90 4 NY Times Article Dated 06/23/10 90 5 SCI Case Form 107 108 6 Facebook Printout 109 112 7 Facebook Posting 118 121 8 Email From Respondent to R. Caiati 124 125 9 Subpoena and Submissions of 127 134

Facebook 10 Subpoena and Submissions of CSC 138 139

Holdings, LLC 11 Investigative Reports 143 146 12 SCI Final Report 148 151 13 SCI Recommendation Report 152 156 14 SCI Memo 161 164 15 Amended SCI Recommendation Report 165 167

78 1 CHRISTINE RUBINO - 02/28/11 2 (The hearing commenced at 10:00 a.m.) 3 THE HEARING OFFICER: Good morning. We are 4 on the record in the case of Ms. Christine Rubino, SED 5 number 17,116, for the 3020-a charges proffered 6 against her by the Department of Education. I am 7 present. Also present, on my right? 8 MR. JEFFREY GAMILS: Jeffrey Gamils, G-A-M-9 I-L-S, for the Department.

10 MR. BRYAN GLASS: Bryan Glass, from the law 11 firm of Glass, Krakower, LLP, for Respondent Christine 12 Rubino. 13 THE HEARING OFFICER: Ms. Rubino is also 14 present. It is my understanding, as I said in the 15 past, that Ms. Rubino did request a public hearing, so 16 that there are other people present in the room. 17 Please state your name. 18 MS. BETSY COMBIER: Betsy Combier. 19 MR. MICHAEL DORTO: Michael Dorto. 20 THE HEARING OFFICER: Please spell your last 21 name. 22 MR. DORTO: D-O-R-T-O. 23 THE HEARING OFFICER: Okay. As this is a 24 public hearing, and as we are about to begin the 25 hearing, please let me lay down some ground rules.

2-28-11 In the matter of Ms. Rubino


79 1 CHRISTINE RUBINO - 02/28/11 2 There is no recording, audio or video, of this 3 hearing. There is no participation by any member of 4 the public. There is no talking between or among any 5 member of the public. There is no note passing 6 between or among any member of the public and the 7 participating party. The only talking and note 8 passing is between the parties to the hearing. None--9 nothing that will disrupt the flow of the hearing will

10 be permitted. Acceptable? 11 MR. GLASS: Just to clarify, but I can speak 12 to them on breaks, right? 13 THE HEARING OFFICER: You can speak to them 14 on breaks as much as you want. But while the course 15 of the hearing is going on, you can speak with your 16 client. That's your right. And your client may speak 17 to you. That's your right. Everybody else is just 18 here to watch. 19 MR. GLASS: And, as far as recording, we do 20 have the audio recording. You're saying no-- 21 THE HEARING OFFICER: [Interposing] 22 Additional. 23 MR. GLASS: --additional recording? 24 THE HEARING OFFICER: This is the hearing-- 25 MR. GLASS: [Interposing] Yeah, I

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80 1 CHRISTINE RUBINO - 02/28/11 2 understand. 3 THE HEARING OFFICER: --recording itself, 4 yes. Okay. Are we ready? 5 MR. GLASS: I just wanted to raise two 6 procedural things. I saw--I read the transcripts of 7 the-- 8 THE HEARING OFFICER: [Interposing] Things 9 that I forwarded to you.

10 MR. GLASS: Yeah, the first one and the 11 second one. One is about discovery. I just want to 12 be clear. I mean we've asked for the Facebook policy. 13 My understanding is there's no specific Facebook 14 policy, that you're relying on the general, you know, 15 3020-a law or whatever that this meets misconduct. So 16 my question is is there any other Facebook policy that 17 you're aware of? Are you still searching? Or what's 18 the position specific to Facebook? 19 MR. GAMILS: For the Department of 20 Education? 21 MR. GLASS: Yeah. 22 MR. GAMILS: The Department of Education, I 23 believe, has no specific policy in regards to 24 Facebook. 25 MR. GLASS: Okay. And the second question

81 1 CHRISTINE RUBINO - 02/28/11 2 was about the student records. My understanding is 3 that a lot of student records were turned over. J.H., 4 I believe we got records from his junior--he's now a 5 junior in high school, I believe. Are there any 6 records--are you still searching for records from this 7 time at the school, the year in question? Because I 8 understand that-- 9 MR. GAMILS: [Interposing] The records for

10 this school year were provided. 11 MR. GLASS: I mean our review indicates that 12 we didn't see any records for this--oh, for this 13 school year, you're saying? 14 MR. GAMILS: Correct. 15 MR. GLASS: My question is whether any 16 records from the year in question when she had-- 17 MR. GAMILS: [Interposing] There is a sheet 18 in the records that we--that Department did provide as 19 far as cumulative reports and grades and attendance, I 20 believe, for the school year in question. The 21 disciplinary records were provided and that is a 22 cumulative report. If it doesn't indicate there were 23 suspensions that were documented during that school 24 year, then it's--they were not maintained in the 25 database.

82 1 CHRISTINE RUBINO - 02/28/11 2 MR. GLASS: But did you check with the 3 principal as to their files? 4 MR. GAMILS: I did check. And, as far as 5 Department's aware, we are no longer searching for 6 additional records. A complete set of the records 7 were provided. 8 MR. GLASS: I just want to note that in my 9 experience that when we have the principal here we

10 often find to that there's other sets of records that, 11 you know, seem to be--come to play. So I will explore 12 that with her and ask. 13 THE HEARING OFFICER: Feel free to ask. 14 Should anything come up, as you know, discovery is--15 discovery is a continuing obligation. Should anything 16 come up, then it will be provided. 17 MR. GLASS: Okay. My other question just I 18 noticed that Mr.--previous counsel had raised the 19 question about-- 20 THE HEARING OFFICER: [Interposing] Mr. 21 Kelly? 22 MR. GLASS: Yes, specifications two and 23 three, whether they were cumulative of specification 24 one or if they meet misconduct on its face. My 25 understanding the ruling is you're just reserving on



83 1 CHRISTINE RUBINO - 02/28/11 2 that at this point? 3 THE HEARING OFFICER: That is correct. 4 MR. GAMILS: Just for clarification 5 purposes, I don't think the motion was to-- 6 THE HEARING OFFICER: [Interposing] It 7 wasn't three. I think it was two. 8 MR. GAMILS: --specification three. It was 9 only to specification two.

10 THE HEARING OFFICER: That's correct. 11 MR. GLASS: Okay. And you just reserved on 12 that? 13 THE HEARING OFFICER: I did. 14 MR. GLASS: That's fine. 15 THE HEARING OFFICER: I did. 16 MR. GAMILS: The Department does have two 17 issues. Under the agreement that was signed on June 18 27th, 2008, between Joel Klein and Randi Weingarten, 19 we are requesting the Respondent's witness list, which 20 was supposed to be provided a week before the pre-21 hearing conference. We have yet to receive that. 22 THE HEARING OFFICER: Okay. I understand 23 you were just recently retained as counsel. 24 MR. GLASS: I was recently retained. I'd 25 have to talk to her about that. My experience is we

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84 1 CHRISTINE RUBINO - 02/28/11 2 generally don't-- 3 THE HEARING OFFICER: [Interposing] Well, 4 Mr. Glass, your experience is one thing. But if your 5 experience isn't since the agreement was signed, then 6 that's something entirely different. So I understand 7 Mr. Gamils' request. Please speak with your client, 8 if you can, by maybe the next hearing date, which is 9 Wednesday, provide a witness list or at least what you

10 know. Ms. Rubino, just as a point of interet, now 11 that you are represented by counsel, he speaks. 12 MS. CHRISTINE RUBINO: Okay. 13 THE HEARING OFFICER: If there's anything 14 that you wish to say, say it to him. And if he 15 wishes, he'll pass it over to me. I'm not trying to 16 be rude to you. 17 MS. RUBINO: Okay. 18 THE HEARING OFFICER: But that was the 19 purpose of your having retained counsel, was so that 20 you didn't have to speak with me. 21 MS. RUBINO: I gave Mr. Kelly the witness 22 list. 23 MR. GLASS: You did give it to him? 24 MS. RUBINO: Uh-huh. 25 THE HEARING OFFICER: All right. Well, then

85 1 CHRISTINE RUBINO - 02/28/11 2 maybe you can-- 3 MR. GLASS: [Interposing] Do you actually 4 have a witness list for her? She said she gave you a 5 list. 6 MR. GAMILS: No, I was not provided anything 7 from Mr. Kelly or from Mr. Glass. 8 THE HEARING OFFICER: I'm sure that-- 9 MR. GLASS: [Interposing] You gave him

10 something specific, you said? 11 MS. RUBINO: Mr. Kelly? 12 MR. GLASS: Oh, you gave Mr. Kelly the list? 13 MS. RUBINO: I gave it to Mr. Kelly, yes. 14 MR. GLASS: All right. Well, we'll talk 15 about it. 16 MR. GAMILS: Okay. 17 THE HEARING OFFICER: Okay. 18 MR. GLASS: My understanding, I mean the way 19 the Board presents its witness list is that they say--20 they give a bunch of names and they add or subtract. 21 THE HEARING OFFICER: Uh-huh. 22 MR. GLASS: So, you know, we'll give what we 23 definitely know for sure, but we may actually reserve 24 as well. We don't really know. Obviously, we have to 25 kind of see how this really develops. So if I have

86 1 CHRISTINE RUBINO - 02/28/11 2 any certain witnesses, I'll let you know by the--you 3 know, by tomorrow or next hearing day. If not, I'm 4 going to just kind of play it by ear. 5 THE HEARING OFFICER: What else, Mr. Gamils? 6 MR. GAMILS: The Department would also like 7 to have certain articles pre-marked under -- 45-32, 8 self-authenticating documents. These articles were 9 provided to Respondent during discovery. They're bate

10 stamped 215 through 219--I'm sorry, 220. 11 THE HEARING OFFICER: Well, are they-- 12 MR. GAMILS: [Interposing] They consist of 13 three newspaper articles related to the charges, 14 specifically specification two, I believe. 15 THE HEARING OFFICER: And-- 16 MR. GAMILS: [Interposing] And specification 17 one. 18 THE HEARING OFFICER: You want them pre-19 marked because? 20 MR. GAMILS: Because they're self-21 authenticating documents. 22 THE HEARING OFFICER: Mr. Glass? 23 MR. GLASS: It's not like we're pre-marking 24 hundreds of exhibits. I think they can be introduced 25 at the time, through a witness, you know. I might



87 1 CHRISTINE RUBINO - 02/28/11 2 object to what they say, probably not. But I think 3 they don't need to be pre-marked. I think it depends 4 on what their witness presents and if they're 5 relevant. I'm not so sure they're going to be that 6 relevant, you know. I mean I'm sure both documents 7 refer to the drowning but I don't think they need to 8 be pre-marked. I think they can be introduced through 9 witness testimony as to part of the investigation,

10 perhaps. 11 MR. GAMILS: I believe it would be more 12 expeditious just to pre-mark them now, since the 13 witnesses that the Department's calling-- 14 THE HEARING OFFICER: [Interposing] Do you 15 want them marked for identification only? 16 MR. GAMILS: --are not the authors. No, I 17 want them marked as-- 18 THE HEARING OFFICER: [Interposing] You want 19 them marked and admitted? 20 MR. GAMILS: Correct. The Department--the 21 witnesses didn't, obviously, write these articles. 22 These were articles that were in the newspaper about 23 the drowning death of Nicole Suriel, which is related 24 to the charges. 25 THE HEARING OFFICER: And you want them

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88 1 CHRISTINE RUBINO - 02/28/11 2 marked as 2, 3 and 4? 3 MR. GAMILS: I believe that's what we're up 4 to, correct? Because the specifications were marked 5 as Department's 1. 6 THE HEARING OFFICER: Mr. Glass, I'm not 7 sure that there would be a witness who would be able 8 to testify as to the authenticity of them, so to 9 speak. I mean we don't have the author of them here.

10 They are, as Mr. Gamils said, self-authenticating. If 11 they were to testify, I would assume it would only be 12 to the -- maybe. 13 MR. GLASS: It seems to me that they're more 14 for argument at the end of the case. I'm not so sure 15 why they're part of the record, necessarily. I mean 16 obviously there was some response to a story but, you 17 know, why he's giving three articles--why is it three 18 articles? Why isn't it one article? Why? You know, 19 what's the particular relevance of any of these 20 particular articles, other than that there was an 21 event that happened, that was commented on. So I 22 don't know why these particular articles-- 23 MR. GAMILS: [Interposing] That's the very 24 reason. 25 MR. GLASS: There are probably hundreds of

89 1 CHRISTINE RUBINO - 02/28/11 2 articles about that story. And the fact that there 3 were two or three articles about this doesn't really 4 have any particular relevance to, you know, the 5 charges at issue. You know, I don't see why they 6 should be pre-marked. I don't even think they're 7 admissible. I think he can use it, you know, for 8 closing arguments. He can use sources like this to 9 try and say this was, you know, an event that, you

10 know. But I don't see why it's necessarily relevant 11 or even admissible. I mean-- 12 MR. GAMILS: [Interposing] It's relevant 13 because if the incident did not occur, then the 14 comments wouldn't be as inappropriate as they are. 15 Because the event occurred makes the comments even 16 more inappropriate. 17 MR. GLASS: Why can't we just stipulate to 18 the fact that there was an event? Why do we need to 19 see the articles? 20 MR. GAMILS: We can stipulate that on June 21 22nd, 2010, a New York City public student, I believe 22 in sixth grade, named Nicole Suriel, died on a school 23 trip to Long Beach. 24 MR. GLASS: I would probably stipulate. I 25 would stipulate to that, the fact that it happened.

90 1 CHRISTINE RUBINO - 02/28/11 2 THE HEARING OFFICER: June 22nd, 2010, a 3 sixth grade public school student, Nicole Suriel, 4 died-- 5 MR. GAMILS: [Interposing] Drowned would be 6 the correct. 7 THE HEARING OFFICER: --by drowning. 8 MR. GLASS: I'm going to say according to--9 according to media reports.

10 MR. GAMILS: Are we--are you contesting that 11 this didn't occur? 12 THE HEARING OFFICER: Are you consenting the 13 death of the woman or are you-- 14 MR. GLASS: [Interposing] I have no personal 15 knowledge. I mean I obviously think it happened. 16 THE HEARING OFFICER: Fine. I think it will 17 be simpler, I will accept these three into evidence. 18 I will mark them as Department 2, 3 and 4, 19 understanding, of course, that they are not, in fact, 20 probative of any specification. They don't meet any 21 burden. All they are are newspaper articles. 22 [Whereupon Department of Education's 23 Exhibits 2, 3 and 4 are admitted into evidence] 24 MR. GLASS: Can I get copies of this? 25 MR. GAMILS: You--they were provided and



91 1 CHRISTINE RUBINO - 02/28/11 2 it's bate stamped 215 to 220. 3 MR. GLASS: The problem is this--I assume 4 that you've already given me copies of things that 5 you're introducing, so-- 6 MR. GAMILS: [Interposing] I think you were-7 -just for the record, my understanding is that Mr. 8 Kelly--a full packet of discovery was provided to Mr. 9 Kelly, which I am assuming was provided to Mr. Glass.

10 I've also emailed Mr. Glass, I believe, Thursday or 11 Friday, a full set of the discovery as well. 12 MR. GLASS: Just a matter of procedure. I 13 mean I could find them. I didn't think they were all 14 that relevant so I didn't even take them today. But 15 he gave me 300 pages of documents and I looked all 16 through them to figure out what was most important. 17 All I want are-- 18 MR. GAMILS: [Interposing] Courtesy copies 19 for Mr. Glass. 20 MR. GLASS: Thank you. 21 THE HEARING OFFICER: Just so we have it 22 clear for the record, DOE 2 is an article from the 23 Daily News. DOE 3 is an article from the New York 24 Post. DOE 4 is an article from the New York Times. 25 Each article is dated June 23rd, 2010.

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92 1 CHRISTINE RUBINO - 02/28/11 2 MR. GLASS: Just to clarify, they're not 3 meeting any burden. They're just the fact that-- 4 THE HEARING OFFICER: [Interposing] I'm 5 admitting them into evidence. They do not meet a 6 burden. They are simply in evidence. 7 MR. GLASS: Okay. 8 THE HEARING OFFICER: Anything else? 9 MR. GAMILS: No, nothing from the

10 Department. 11 THE HEARING OFFICER: Now, I believe we are 12 probably up to your opening. 13 MR. GAMILS: Can I have one second? 14 [Pause] 15 MR. GAMILS: May I proceed? 16 THE HEARING OFFICER: You may. 17 MR. GAMILS: Thank you. Good morning. The 18 New York City Department of Education is proceeding 19 with this disciplinary hearing under New York State 20 Education Law 3020-a against tenured teacher Christine 21 Rubino with the sole purpose of seeking this 22 Respondent's termination from service as a New York 23 City Public School teacher. 24 The evidence will establish that Respondent 25 has exhibited numerous acts of hostility towards

93 1 CHRISTINE RUBINO - 02/28/11 2 students both inside and outside the classroom. At 3 conclusion of the hearing, the Department will prove, 4 by a preponderance of the evidence, that Respondent 5 acted in an unprofessional, inappropriate manner, and 6 is a liability to the New York City Public School 7 system. 8 On June 22nd, 2010, Nicole Suriel, a sixth 9 grade New York City Public School student, drowned

10 during a class trip to the beach. Students, teachers, 11 administrators and parents were devastated and 12 traumatized by this fatal incident. The evidence will 13 prove the Respondent, a fellow teacher and parent, had 14 a different response. The evidence will establish 15 that the very next day, June 23rd, 2010, Respondent 16 posted an inappropriate, threatening, degrading 17 comment on her Facebook page for all her fellow 18 Facebook friends to read, exposing her true lack of 19 professionalism and a deep rooted hatred for all her 20 students. 21 Respondent's Facebook message stated, "After 22 today, the beach sounds like a wonderful idea for my 23 fifth graders. I hate their guts. They're all the 24 devil's spawn." And when a fellow Facebook friend 25 with the screen name Scott J. Lavine [phonetic] read

94 1 CHRISTINE RUBINO - 02/28/11 2 this comment, this person posted the response, "Oh, 3 you would let little Kwami float away?" The evidence 4 will prove that Respondent went back to the internet 5 airwaves with the response, "Yes, I would not throw a 6 life jacket in for a million." 7 It's the Department's position that this 8 exchange was so inappropriate and callous, that it 9 exposed Respondent's inability to maintain a basic

10 level of professionalism, social responsibility, and 11 human decency expected from every public school 12 teacher. Based on this conduct alone, there is just 13 cause for terminating--for her termination, but 14 Respondent's misconduct does not end there. 15 The evidence will further establish that the 16 principal of P.S. 203, Lisa Esposito, confronted 17 Respondent with these allegations and Respondent 18 denied posting these messages or even knowing anyone 19 by the name of Scott J. Lavine. Respondent said that 20 her friend, Joanna Engle, uses her Facebook account 21 without permission and probably posted the comments on 22 the page. 23 Investigator Robert Caiati from the Office 24 of the Special Commissioner of Investigation for the 25 New York City School District interviewed Joanne



95 1 CHRISTINE RUBINO - 02/28/11 2 Engle. At first, Joanne Engle claimed that she wrote 3 the comments on Respondent's Facebook page. However, 4 the evidence will prove that during this interview 5 Joanne Engle couldn't remember the wording of the 6 Facebook comments and wasn't even sure what grade 7 Respondent taught. Investigator Caiati became 8 suspicious and explained that if Ms. Engle was called 9 to testify at a hearing a lied under oath, she may be

10 criminally liable for perjury. It was at this time 11 that Joanne Engle changed her story and stated that 12 Respondent asked her to take responsibility for the 13 comment so she wouldn't lose her job. Investigator 14 Caiati will testify that Ms. Engle even stated that 15 she observed Respondent write the comments on 16 Facebook. 17 Principal Esposito will also testify that 18 she had a subsequent conference with Respondent and 19 questioned her about Joanne Engle's statement. When 20 faced with her own deceit, Respondent stated what's 21 the charge. What did I do wrong? Isn't there freedom 22 of speech? Principal Esposito will further testify 23 that Respondent stated that she did not use a DOE 24 computer and asked where is it written I can't say 25 anything about my students. No one got hurt.

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96 1 CHRISTINE RUBINO - 02/28/11 2 Furthermore, the evidence will prove that 3 Respondent's inappropriate Facebook comments, lying to 4 the principal, and attempting to impede the official 5 SCI investigation by getting her friend to lie on her 6 behalf doesn't paint the full picture of Respondent's 7 unprofessional, inappropriate behavior while assigned 8 to P.S. 203. 9 On June 28th, 2010, approximately five days

10 after Respondent posted the inappropriate comments in 11 her Facebook page about her devil's spawn students, 12 Respondent was notified, on the last day of school, by 13 Principal Esposito, that she had received a U rating 14 for the 2009-2010 school year. Respondent was upset 15 and refused to sign the rating sheet. 16 The evidence will prove that Respondent 17 blamed her U rating and unsatisfactory evaluation on a 18 fifth grade student named A.S. A.S. will testify that 19 Respondent approached her later that day in the 20 cafeteria and stated "Your mom can try to get me fired 21 all she wants but it's not happening." The evidence 22 will establish that A.S. immediately reported this 23 incident to Principal Esposito before even leaving the 24 school that day. 25 Respondent's conduct isn’t limited to verbal

97 1 CHRISTINE RUBINO - 02/28/11 2 abuse or inappropriate comments on Facebook. Back in 3 April of 2009, while supervising and in-house 4 suspension period with two students, R.K. and J.H., 5 the evidence will establish the Respondent grabbed 6 J.H. by the back of the neck and wrestled him to the 7 ground because he grabbed her cellphone. Principal 8 Esposito, R.K., J.H., and Respondent's own written 9 statement about the incident will establish that J.H.

10 ended up on the ground, crying, with a bloody nose. 11 The Department will not deny that J.H. was 12 acting inappropriately during this detention. But the 13 real question is should a student be tackled to the 14 floor and left crying with a bloody nose because he 15 grabbed a teacher's cellphone? The testimony will 16 establish that Respondent also verbally admonished 17 J.H. by stating "Don't touch my fucking shit". 18 At the conclusion of the hearing, the 19 evidence will clearly reveal Respondent's inability to 20 conduct herself in a professional and in an 21 appropriate manner expected of all New York City 22 Public School teachers. The Department will prove 23 each of the specifications charged beyond a 24 preponderance of the evidence and establish that 25 Respondent violated Chancellor's regulations, the New

98 1 CHRISTINE RUBINO - 02/28/11 2 York City Charter, and basic standards of conduct for 3 all employees of the New York City Department of 4 Education. Under these facts, the Department will 5 further establish that discipline is warranted under 6 Education Law 3020-a and there is just cause for the 7 Respondent's termination. 8 At the conclusion of this case, I ask for 9 the only finding consistent with evidence--with the

10 evidence and testimony presented, a finding that 11 Respondent is unfit to perform her obligation properly 12 and the only just recourse is termination from 13 service. 14 THE HEARING OFFICER: Mr. Glass, would you 15 make your opening now or would you reserve until your 16 case in chief? 17 MR. GLASS: I want to make a brief opening 18 at this point. First of all, you're going to hear a 19 much different--you're going to see a much different 20 Christine Rubino than what's described by Mr. Gamils. 21 Let me introduce Christine Rubino. She's been 22 teaching for the DOE for 14 years, since 1996. She's 23 been at the same elementary school the whole time, 24 P.S. 203. She's a math specialist of third and fourth 25 grade. Fifth grade, she's taught. She's taught



99 1 CHRISTINE RUBINO - 02/28/11 2 younger teachers who come into the school. She's got 3 a mentoring license to help younger teachers. 4 She has two children, school age children 5 about the same age as Nicole, who's referenced here. 6 She has a seven and eight-year-old girl and boy. No 7 prior disciplinary charges, always satisfactory 8 ratings until this incident referenced in this case, 9 no attendance, lateness, letters to file. She's got a

10 four-year degree from Brooklyn College, a master's in 11 math education. 12 This is typical DOE being overzealous. 13 You're going to see this. You've seen this before, 14 you'll see it again. You're going to be shocked by 15 the investigator's bullying of witnesses to get 16 results that they want to--you know, to get desired 17 results. 18 This also raises some interesting first 19 amendment issues about there is--as you know, there is 20 no Facebook policy. This was not intended for public 21 dissemination, what she commented on. And what could 22 have been done to get this--why this--why we're here 23 when this could have just basically been saying, you 24 know, take it off. You know, why they turned this 25 into a grand inquisition, you're going to question

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100 1 CHRISTINE RUBINO - 02/28/11 2 this at the end of the day. 3 Also, these other incidents referenced were 4 not even incidents until they needed to bolster this 5 case, to come forward with something to bring against 6 Ms. Rubino. I mean the 2009 incident with J.H., 7 you'll hear, was based on a kid who touched her 8 breasts and was completely out of control. And 9 there's--the Department itself has produced, you know,

10 numerous documents where they couldn't even keep the 11 kid in the school and the principal, you know, was not 12 even going to report this incident. 13 And she remained in the classroom until this 14 past month, this February. So these Facebook comments 15 and the threat, the danger--the Board didn't even 16 perceive it as a danger because they left her in the 17 classroom the whole time. Even when the Facebook 18 comment came out, they left her there for another 19 three months. 20 You know, and this whole Nicole thing, we're 21 very curious. There's nothing in the--in the 22 discovery to really reveal why she would even make 23 this comment, is totally out of context and we don't 24 really understand. You know, we'd like to hear what 25 the evidence is on that because the discovery provided

101 1 CHRISTINE RUBINO - 02/28/11 2 doesn't even suggest why this comment would be said. 3 So, at the end of the day, I think you're 4 going to hear a much different case. You're going to 5 see that this is typically just SCI justifying why 6 they get paid, you know. It's to take little 7 incidents and bang them into grand inquisitions when 8 literally this could have been, you know what, you 9 should take this off your page. This could be

10 reflective--reflect -- of the Department, please pull 11 it off. And she did anyway. 12 So you'll see that, you know, they don't--13 they turn little incidents and turn them into these 14 grand inquisitions. So I'm confident, at the end of 15 the day, you'll see that this is not worthy of any 16 substantial discipline. 17 THE HEARING OFFICER: Okay. Your first 18 witness, Mr. Gamils? 19 MR. GAMILS: The Department would be calling 20 Investigator Robert Caiati. 21 THE HEARING OFFICER: Can you spell that for 22 me? 23 MR. GAMILS: C-I-A-T-I, I believe. 24 THE HEARING OFFICER: Thank you. 25 MR. GAMILS: Let me just verify that.

102 1 CHRISTINE RUBINO - 02/28/11 2 THE HEARING OFFICER: That's all right. 3 I'll ask him to spell it because I always like to have 4 a little head start. 5 MR. GAMILS: I missed it. C-I--I'm sorry, 6 C-A-I-A-T-I. 7 THE HEARING OFFICER: Okay. Off the record. 8 [Off the record] 9 [On the record]

10 THE HEARING OFFICER: Good morning. Please 11 state and spell your name, for the record. 12 MR. ROBERT CAIATI: Robert Caiati, C-A-I-A-13 T-I. 14 THE HEARING OFFICER: Please raise your 15 right hand. Do you swear or affirm that the testimony 16 you're about to give will be the truth? 17 MR. CAIATI: I do. 18 THE HEARING OFFICER: Go ahead. 19 MR. GAMILS: Thank you. 20 DIRECT EXAMINATION21 BY MR. GAMILS 22 Q. Mr. Caiati, where are you currently 23 employed? 24 A. Special Commissioner of Investigation 25 for the New York City School District.



103 1 CAIATI - DIRECT - GAMILS 2 Q. And how long have you been employed 3 with the Special Commissioner's Office? 4 A. About two and a half years. 5 Q. And what is your current assignment 6 with Special Commissioner's Office? 7 A. I am an investigator. 8 Q. And what duties and responsibilities 9 does that involve?

10 A. We have cases assigned to us and we're 11 responsible to investigate those cases to some sort of 12 conclusion. 13 Q. As--is this your first assignment as 14 an investigator? 15 A. No. 16 Q. Where did you work previously? 17 A. I was a police officer for the city of 18 White Plains Police Department for 20 years prior to 19 this. 20 Q. And what were your assignments by the 21 White Plains Police Department? 22 A. For the last 15 years, I was a 23 detective. 24 Q. And approximately how many cases do 25 you investigate a year with the Special Commissioner's

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104 1 CAIATI - DIRECT - GAMILS 2 Office? 3 A. Somewhere in the neighborhood of 40 or 4 more. 5 Q. And can you explain what the term 6 substantiate means? 7 A. It means that the--you've found 8 reasonable grounds to substantiate the allegation 9 against the individual that the case is of.

10 Q. And, out of the 40 case--approximately 11 40 cases per year that you are assigned, how many of 12 those are substantiated? 13 A. Approximately half. 14 Q. And do you know the numbers for the 15 entire SCI office? 16 A. The last that I was advised, I believe 17 that our office unsubstantiates a little less than 18 half of the cases that come to the office. 19 Q. Now, during an investigation, what 20 activities do you engage in, typically? 21 A. Excuse me. You need to be more 22 specific. 23 Q. During an investigation, what are you 24 job duties? What do you do during an investigation? 25 A. Well, when we first--we will be

105 1 CAIATI - DIRECT - GAMILS 2 assigned a case. The case will have certain 3 information. We'll look over the information to 4 decide how we're going to proceed. The first thing I 5 usually do is get the pedigree information on the 6 subject. So we go into the computer, pull the current 7 pedigree information that's on the computer on the 8 subject. We add that to the case. We memorialize it 9 in the report. And then we start interviewing

10 witnesses. 11 Q. Now, do you know someone by the name 12 of Christine Rubino? 13 A. I am aware of Ms. Rubino. 14 Q. Was a case ever assigned to you with 15 the name Christine Rubino? 16 A. Yes. 17 Q. Okay. And can you tell us what 18 occurred when that case was assigned to you? 19 A. The case was assigned to me, I 20 believe, on June 29th, 2010. Based on the information 21 that I had, the first things that I did was pull Ms. 22 Rubino's pedigree information off the computer. It 23 showed that she lived, I believe, at 1864 Ryder 24 Street, Brooklyn, New York. 25 Q. Now, going back to your original

106 1 CAIATI - DIRECT - GAMILS 2 assignment, are you familiar with a document called a 3 case form? 4 A. Yes. 5 Q. What is a case form? 6 A. A case form is the document that when 7 a complaint is taken by our complaint personnel, they 8 write it up on the complaint form. They take the 9 specific allegations, write it up on the complaint

10 form that's placed in the case folder. And that's one 11 of the documents that comes to us with the case 12 folder. 13 Q. And the person who draws it up, is 14 that also an employee of the Special Commissioner's 15 Office? 16 A. Yes. 17 Q. And once that case form is received by 18 you, what happens to it? 19 A. Well, I take a look at it and I decide 20 where I'm going--what I'm going to be--what direction 21 I'm going to take with my investigation. 22 Q. And is that case form created in every 23 case that SCI assigns? 24 A. Yes. 25 MR. GAMILS: I'm going to ask to have this



107 1 CAIATI - DIRECT - GAMILS 2 marked as Department's Exhibit 5-- 3 THE HEARING OFFICER: [Interposing] 5? 4 MR. GAMILS: --for identification. I do 5 have a courtesy copy for Mr. Glass. Can I hand a copy 6 to the witness? 7 THE HEARING OFFICER: You may. 8 Q. Mr. Caiati, do you recognize that 9 form?

10 A. Yes, I do. 11 Q. Can you tell us what it is? 12 A. It is a copy of the case form from the 13 case against Ms. Rubino. 14 Q. And is this--does the case--is the 15 case form kept in the SCI file? 16 A. Yes, it is. 17 Q. Okay. And is that--does that occur 18 with every SCI case? 19 A. Yes, it does. 20 Q. And, to the best of your knowledge, 21 has this case form been changed or altered in any way 22 since you received it and placed in the case form? 23 A. Not that I can tell. 24 Q. With the exception of the redactment? 25 A. Right.

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108 1 CAIATI - DIRECT - GAMILS 2 Q. Right. 3 MR. GAMILS: At this time, the Department 4 would like to enter this as Department's Exhibit 5. 5 MR. GLASS: Just real quick, a voir dire. 6 VOIR DIRE 7 BY MR. GLASS 8 Q. Did you prepare this form or someone 9 else did?

10 A. No, someone else did. 11 MR. GLASS: It's a hearsay--just an 12 objection based on hearsay. But if it's part of the 13 investigation-- 14 THE HEARING OFFICER: [Interposing] I'll 15 allow it, DOE 5. 16 [Whereupon Department of Education's Exhibit 17 5 is admitted into evidence] 18 MR. GAMILS: Thank you. 19 DIRECT EXAMINATION (CONT.) 20 BY MR. GAMILS 21 Q. Now, in this specific case of teacher 22 Christine Rubino, did you receive any other documents 23 at the time the case was assigned to, besides the case 24 form? 25 A. Yes.

109 1 CAIATI - DIRECT - GAMILS 2 Q. Do you recall what those documents 3 were? 4 A. It was an email that, I believe, 5 contained the inappropriate comments that were being 6 investigated. 7 MR. GAMILS: I'd have this marked as 8 Department's Exhibit 6 for identification. 9 THE HEARING OFFICER: That's for--

10 MR. GAMILS: [Interposing] That's correct. 11 I have a courtesy copy for Mr. Glass. 12 Q. Investigator Caiati--can I proceed? 13 THE HEARING OFFICER: Uh-huh. 14 Q. Investigator Caiati, are you familiar 15 with an individual by the name of O'Mahoney? 16 A. Yes, I am. 17 Q. And can you tell us who that is? 18 A. General Mahoney works in our complaint 19 room. He is one of the employees who takes 20 complaints. 21 Q. And what are some of his job 22 obligations and duties? 23 A. He is responsible to answer the phones 24 and take complaints from--you know, take calls and 25 then document the complaints on that case form that

110 1 CAIATI - DIRECT - GAMILS 2 you referred to earlier. And then he takes the 3 completed case form and it gets sent to his superior, 4 who then decides what's going to happen with the case, 5 if it's going to--if it's going to be taken as a case, 6 who it's going to be assigned to and, if not, what 7 agency it's going to be referred to. 8 Q. Besides speaking to the individual 9 making a complaint, does he do anything else in

10 regards to receiving that information? 11 A. No, he creates the case form that--as 12 I stated. And he will reach out to the complainant 13 and try and obtain further documentation, if it's 14 called for. 15 Q. In this case, did Mr. O'Mahoney obtain 16 any additional information besides the case form on 17 this matter? 18 A. Yes. 19 Q. I'm going to hand you what's been 20 marked as Department's Exhibit 6 for identification. 21 Do you recognize that? 22 A. Yes. 23 Q. Can you tell us what it is? 24 A. It is the--one of the forms that was 25 in the case. I think that Mr. O'Mahoney received it



111 1 CAIATI - DIRECT - GAMILS 2 from--I don't know who he received it from--with the 3 comments that apparently came from Ms. Rubino's 4 Facebook. 5 Q. Did there come a time when you learned 6 who sent this document to Mr. O'Mahoney? 7 A. I believe it was the principal. 8 Q. And where was-- 9 A. [Interposing] Actually, assistant

10 principal. 11 Q. And who was that? 12 A. Brian Sadowski. 13 Q. And, once this was received, where was 14 it placed? 15 A. In the case file. 16 MR. GAMILS: At this time, I'd like to have 17 this entered as Department's Exhibit 6. 18 MR. GLASS: I would object to this. I mean 19 we're talking about--he's not even part of this. 20 O'Mahoney is the one receiving this. And there's--21 there could be--there could be testimony as to what 22 was obtained, what this is. You know, he's not really 23 the appropriate witness to be putting this in. I mean 24 it's part of--I can understanding the other report, 25 the report that's part of their official

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112 1 CAIATI - DIRECT - GAMILS 2 investigation, but this is-- 3 THE HEARING OFFICER: [Interposing] -- . 4 MR. GLASS: We don't--he's testifying to 5 what O'Mahoney is telling him. So it's like double 6 hearsay. 7 MR. GAMILS: Well, in response to that, Mr. 8 O'Mahoney is also an employee of the Special 9 Commissioner's Office. He's familiar with his job

10 obligations and duties. And this was created in the 11 ordinary course of business and placed in the SCI 12 file, which is standard protocol, which I believe Mr. 13 Caiati testified to. Mr. Sadowski is also testifying. 14 So, if we want to enter it subject to his testimony, 15 since he's the one that sent it, that may be more 16 appropriate. But I don't think that should limit the 17 introduction at this time. 18 THE HEARING OFFICER: No, I'll allow it, 6. 19 [Whereupon Department of Education's Exhibit 20 6 is admitted into evidence] 21 Q. Can you tell us what the allegation 22 was when you received the case? 23 A. The allegation was the Ms. Rubino made 24 inappropriate comments on her Facebook page. 25 Q. Now, once you received the case form

113 1 CAIATI - DIRECT - GAMILS 2 and you were assigned the case, you began to tell us 3 what your steps were. Can you then explain to us what 4 your first step was? 5 A. I went into the computer to pull Ms. 6 Rubino's pedigree information. I got the most recent 7 pedigree information that we have and I memorialized 8 that in a report that also goes into the case. 9 MR. GAMILS: I'd have this marked as

10 Department's Exhibit 7 for identification. I do have 11 a courtesy copy for Mr. Glass. 12 THE HEARING OFFICER: Thank you. 13 MR. GAMILS: There may be information on 14 this form that should be redacted prior to entering it 15 as an exhibit. 16 THE HEARING OFFICER: I was about to say 17 there's certain information on here that I don't need 18 to have and I will-- 19 MR. GAMILS: [Interposing] I have-- 20 THE HEARING OFFICER: --self-redact because 21 I'm going to give my copy to the state. I'm not--even 22 though -- to be something that's in evidence yet, but 23 just I shouldn't have this information, period. 24 MR. GLASS: Yeah, I just--I just question. 25 Is there a need to put this document in at all?

114 1 CAIATI - DIRECT - GAMILS 2 Because it's just pedigree information. I don't think 3 there's any dispute about this. That doesn't say 4 anything other than her name and address, so. 5 THE HEARING OFFICER: I redacted the social 6 security number because that is none of my business. 7 MR. GLASS: No, I'm just saying that the 8 whole form is-- 9 MR. GAMILS: [Interposing] If that's the

10 objection, Department believes that we do have a 11 responsibility to establish that there was a proper 12 investigation done on this matter. This was a step 13 that investigator Caiati took during his 14 investigation. They are--it is contained in the 15 official SCI file. 16 THE HEARING OFFICER: Uh-huh. 17 MR. GAMILS: Therefore, the Department 18 believes it's actually our obligation to introduce it. 19 THE HEARING OFFICER: Mr. Glass? 20 MR. GLASS: I understand. I mean it's 21 created to show that an investigation was done. But 22 this document, it seems somewhat vain and it doesn't 23 need to be part of the record, is my position. 24 THE HEARING OFFICER: Well, it doesn't need 25 to be a part of the record because all of the



115 1 CAIATI - DIRECT - GAMILS 2 information is elsewhere on the record. It doesn't 3 need to be part of the record because it's not 4 evidentiary in nature. I mean if Mr. Gamils is 5 representing that he's trying to put in, I guess, 6 piece-by-piece, the SCI file, that's what he says he's 7 trying to do. So why would it not be an appropriate 8 document? 9 MR. GLASS: I think both of what you

10 suggested. The information is elsewhere on the 11 record. It's not going to weight into a determination 12 whether a proper investigation was done by taking 13 pedigree information. I don't think the document 14 needs to be entered. That's what I feel. And it's 15 enough--it doesn't have--it doesn't advance the 16 investigation. It just means they established that 17 she works for the DOE. 18 MR. GAMILS: If Mr. Glass will stipulate 19 that Mr.--Investigator Caiati obtained Ms. Rubino's 20 address and that she lives at 1864 Ryder Street in 21 Brooklyn New York, then technically the document isn't 22 necessarily, as long as that's the stipulation. 23 MR. GLASS: That's fine. Why don't we do 24 that? 25 THE HEARING OFFICER: Fine.

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116 1 CAIATI - DIRECT - GAMILS 2 Q. After--Mr. Caiati, after invest--after 3 obtaining Ms. Rubino's contact information through 4 human resources, what other steps did you take in this 5 investigation? 6 A. I then interviewed Principal Lisa 7 Esposito and assistant principal Brian Sadowski. 8 Q. And what did you learn from your 9 interview with Principal Esposito?

10 A. Principal Esposito provided me with 11 another--with a copy of the comments on the Facebook 12 page that--those comments actually provided a link, 13 which is the--sort of like the Facebook account 14 number. 15 THE HEARING OFFICER: I'm sorry. Ms. 16 Rubino, I've allowed it until now. But I can't have 17 your words appearing on the transcript. 18 MS. RUBINO: Okay. 19 THE HEARING OFFICER: If you need to speak 20 with your attorney, either lean over and whisper to 21 him or pass him a note. 22 MS. RUBINO: Okay. 23 THE HEARING OFFICER: Okay? But I do not-- 24 MS. RUBINO: [Interposing] I didn't know 25 notes are okay.

117 1 CAIATI - DIRECT - GAMILS 2 THE HEARING OFFICER: That's okay. 3 MS. RUBINO: Okay. 4 THE HEARING OFFICER: That's all right. Go 5 ahead. Something--you were saying something about a 6 link? I'm sorry. 7 A. The form that I received from 8 Principal Esposito not only contained the comments, 9 but contained a link which is basically the account

10 number for the Facebook account that the comment was 11 coming from. Ms. Esposito advised me that on the 24th 12 she was advised by Assistant Principal Sadowski that 13 he had received these comments, along with the link, 14 from another party at the time, who wanted to remain 15 nameless but is now identified as David Senatore. 16 THE HEARING OFFICER: I'm sorry. Just for 17 my own identification purposes, is that what would 18 have been redacted out in the report? 19 A. I'm not sure. 20 MR. GAMILS: Yes. 21 THE HEARING OFFICER: And would you, if you 22 could, again, for my own benefit, please spell that 23 for me. David, I assume is David but-- 24 A. [Interposing] David, I believe it is 25 S-E-N-A-T-O-R-E.

118 1 CAIATI - DIRECT - GAMILS 2 THE HEARING OFFICER: I won't hold you to 3 it, but now that I have it written. Thank you. 4 MR. GAMILS: Just for clarification, Mr. 5 Senatore is testifying tomorrow. So we will be able 6 to obtain that information then. 7 THE HEARING OFFICER: Thank you. 8 A. So-- 9 Q. [Interposing] Let me just stop you

10 right there, Mr. Caiati. 11 MR. GAMILS: I'd like to have this marked as 12 Department's Exhibit, are we going to say 7? 13 THE HEARING OFFICER: We'll call it 7 since 14 we didn't even get past the identification stage 7. 15 So, yes, let's call this one 7. 16 MR. GAMILS: Okay. 17 THE HEARING OFFICER: Just to keep it 18 orderly. 19 MR. GAMILS: Can you please hand that to the 20 Hearing Officer, please? I do have a courtesy copy 21 for Mr. Glass. 22 THE HEARING OFFICER: Thank you. 23 MR. GAMILS: I'm going to hand the witness 24 what's been marked for identification as Department's 25 Exhibit 7.



119 1 CAIATI - DIRECT - GAMILS 2 Q. Mr. Caiati, do you recognize that 3 document? 4 A. Yes, I do. It's the document I 5 received from Principal Esposito. 6 Q. Okay. And when she gave you this 7 document, what was she representing that it was? 8 A. That this was the posting that came 9 off of Ms. Rubino's Facebook page.

10 Q. And what did you do with this document 11 after you received it? 12 A. I eventually put it into my case file. 13 Q. Okay. And do you typically collect 14 evidence from witnesses during the course of an 15 investigation? 16 A. Yes, we do. 17 Q. And is that--are those documents 18 placed into the SCI file? 19 A. Yes, they are. 20 Q. And is that SCI file maintained at the 21 office of Special Commissioner? 22 A. Yes, it is. 23 Q. And, besides the redacting that was 24 done on the pages, has this document been changed or 25 altered in any way?

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120 1 CAIATI - DIRECT - GAMILS 2 A. No. 3 Q. Is that the way you received it? 4 A. Yes. 5 MR. GAMILS: At this time, the Department 6 would like to move this document, which has been 7 marked for identification, into evidence as 8 Department's Exhibit 7. 9 MR. GLASS: Just to clarify a few things.

10 VOIR DIRE 11 BY MR. GLASS 12 Q. How did you first get this post, this 13 particular document? 14 A. This came from the principal. 15 Q. Okay. And you didn't modify this in 16 any way? 17 A. No. 18 Q. All right. 19 MR. GLASS: My objection is, again, it's 20 hearsay. It's just to be subject to connection of 21 witnesses that have knowledge about this. I guess 22 it's part of the file but I'm going to ask that this 23 bear no weight until someone connects it with 24 knowledge. 25 THE HEARING OFFICER: Indeed. I'll allow it

121 1 CAIATI - DIRECT - GAMILS 2 in as 7 and I would assume that somebody is going to 3 come and testify as to its very purpose in this whole 4 thing. But since I understand you're putting it in as 5 part of the file-- 6 MR. GAMILS: [Interposing] Simply putting it 7 in at this time as part of his investigation. 8 THE HEARING OFFICER: 7. 9 [Whereupon Department of Education's Exhibit

10 7 is admitted into evidence] 11 DIRECT EXAMINATION (CONT.) 12 BY MR. GAMILS 13 Q. Investigator Caiati, once you received 14 this document--well, what information did you learn 15 from this document? 16 A. Well, the information that I learned 17 from this document is the comments themselves, the 18 name of the sender and there is an ID number on these-19 -on this form that will link back to the Facebook 20 account holder. 21 Q. Did there ever come a time where you 22 entered the Facebook--this Facebook account number? 23 Now, are you--and just for clarification purposes, 24 what number are you referring to? 25 A. Right after ID you'll see a number

122 1 CAIATI - DIRECT - GAMILS 2 that says 1151397116. 3 THE HEARING OFFICER: Hold on. Oh, I see. 4 Okay, I'm sorry. In the middle of the page? 5 A. Yes. 6 THE HEARING OFFICER: Okay. 7 Q. And can you explain the significance 8 of that number? 9 A. Well, that ID number identifies the

10 holder of that Facebook account. 11 Q. And did there come a time where you 12 found out who or what name is associated with that 13 Facebook account number? 14 A. Yes, I eventually did. 15 Q. And whose name was that? 16 A. Christine Rubino. 17 Q. Now, after you received this document 18 and you spoke with Principal Esposito, what did you 19 do? 20 A. I then spoke with Principal Sadowski. 21 Q. And what did you learn from speaking 22 with Principal--I'm sorry. 23 A. Assistant Principal. 24 Q. From Assistant Principal Sadowski? 25 A. Assistant Principal Sadowski advised



123 1 CAIATI - DIRECT - GAMILS 2 me that on June 24th--or on June 23rd, excuse me. 3 June 23rd, 2010, he was sent those comments, along 4 with a link to Ms. Rubino's Facebook page by Mr. 5 Senatore. Mr. Sadowski stated that he clicked on the 6 link and it brought him directly to Ms. Rubino's 7 Facebook page. He stated, after seeing that, he 8 emailed that document to his work email and the next 9 day, the 24th, he presented it to Principal Esposito.

10 Q. Now, I'm going to hand you, again, 11 what's been marked as Department Exhibit 7. Can you 12 tell us, there is a second number on the page, 13 correct? 14 A. Yes. 15 Q. Can you tell us what that is? 16 A. It's whoever she was commenting--17 whoever she was speaking with, whoever she was having 18 this conversation with on Facebook. 19 Q. Did you learn who, the name associated 20 with that account number? 21 A. The name associated with it on the 22 page is Scott J. Lavine. During my interview with 23 Principal Esposito, I asked if anybody by the name of 24 Scott Lavine worked in the school and she told me no. 25 I also asked if a child by the name of Kwami goes to

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124 1 CAIATI - DIRECT - GAMILS 2 the school and she told me no. 3 Q. Now, did there come a time where you 4 entered this number, the 1151397116 number, to bring 5 you to a Facebook page? 6 A. Yes. 7 Q. And what occurred when you did that? 8 A. It was the Facebook of Christine 9 Rubino.

10 Q. Now, after speaking to Assistant 11 Principal Sadowski, what did you do? 12 A. The 8th of July of 2010, I responded 13 to 1864 Ryder Street in Brooklyn to see if I could 14 speak to Ms. Rubino. No one was home. I left a card. 15 The following day, the 9th, I received an email at my 16 job where Ms. Rubino basically stated she didn't know 17 what it was in reference to, so she wouldn’t speak to 18 me until she spoke to an attorney. And that email 19 that it was sent from was [email protected]. 20 MR. GAMILS: I'm going to ask to have this 21 document marked as Department's Exhibit 8 for 22 identification. I do have a courtesy copy for Mr. 23 Glass. I'm going to hand the witness what's been 24 marked as Department's Exhibit 8 for identification. 25 Q. Mr. Caiati, do you recognize that

125 1 CAIATI - DIRECT - GAMILS 2 document? 3 A. Yes. 4 Q. Can you tell us what it is? 5 A. It is the email that Ms. Rubino sent 6 to me. 7 Q. And that was sent to--how was that 8 sent to you? 9 A. It was sent to my work email.

10 Q. And, once you received it, what did 11 you do with the document? 12 A. I placed a copy in -- . 13 Q. And has this email been changed at 14 all, in any way, since you received it? 15 A. No. 16 MR. GAMILS: At this time, we would like to 17 have this entered as Department's Exhibit 8. 18 MR. GLASS: I'm not objecting that it's part 19 of the case file. I don't see the relevance of it. 20 But I don't--I don't object to the fact that it's part 21 of the case file. 22 THE HEARING OFFICER: 8. 23 [Whereupon Department of Education's Exhibit 24 8 is admitted into evidence] 25 Q. Now, Investigator Caiati, what was the

126 1 CAIATI - DIRECT - GAMILS 2 significance of receiving an email from Christine 3 Rubino with this email address, 4 [email protected]? 5 A. Sometime in later July, I subpoenaed 6 the Facebook records based on that ID number that I 7 spoke about earlier. 8 Q. Just to go over that, can you explain 9 what you did to request information from Facebook?

10 A. I created a subpoena. Again, that ID 11 number was what Facebook requires that you give them 12 in order for them to get the specific account you're 13 talking about. I also requested posts for the entire 14 day of June 23rd, 2010. The subpoena was signed off 15 on and was faxed to Facebook. It took me several 16 months to get it back. I didn't get it back until 17 September. When I got it back, the information, the 18 dates were wrong but the email address that the 19 account is linked to came back as 20 [email protected], showing a direct connection 21 from that Facebook account to Ms. Rubino. I then 22 subpoenaed Optimum Online. 23 Q. Well, let me just stop you right 24 there. 25 MR. GAMILS: I'm going to ask to have this



127 1 CAIATI - DIRECT - GAMILS 2 packet marked as Department's Exhibit 9 for 3 identification. I do have a courtesy copy for Mr. 4 Glass. Would the Hearing Officer suggest marking the 5 entire document as one exhibit? 6 THE HEARING OFFICER: I would, unless there 7 is a reason to mark each page individually. 8 MR. GAMILS: I don't believe there is. 9 THE HEARING OFFICER: I see that there--that

10 there is a number of pages. But if this is a 11 subpoena, along with what he received, I would just 12 assume keeping this one document, rather than 13 complicating the record with a bunch of A through 14 triple Z. 15 MR. GAMILS: I've only got one thing to 16 clarify, and I believe the witness will testify to 17 this, is that this includes two different submissions 18 he received from Facebook under the same subpoena. So 19 one--bate stamp 191 to--no, I'm sorry. It's a little 20 bit out of order. 169 to 184 is one packet and then 21 146 to 161 is another packet. The numbers are a 22 little bit out of order, and I apologize for that. 23 THE HEARING OFFICER: It's okay. Go ahead, 24 continue your questioning. 25 MR. GAMILS: I'm handing the witness what's

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128 1 CAIATI - DIRECT - GAMILS 2 been marked Department's Exhibit 9 for identification. 3 Q. Mr. Caiati, do you recognize those 4 documents? 5 A. Yes, I do. 6 Q. Okay. Can you explain to us what they 7 are? 8 A. They are the results of the subpoena 9 that I sent to Facebook. The reason that Mr. Gamils

10 stated there are two submissions is the original 11 submission on the dates, they sent me the wrong date 12 information. I had to request the proper information 13 thereafter. And it took a while but then I received 14 the right information. Both times, however, the 15 information linked the account to Ms. Rubino's email 16 account at Opt Online. 17 Q. And when you say the account, what are 18 you referring to? 19 A. Her email account at Opt Online. 20 Q. Was linked to what? 21 A. To her Facebook account. 22 Q. Did you receive any additional 23 documents from Facebook in response to your subpoena? 24 A. No, just the two submissions. 25 Q. And, after receiving those documents,

129 1 CAIATI - DIRECT - GAMILS 2 what did you do? 3 A. I placed them in the case file. 4 MR. GAMILS: At this time, I'd like to have 5 these marked as Department's Exhibit 9. 6 THE HEARING OFFICER: Mr. Glass? 7 MR. GLASS: I'm not really clear if he 8 established what they really show. The testimony--my 9 understanding is he got a Facebook subpoena--

10 THE HEARING OFFICER: [Interposing] Do you 11 want a voir dire. 12 MR. GLASS: --and they sent this 13 information. 14 THE HEARING OFFICER: Do you--are you asking 15 to voir dire? 16 MR. GLASS: Yeah, if I could, I guess. 17 THE HEARING OFFICER: Go ahead. 18 VOIR DIRE 19 BY MR. GLASS 20 Q. I mean what--let's take a look at page 21 169. What does--what does this document reflect, in 22 your mind? 23 A. These documents reflect the date and 24 specific time that postings were made on the account. 25 Every time a posting is made, it is documented and the

130 1 CAIATI - DIRECT - GAMILS 2 IP address is assigned to it. Sometimes that IP 3 address is the same, sometimes it's a revolving IP 4 address. It depends on where the posts are coming 5 from. If they're coming from a hard line computer, it 6 should stay the same, for the most part. If they're 7 coming from a blackberry, you will keep seeing 8 different IP addresses because they will just keep 9 assigning a new IP address every time a new post is

10 made. 11 Q. And how are you aware of this 12 information? 13 A. Just through, you know, my prior 14 dealings with these types of investigations. 15 Q. Did Facebook provide any explanation 16 or they just turned over the documents? 17 A. No, they just turned over the 18 documents. 19 Q. So, for example, where it says IP--20 maybe like the fourth entry, IP 24.188.110.228, what 21 does that reflect? What is that showing? 22 A. That is showing that that IP address 23 was assigned to that transmission and, if you go down 24 a little further, you'll even see another one that's a 25 little bit different. Okay? 2418611328, that's



131 1 CAIATI - DIRECT - GAMILS 2 probably an--at that point, that's an incoming. Okay? 3 Some of these, if you go further out, okay, you will 4 see several, I mean dozens and dozens of IP addresses. 5 And those are revolving IP addresses that are 6 assigned. Usually, when you see that, you know you 7 have some sort of phone, Blackberry or something, 8 where they can make posts because then the company 9 just assigns random IP addresses to every single--

10 every single time you make a post or you send 11 something or you receive something. And they'll 12 assign an IP address to that. 13 Q. Well, that one particular entry I'm 14 asking about, what is that showing? Is it showing 15 that she received a post, she sent a post, she got--16 she's on Facebook generally? 17 A. Yes, she was on Facebook at that time. 18 Okay? It gives you--it gives you the date and it gives 19 you the specific time. 20 Q. And what is she doing on Facebook at 21 that time? 22 A. I have no idea what comments or what 23 content is being posted or received. I just know that 24 at that time there is activity on that account, at 25 that specific date and time.

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132 1 CAIATI - DIRECT - GAMILS 2 Q. Could that activity be just reading 3 Facebook comments, other people's Facebook comments? 4 A. Not--there's a possibility. But 5 you've got to understand, in order for it to generate 6 an IP address, in order for it to generate it, okay, 7 some sort of activity has to be going on. Okay? So 8 just maybe logging on to read, possibly, sending, 9 possibly. I can't tell you specifically what it is.

10 I can only tell you the dates and times that the 11 activity took place. I can't give you the specifics 12 of that activity. 13 Q. So all you can really say is some 14 action regarding use of Facebook was happening? 15 A. Correct. 16 Q. And it could be on a Blackberry. It 17 could be on a-- 18 A. [Interposing] It could be. 19 Q. It could be on any computer-- 20 A. [Interposing] But it's--but it's 21 assigning itself. It's logging itself into that 22 account because every one of these posts, every one of 23 these uses, for lack of a better term, are all for Ms. 24 Rubino's Facebook account. 25 Q. You said there was some misinformation

133 1 CAIATI - DIRECT - GAMILS 2 sent by Facebook? 3 A. In the very beginning, they sent me 4 the wrong dates. And I had to request that they send 5 me the proper dates. 6 Q. You mean July rather than June? 7 A. Yes. 8 Q. Okay. 9 A. July rather than June.

10 Q. And the second--starting at page 147, 11 it's a different format. What does this reflect? Is 12 this just the corrected dates? 13 A. Well, these are the corrected dates 14 but this also shows--it's just sort of a different 15 format but it's pretty much the same thing. But this 16 is where you really--you'll see a lot, as you go 17 through these, you will see several different--you'll 18 see some that are the same and those some that are the 19 same are probably the landline computer. And the ones 20 that are different are most likely the Blackberry. 21 Q. What is the 1151397116? 22 A. These are just IP addresses that are 23 assigned. Basically, IP address--when they assign an 24 IP address, that's just allowing you to gain access to 25 the internet to send your comment or receive the

134 1 CAIATI - DIRECT - GAMILS 2 comment from point A to point B. 3 Q. That's in the last column? The last 4 column is the IP address, right? 5 A. Yes. The last comment is the IP 6 address. 7 Q. What about the column to the left, do 8 you know what that is? 9 THE HEARING OFFICER: The middle column?

10 A. That's the account number. 11 THE HEARING OFFICER: I think we're getting 12 a little past voir dire, Mr. Glass. 13 MR. GLASS: All right. I'm just trying to 14 understand what this document was. All right. As 15 part of the investigative file that he received, I 16 don't have an objection based on that. I mean I'm not 17 sure he's an expert on what it means, but-- 18 THE HEARING OFFICER: [Interposing] DOE 9. 19 Go ahead. 20 [Whereupon Department of Education's Exhibit 21 9 is admitted into evidence] 22 DIRECT EXAMINATION (CONT.) 23 BY MR. GAMILS 24 Q. Mr. Caiati, just to go over--you can 25 look at page 169 of Department's Exhibit 9, please?



135 1 CAIATI - DIRECT - GAMILS 2 THE HEARING OFFICER: 169? 3 MR. GAMILS: Which is the second page. 4 THE HEARING OFFICER: Oh, okay. 5 Q. Even--just for clarification. Even 6 though these have the wrong dates on it, what 7 information did you learn from that first submission 8 your received? 9 A. This account was linked to Ms.

10 Rubino's Optimum Online email. 11 Q. And did that first submission show you 12 if Ms. Rubino was logged on to Facebook on June 23rd, 13 2010? 14 A. The first submission? No. 15 Q. Did you ultimately received a second 16 submission? 17 A. Yes. 18 Q. Okay. And would I be correct that 19 that would be reflected in what's bate stamped 146 to 20 161 of Department's Exhibit 9? 21 A. Yes. 22 Q. And, based on that information, was 23 Ms. Rubino logged onto Facebook on June 23rd, 2010? 24 A. Yes. 25 MR. GLASS: Can I just ask one clarification

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136 1 CAIATI - DIRECT - GAMILS 2 question? I'm sure that it would be part of the voir 3 dire based on is testimony. 4 MR. GAMILS: I don't believe this is cross-5 examination. 6 MR. GLASS: But it's part of this 7 clarification of what he was doing. So I just--well, 8 just my question was how he knows it's linked to the 9 Optimum Online account.

10 THE HEARING OFFICER: Well, I don't know 11 that we've gotten there yet. He said he learned that. 12 I didn't hear that as a question that Mr. Gamils has 13 asked yet. So maybe we'll find that out. 14 MR. GAMILS: That's the question I would 15 ask. 16 Q. How did you learn that this account 17 was linked to the email address 18 [email protected]? 19 A. It's at the very top of the first 20 page, page 169. 21 THE HEARING OFFICER: Uh-huh. 22 A. You will see email 23 [email protected], the very top, go all the way 24 to the top. 25 THE HEARING OFFICER: Uh-huh. Go ahead.

137 1 CAIATI - DIRECT - GAMILS 2 Q. Do you know who's email address that 3 is? 4 A. Ms. Rubino's. 5 Q. Now, after receiving this information 6 from Facebook, were there any other steps that you 7 took during your investigation? 8 A. Yes. I subpoenaed Optimum Online with 9 the email address [email protected]. And it

10 came back to Ms. Rubino. 11 Q. And who did you subpoena for that 12 information? 13 A. Optimum Online but they go by another 14 name who I'm not--off the top of my head, don't know. 15 Q. Is there anything I can provide you 16 that would refresh your recollection? 17 A. The subpoena would probably work. 18 MR. GAMILS: Let the record reflect I'm 19 handing the a witness a copy of this. 20 A. CSC Holdings, LLC. 21 Q. And who is CSC Holding, LLC? 22 A. They're the ones who take the 23 subpoenas for Optimum Online. 24 MR. GLASS: Can we get--do we get copies of 25 it?

138 1 CAIATI - DIRECT - GAMILS 2 MR. GAMILS: I’m going to ask to have this 3 marked just for identification. 4 THE HEARING OFFICER: 10? 5 MR. GAMILS: As Department's Exhibit 10, 6 correct. I'm going to hand the witness a copy of 7 what's been marked Department's Exhibit 10 for 8 identification. 9 Q. Investigator Caiati, do you recognize

10 that document? 11 A. I do. 12 Q. Can you tell us what it is? 13 A. It is the subpoena I sent to CSC 14 Holdings for the account information assigned to the 15 email address [email protected]. 16 Q. And did you receive a response to that 17 subpoena? 18 A. I did. 19 Q. And is that response included in that 20 document? 21 A. Yes, it is. 22 Q. And what did you learn from the 23 response? 24 A. That that email address belongs to 25 subscriber Christine Rubino at 1864 Ryder Street,



139 1 CAIATI - DIRECT - GAMILS 2 Brooklyn New York. 3 Q. And, once you received that 4 information from CSC Holdings, what did you do with 5 the document? 6 A. Placed it in the case file. 7 Q. And is that case file maintained at 8 the Office of the Special Commissioner? 9 A. Yes, it is.

10 Q. And has this--have these documents 11 been changed or--changed or altered in any way since 12 you put them in the case file? 13 A. No, sir. 14 MR. GAMILS: At this time, I would like to 15 have this marked as Department's Exhibit 10. 16 THE HEARING OFFICER: Admitted, you mean? 17 MR. GAMILS: Correct. 18 THE HEARING OFFICER: It's marked. 19 MR. GAMILS: I'm sorry. 20 THE HEARING OFFICER: It's okay. 21 MR. GLASS: As part of the investigative 22 file, I have no objection. 23 THE HEARING OFFICER: I'll allow it as 10. 24 [Whereupon Department of Education's Exhibit 25 10 is admitted into evidence]

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140 1 CAIATI - DIRECT - GAMILS 2 Q. Now, after receiving the information 3 of-- 4 THE HEARING OFFICER: [Interposing] Just to 5 clarify, I understand when you say you'll allow--6 you'll accept certain things. I'm allowing them and 7 I'm accepting them for what I accept them as. But I 8 note what you say each time. Okay? Just so we're 9 clear.

10 MR. GLASS: I’m not clear what you mean by 11 that. Do you mean you're-- 12 THE HEARING OFFICER: [Interposing] Well, 13 you say if it's part of the investigative file. I 14 have no idea if it's going to be used for some other 15 purpose in the future and I'm not limiting it to what 16 you're acknowledging at the moment. I'm allowing it 17 as 10. You said the same thing with the last records 18 as well. 19 MR. GLASS: Yeah. I mean I meant to say 20 these are hearsay documents. He didn't create the 21 documents. 22 THE HEARING OFFICER: And I understand that. 23 But I'm allowing them as 10 and 9 and 8 and so forth 24 and so on. I acknowledge what you're saying but 25 understand I'm the one who sets the parameters for the

141 1 CAIATI - DIRECT - GAMILS 2 exhibits. 3 MR. GLASS: I understand. 4 THE HEARING OFFICER: Good. As long as 5 we're all on-- 6 MR. GLASS: [Interposing] Those are my 7 objections to it. 8 THE HEARING OFFICER: As long as we're all 9 on the same page. I just want to make sure we're all

10 on the same page. 11 MR. GLASS: My objection, just to be clear, 12 it's hearsay. 13 THE HEARING OFFICER: Yep. 14 MR. GLASS: He didn’t produce the document. 15 THE HEARING OFFICER: Right. 16 MR. GLASS: He received it. 17 THE HEARING OFFICER: Understood. 18 MR. GLASS: But I understand it's part of 19 the file, so. 20 THE HEARING OFFICER: Right. 21 Q. After receiving confirmation that that 22 email address was linked to Christine Rubino, did you 23 take any additional steps in your investigation? 24 A. Yes, I interviewed David Senatore. 25 Q. And who is David Senatore?

142 1 CAIATI - DIRECT - GAMILS 2 A. David Senatore was--before was known 3 as the confidential witness and provided-- 4 Q. [Interposing] Sorry. Go ahead. I'm 5 sorry. 6 A. He was the individual who provided 7 this document, the original document, to AP Sadowski. 8 Q. And, during your interview with David 9 Senatore, what did you learn?

10 A. Mr. Senatore said he was one of Ms. 11 Rubino's Facebook friends, which means he was able to 12 see any content on her Facebook page. On June 23rd, 13 2010, he saw these comments, felt them to be highly 14 inappropriate, and contacted Assistant Principal 15 Sadowski and also sent the comments along with the 16 link to Ms. Rubino's Facebook page to Mr. Sadowski. 17 Q. And did he tell you what the comments 18 were? 19 A. I don't recall if he made specific 20 reference to the comments or not. 21 Q. And then after speaking with Mr. 22 Senatore, where did--did you take any additional steps 23 during the investigation? 24 A. At that point, I substantiated my 25 case. I wrote up a final report, which was sent to my



143 1 CAIATI - DIRECT - GAMILS 2 superiors. And they created a recommendation report 3 based on my investigation. 4 Q. Now, of all the steps that we just 5 discussed in the investigation, are those memorialized 6 in any way? 7 A. Yes, they are. 8 Q. And how were they memorialized? 9 A. All the reports that I created during

10 the course of my investigation. 11 Q. And is that a--doing that is what you 12 have to complete during every investigation? 13 A. Yes. Every investigative step must be 14 memorialized. 15 MR. GAMILS: I'm going to hand--ask to have 16 this packet marked as Department's Exhibit 11 for 17 identification. I have a courtesy copy for Mr. Glass. 18 I'm handing the witness what's been marked for 19 identification as Department's Exhibit 11. 20 Q. Investigator Caiati, do you recognize 21 that packet of documents? 22 A. I do. 23 Q. Can you tell us what they are? 24 A. These are the reports that I created 25 during my investigation.

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144 1 CAIATI - DIRECT - GAMILS 2 Q. And what do those reports reflect? 3 A. All the steps that I took during this 4 investigation. 5 Q. And on yours--there's signature on 6 there. There's another signature? 7 A. Yes. 8 Q. Can you tell us whose signature that 9 is?

10 A. My team leader, Mike Personi 11 [phonetic]. 12 Q. And why is his signature on the 13 documents? 14 A. Because he's my immediate supervisor. 15 He reviews my reports. He signs off on them prior to 16 them going up the line. 17 Q. Now, taking the opportunity to look at 18 those documents, have they been changed or altered in 19 any way since you created them? 20 A. No. 21 Q. And, after you created them and you 22 signed off on them, what happens then? 23 A. They're placed in the case file. 24 MR. GAMILS: At this time, Department would 25 like to move Department's Exhibit 11 for

145 1 CAIATI - DIRECT - GAMILS 2 identification into evidence. 3 MR. GLASS: Just some voir dire. 4 VOIR DIRE 5 BY MR. GLASS 6 Q. Did you type all these documents 7 yourself? 8 A. Yes. 9 Q. Did Mr. Personi edit them in any way?

10 A. No. 11 Q. You did it on the dates that are 12 referenced? 13 A. Yes. 14 Q. Each date? Did anyone else have input 15 on the documents? Mr. Moore [phonetic] didn't have 16 any input in the documents? 17 A. No. 18 MR. GLASS: Same objection I've had to some 19 of the hearsay aspects, especially item number ten. 20 I'm not disputing that he created these documents. 21 THE HEARING OFFICER: Noted, 11. And for 22 the purpose of consistency, I will redact out 23 information on item two that I do not need to have, 24 mainly the social security number, which is not 25 inappropriate for you to have given to me, but

146 1 CAIATI - DIRECT - GAMILS 2 unnecessary for me to have. 3 MR. GLASS: How about the phone number? Is 4 that necessary? 5 THE HEARING OFFICER: That's everywhere. 6 MR. GLASS: What's that? 7 THE HEARING OFFICER: That's everywhere. 8 MR. GLASS: It's not really that relevant. 9 THE HEARING OFFICER: 11.

10 [Whereupon Department of Education's Exhibit 11 11 is admitted into evidence] 12 THE HEARING OFFICER: Go ahead, Mr. Gamils. 13 MR. GAMILS: Thank you. 14 DIRECT EXAMINATION (CONT.) 15 BY MR. GAMILS 16 Q. Now, after completing those case 17 files--I'm sorry, those case memos, what is a final 18 report? 19 A. A final report is where you take a--20 you make basically a synopsis of all your 21 investigative steps. You put them down on one report. 22 And that report is submitted to my superiors, that 23 they can create a recommendation based on my 24 investigation. 25 Q. Did you ultimately make a final report



147 1 CAIATI - DIRECT - GAMILS 2 in this matter? 3 A. I did. 4 Q. And what was your final conclusion? 5 A. I substantiated the case against Ms. 6 Rubino, that the comments were inappropriate. 7 Q. Specifically, what did you 8 substantiate? 9 A. That Ms. Rubino made inappropriate

10 comments about her students on Facebook. 11 Q. And what led you to believe that the 12 comments were inappropriate? 13 A. They were inflammatory. She basically 14 stated that she hates her kids. And the part about 15 taking them to the beach doesn't sound like such a bad 16 idea came on the heels of the day before in which a 17 New York City student drowned at Long Beach. So they 18 were pretty inappropriate. 19 Q. Now, during your testimony, you stated 20 that you inquired if a student by the name of Kwami 21 went to P.S. 203? 22 A. Yes. 23 Q. You learned that there was not a 24 student by that name at that school? 25 A. Correct.

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148 1 CAIATI - DIRECT - GAMILS 2 Q. And what did that lead you to believe? 3 A. It just--at that point, when I saw 4 that on the report, I thought there may be a racial 5 aspect to this. 6 Q. And what led you to believe that? 7 A. She could have said Johnny. Or 8 whoever it was who was responding they could have said 9 Johnny. They could have said Suzy, Sarah. Kwami just

10 sounded a little racially based. 11 MR. GAMILS: I ask to have this marked as 12 Department's Exhibit 12 for identification. I do have 13 a courtesy copy for Mr. Glass. 14 THE HEARING OFFICER: Thank you. 15 MR. GAMILS: I'm going to hand the witness 16 what's been marked for identification as Department 17 Exhibit 12. 18 Q. Investigator Caiati, do you recognize 19 that document? 20 A. I do. 21 Q. Can you tell us what it is? 22 A. It is my final report. 23 Q. Okay. And who--did you create this 24 final report? 25 A. I did.

149 1 CAIATI - DIRECT - GAMILS 2 Q. And when you substantiate a case at 3 the Special Commissioner's Office, is a final report 4 created in every one of those circumstances? 5 A. This report or the subsequent report? 6 Q. No, no, no. Do you create a final 7 report in every case? 8 A. Every case. 9 Q. And what happens to the final report

10 after you create it? 11 A. It is sent to my superiors. 12 Q. And then where does it go? 13 A. Well, if it's unsubstantiated it's not 14 going to go anywhere. If it's substantiated, they'll 15 make a recommendation report, which gets sent to the 16 Chancellor's office, gets sent to Office of Legal 17 Services, gets sent to Department of Investigation 18 and, in criminal matters, it can get sent to the DA's 19 office. 20 Q. And what information did you use to 21 create this final report? 22 A. The reports that I had written during 23 the investigation. 24 Q. And, looking at that document which 25 has been marked as Department's 12 for identification,

150 1 CAIATI - DIRECT - GAMILS 2 has it been changed or altered in any way since you 3 created it? 4 A. No. 5 MR. GAMILS: At this time, I'd like to have 6 Department's 12 moved into evidence. 7 MR. GLASS: Just a couple of voir dire 8 questions. 9 VOIR DIRE

10 BY MR. GLASS 11 Q. When--what was the date you created 12 this report? 13 A. I'll have to look at my--I don't 14 remember specifically what date it was created, 15 shortly after the investigation was completed. 16 Q. Can you have anything to refresh your 17 recollection as to when it was created? It's 18 important. 19 A. I’m not sure that anything that I have 20 will refresh my recollection on precisely what date 21 this report was created. 22 Q. What month was it created? 23 A. Say October of 2010. 24 Q. Did you type this report yourself? 25 A. Yes.



151 1 CAIATI - DIRECT - GAMILS 2 Q. Anyone edit it? You've got to say yes 3 or no. 4 A. No, sir. 5 Q. And I see it's approved by Michael 6 Personi. Does he edit it at all or he just kind of 7 stamps it? 8 A. No, he's my boss, so I have to send it 9 through him. So he approves it.

10 Q. But he doesn't edit it in any way? 11 A. No. If there's any corrections that 12 need to be made, I'll make them myself. He doesn't 13 edit my reports. 14 MR. GLASS: Same objection, the hearsay 15 aspects of some of this. 16 THE HEARING OFFICER: Noted, but I'll allow 17 it, 12. I'm going to redact the social security 18 number. 19 [Whereupon Department of Education's Exhibit 20 12 is admitted into evidence] 21 THE HEARING OFFICER: Go ahead, Mr. Gamils. 22 DIRECT EXAMINATION (CONT.) 23 BY MR. GAMILS 24 Q. And you indicated that your supervisor 25 received your final report?

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152 1 CAIATI - DIRECT - GAMILS 2 A. Yes. 3 Q. And what, if any, action do you--well, 4 who is your supervisor? 5 A. Regina Logeran [phonetic]. 6 Q. And what, if any, action does she take 7 when she receives your final report? 8 A. She or one of the other attorneys in 9 the office create a recommendation report that goes to

10 the different agencies that I mentioned earlier. 11 Q. And what information is included in 12 that recommendation report? 13 A. Well, my final report, as well as the 14 recommendation from my superiors on what they feel 15 should happen in this case. 16 Q. And is that the final step that's 17 typically taken in an SCI case? 18 A. Yes. 19 Q. And was a recommendation report 20 created in this case? 21 A. Yes, there was. 22 MR. GAMILS: I'm going to have this marked 23 as Department's Exhibit 12--I'm sorry, 13 for 24 identification. 25 THE HEARING OFFICER: Want me to -- ?

153 1 CAIATI - DIRECT - GAMILS 2 MR. GAMILS: Correct. I apologize for 3 having to make you hand them over but it's a large 4 table. May I hand the witness the exhibit? 5 THE HEARING OFFICER: You may. 6 Q. Investigator Caiati, do you recognize 7 what's been marked as Department's Exhibit 13 for 8 identification? 9 A. I do.

10 Q. And what is that? 11 A. It is the recommendation report. 12 Q. And what was SCI's recommendation in 13 this matter? 14 A. The recommendation is that Ms. Rubino 15 be terminated and be ineligible to work for the 16 Department of Education. 17 Q. And where is this recommendation 18 report made in? 19 A. In our office. A copy of it will stay 20 with the case and I’m not 100% sure what my superiors 21 do with theirs. I'm sure it's maintained somewhere. 22 Q. But there is a copy maintained in the 23 case file? 24 A. Yes, sir. 25 MR. GAMILS: At this time, we'd like to have

154 1 CAIATI - DIRECT - GAMILS 2 document 13 for identification be moved into evidence. 3 MR. GLASS: Just some voir dire. 4 VOIR DIRE 5 BY MR. GLASS 6 Q. You didn't write this report in any 7 way, correct? 8 A. No. The--some of the, you know, the 9 subject matter in the report comes from basically my

10 reports. But did I specifically write that report? 11 No, I did not. 12 Q. Do you give the recommendation as to 13 what-- 14 A. [Interposing] I don't give any 15 recommendations at all. 16 Q. As far as what should happen to the 17 teacher? 18 A. Nothing. I just conduct my 19 investigation, send my report to my superiors, and 20 they determine what should happen. 21 Q. Do you do a final read of this before 22 Ms. Logeran submits it? Do you do a final read or 23 edit of this before-- 24 A. [Interposing] No. I mean I'll read it 25 but I don't do--I don't edit their report.



155 1 CAIATI - DIRECT - GAMILS 2 MR. GLASS: My objection is that he didn't 3 create the report. It's not the, you know--it's not 4 that he doesn't have any knowledge of it but someone 5 else wrote the report. He received it. So my 6 objection would be based on that and hearsay. 7 MR. GAMILS: I believe that Ms. Regina 8 Logeran is also an employee of the Special 9 Commissioner's Office. The witness did state that

10 this is maintained and created in the ordinary course 11 of business. It's created with every SCI case that is 12 substantiated and it is placed in his case file. 13 Therefore, I believe it is a proper business record 14 and the information that is contained in it, I believe 15 he also stated, is purely based on his investigation. 16 Now, the recommendation is that of his supervisor, and 17 I think the witness has clarified that he had no role 18 in that recommendation. 19 MR. GLASS: It deprives us of the ability to 20 cross-examine the person making a recommendation and 21 finding out what standard she's using. So, on that 22 basis alone, I think it provides--I understand that 23 it's part of his record. 24 THE HEARING OFFICER: I'll allow it. 25 [Whereupon Department of Education's Exhibit

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156 1 CAIATI - DIRECT - GAMILS 2 12 is admitted into evidence] 3 DIRECT EXAMINATION (CONT.) 4 BY MR. GAMILS 5 Q. Now, you indicated that typically the 6 final--this recommendation report is the final step 7 taken in the SCI case, correct? 8 A. Correct. 9 Q. Was that the case on the case

10 involving Christine Rubino? 11 A. No. 12 Q. Can you tell us what happened? Why 13 not? 14 A. In late November of 2010, I received 15 word from the Office of Legal Services that Ms. Rubino 16 had stated that she didn't post the comments, that 17 somebody else, possibly a friend of hers by the name 18 of Joanne Engle, had posted the comments on her 19 Facebook account. Based on that, I obtained Ms. 20 Engle's contact information. And on December 15th, 21 2010, I interviewed Ms. Engle. 22 Q. And where did you interview Ms. Engle? 23 A. On Divis [phonetic] Avenue, Brooklyn. 24 Q. And was it a business location? Was 25 it a private residence?

157 1 CAIATI - DIRECT - GAMILS 2 A. It was in my car. 3 Q. And why was it in your car? 4 A. Ms. Engle did not want myself or the 5 investigator that was with me at the time, Mr. Moore, 6 going to her office. So she asked that we conduct the 7 interview outside. Since it was cold, we conducted it 8 in the car. 9 Q. Okay. And what did you learn during

10 your interview with Joanne Engle? 11 A. Ms. Engle stated that she and Ms. 12 Rubino had been friends. They were childhood friends. 13 And I asked Ms. Engle if she knew what Mr. Rubino did 14 for a living. She said she was a teacher. I stated 15 do you know what grade she taught. Ms. Engle said I 16 think she teaches fifth grade. Ms. Engle then made 17 the statement I think I got my friend in trouble. I 18 asked her to elaborate on that and she stated--she 19 went through an explanation that basically she 20 constantly uses Mr. Rubino's computer and does do some 21 Facebooking on Ms. Rubino's computer. She stated that 22 on the date in question, June 23rd, 2010, Ms. Rubino 23 had come home from work, from school, having had a bad 24 day. And, at that point, Ms. Engle posted these 25 comments on Ms. Rubino's Facebook account.

158 1 CAIATI - DIRECT - GAMILS 2 Q. Now, Investigator Caiati, did you--did 3 Ms. Engle indicate what activities she uses Ms. 4 Rubino's Facebook page for? 5 A. She likes to play Farmville, the game 6 Farmville on Ms. Rubino's computer. 7 Q. Did she say why she uses--well, just 8 for clarification, is she using Ms. Rubino's computer 9 or is she using Ms. Rubino's Facebook page?

10 A. Facebook to play this--I don't know if 11 it's the Facebook to play the Farmville game. I don't 12 know how that works. Okay? I just know that Ms. 13 Engle stated that many of Ms. Rubino's friends play 14 that game. So she's playing it on Ms. Rubino's 15 computer, not on her own. 16 MR. GAMILS: And did she say--can we stop 17 for a second? I don't believe it's appropriate for 18 the Respondent to raise her hand. 19 MS. RUBINO: I need to go to the bathroom. 20 MR. GAMILS: Oh. 21 THE HEARING OFFICER: Off the record, 22 please. 23 [Off the record] 24 [On the record] 25 THE HEARING OFFICER: Ready?



159 1 CAIATI - DIRECT - GAMILS 2 MR. GAMILS: Yes. 3 THE HEARING OFFICER: Back on the record. I 4 believe you were somewhere in the midst of explaining 5 Farmville and that the person to whom you were 6 speaking said that she uses Respondent's computer to 7 play Farmville. I don't remember if you were about to 8 ask a question but that's about where we were. 9 MR. GAMILS: Well, we'll just start out with

10 the-- 11 THE HEARING OFFICER: [Interposing] Sure. 12 Q. During this conversation that you were 13 having with Joanne Engle, initially, what did she tell 14 you? 15 A. About the computer, going back to 16 wherever you left off? 17 Q. Going back to in relation to her 18 conduct with Ms. Rubino. 19 A. She stated that she thought she got 20 Ms. Rubino in trouble. 21 Q. Did she elaborate on that? 22 A. She did. She stated that Ms. Rubino 23 came home on the date in question, had a very bad day. 24 And it was Ms. Engle who posted the inappropriate 25 comments on Ms. Rubino's Facebook page. I asked Ms.

SHEET 23

160 1 CAIATI - DIRECT - GAMILS 2 Engle what those comments were. She said something to 3 the effect of my kids, taking them to the beach and I 4 hate them. I said, listen, there's only two lines. 5 You can't remember exactly what you said? No. I 6 said, listen, do you--these--it doesn't sound like 7 these comments came from you. It sounds like these 8 came from a teacher. I don't believe that you posted 9 these comments.

10 Q. And then making that--drawing that 11 conclusion, what did you do next? 12 A. I advised her. I said listen. I said 13 at some point you might be called to testify at a 14 hearing resulting from this. And you are going to 15 have to tell your story. If you lie at that hearing, 16 you are opening yourself to criminal liability. 17 Q. At that point, did she respond? 18 A. Yeah. Well, she didn't respond right 19 away. I said did you make those comments. Did you 20 post those comments? And she said no. 21 Q. Did she say anything else? 22 A. I said to her, I said did Ms. Rubino 23 make those comments. And she said yes. I said, well, 24 why were you going to take the responsibility for 25 those comments. She said sometime--I believe she

161 1 CAIATI - DIRECT - GAMILS 2 stated in November Ms. Rubino came to her and advised 3 Ms. Engle that she was in trouble, that a case 4 conducted by my office had been substantiated against 5 her regarding these comments. And Ms. Rubino asked 6 Ms. Engle to take responsibility for the comments so 7 that Ms. Rubino wouldn’t get in trouble. Ms. Engle 8 agreed. I asked Ms. Engle--I said why would she post 9 such cruel comments, considering what had just taken

10 place the day before. And she said I know, I told her 11 not to do that. I tried to talk her out of it. I 12 said, so you were there? And she said yes, I was. 13 Q. Did she tell you anything else during 14 the course of the conversation? 15 A. Not that I can recall. 16 Q. And, after this conversation, what did 17 you do? 18 A. I went back to--once I went back to my 19 office, I memorialized it my report. 20 MR. GAMILS: I'd have this marked as 21 Department's Exhibit--I believe we're up to 14. 22 THE HEARING OFFICER: 14, uh-huh. 23 MR. GAMILS: For identification. And I do 24 have a courtesy copy for Mr. Glass. 25 THE HEARING OFFICER: Thank you.

162 1 CAIATI - DIRECT - GAMILS 2 MR. GAMILS: I will hand the witness a copy. 3 Q. Investigator Caiati, do you recognize 4 that memo? 5 A. Yes. 6 Q. What is it comprised of? 7 A. The interview that I had with Joanne 8 Engle. 9 Q. And did you create this document?

10 A. I did. 11 Q. And, after you created it, what did 12 you with the document? 13 A. It became part of my case file. 14 MR. GAMILS: At this time, I'd like to have 15 this memo marked as--moved into evidence as 16 Department's 14 under the same testimony as the other 17 memos. I didn't go through it, but if you'd like me 18 to, I will. 19 MR. GLASS: Just voir dire. 20 VOIR DIRE 21 BY MR. GLASS 22 Q. Everything here is your--is your 23 words? 24 A. Yes. 25 Q. Is this report edited in any way?



163 1 CAIATI - DIRECT - GAMILS 2 A. No. 3 Q. All right. And when did you write 4 this in comparison to when you had the interview with 5 Ms. Engle? 6 A. The next day. 7 Q. And you relied on your memory to do 8 that? 9 A. I had case notes.

10 Q. You were taking notes when you spoke 11 to Ms. Engle? 12 A. Yes. 13 Q. Did Mr--the other investigator have 14 any input in this report? 15 A. In the invest--in the interview or 16 this report? No input in the report at all. Just so 17 you understand, we are required to go out with two 18 people. Okay? We don't go out to talk to anybody by 19 ourselves. Okay? So there is always going to be 20 another investigator. But if it's my case, it's my 21 case. It's my reports. It's my words. I memorialize 22 it in my way. And the individual who is with me 23 doesn't have any input in what I write. 24 Q. Does he participate in the interview 25 of the subjects?

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164 1 CAIATI - DIRECT - GAMILS 2 A. Sometimes. 3 Q. Did he in this case? 4 A. Yes. 5 Q. But he had no--he didn't review this 6 at all or comment on this before it was written? 7 A. No. 8 MR. GLASS: I'm not objecting that it's part 9 of the report.

10 THE HEARING OFFICER: 14. 11 [Whereupon Department of Education's Exhibit 12 14 is admitted into evidence] 13 DIRECT EXAMINATION (CONT.) 14 BY MR. GAMILS 15 Q. After--did you conduct any further 16 interviews in this case? 17 A. No. 18 Q. So your interview with Joanne Engle 19 was your final duty in association to this case? 20 A. My final investigative step, yes. 21 Q. Okay. In regards to that final 22 interview, was any other--were any other reports 23 generated? 24 A. I believe that there was an amended--25 excuse me. I'm losing my mind. The recommendation

165 1 CAIATI - DIRECT - GAMILS 2 report was amended. 3 Q. And on what basis was that report 4 amended on? 5 A. On the new information received after 6 the interview with Ms. Engle. 7 Q. And, after that final interview with 8 Ms. Engle, what was the status of the case? 9 A. It was closed, substantiated still.

10 MR. GAMILS: I'm going to hand you a copy of 11 what I ask to have marked as Department's Exhibit 15. 12 THE HEARING OFFICER: 15. 13 MR. GAMILS: For identification. 14 THE HEARING OFFICER: Yes. 15 Q. Investigator Caiati, do you recognize 16 the document that's been placed before you? 17 A. I do. 18 Q. And what is it? 19 A. It is the amended recommendation. 20 Q. And did that--did this--when the 21 amended recommendation came out, did that change the 22 original recommendation anywhere? 23 A. Not that I know of. 24 Q. Okay. And what happened to this 25 document after it was created?

166 1 CAIATI - DIRECT - GAMILS 2 A. It was sent to the Chancellor's office 3 and I don't know where else. It would go to the 4 Office of Legal Services. 5 Q. Besides those two--those two offices, 6 is it maintained anywhere else? 7 A. Yeah, a copy is placed in the case 8 file. 9 Q. And does this document represent the

10 final step that was taken in the investigation? 11 A. Yes. 12 MR. GAMILS: At this time, I'd like to have 13 this amended final recommendation moved into evidence 14 as Department's Exhibit 15. 15 VOIR DIRE 16 BY MR. GLASS 17 Q. Did you participate in writing this 18 report in any way? 19 A. No. 20 Q. Did you make any recommendation in 21 this report? 22 A. No. 23 MR. GLASS: Same objection as before. I'd 24 like to talk to the custodian who wrote this. 25 THE HEARING OFFICER: Noted.



167 1 CAIATI - DIRECT - GAMILS 2 MR. GLASS: I can't cross-- 3 THE HEARING OFFICER: [Interposing] But I'll 4 allow it, 15 5 [Whereupon Department of Education's Exhibit 6 15 is admitted into evidence] 7 DIRECT EXAMINATION (CONT.) 8 BY MR. GAMILS 9 Q. Investigator Caiati, the amended

10 recommendation contains information about the 11 investigation. Where is that information received 12 from? 13 A. From my reports. 14 Q. Did you speak to any additional 15 witnesses or collect any additional evidence in 16 regards to this matter? 17 A. No. 18 MR. GAMILS: At this time, the Department 19 has no further questions. 20 THE HEARING OFFICER: Off the record for a 21 moment. 22 [Off the record] 23 [On the record] 24 MR. GAMILS: Do you want to put that on the 25 record?

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168 1 CAIATI - DIRECT - GAMILS 2 THE HEARING OFFICER: Sure. All right. Why 3 don't we go off the record now to give the Respondent 4 an opportunity to prepare for his cross and have some 5 lunch. We'll be back at 1:30 on the record. Off the 6 record, please. 7 [Off the record] 8 [On the record] 9 THE HEARING OFFICER: Back on the record.

10 Okay. Mr. Glass, your cross. 11 MR. GLASS: All right, thank you. 12 CROSS-EXAMINATION13 BY MR. GLASS 14 Q. Mr. Caiati, you realize you're under 15 oath today, correct? 16 A. Yes, sir. 17 Q. And, since you're oath, you have the 18 obligation to tell the truth? 19 A. Yes. 20 Q. And, if you told a lie to us today, 21 would that be perjury in your mind? 22 A. Yes, it would. 23 Q. And that could subject to you, 24 perhaps, jail. 25 A. Correct.

169 1 CAIATI - CROSS - GLASS 2 Q. Yes? Okay. Now, you said you had a 3 conversation with Joanne Engle at her place of work, 4 correct? 5 A. Outside of her place of work. 6 Q. Do you think you went overboard in 7 questioning Ms. Engle that day? 8 A. No, I don't. 9 Q. Okay. Do you feel like you threatened

10 her in any way? 11 A. No. 12 Q. Did you suggest that she may go to 13 jail if she didn't tell the truth? 14 A. I suggested that she would be opened 15 up to criminal liability, just like you said to me, if 16 she lied at a hearing. 17 Q. Okay. And she'd then go to--might 18 have to go to Riker's Island. Do you remember that 19 coming up? 20 A. Yes. 21 Q. And do you remember that she might 22 have to spend several nights in jail? Do you remember 23 discussing that? 24 A. I don't remember saying spending 25 several nights in jail.

170 1 CAIATI - CROSS - GLASS 2 Q. That she might have to get a lawyer 3 and post bail? 4 A. Yes. 5 Q. Do you remember telling her that? 6 A. Yes. 7 Q. That she might have to spend thousands 8 of dollars in getting a lawyer? 9 A. I don't remember putting a monetary

10 amount on it. 11 Q. Okay. And what is your understanding 12 of the criminal liability that she would face if she 13 didn't tell you the truth? 14 A. It's not a question of what she told 15 me. It's what she would do if she was testifying in 16 hearing. If she testified and lied in the hearing and 17 we were able to prove it, she would be subject to 18 perjury charges. 19 Q. When you saw you that day, you didn't 20 really know what the truth was, correct? 21 A. No, I didn't. 22 Q. You assumed-- 23 A. [Interposing] I mean I--my 24 investigation, okay, up until that point, had been 25 completed and reopened based on what Ms. Rubino



171 1 CAIATI - CROSS - GLASS 2 stated. 3 Q. But you assumed--you assumed you knew 4 what the truth was, correct? 5 A. I substantiated by investigation based 6 on the facts I had at the time. 7 Q. But you didn't stop questioning her 8 until you felt that she told you the truth, what you 9 wanted to hear. Isn't that correct?

10 A. It's not what I wanted to hear. I 11 wanted the truth. 12 Q. But you didn't know what the truth 13 was. You weren't there, right? 14 A. I was pretty confident that I knew 15 what the truth was. 16 Q. And do you know of the conversation 17 that Christine had with Joanne-- 18 MR. GAMILS: [Interposing] Objection. The 19 witness has no basis of knowledge to know the 20 conversation between Respondent and Joanne Engle. 21 THE HEARING OFFICER: I'll allow it. 22 Q. Do you know--do you know of the 23 conversation that Christine and Joanne had about 24 anything regarding Facebook? Did you have--were you 25 privy to any of those conversations?

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172 1 CAIATI - CROSS - GLASS 2 THE HEARING OFFICER: That's a little broad. 3 Anything regarding Facebook could go back as many 4 years as Facebook existed and could have to do with 5 what name you should call yourself on the account. So 6 I will ask you to narrow that question for me. 7 Q. Well, did you ever--did you ever see 8 Christine ever speak to Joanne? 9 A. No.

10 Q. So you have no idea what they might 11 have said between each other or plot they might have 12 planned? 13 A. I have what Ms. Engle told me. 14 Q. Okay. And what Ms. Engle--Ms. Engle 15 told you, right? 16 A. Yes. 17 Q. Under threat of jail time, Riker's 18 Island, and perhaps prison, right? 19 A. I'm being asked--being asked to tell 20 the truth. 21 Q. And if she maintained her position 22 that she put this on Facebook, that she put this 23 comment on Facebook, you would have--why didn't you 24 just stop at that point? 25 A. Because I knew she wasn't telling the

173 1 CAIATI - CROSS - GLASS 2 truth. 3 Q. And it's part of your duty to press 4 her, to scare her into telling the truth? 5 A. I don't know about scaring her into 6 telling the truth but it's my job obligation to get 7 her to tell the truth, yes. 8 Q. As an investigator, you have to probe 9 a witness until they tell the version that you want to

10 hear? 11 A. Not necessarily the version I want to 12 hear but the truth. 13 Q. Isn't it a fact that Ms. Engle had to 14 weigh the possibility in her mind that if she didn't 15 tell you what you wanted to hear you were going to 16 prosecute her? Even is she was absolutely truthful-- 17 MR. GAMILS: [Interposing] Objection. How 18 does he know what was in Joanne Engle's mind? 19 THE HEARING OFFICER: Sustained. 20 Q. Did you consider the possibility that 21 Ms. Engle was telling you something you wanted to hear 22 because she feared criminal prosecution, whether it 23 was valid or not? 24 A. I can't answer that. I can't answer 25 to whether she felt that if she gave me the truth or

174 1 CAIATI - CROSS - GLASS 2 didn't give me the truth she was going to be subject 3 to criminal prosecution. I laid out what the facts 4 were. Okay? I advised her on what she could be 5 facing, should she be lying to me. I advised her that 6 I didn't feel she was telling me the truth. At that 7 point, she told me what we feel was the truth. 8 Q. If Ms. Engle were to come in and say 9 that she told you that Christine put her up to it

10 because she feared criminal prosecution, would you 11 find that credible? 12 A. I'm sorry. Go ahead and say that 13 again. 14 Q. Ms. Engle came in to testify in this 15 proceeding that the only reason she told you that 16 Christine put her up to it was because she feared you 17 were threatening her with criminal prosecution, would 18 you find that credible--find that credible today? 19 A. No. 20 Q. Why not? 21 A. Because it was pretty obvious, from 22 our conversation which you weren't privy to, that she 23 wasn't telling the truth. She couldn't even remember 24 what was said, even though it was only two lines. And 25 she barely even know--knew that her best friend, or



175 1 CAIATI - CROSS - GLASS 2 one of her best friends, was a fifth grade teacher. 3 Okay? So it was kind of obvious that what she was 4 saying wasn't the truth. 5 Q. Well, there were-- 6 A. [Interposing] Okay? So it's my 7 obligation to get her to tell me the truth. 8 Q. Well, there were two parts to this 9 conversation, were there not?

10 A. I don't know about two parts. 11 Q. The first time you-- 12 A. [Interposing] There was one whole 13 conversation. 14 Q. Yeah. The one element was who was the 15 one who posted this on Facebook. And originally 16 Joanne said she posted it herself. Christine had 17 nothing to do with it, correct? 18 A. Correct. 19 Q. Okay. And you didn't find that 20 credible, so you continued to press, correct? 21 A. Correct. 22 Q. Okay. And it is possible that Joanne 23 just said that because she felt bad for her friend, 24 right? 25 MR. GAMILS: Objection. Anything is

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176 1 CAIATI - CROSS - GLASS 2 possible. 3 THE HEARING OFFICER: Sustained. 4 5 Q. But you don't know whether she did 6 this--you don't know whether she just did this because 7 she felt bad for Christine? 8 A. I only know what she told me. 9 Q. Okay. And so you're not privy to any

10 conversation that Christine told her to lie for her? 11 A. Only what Ms. Engle told me. Ms. 12 Engle said that. It's what Ms. Engle said. Okay? 13 I'm only privy to that. If you're asking me, 14 counselor, whether or not I was privy, there, present 15 at the conversation that may or may not have taken 16 place between Ms. Engle and Ms. Rubino, I was not 17 there. I can only tell you what Ms. Engle told me 18 during the interview. 19 Q. And she only told you that Christine 20 put her up to that after you were questioning her 21 relentlessly about Riker's Island, perjury, going to 22 jail, and questions of that nature, correct? 23 A. I don't know about relentlessly. We 24 laid it out what could happen to her if she wasn't 25 telling the truth and she came in here, into a

177 1 CAIATI - CROSS - GLASS 2 hearing, to tell what she was saying to us out there. 3 She decided that it would be better off for her to 4 tell the truth at that point and tell us that it was 5 not her posting. 6 Q. So you didn't accept her proposition 7 when she originally said to you that Christine didn't 8 put me up to this, I did this because I was a friend 9 of hers and I decided to just--

10 A. [Interposing] Never. 11 Q. And your basis for doing that was 12 what? You just didn't believe it? 13 A. 20 years of investigative experience, 14 22 and a half years of investigative experience. 15 Q. But not--no personal information. 16 It's just you're jumping to conclusions? 17 A. Not necessarily jumping to 18 conclusions. 19 Q. Now when you--so when you say in your 20 report that Engle decided to tell the truth, you're 21 just--you just stopped when you thought that she told 22 you what you--what you believed had happened, correct? 23 A. When I thought what I had was the 24 truth, we were done. 25 Q. Okay. She had to weigh that against

178 1 CAIATI - CROSS - GLASS 2 the possibility of criminal prosecution. Whether she 3 prevails on that or not, she had to weigh that against 4 the cost of criminal prosecution, a DA that's the cost 5 of $20,000, Riker's Island-- 6 MR. GAMILS: [Interposing] Objection. Is 7 there a question? 8 THE HEARING OFFICER: Sustained, sustained. 9 Q. Well, that calculus had to come in her

10 mind. She had to weight the possibility of telling 11 your version of what you wanted to hear-- 12 MR. GAMILS: [Interposing] Objection. Is 13 there a question? 14 THE HEARING OFFICER: Sustained. 15 Q. The question is did that--strike that. 16 THE HEARING OFFICER: What's your question? 17 Q. You didn't weight the possibility of, 18 when you drew your conclusion report, that she had to 19 weigh the consequences of the criminal--be subject to 20 criminal proceeding, versus just telling you what you 21 want to hear? Did that--did that cross your mind when 22 you wrote your report? 23 A. Counselor, how am I supposed to know 24 what's in her mind, what's she weighing, what 25 possibility she's weighing? I only know what she told



179 1 CAIATI - CROSS - GLASS 2 me. 3 Q. And how are you supposed to know what 4 Christine told Joanne? 5 A. Based on what Ms. Engle told me. 6 We've been down this already, counselor, three times. 7 Q. And you don't--you don't know what was 8 said originally, correct? Now, when you spoke to Ms.-9 -when you spoke to Mr. Senatore, did you ask him,

10 like--you got one posting, right? You've got one 11 piece of the posting. Did you ask him if there were 12 previous conversations between him and Christine or 13 other postings he had made? 14 A. No. 15 MR. GLASS: Okay. I'm going to mark 16 something. We'll call it, I think, 2, Respondent's 17 Exhibit 2. 18 THE HEARING OFFICER: Yes. Do you have a 19 copy for Mr. Gamils? Okay. 20 Q. Can you take a look at this document 21 for a moment? 22 [Pause] 23 Q. Have you seen this document before? 24 A. No. 25 Q. In your conversations with Mr.

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180 1 CAIATI - CROSS - GLASS 2 Senatore, did you ask him if there had been any prior 3 Facebook conversations regarding this incident 4 regarding the beach? 5 A. No. 6 Q. Would this have been relevant to your 7 investigation, do you feel? 8 A. No. 9 Q. Does it--does it reflect something

10 about what Ms. Rubino originally thought about the 11 incident? 12 A. Yes, I can see what she wrote here. 13 Q. Okay. And that wouldn’t be 14 misconduct, what she's doing there, correct, in your 15 mind? 16 MR. GAMILS: Objection. Is there a 17 foundation to what this is, anything? He's never seen 18 it before. I don't know what this is. 19 THE HEARING OFFICER: I don't know. Mr. 20 Glass? 21 Q. Well, I'm asking--I mean all you got--22 all you were referred to was this one little piece of 23 Facebook, right? In your mind, is this a pure--you 24 said you had some familiarity with Facebook, correct? 25 You've been an investigator a long time? Okay. Does

181 1 CAIATI - CROSS - GLASS 2 this look like-- 3 A. [Interposing] I have no familiarity 4 with Facebook as far as being on Facebook. I don't 5 Facebook myself. 6 MR. GAMILS: Can I just have some-- 7 THE HEARING OFFICER: [Interposing] Go 8 ahead. 9 MR. GAMILS: I mean if we're going to use

10 this and refer to it, I have no problem with it. Can 11 we just enter it? I'll stipulate that this is a-- 12 THE HEARING OFFICER: [Interposing] Sure. 13 Respondent 2. 14 MR. GAMILS: --Respondent's Facebook 15 posting. 16 THE HEARING OFFICER: Respondent 2. 17 [Whereupon Respondent's Exhibit 2 is 18 admitted into evidence] 19 MR. GLASS: Okay. 20 Q. So, now that it's in, were you--you 21 weren't aware that Ms. Rubino had originally commented 22 on this incident regarding the drowning earlier in the 23 morning, correct? 24 A. No. 25 Q. And would you have found this comment

182 1 CAIATI - CROSS - GLASS 2 that she made to be inappropriate, in your view of 3 what's cruel and -- ? 4 A. This particular comment here? 5 Q. Yeah. 6 A. No, nothing -- . 7 Q. And this seemed to precede the 8 comments later in the day? What time was this--looks 9 like it was posted?

10 A. This was in the morning. The comments 11 were made later in the day. 12 Q. After school, correct? 13 A. Yes. 14 Q. And were you aware that Mr. Senatore 15 had commented on her original posting? 16 A. Counselor, I have no knowledge of 17 anything on this paper. I never saw it before. 18 Q. So you didn't ask Mr. Senatore if 19 there had been prior conversation with Ms. Rubino 20 about this? 21 A. No. 22 Q. Now, how did this--what was your 23 understanding of how the AP actually got this comment 24 from Mr. Senatore? 25 A. The way AP Sadowski explained it to me



183 1 CAIATI - CROSS - GLASS 2 is that it was sent to him. 3 Q. And sent to him in what fashion? 4 A. By email. 5 Q. What time was it sent to him? 6 A. Later in the evening. I don't recall 7 exactly what time. It was around the 9:00 hour. 8 Q. Did you probe whether Mr. Senatore and 9 Mr.--AP Sadowski were together at the time when it

10 happened? 11 A. I saw no reason to probe that. It's 12 not pertinent to my investigation. 13 Q. Well, did you--did you actually ask 14 Senatore if he actually ever saw that actual comment 15 on the web? 16 A. Yeah. Mr. Senatore made the comment, 17 okay, that he had--he had witnessed the posting, had 18 witnessed the postings and then had contacted AP 19 Sadowski and sent the posting to him. 20 Q. Did you explore the motive as to why 21 he did that? 22 A. I don't see what the-- 23 Q. [Interposing] Well, it's a yes or no 24 question. 25 A. No.

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184 1 CAIATI - CROSS - GLASS 2 Q. Did you explore that? 3 A. No. 4 Q. Okay. And did you explore with 5 Sadowski how he actually--if he actually had 6 physically saw the posting on Ms. Rubino's page, 7 Facebook page? 8 A. I'm not 100% sure exactly whether he 9 saw the posting on her Facebook page or he saw it when

10 it was sent to him. I'm not sure. 11 Q. In fact, he--as far as you--did he 12 make you aware that he was a friend of--Facebook 13 friend of Ms. Rubino, Mr. Sadowski? 14 A. No, I don't remember him saying he was 15 or he wasn't. I just remember him saying that he 16 clicked on the link. That, I remember him saying. 17 And it brought him to her Facebook. 18 Q. You know--you said you have some 19 familiarity with Facebook. 20 A. Right. 21 Q. So if he's not a Facebook friend, 22 clicking on a link would not actually open the page, 23 correct? 24 A. Right. It would just get her to the 25 page but he never said that he went further. He just

185 1 CAIATI - CROSS - GLASS 2 said that when he clicked on the link it brought him 3 to her Facebook page. 4 Q. But he didn't say he actually saw the 5 comment? 6 A. No. 7 Q. Do you have any idea how long that 8 comment--the comment at issue here in specifications 9 one through three, was actually posted on Ms. Rubino's

10 site? 11 A. I don't. 12 Q. You have no idea when it was taken 13 down? 14 A. No, I don't. 15 Q. Do you know if it's still up there? 16 A. I don't know. 17 Q. And at the time you were probing--you 18 said you came from Ms. Rubino's house at some point, 19 right, to question her? 20 A. Yes, the 8th of July. 21 Q. Did you disclose why you were there? 22 A. There was nobody home. I knocked on 23 the door and there was nobody home. I left a card. 24 Q. Did you leave any kind of message 25 about the content of why you were there on the card?

186 1 CAIATI - CROSS - GLASS 2 A. No, just to contact me. 3 Q. So she wouldn’t have known what this--4 what she's under investigation for, correct? 5 A. Correct. 6 Q. Why was Mr. Senatore given a 7 confidential witness status in his initial-- 8 A. [Interposing] Anybody who wishes to 9 remain confidential can remain confidential to a

10 point. 11 Q. What is the standard used for--is 12 there a standard used that designates a confidential-- 13 A. [Interposing] No standard. If you--if 14 you--when you make a complaint or you're--or you're a 15 witness and you ask us to keep you confidential, we 16 will do that, up to a point. 17 Q. Okay. What point was it reached that 18 he was no longer was confidential? 19 A. At which point come the hearing and 20 he's no longer confidential. 21 Q. Why did he--why did he ask for 22 confidential witness status? 23 A. I don't know. I guess he just didn't 24 want a confrontation with Ms. Rubino. 25 Q. Do you know if he's subsequently



187 1 CAIATI - CROSS - GLASS 2 apologized to Ms. Rubino about that? 3 A. I have no idea, sir. 4 Q. So you didn't probe at all the 5 relationship between Sadowski and Senatore, correct? 6 A. No. 7 Q. Did you ask--did you even ask Senatore 8 why he reported this? 9 A. No.

10 Q. So you don't even know what he was 11 thinking when he reported this? You don't know if he 12 had a beef with Ms. Rubino or a disagreement? 13 A. No. 14 Q. And it's not relevant to your 15 investigation? 16 A. Just the facts are relevant. 17 Q. Well, wouldn't it be a fact whether, 18 you know, whether Sadowski was with him at the time? 19 Those are facts, are they not? 20 A. Why would that matter? What bearing 21 does that have on the investigation? 22 Q. It's my question-- 23 A. [Interposing] I'm just curious. 24 Q. No, I'm asking you. 25 A. Okay.

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188 1 CAIATI - CROSS - GLASS 2 Q. These are--these are facts, right? 3 A. It has no bearing on the 4 investigation. 5 Q. But you didn't--but the truth is you 6 chose the facts that were going to focus on, correct? 7 A. That's really not a fact. 8 Q. No, but you're selectively choosing 9 certain facts that you want to explore in the

10 investigation, correct? 11 A. I chose what's pertinent to the 12 investigation. 13 Q. To achieve the objective that you want 14 to-- 15 A. [Interposing] As I stated-- 16 Q. --substantiate an investigation, 17 correct? 18 A. Listen, like I said, we substantiate 19 about a little bit more than half of the 20 investigations that go on in our office. Okay? 21 Q. What statistics are you relying upon? 22 Are these published somewhere? 23 A. Yeah, they're published somewhere. I 24 can't tell you precisely where they are. But if you 25 go on the SCI website you'll see some facts as to the

189 1 CAIATI - CROSS - GLASS 2 percentage of substantiated cases as opposed to 3 unsubstantiated. 4 Q. By the way, do you know how many of 5 those percentage--is that percentage much higher if a 6 principal is reporting subordinates regarding--rather 7 than subordinates reporting the principal? 8 A. That, I can't tell you. 9 Q. You don't do--it might be the fact

10 that 100% of substantiated--100% of allegations made 11 by principals on subordinates are substantiated-- 12 MR. GAMILS: [Interposing] Objection. I 13 believe this is argumentative at this point. 14 THE HEARING OFFICER: Sustained. 15 MR. GLASS: Just to make a point. 16 THE HEARING OFFICER: We don't like points 17 on the examination. That's what your closing is for. 18 MR. GLASS: No, but I--does he know. 19 Q. Do you know, factually, of that 50% 20 that are not substantiated, how many are involved--are 21 principals investigation subordinates? 22 A. No, I don't know. 23 Q. Okay. So it's a general--there's a 24 general guide. You don't know where we can find the 25 statistics, correct?

190 1 CAIATI - CROSS - GLASS 2 A. If you go on the Special Commissioner 3 of Investigation, New York City School District, 4 website, you will find statistics. 5 Q. I would ask for if you can identify 6 for that us at a future point, I would appreciate 7 that. 8 MR. GAMILS: I believe that counsel has 9 internet access.

10 A. Yeah, you have internet-- 11 MR. GAMILS: [Interposing] Wait, wait, wait. 12 MR. GLASS: All right. Well, if I can't 13 find it, I'd like you to direct me to it. 14 THE HEARING OFFICER: Do you know what the 15 www is? 16 A. No, I don't. 17 THE HEARING OFFICER: Okay. 18 A. If you Google Special Commissioner of 19 Investigation you'll find it. 20 THE HEARING OFFICER: Okay. 21 Q. Now, does the DOE have any specific 22 Facebook policy that you are aware of? 23 A. As far as? 24 Q. Use of Facebook at all? 25 A. No. I believe the only--the only



191 1 CAIATI - CROSS - GLASS 2 policy that I am aware of is that they don't want them 3 doing it at school. 4 Q. Okay. But you--as far as you 5 understood from the investigation, she didn't do it at 6 school? 7 A. No. AS a matter of fact, I asked that 8 question and they don't believe that she was accessing 9 the computer from school.

10 Q. Okay. And the time that these 11 comments were after school as well? 12 A. Yeah. 13 Q. Okay. And, now, is there any 14 particular policies that you are aware of that deal 15 with private use of Facebook for private, you know, 16 private use? 17 A. Not that I'm aware of. 18 Q. So when she used the Facebook, you do 19 feel--you do feel it was off duty. It was private and 20 it was only intended-- 21 MR. GAMILS: [Interposing] I'm going to 22 object to the term using private. The New York State 23 Supreme Court has already ruled that Facebook, no 24 matter what the settings are, is not private. I do 25 have the case law. It's downstairs. I can--I can

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192 1 CAIATI - CROSS - GLASS 2 obtain it. But I'm going to object to any use of the 3 term private since it's already been ruled by the 4 Supreme Court that it's not private, no matter what 5 the settings are. 6 MR. GLASS: I'd like to see the case law. 7 I'm not familiar with it. 8 THE HEARING OFFICER: Off the record. 9 [Off the record]

10 [On the record] 11 THE HEARING OFFICER: Back on the record. 12 Mr. Gamils, you just handed me a LexisNexis printout 13 of case Kathleen Romano against Steelcase and 14 Educational Institutional Cooperative Services, 2006-15 2233, 2010 New York Slip Op 203884, 907 New York Sub 16 2nd, 650 dated September 21st, 2010. Honorable 17 Jeffrey Arlen Spinner. And you were pointing to-- 18 MR. GAMILS: [Interposing] Well, initially 19 I'd like to make an analogy that the court makes in 20 this case, suggesting that an email that is sent to a 21 recipient, the original sender loses any privacy that 22 was in that email. And then make an analogy that 23 Facebook is the same thing. When you send out a 24 message on your Facebook page to the number of friends 25 that you have being those recipients, you lose any

193 1 CAIATI - CROSS - GLASS 2 privacy interest in that statement. And that's 3 basically stated in the second column, second 4 paragraph on page four. Again, the bottom of that 5 same page the court says indeed neither Facebook nor 6 MySpace guarantee complete privacy. Plaintiff has no 7 legitimate reason nor expectation of privacy. In this 8 regard, MySpace warns you to not forget that profiles 9 in MySpace forums are public spaces and Facebook

10 privacy policy sets forth that--and it quotes it. 11 "You post user content on the site at your own risk. 12 Although we allow you to set privacy options that 13 limit access to your pages, please be aware that no 14 security measures are perfect or impenetrable." 15 MR. GLASS: May I respond? 16 THE HEARING OFFICER: Yeah. He was just 17 reading the case. I don't think he was arguing it. 18 MR. GLASS: No, I know. 19 THE HEARING OFFICER: Go ahead. 20 MR. GLASS: We're talking about--first of 21 all, this case September 2010 from a Suffolk County 22 Supreme Court Judge, the lowest court. You know, it 23 wasn't even at the time of issue. When she was doing 24 this, this case wasn't even out, you know. So she 25 would have had no notice that this is--whether she had

194 1 CAIATI - CROSS - GLASS 2 a reasonable expectation. She's not a lawyer. She 3 wouldn't know about a reasonable expectation of 4 privacy. And Facebook clearly--I think we can 5 stipulate that Facebook, when you have friends, 6 that's--you know--you know how Facebook works. And I 7 can bring that in cross-examination further. But to 8 rely on this case, I mean if you want to make an 9 argument, that's fine. But--

10 THE HEARING OFFICER: [Interposing] Hang on. 11 Just as a--just as a curiosity, are you saying that 12 reliance on what Facebook puts on its site is 13 misplaced because she's not a lawyer or reliance on 14 this case because it comes from the lowest court in 15 the state? Because part of the quotation he quoted 16 from was from Facebook's privacy policy. Taking that-17 - 18 MR. GLASS: [Interposing] But this also says 19 New York courts have yet to address whether there is a 20 right to privacy regarding the-- 21 THE HEARING OFFICER: [Interposing] I 22 understand. I do not--do not deny that. This is one 23 court in one case. But he did read from Facebook's 24 own privacy policy, which I don't suspect was made up 25 by the court. But, be that as it may, I had a



195 1 CAIATI - CROSS - GLASS 2 question for you before we went off track. You asked 3 about privacy and I don't know if you were talking 4 about privacy as in entitled to privacy or privacy as 5 in within her own home as opposed to at work. All 6 right? Privacy is a broad term with, as lawyers, we 7 can use in many different ways. So I'm not sure if 8 you wanted to rephrase your question or repose the 9 question you were asking. I'm not sure what the

10 question was because you started off by saying when 11 she did it, it was off duty. 12 MR. GLASS: Yes. 13 THE HEARING OFFICER: Meaning not at work. 14 MR. GLASS: Okay. 15 THE HEARING OFFICER: So, again-- 16 MR. GLASS: [Interposing] When I said 17 private, he objected to my use of the word private. 18 And then he went down and got the case. 19 THE HEARING OFFICER: Well, that's because 20 you asked for it. But so the question is-- 21 MR. GLASS: [Interposing] I guess I could 22 rephrase the question. 23 THE HEARING OFFICER: Well, my question is 24 when you said private did you mean as in one thing or 25 as in--as opposed to being in the school, which is

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196 1 CAIATI - CROSS - GLASS 2 why, as I said, I'm not sure what your question was 3 because we wound up off--slightly off track. But why 4 don't you rephrase, since--why don't you try your 5 question again? And see if it gets an objection or 6 answer and then we'll see where we go from there. 7 MR. GLASS: All right. 8 Q. But you have some understanding of 9 Facebook just from your investigative experience,

10 correct? 11 A. A little. 12 Q. Okay. And you understand that you 13 select certain friends that can view the page but it's 14 not generally available to the general public when 15 your friends can see it but not-- 16 A. [Interposing] Correct. 17 Q. Facebook friends can see whatever you 18 post? 19 A. Right. 20 21 a Facebook friend of hers? You didn't know, right? 22 A. I don't know. 23 Q. And, if you're a user of Facebook, you 24 expect that all your friends, your Facebook friends 25 can see it, correct? Unless it passed on some other

197 1 CAIATI - CROSS - GLASS 2 way? 3 THE HEARING OFFICER: All right. That's a--4 hang on. That's a compound question. You're asking-- 5 MR. GLASS: [Interposing] Let me withdraw 6 the question. 7 Q. Did you ever, physically, yourself, 8 actually see the--her Facebook page with this comment 9 on it?

10 A. No. 11 Q. Okay. And did Brian Sadowski ever see 12 her page with the Facebook comment on it? 13 A. I don't know. 14 Q. All you-- 15 A. [Interposing] I don't know if that 16 comment was what was sent to him or if he went into 17 the page and viewed the comment as well. I know it 18 was sent to him and I know he viewed it on that paper. 19 I'm not sure if he viewed it on her Facebook account 20 as well. I'm not sure. 21 Q. All you got, though, was a pasted 22 email of something that was purportedly on her page 23 that Sadowski sent to you, right? You didn't see the 24 actual--you never got into the page itself? 25 A. He didn't send it to me. He--the

198 1 CAIATI - CROSS - GLASS 2 principal actually gave it to me. 3 Q. Yeah. That was not the actual 4 Facebook page or printout of the page, it was just 5 copy paste from a Facebook page out to some kind of 6 email, correct? 7 A. I don't know. 8 Q. Was that what you were-- 9 A. [Interposing] I don't know. I don't

10 know if that was taken directly, if that was cut and 11 pasted directly off of the--off of the Facebook page 12 or whether it was just put in email format. That, I 13 don't know. 14 Q. It's possible that Senatore copied it 15 off someone else's page and put it on that page, 16 right? You don't know. 17 A. It's possible. 18 Q. You mentioned something about a racial 19 aspect to this comment. Perhaps you perceived a 20 racial comment? 21 A. I had in the beginning it was a 22 possibility. We didn't lend much credence to it 23 because we were aware that the actual comment was made 24 by a third party. 25 Q. So nothing she said had any racial



199 1 CAIATI - CROSS - GLASS 2 aspect to it, correct? 3 A. Right. 4 Q. Was this Jeffrey Lavine? 5 A. Scott, Scott Lavine. 6 Q. Scott Lavine? Okay. And did you ever 7 get a chance to question him? 8 A. No. 9 Q. Did you ever locate him?

10 A. No. 11 Q. Did you attempt to try to find him? 12 A. I asked Ms. Engle who he was. She 13 said he was somebody from the neighborhood. I said do 14 you have any contact information for the person. She 15 said no. 16 Q. And you testified several times that 17 you felt these comments were cruel or inappropriate. 18 This is your own judgment, correct? 19 A. Well, counselor, if I may, you know, 20 as a public worker, as I was and as I still am, we are 21 held to a higher standard. Okay? And if I was to 22 post, even on my own time-- 23 Q. [Interposing] It's not responsive. My 24 question was this was your opinion as to what was--25 when you said the words cruel--

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200 1 CAIATI - CROSS - GLASS 2 THE HEARING OFFICER: [Interposing] I think 3 he's answering your question. You asked him his 4 opinion and you did not ask him a yes or no question. 5 MR. GLASS: I said--I said-- 6 A. [Interposing] I'm going to give you my 7 opinion. 8 Q. No, I asked is this your personal 9 opinion that it's cruel and inappropriate. I guess

10 you can on re-direct. 11 A. It's highly-- 12 Q. [Interposing] The question was this 13 was based on your personal opinion, not in any kind of 14 written policy or anything like that. 15 A. Common sense. I mean anything--I 16 think any person with common sense would see that 17 these comments were inappropriate. 18 Q. But you, at the time, you weren't even 19 aware that she had posted earlier in the morning, 20 correct? 21 A. Correct. 22 Q. And so that might have changed the 23 context of what these comments were a bit, right? 24 A. I don't believe they would change the 25 context of these comments at all.

201 1 CAIATI - CROSS - GLASS 2 Q. Well, you don't even know what was 3 posted, perhaps, all day about this. 4 A. Well, but I see what you--what you 5 gave me to read and I see what she said here and 6 that's fine. But that doesn't change the fact that 7 the comments after this were highly inappropriate. 8 Q. But they give it a little more 9 contextual context then just someone saying out of the

10 blue, you know-- 11 A. [Interposing] I really don't know how. 12 Q. And, in fact, these comments--after 13 this was all substantiated, she remained in the 14 classroom with the very same kids, correct? 15 A. I had nothing to do with that part. 16 Q. But was it-- 17 A. [Interposing] I don't know if she 18 remained in the classroom. I really don't-- 19 Q. [Interposing] In fact she--so you 20 don't know. You don't know? 21 A. I don't know. 22 Q. Okay. So you don't know. And, as far 23 as you know--well, she--did you know if she was 24 actually teaching--you knew she was teaching there in 25 the next school year in the classroom, correct? This

202 1 CAIATI - CROSS - GLASS 2 happened in June of 2010, right? 3 A. Correct. 4 Q. You were aware she was back in the 5 classroom the next day? She was back-- 6 A. [Interposing] I had no idea what her 7 duties were at all. 8 Q. Okay. And if she--if she was in the 9 classroom, would you assume that this was not

10 considered that she was a physical danger to anyone? 11 MR. GAMILS: Objection. 12 THE HEARING OFFICER: Sustained. 13 Q. Did you--did you suggest that she be 14 removed from the classroom? 15 A. I have-- 16 MR. GAMILS: [Interposing] Judge, I don't 17 believe that's the investigator's job. 18 A. I make no-- 19 THE HEARING OFFICER: [Interposing] I'll let 20 him. I'll let him answer the question. I think 21 that's fine. 22 A. I made no suggestions. My job is to 23 investigate the matter before me, bring my findings to 24 my superiors, who then make recommendations. I have 25 no--I make no recommendations whatsoever. I never say



203 1 CAIATI - CROSS - GLASS 2 what I think should happen to somebody. Okay? That's 3 not my job. My job is just investigate the case, turn 4 it over. And then people at a higher pay grade then 5 mine make those decisions. 6 Q. But you have--you have the description 7 to decide what you perceived as cruel and 8 inappropriate comments? 9 A. Well, that's pretty much common sense,

10 counselor. 11 Q. That's common sense in your mind, 12 right? And it's also common sense--you use your 13 common sense to decide whether a witness is lying to 14 you and when to stop pursuing questions, right? 15 A. You see, that's, like I said, my 16 investigative, you know, career sort of leads me to 17 know when somebody's not telling the truth. 18 Q. Is it common sense, sir, if someone 19 feels that they're going to be sent to Riker's Island 20 and face a $10,000 legal bill might be--might not tell 21 you exactly--might make you chose one answer rather 22 than another? 23 A. I don't know. I really don't know. I 24 can't--I don't put words in people's mouths. 25 Q. But your common sense, though. Would

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204 1 CAIATI - CROSS - GLASS 2 it--would it surprise you that someone might just say 3 I'm going to tell the investigator what he wants to 4 hear, rather than face a $10,000 legal bill, Riker's 5 Island, and threat of perjury, under your common 6 sense? 7 [Pause] 8 Q. If you can take a look at your report. 9 This is the investigator's final report.

10 THE HEARING OFFICER: Document which? 11 MR. GLASS: It's bate stamped 129. It's 12 document--I guess it's 12, maybe. DOE 12. 13 MR. GAMILS: Want me to hand it to the 14 witness? 15 MR. GLASS: Yes. 16 Q. In the third paragraph you write--on 17 6/29/10 the assigned investigator reviewed the posting 18 on teacher, Christine Rubino's, Facebook.com page. 19 A. Uh-huh. 20 Q. That's not true, is it? 21 A. No, it's absolutely true. 22 Q. You didn't get on her--you don't have 23 access to her page, correct? 24 A. If you notice--if you can show what 25 item C is, item C is the--I believe item C has been

205 1 CAIATI - CROSS - GLASS 2 entered into evidence. 3 MR. GAMILS: It's also Department's 7. If 4 you look at the bottom, there's a C on it. 5 THE HEARING OFFICER: Department's 7? Oh, I 6 see. It's the copy. 7 Q. This is not a Facebook page, correct? 8 A. Well, that's what I refer to it as the 9 posting. I refer to that document as the posting.

10 That's what I have seen. When I was referring to it, 11 I was referring to that document. That's why I have a 12 parenthesis item C and the document has C on the 13 bottom so that you could see what I was referring to 14 when I was writing it up. 15 Q. With all your subpoenas and 16 investigative tools, you were not--you've never been 17 able to get into her Facebook account, correct? 18 A. I did not go onto her Facebook 19 account, no. 20 Q. And you never--you never--you can't do 21 that today if you tried, right? 22 A. Not unless she lets me in. Are you 23 done with this, counselor? 24 Q. Yes. So, also, if you take a look at-25 -this is the interview of Joanne Engle, 131.

206 1 CAIATI - CROSS - GLASS 2 MR. GAMILS: Department 14. 3 Q. Second to last paragraph, you say that 4 Engle was advised that her story was not believable 5 and that investigators felt that she was taking the 6 fall for Rubino so that Rubino would not get into 7 trouble. They explained to Engle that if she was 8 called to testify under oath and she knowing lied that 9 she could be held criminally liable. At that point,

10 Engle told investigator the truth. That's solely your 11 judgment as to what she was telling the truth or that 12 she changed her story to tell the truth, right? 13 A. Correct. 14 MR. GLASS: All right. Can I speak Ms. 15 Rubino for ten seconds? 16 THE HEARING OFFICER: Off the record. 17 [Off the record] 18 [On the record] 19 THE HEARING OFFICER: Back on the record. 20 Mr. Glass, go ahead. 21 Q. I just want to ask you first about-- 22 MR. GAMILS: [Interposing] Does the witness-23 -do you want the witness to have a copy now? 24 THE HEARING OFFICER: Are you identifying 25 it?



207 1 CAIATI - CROSS - GLASS 2 MR. GLASS: Let me hold on to this. There's 3 no questions for it. 4 Q. So as part of your investigation, when 5 you first started this investigation, you did go to 6 the school and speak to the principal and the AP? 7 A. Yes. 8 Q. Did you speak to them together or 9 separately?

10 A. Separate. 11 Q. Who did you speak to first? 12 A. Ms. Esposito. 13 Q. Okay. And where did that interview 14 take place? 15 A. In her office. 16 Q. And what did you ask her? 17 A. I asked her what happened. You know, 18 basically I asked her what happened. What is it that 19 you want to report? I see we have this allegation. 20 And she advised me what had happened. You know, Mr. 21 Sadowski had provided to her that day what the 22 inappropriate comments were. She provided me with a 23 document that has been entered. And I asked her a 24 couple more questions about whether Mr. Lavine worked 25 at the school, whether a child by the name of Kwami

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208 1 CAIATI - CROSS - GLASS 2 goes to the school. And that was pretty much it. It 3 was a fairly brief interview. 4 Q. Did you ask any questions about Ms. 5 Rubino's relationship with Mr. Senatore? 6 A. No. 7 Q. And questions about Mr. Sadowski's 8 relationship with Mr. Senatore? 9 A. At that point, I didn't know who Mr.

10 Senatore was. 11 Q. What was your understanding of how--at 12 that point, you didn't even know how it got reported. 13 Is that what you're saying? 14 A. What do you mean? I knew--what do you 15 mean how it got reported? I was advised how it got 16 reported when I went there. That's what was part of 17 the questions that I asked. Mr. Sadowski was the main 18 person. So Ms. Esposito only had limited information 19 and provided me with the document. But that document 20 had come from Mr. Sadowski. So Mr. Sadowski was the--21 was the person more important to speak to because his 22 knowledge was more first-hand. 23 Q. So Ms. Rubino actually--it was 24 reported to her but she sent Sadowski to take care of 25 it himself?

209 1 CAIATI - CROSS - GLASS 2 MR. GAMILS: I'm going object. I think that 3 statement's a mischaracterization. 4 THE HEARING OFFICER: You mean Ms. Esposito? 5 Hang on. Do you mean Ms. Esposito? 6 MR. GLASS: Yeah. Yes, I mean Esposito. 7 Q. So, as far as your understanding, 8 Esposito said Sadowksi came to me. I told him--I told 9 him to report it directly?

10 A. Yes. 11 Q. And she confirmed that she didn't do 12 it on work time, as far as she knew? 13 A. Correct. 14 Q. She didn't know Scott Lavine and she 15 didn't know Kwami? 16 A. Correct. 17 Q. And then you--then you interviewed 18 Sadowski? 19 A. Yes. 20 Q. Okay. And where did you interview 21 Sadowski? 22 A. In her office as well. 23 Q. Was she present? 24 A. No. 25 Q. And what--did Sadowski tell you how he

210 1 CAIATI - CROSS - GLASS 2 got the information? 3 A. What he told me is that he had had a 4 conversation. Now, it ended up being with Mr. 5 Senatore. At the time, I didn't know who the person 6 was. And that they had spoken and he alerted him to 7 some inappropriate postings which he sent to him, 8 reviewed them. He clicked on the link that was on the 9 page that was sent to him. It brought him right to

10 Ms. Rubino's Facebook page. He made a copy--actually, 11 not make a copy. But what he did is he emailed that 12 email to his work email. He made a copy of it when he 13 got to school the next day and provided Principal 14 Esposito with that document. 15 Q. Is it your understanding that this 16 guy, Senatore, emailed Sadowski at his personal email 17 address? 18 A. Yes. 19 Q. And then Sadowski sent it from his 20 personal email address to his work email address? 21 A. Yes. 22 Q. And did you get a copy of those 23 particular emails being forwarded? 24 A. Just that email. 25 Q. That email being?



211 1 CAIATI - CROSS - GLASS 2 A. That posting, item C. 3 MR. GAMILS: Department's 7? 4 A. I don't know what it is. 5 THE HEARING OFFICER: Department's 7. 6 MR. GLASS: Can I see that? 7 THE HEARING OFFICER: Department's 7. 8 That's this one. 9 MR. GLASS: Okay. Do you have a copy of

10 this without the redactions? Because there's quite a-11 - 12 MR. GAMILS: The Department redacted the 13 personal email addresses that are in discussion right 14 now. They didn't feel that it was appropriate to 15 release the witness' personal email addresses for the 16 purpose of this hearing. 17 MR. GLASS: Well, can you at least tell me? 18 I don't really care what the personal email address is 19 itself. Can you tell me-- 20 THE HEARING OFFICER: [Interposing] Who did 21 what, when? 22 MR. GLASS: Yeah. 23 THE HEARING OFFICER: Exactly. Who's on 24 top, who's under, who's the from? Who's the from? 25 Who's the to? That's what you're asking?

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212 1 CAIATI - CROSS - GLASS 2 MR. GLASS: Yeah, yeah. 3 MR. GAMILS: I can--I can make the 4 representation or is it more appropriate to have the 5 witnesses make that representation? 6 THE HEARING OFFICER: Mr. Glass? 7 MR. GLASS: I guess is Sadowski's coming. 8 Sadowski's coming in? 9 MR. GAMILS: Sadowski's here. We'll know

10 today if he--I mean I'm afraid that, without seeing it 11 it may be hard to testify to. What we--what we can do 12 is I can--I have one without the redactions. We can 13 have the witness testify and then when we put it into 14 evidence those can be redacted. Is that-- 15 THE HEARING OFFICER: [Interposing] I have 16 no problem with that. Is that okay with you, Mr. 17 Glass? 18 MR. GLASS: Sadowski is here or Senatore's 19 here? You've got so many people. 20 MR. GAMILS: Senatore. 21 MR. GLASS: Sadowski's here today or 22 Senatore? 23 MR. GAMILS: No, Sadowski. 24 MR. GLASS: I was asking about Sadowski. 25 THE HEARING OFFICER: He said Sadowski. So

213 1 CAIATI - CROSS - GLASS 2 you meant Senatore? 3 MR. GLASS: Is Sadowski going to come in? 4 Because this was Sadowski. 5 MR. GAMILS: Sadowski was supposed to be 6 here prior to the 28th adjournment. 7 THE HEARING OFFICER: Right. 8 MR. GAMILS: Now, since everything got 9 pushed back, the witnesses that were scheduled for the

10 28th are here today. 11 THE HEARING OFFICER: That's fine. I have 12 no problem with that. 13 MR. GLASS: The questions are--the questions 14 I have are for Sadowski, not for Senatore. 15 MR. GAMILS: It was never Sadowski. It was 16 Senatore, Principal Esposito, and investigator Caiati. 17 MR. GLASS: Sadowski was never going to be 18 called. Is that what you're saying? 19 MR. GAMILS: He's going to be called. He's 20 going to be called the next date. 21 MR. GLASS: Okay, all right. 22 Q. Now, as part of the conversation with 23 Sadowski, did you ask why Senatore forwarded this to 24 him? 25 A. I don't recall if I asked him why.

214 1 CAIATI - CROSS - GLASS 2 I'm not sure. 3 Q. Is there any--did you ask him whether 4 there were any conversations that they might have had 5 about this comment being forwarded to him? 6 A. No. 7 Q. Do you know if Sadowski actually had 8 threatened Senatore to get the comment because he 9 didn't want to be involved?

10 THE HEARING OFFICER: Excuse me? 11 Q. Did you ask Sadowski-- 12 THE HEARING OFFICER: [Interposing] Say that 13 again. 14 Q. Did you ask Sadowski whether Senatore-15 -he had to threaten Senatore to get the comments from 16 him? 17 A. No. 18 Q. Did you ask Sadowski if Senatore was 19 reluctant to get involved at all? 20 A. Well, that was why he wanted to remain 21 confidential. He really didn't want to get involved. 22 Q. Did you explore that his concerns with 23 Sadowski, why he was--why he wanted to be 24 confidential? 25 A. I am not really concerned why they



215 1 CAIATI - CROSS - GLASS 2 want to remain confidential, just that they do. 3 Q. And you didn't ask--did you ask 4 Sadowski any questions of the relationship between 5 Senatore and Rubino? 6 A. Senatore and Rubino? No. 7 Q. Did you ask any questions about the 8 relationship between Sadowski and Senatore? 9 A. No.

10 Q. Did you ask Sadowski whether he was, 11 in fact, a Facebook of Rubino? 12 A. No. 13 Q. Did you ask Senatore if there was any 14 other--for any other communications between Rubino and 15 Senatore on Facebook? 16 A. No. 17 Q. Did you ask him how frequently he 18 might have been in contact with Rubino on Facebook? 19 A. No. 20 Q. Did you ask Sadowski whether he ever 21 had any contact with Ms. Rubino-- 22 MR. GAMILS: [Interposing] I'm going to 23 object to relevance of these questions. I'm not 24 understanding what's the difference. 25 THE HEARING OFFICER: Mr. Glass?

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216 1 CAIATI - CROSS - GLASS 2 MR. GLASS: I'm trying to get--I'm just 3 trying to explore the relationship as to motive, as to 4 why he's coming forward. He didn't think it was 5 important at all but why this was disclosed, for what 6 purpose was this disclosed. 7 THE HEARING OFFICER: Well, I think you 8 asked him those questions before. So is there 9 something additional? I mean I'll give you latitude

10 and I'll overrule the objection. 11 MR. GLASS: I think they're appropriate 12 questions. 13 THE HEARING OFFICER: I didn't say they were 14 inappropriate. I think you asked many of them with 15 different words before. So, you know, I'm trying to-- 16 MR. GLASS: [Interposing] Okay. 17 THE HEARING OFFICER: But feel free to ask. 18 Q. Let me also ask you about--I'm not 19 sure if this is part of your investigation. But 20 O'Mahoney, which you said it was--it might be 21 attached. 22 THE HEARING OFFICER: 6. 23 MR. GLASS: Before we do that, can we--I'll 24 just mark this as Respondent's 3, I believe. 25 THE HEARING OFFICER: 3.

217 1 CAIATI - CROSS - GLASS 2 Q. Which is the--can you identify for us 3 these document--this document? 4 MR. GAMILS: There's no objection. 5 MR. GLASS: All right. So I'll just-- 6 THE HEARING OFFICER: [Interposing] 7 Respondent 3. 8 [Whereupon Respondent's Exhibit 3 is 9 admitted into evidence]

10 MR. GLASS: --put the notes in. 11 A. These are notes, yes. 12 Q. And that was--that was the day of the 13 interviews? 14 A. Yes. 15 Q. Okay. And what's redacted at the 16 bottom here? The bottom right. 17 A. I have no idea. I didn't do any 18 redactions on my notes. I don't know what they are. 19 THE HEARING OFFICER: Okay. 20 Q. Does looking at the document refresh 21 your recollection as to what it might have been? 22 A. No. 23 MR. GLASS: Can the DOE tell us why it was 24 redacted? 25 THE HEARING OFFICER: Gambils?

218 1 CAIATI - CROSS - GLASS 2 MR. GAMILS: It was telephone numbers. 3 THE HEARING OFFICER: Personal telephone 4 numbers, not business? 5 MR. GAMILS: I didn't cross reference them 6 to see if they were-- 7 THE HEARING OFFICER: [Interposing] I mean 8 were they school telephone numbers? 9 MR. GAMILS: They were telephone numbers. I

10 didn't recognize them as school numbers at the time. 11 I can't say that they weren't. But they were phone 12 numbers. 13 Q. Do you recall--I mean when Sadowski 14 first got the comments from Senatore, how he received 15 them, in what fashion? 16 A. I don't remember specially how he 17 said, if at first he told him. And I believe he 18 stated that he spoke to him and that he told him. And 19 then he emailed them to him. 20 Q. Your notes seem to indicate, like, 21 received text. Do you know what-- 22 A. [Interposing] That may very well be. 23 It may be. 24 THE HEARING OFFICER: No, you're--you've got 25 to read the sentence Mr. Glass. "Sent a cut and paste



219 1 CAIATI - CROSS - GLASS 2 version of the text of the message to his personal 3 computer." Is that what you're relating or referring 4 to? 5 MR. GLASS: Well, he says--I asked him how 6 Sadowski got the message. 7 THE HEARING OFFICER: Where? 8 MR. GLASS: On the left, left-hand side of 9 this document. He said email and this doesn't say

10 email. I'm just asking-- 11 MR. GAMILS: [Interposing] I'm confused. 12 Are you referring to the--are you referring to that 13 first line or the second line on the second kind of 14 paragraph? 15 MR. GLASS: I'm just wondering how Senatore 16 originally got the message to Sadowski. 17 MR. GAMILS: Okay. 18 Q. Does this refresh your recollection of 19 how that happened? 20 THE HEARING OFFICER: I'm sorry. What line 21 are you reading again? 22 A. It must have been an email. "Sent cut 23 and paste version of the text of the message." 24 THE HEARING OFFICER: But you were reading 25 from the left.

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220 1 CAIATI - CROSS - GLASS 2 Q. I'm reading from the left. 3 THE HEARING OFFICER: Read me--read me-- 4 Q. [Interposing] What does it say? Does 5 it say AP Sadowski received text from a staff member, 6 alerting him to the comments by teacher of fifth 7 grade, Rubino? 8 A. Yeah, that's what--that's what Ms. 9 Esposito stated. Okay? Ms. Esposito--what Ms.

10 Esposito may have thought, she may have thought that. 11 That's what my notes reflect. But when I spoke with 12 Mr. Sadowski, Mr. Sadowski clarified that. 13 Q. Oh, so she misunderstood it to be a 14 text? 15 A. She may have misunderstood from Mr. 16 Sadowski. That's my--these are just notes that I took 17 when I did her interview. He must have clarified that 18 point during his interview. 19 THE HEARING OFFICER: Just so we're clear, 20 this is a three column page, because I guess it 21 reflects columns in the book. But the column on the 22 far left that is beginning with the words--would you 23 put this in front of him just so he--interview of Lisa 24 Esposito, Principal, that's your interview of 25 Esposito?

221 1 CAIATI - CROSS - GLASS 2 A. And the next column. 3 THE HEARING OFFICER: And the middle column 4 continues it? 5 A. Yes. 6 THE HEARING OFFICER: And the right-hand 7 column is? 8 A. Just Mr. Sadowski. 9 THE HEARING OFFICER: Fine, okay. I just

10 wanted to understand that. 11 Q. The right-hand column is the phone 12 numbers that we think are--we don't know if they're 13 business or personal. 14 THE HEARING OFFICER: I don't know. If you 15 have the original, Mr. Gamils, then we can-- 16 MR. GAMILS: [Interposing] I don't have it 17 on me. 18 THE HEARING OFFICER: I understand. 19 MR. GAMILS: Okay. 20 THE HEARING OFFICER: You can--if you have 21 the originals, if you can dig them out and get them to 22 us, maybe at the start of the next hearing. 23 MR. GAMILS: It's in a folder right 24 downstairs. When we call the next witness, I'll bring 25 it up.

222 1 CAIATI - CROSS - GLASS 2 THE HEARING OFFICER: Okay. 3 MR. GLASS: All right. And this document is 4 part of what the Board turned over. I think it's 5 relating to O'Mahoney, 203, 204, but I don't think you 6 entered it as part of your direct. So if you want to 7 take a look at it. 8 MR. GAMILS: 201 and 202? 9 MR. GLASS: Well, 203 and 204.

10 MR. GAMILS: It's another--I believe that's 11 another email that Mr. Sadowski sent to O'Mahoney, 12 correct? Basically the same thing that's in evidence 13 as Department's Exhibit 6. 14 MR. GLASS: I just wanted to question what 15 this document is because we don't know what these 16 links are. Do you have another copy of it handy, 203 17 and 204? 18 MR. GAMILS: I guess I have a copy for 19 myself. 20 MR. GLASS: To show the witness? 21 MR. GAMILS: 202 and 203? 22 THE HEARING OFFICER: 203 and 204. I think 23 202--I think 2020 is the second page of DOE 6. 24 MR. GAMILS: 203 and 204. 25 Q. Sir, do you recognize this document?



223 1 CAIATI - CROSS - GLASS 2 A. Yes. 3 Q. What is it? 4 A. This was the--this is part of the 5 case. This was one of the documents in my case folder 6 that was sent by Mr. Sadowski to investigator 7 O'Mahoney, who works the complaint room. 8 Q. So what happens if you click on these 9 links listed here?

10 A. I don't know. If you click on all 11 these links, I don't know. This was a--you'd have to 12 type in this entire link. You can't--you know, this 13 is just a paper. 14 Q. They're all originating from the DOE 15 at some point, it looks like, these links? 16 A. Well, the top one isn't. The top one 17 is Ms. Rubino's. 18 MR. GAMILS: I believe the witness is going 19 to be speculating as to these links. I don't think he 20 created these links. I don't think he's familiar with 21 these links. 22 A. I can--I can say for certain what the 23 top one is because the top one is Ms. Rubino's 24 Facebook ID number. Other than that, I don't know 25 where any of these links go to.

SHEET 39

224 1 CAIATI - CROSS - GLASS 2 MR. GAMILS: I believe -- to voir dire on 3 this document. 4 THE HEARING OFFICER: Uh-huh. 5 MR. GAMILS: There's also a question, I 6 believe, that the top is actually two links. Every 7 time you see the https, that's another link. And the 8 URL-- 9 A. [Interposing] Right, I'm talking about

10 the URL underneath, the second one down, the second. 11 You have a top and below that you have a URL and it 12 ends with 1151397116. That's Ms. Rubino's account. 13 That's the only link here that I can identify and I 14 can only identify it because this is her Facebook ID 15 number. 16 17 Sadowski, right? So Sadowski would have sent it this 18 way. Is that what you understand? 19 A. I--you're going to have to ask Mr. 20 O'Mahoney that. 21 MR. GLASS: Can we just mark it, maybe, for 22 identification? 23 THE HEARING OFFICER: Do you have a copy? 24 MR. GLASS: I'd have to get a copy without 25 the handwriting. I'll do that for you. This is R-4.

225 1 CAIATI - CROSS - GLASS 2 THE HEARING OFFICER: All right. Mine had 3 writing on it. 4 MR. GLASS: I probably have another copy. 5 THE HEARING OFFICER: He has it without 6 writing. 7 MR. GLASS: I'm sorry, I didn't-- 8 THE HEARING OFFICER: [Interposing] It's 9 okay. Thank you. May I keep this?

10 MR. GAMILS: Uh-huh. 11 MR. GLASS: You mean Respondent's-- 12 THE HEARING OFFICER: [Interposing] 13 Identification. I'll mark it as Respondent's 4 for 14 identification. 15 MR. GLASS: I think I'm finished but I'll 16 like one more minute with my client. 17 THE HEARING OFFICER: Off the record. 18 [Off the record] 19 [On the record] 20 THE HEARING OFFICER: Back on the record. 21 MR. GLASS: A few last questions. 22 Q. When you saw the--when you saw the 23 principal at the school, did you ask her any questions 24 about Ms. Rubino in general? You know, how she was as 25 a teacher, any of her background?

226 1 CAIATI - CROSS - GLASS 2 A. Yeah. I did ask several questions 3 about how she is teaching and just general background 4 questions. 5 Q. Do you recall what she said? 6 A. She said there was one issue with Ms. 7 Rubino, a prior arrest. Other than that, nothing 8 major to speak of. 9 Q. Did she mention anything about a

10 grievance that Ms. Rubino had filed against her? 11 A. No. 12 Q. Did she mention an incident in the 13 2008-2009 school year involving alleged corporal 14 punishment? 15 A. No, she didn't mention that. And the-16 -and the thing with the arrest is it was something I 17 already knew because it was in the--you know, it was 18 on the RAP sheet. 19 Q. Okay. And did she mention anything 20 about her performance as a teacher? 21 A. No, I just said, you know, how is she 22 as a teacher. She said adequate. 23 Q. Are you aware if she--are you aware 24 that she was like an F status teacher? Do you know 25 what that means?



227 1 CAIATI - CROSS - GLASS 2 A. Yeah, I know what F status. I was not 3 aware that she was F status. 4 Q. What is F status? What is F status to 5 your knowledge? 6 A. To my status, F status is not a full 7 time position. You just come in a certain amount of 8 days and you work and you get paid for the days that 9 you work.

10 Q. Do you know if F status teachers get 11 ratings, annual ratings? 12 A. I'm not 100% sure. I'm going to say 13 they probably should but I'm not 100% sure on that. 14 Q. They should you think they do or 15 you're not sure? 16 A. I'm not sure. 17 Q. How about with Mr. Sadowski, did you 18 have conversations about Ms. Rubino? 19 A. No. 20 Q. Ask about performance or anything? 21 A. No. You know, I had already covered 22 it. 23 Q. Through the principal? 24 A. Yes. 25 Q. And how about with Mr. Senatore, did

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228 1 CAIATI - CROSS - GLASS 2 you ask him his impression of Ms. Rubino? 3 A. No. 4 Q. Or a conversation-- 5 A. [Interposing] Not at all. 6 Q. Nothing about relationships or-- 7 A. [Interposing] Nothing at all. 8 Q. --they are angry at each other or 9 anything?

10 A. No. 11 MR. GLASS: All right. I have nothing 12 further. 13 MR. GAMILS: Just a few questions on re-14 direct. 15 RE-DIRECT EXAMINATION16 BY MR. GAMILS 17 Q. Referring to Department's--I'm sorry, 18 Respondent's Exhibit 3. Can you please take a look at 19 that. Specifically, that second paragraph where it 20 says AP Sadowski received text from a staff. And I 21 noticed in other areas of the notes you use the word 22 text and you're referring to--is it correct to say 23 that you were assuming to the text of the language in 24 your--in the second part of the portion? 25 A. IN the second--in the--in the

229 1 CAIATI - RE-DIRECT - GAMILS 2 interview with Mr. Sadowski, now I wrote down--I don't 3 remember the specific wordage. But if that’s what I 4 wrote down, then that's what Ms. Esposito stated it 5 was a text. Okay? Maybe she has--she doesn't 6 differentiate between a text or an email. But when I 7 say text here, I mean the text of the message, the, 8 you know, what the message is. 9 Q. Do you know if that's what Ms.

10 Esposito was referring to, the text-- 11 A. [Interposing] I have no idea. I have 12 no idea what she was referring to. At this point, I 13 don't remember. 14 Q. So she just used the word text? 15 A. Yes. 16 Q. Okay. Now, during your interview with 17 Joanne Engle, what led you to believe that initially 18 she was not being truthful with you? 19 A. You know, as I stated before, she 20 could barely tell me what grade her friend worked. 21 She couldn't remember the verbiage as to what she 22 supposedly wrote, even though it was only two lines 23 long. When I questioned her on that, I said, you 24 know, you're telling me that you wrote this. This is 25 what you wrote, but you don't seem to know what--I

230 1 CAIATI - RE-DIRECT - GAMILS 2 mean you had a tough time telling me what grade your 3 friend teaches. And you had--and you can't remember 4 what you wrote here. I find it highly unlikely that 5 you wrote this. 6 Q. Did anything about the language in the 7 message lead you to believe that Joanne Engle didn't 8 write that? 9 A. Well, it was being written as first

10 person, my kids. You know, I hate them all but my--11 you know, my students. I don't--I don't know how she 12 would write like that. 13 Q. And what did you specifically tell 14 Joanne Engle about the consequences of not being 15 truthful? 16 A. I told her that--and I specifically 17 told her htat her problem was not with me. Okay? Not 18 with me, not with my office. Okay? Specifically, I 19 told her that if she was lying and she was to come to 20 testify at a hearing resulting from this matter and we 21 could prove that she lied, if we could prove that she 22 lied, she would be subject to criminal liability. Did 23 we use Riker's? Yeah, I think I did say that durig 24 the--during the interview. Did we tell her she would 25 be arrested? Yeah. Did I put a dollar amount on how



231 1 CAIATI - RE-DIRECT - GAMILS 2 much an attorney would cost her? No. Did I say how 3 many days she would spend at Riker's? No. I just 4 made her aware that there were consequences if she was 5 lying. At that point, she decided to tell us a 6 different version. I'm going to call it the truth. 7 If you want to call it something else, you can. 8 Q. Well, let me ask you this. If she--if 9 Ms. Engle was telling the truth, would she face any of

10 those reperucssions you discussed? 11 A. No. Now, I also want to say that she 12 was free to leave at any time. Okay? I'm not the 13 police. Okay? She was not being held there against 14 her will. This entire interview and this entire 15 conversation, she was free to go whenever she wanted. 16 So if she decided she didn't want to be involved in 17 this anymore, or she didn't want to tell me--she 18 wanted to stick to her story and not give us a 19 different version, she could have got right out of the 20 car and walked away. 21 Q. Now, you also spoke to Ms. Engle about 22 information for Scott Lavine, correct? 23 A. Correct. 24 Q. And whawt did Ms. Engle tell you about 25 Scott Lavine?

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232 1 CAIATI - RE-DIRECT - GAMILS 2 A. She just said that he's somebody from 3 the neighborhood that is a Facebook friend of Ms. 4 Rubino. 5 Q. If you could have obtained contact 6 information for Scott Lavine, would you have contacted 7 him? 8 A. Yes. 9 Q. Did you believe, at that time, that

10 Ms. Engle was not being truthful with you about not 11 having Scott Lavine's contact information? 12 A. No, I just asked her who she--who he 13 was. She said he's just somebody from around the 14 neighborhood who was a Facebook friend. I said do you 15 have contact information. She said I don’t. 16 Q. Did you tell her that she could go to 17 jail for not providing you that information? 18 A. No. 19 Q. Now, you stated that you don't believe 20 there was a Facebook policy at the Department of 21 Education, correct? 22 A. I’m not aware of one is what I said. 23 Q. On what basis were these charges 24 substantiated against Ms. Rubino? 25 A. Just inappropriate comments in

233 1 CAIATI - RE-DIRECT - GAMILS 2 general, inappropriate email or inappropriate use of a 3 computer comments. 4 Q. And why do you believe they were 5 inappropriate? 6 A. It is my belief that anybody with 7 common sense would see that these comments were cruel 8 and inappropriate. I was a civil service worker for 9 20 years. Okay? If I was to post any type of

10 comment, even off duty, that got back to my bosses 11 that was of this nature, I would have to answer for 12 it. 13 Q. Now, would any--if you obtained 14 information about a relationship between or any type 15 of relationship between David Senatore and Mr. 16 Sadowski, would that have changed your recommendations 17 or your findings in this case? 18 A. It would have no bearing on this 19 investigation at all. 20 Q. And if Mr. Senatore gave Ms. Rubino a 21 subsequent apology after his initial report to Mr. 22 Sadowski, would that have changed your findings in any 23 way? 24 A. No. 25 Q. And why not?

234 1 CAIATI - RE-DIRECT - GAMILS 2 A. The comments are what the comments 3 were. The investigation was what it was. You know, 4 whether he felt bad or not, there's no bearing on my 5 investigation. 6 MR. GAMILS: I have no further questions. 7 RE-CROSS-EXAMINATION8 BY MR. GLASS 9 Q. Mr. Caiati, did you tell Joanne Engle

10 that you felt that Ms. Rubino should not be fired over 11 these comments? 12 A. Did I say that? 13 Q. During your conversation with Ms. 14 Engle, did you tell her-- 15 A. [Interposing] I don't remember saying 16 that. 17 Q. You don't remember saying that? 18 A. I don't remember saying she shouldn’t 19 be fired. I don't remember making any recommendation. 20 Q. Do you believe that you--do you 21 believe that she should be fired over this? 22 A. It's really not my, you know, 23 decision. Okay? Are you asking me is this is the 24 worst thing in the world? No, it's not. Are you 25 asking me to make a determination on whether or not



235 1 CAIATI - RE-CROSS - GLASS 2 she should be fired? I can't give you that answer. 3 Q. Is it--is it your testimony today that 4 you did not tell Ms. Engle or try to reassure that Ms. 5 Rubino would probably not lose her job, just tell the 6 truth because this is not something that's going to 7 lead to her termination? 8 A. I don't remember saying that. 9 Q. You don't remember saying that or you

10 didn't say it? 11 A. I don't remember or recall saying 12 anything to that kind. 13 Q. Are there any--do you have notes or 14 anything that might refresh your recollection on that? 15 A. There may be some notes. I don't have 16 them with me. But I highly doubt, if I did have 17 notes, that that statement would be in there one way 18 or the other. 19 Q. Do you think you said it or you don't 20 remember? 21 A. I don't think I said that. 22 Q. Also, you've said if she was free to 23 stick to her story there would be no consequence if 24 she originally--if Ms. Engle stuck with her original 25 story that she posted it. In fact, if she had stuck

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236 1 CAIATI - RE-CROSS - GLASS 2 to that story, would you have recommended that this 3 Part proceed against her in some kind of perjury-- 4 MR. GAMILS: [Interposing] I'm going to 5 object. I don't believe that was the witness' 6 testimony. I think the witness stated that if she had 7 told the truth she would not face repercussions, not 8 that if she stuck to any story. 9 THE HEARING OFFICER: Sustained.

10 Q. But, in fact, if she--I'm saying if 11 she stuck to the story that she-- 12 THE HEARING OFFICER: [Interposing] This is 13 all hypothetical? 14 MR. GLASS: Well, he asked a hypothetical 15 too. 16 THE HEARING OFFICER: No, I'm just trying to 17 follow your question. 18 MR. GLASS: Yeah. 19 THE HEARING OFFICER: If she stuck to her 20 story-- 21 MR. GLASS: [Interposing] Well, I'm trying 22 to see--he said there's no repercussion. It's my--I'm 23 asking would there have been legal, financial 24 repercussions to Ms. Engle if she stuck to--whether 25 she proved it at the end or not, she would have faced

237 1 CAIATI - RE-CROSS - GLASS 2 attorney's fees, legal costs and-- 3 THE HEARING OFFICER: [Interposing] If what, 4 Mr. Glass? I can't follow your question. 5 MR. GLASS: The question is let's say Ms. 6 Engle refused to change her story that she was the one 7 who posted the comment. 8 THE HEARING OFFICER: Uh-huh. 9 Q. You were threatening her with perjury,

10 perhaps, with legal costs if she didn't change her 11 story. If this was proven after the fact to be false, 12 she could--she could be facing these consequences, 13 right? That's what you told her. 14 A. No, I told--I specifically told her 15 that her issue was not with me or my office. Her 16 issues would take place if we were able to prove that 17 she perjured herself at a hearing. That's it. 18 Q. And she would face, perhaps-- 19 A. [Interposing] She would face 20 consequences if she perjured herself. 21 Q. And even if she could prove to you 22 that she didn't perjure herself and she stuck to the 23 story, then she would still have to face the financial 24 costs that you would have to-- 25 A. [Interposing] In what manner? How?

238 1 CAIATI - RE-CROSS - GLASS 2 Q. She would have to bear a legal cost 3 defending it. 4 A. How? I don't understand how you come 5 to that conclusion, counselor. 6 Q. Didn't you leave--you left her alone 7 after she gave you the story that you wanted to hear, 8 correct? 9 A. Counselor, I can't arrest her for

10 perjury. I personally cannot arrest-- 11 Q. [Interposing] You made clear that to 12 her-- 13 A. [Interposing] I made it very clear. 14 [Crosstalk] 15 MR. GAMILS: I’m going to object. This is 16 argumentative at this point. 17 THE HEARING OFFICER: Sustained. Sustained 18 because I don't know what the question is anymore. 19 You've already asked the question and gotten the 20 answer and asked it again and gotten the answer. And 21 I know that it's not the answer you have been wanting. 22 But ask another complete question and maybe you'll get 23 a different answer. 24 Q. So he used the word repercussions and 25 you said she would face no repercussions. What did



239 1 CAIATI - RE-CROSS - GLASS 2 you mean by that? 3 A. I told her, as I stated numerous 4 times, that her issue was not with my office or me. 5 If she was found to have perjured herself at a 6 hearing, she would face criminal liability. I did not 7 tell her that that I would be arresting her for 8 perjury. I said she could be arrested for perjury if, 9 in fact, it was proven that she lied during a hearing.

10 That's what she was told. I don't know what else to 11 tell you. She wouldn’t have faced any criminal 12 charges unless it could be proven. Could it have been 13 proven? Probably not. Okay? Maybe not, maybe so, 14 maybe not. But after having heard that she could face 15 some criminal liability if she was lying, her story 16 changed. 17 Q. But under your version, just had she 18 said nothing and just agreed with you, she didn't face 19 any consequence whatsoever? 20 A. Nothing, not a thing. She could have 21 walked right out of my car and nothing would have 22 happened to her. 23 Q. And as soon as she said what you 24 wanted to hear, she was able to walk away from the car 25 and you left her alone, right?

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240 1 CAIATI - RE-CROSS - GLASS 2 A. She was able to walk away from the car 3 either way. As I stated before, she could walk away 4 after saying hello or she could walk away at the end 5 of the--at the end of the interview. At no time was 6 she--was she held against her will. At no time was 7 she forcefully held. She was allowed to leave at any 8 time. 9 Q. Did you tell her that?

10 A. Absolutely. 11 Q. When did you tell her that? 12 A. I told you. You don't have--this is--13 you're coming to see me. You have decided to speak to 14 me. Okay? I am not a police officer, sir, so I don't 15 have any detention powers. 16 Q. You're coming to see--did you come to 17 see her? 18 A. I did come to see her. 19 Q. Then why are you saying that she came 20 to see you? 21 A. No, I'm--but she came to my car. 22 Okay? Because she requested we don't go to her 23 office. So she came to the car to see us. Okay? I 24 am not a police officer. I have no powers of 25 detention. What she believes or what she feels has no

241 1 CAIATI - RE-CROSS - GLASS 2 bearing. 3 Q. Did you tell her that you were not a 4 police officer, you have no power of detention? 5 A. Yeah, I told her I am not a police 6 officer. I specifically told her I'm not a police 7 officer. And whether or not she felt a certain way, 8 well, I'm sorry about that. That's got no bearing on 9 this.

10 Q. Well, it might have had some bearing 11 on the answer she was giving you, correct? 12 A. Well, that's on her, not on me. 13 Q. All right. We'll see what she says. 14 MR. GLASS: All right. Nothing further. 15 MR. GAMILS: Nothing from the Department. 16 THE HEARING OFFICER: Okay. Off the record, 17 please.18 [Off the record] 19 [On the record] 20 THE HEARING OFFICER: Back on the record, 21 please. 22 MR. GAMILS: The Department is prepared to 23 call their second witness, Mr. David Senatore. 24 THE HEARING OFFICER: Okay. 25 [Off the record]

242 1 CHRISTINE RUBINO - 02/28/11 2 [On the record] 3 THE HEARING OFFICER: Back on the record. 4 Your next witness? 5 MR. GAMILS: The Department will--I'd just 6 like to renew my application on the record now. 7 THE HEARING OFFICER: Well, if you have an 8 application, it needs to be on the record. So, yes, 9 then go ahead.

10 MR. GAMILS: The Department plans to call 11 several student witnesses on March 2nd and March 3rd. 12 Three--I'm sorry, two out of three of these witnesses 13 have IEPs. They also have foster care issues. The 14 Department is concerned that these witnesses are 15 sensitive minors. We would ask that the hearing be 16 closed for the purposes of their testimony, to protect 17 the students. 18 THE HEARING OFFICER: All the student 19 witnesses? I mean make the application once. 20 MR. GAMILS: My application is to all the 21 students. 22 THE HEARING OFFICER: That's what I'm 23 asking. 24 MR. GAMILS: Correct. They're all in-- 25 THE HEARING OFFICER: [Interposing] And how



243 1 CHRISTINE RUBINO - 02/28/11 2 many are there all together? 3 MR. GAMILS: There are--Department plans to 4 call three students on our direct case and they--I'm 5 sorry, are in fifth and sixth grade. 6 THE HEARING OFFICER: Mr. Glass? 7 MR. GLASS: I would object because I don't 8 think the statute provides--you know, she requested an 9 open hearing. She's entitled to an open hearing. I

10 don't think there's any disqualification or limiting 11 circumstance which prevents her--to close the hearing 12 for some purposes. This is a truth telling process. 13 The whole purpose--her career is at stake and, you 14 know, I'm concerning, frankly, about the abuse the DOE 15 can use to get witnesses in who might otherwise won't 16 appear. And if they appear that just to the open to 17 come to a hearing and be subject to rigorous cross-18 examination that may eventually be public doesn't 19 strike me as a--as a really--a good-- 20 THE HEARING OFFICER: [Interposing] You lost 21 me a little bit. The hearing would not be closed to 22 your client, who is certainly entitled to be here for 23 the course of the entire hearing, or to you, her 24 representative who is certainly entitled to be here 25 for the entire course of the hearing. It would be

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244 1 CHRISTINE RUBINO - 02/28/11 2 closed to people who are non-participants or non-3 parties. So what's your response to that? 4 MR. GLASS: Yeah. Well, first of all, 5 there's nothing in the statute when you request a 6 public hearing that limits the ability to close it for 7 certain purposes and keep it open for other purposes. 8 It should be open for all purposes. And I don't think 9 a reason has been articulated sufficiently to--what is

10 he concern about closing the hearing? It's going to 11 be in the transcript. They're coming in here, 12 presumably, to tell the truth. As we've heard, you 13 know, it can be perjury if you're lying. 14 So I think there is a potential for abuse by 15 the DOE getting closed hearings for certain purposes 16 because they may not otherwise be able to get the 17 students in. And it seems to me, from what I heard, 18 that the student is less likely to come in if they're 19 exposed to other people hearing what they have to say 20 and there may be an impression left that if they're 21 not, this is going to be more confidential. 22 The reality--the reality is what's the 23 difference of another public person sitting here or 24 not. What is she going to--do you want her to 25 instruct her not to say certain things to the public?

245 1 CHRISTINE RUBINO - 02/28/11 2 I don't know. But that doesn't necessarily mean that 3 the public can't be here. And I don't really--I 4 haven't really heard of a sufficient rationale to--for 5 you to add limiting circumstances into the statute. 6 So it is what it is and what's the--what's the--what's 7 the harm? 8 MR. GAMILS: It's my understanding that the 9 Education Law actually does provide remedy in this

10 situation. I think that there are certain 11 circumstances and I think one of them being the 12 sensitivity of minor witnesses is a reason to close a 13 hearing. I believe that it has been done in other 14 3020-a proceedings. And I think when you have an 11-15 year-old or a 12-year-old student witness being 16 questioned about their IEP or about their home 17 situation, I think it is a sensitive issue and I think 18 that it's intimidating to be in a room with people 19 that you don't know. And that's the reason why I 20 believe the statute does provide this kind of--this 21 kind of remedy. 22 And it cuts both ways. What's the harm? 23 The Respondent is here. Her attorney's here. There 24 is no--there is no harm to her. She's being 25 represented and she has the right to confront these

246 1 CHRISTINE RUBINO - 02/28/11 2 witnesses. We're asking to close the hearing to 3 people who don't have a stake in this. 4 MR. GLASS: I think it's their burden to 5 establish the harm. It's not our burden because the 6 statute is what it is. If you can cite to some 7 authority that allows you to close it for certain 8 purposes, I'd like to see it. I don't think it 9 exists. I don't know what other Hearing Officers have

10 done. It's never come up in one of my cases, 11 honestly. But, to me, it sounds like, you know, there 12 shouldn’t be any difference whether one or two other 13 people are sitting in the room is going to change the 14 truth of the testimony that's coming in. 15 And so, to me, it seems like it's just 16 designed to, you know, coax a student who otherwise 17 might be reluctant to come in and more likely not to 18 tell the truth. It seems like it's designed for that 19 purpose alone. There's nothing that the client--20 student needs to fear by being here with one or two 21 other people in the room. You know, it doesn't--it 22 doesn’t change the equation of what they have to come 23 in--their duty to come in. And, if they're concerned 24 about it, then, you know, explain to the parents that 25 this is the--you know, that their testimony could come



247 1 CHRISTINE RUBINO - 02/28/11 2 back---could come back against them. 3 I don't really see any real basis to start 4 creating these rules on a willy nilly basis. And what 5 are we going to determine? Is it--is it a fourth 6 grader or fifth grader, a 20-year-old? I mean where 7 do you draw the line, so. 8 THE HEARING OFFICER: Well, I think you 9 stepped beyond the questioning, since he didn't ask to

10 do it for a fourth grader or a fifth grader or a 20-11 year-old; simply for minor witnesses, which will be 12 fourth graders unless for some very unfortunate reason 13 you had an 18-year-old in fourth grade, but we won't 14 go there. I'm going to hold my ruling in the banks 15 until Wednesday morning. Your witness-- 16 MR. GAMILS: [Interposing] Yes. 17 THE HEARING OFFICER: --is? 18 MR. GAMILS: Mr. David Senatore. 19 THE HEARING OFFICER: Mr. Senatore, please 20 state and spell your name for the record. 21 MR. DAVID SENATORE: First name is David, 22 DAVID, last name Senatore, SENATORE. 23 THE HEARING OFFICER: Please raise your 24 right hand, sir. Do you swear or affirm that the 25 testimony you're about to give will be the truth?

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248 1 CHRISTINE RUBINO - 02/28/11 2 MR. SENATORE: I do. 3 THE HEARING OFFICER: Go ahead, Mr. Gamils. 4 MR. GAMILS: Okay. 5 DIRECT EXAMINATION6 BY MR. GAMILS 7 Q. Mr. Senatore, where are you currently 8 employed? 9 A. At P.S. 203 in Brooklyn.

10 Q. Okay. And how long have you worked at 11 P.S. 203? 12 A. About 11 years. 13 Q. And what is your current assignment at 14 P.S. 203? 15 A. I teach fourth grade. I teach chorus 16 and also supervise the after school program at the 17 school. 18 Q. And how long have you been an employee 19 of the Department of Education? 20 A. The same amount of time, 11 years. 21 Q. So you've worked your whole career at 22 P.S. 203? 23 A. Correct. 24 Q. Are you familiar with a woman by the 25 name of Christine Rubino?

249 1 SENATORE - DIRECT - GAMILS 2 A. Yes. 3 Q. Okay. And who is she? 4 A. She's a--you mean who is she here? 5 Q. Who is Christine Rubino? 6 A. Oh, that's Ms. Rubino. 7 MR. GAMILS: Let the reflect that the 8 witness has identified Respondent, Christine Rubino. 9 THE HEARING OFFICER: I think it was more of

10 a question of who is she, relevant to you. 11 Q. How do you know Christine Rubino? 12 THE HEARING OFFICER: Did she work in the 13 local deli? Was she your next door neighbor? 14 A. Oh, she was a teacher at our school. 15 THE HEARING OFFICER: Okay. I think that 16 was the who is she. 17 A. Okay, all right. 18 THE HEARING OFFICER: I don't think I'm 19 overstepping your bounds, Mr. Gamils. 20 MR. GAMILS: That was the question. 21 THE HEARING OFFICER: Good answer. 22 Q. How long have you known Christine 23 Rubino? 24 A. As long as I have been working at the 25 school.

250 1 SENATORE - DIRECT - GAMILS 2 Q. Has she worked there your entire 3 tenure at P.S. 203? 4 A. Most of it, I think. 5 Q. Do you know what her assignment is at 6 P.S. 203? 7 A. She taught fifth grade. 8 Q. Do you know any other assignments she 9 had?

10 A. No, that's it. 11 Q. Okay. Does she always teach fifth 12 grade? 13 A. That, I'm not sure. I don't think so. 14 Q. Okay. Are you familiar with a social 15 media site called Facebook? 16 A. Yes. 17 Q. What is Facebook? 18 A. It's, like you said, social media. 19 You know, it's a social networking site that, you 20 know, people could post various, you know, information 21 or pictures, and share it with friends, family. 22 Q. Are you a member of Facebook? 23 A. Yes. 24 Q. And do you know what--is Ms. Rubino a 25 member of Facebook?



251 1 SENATORE - DIRECT - GAMILS 2 A. She was, yeah. Well, to my knowledge, 3 yes. 4 Q. I'm drawing your attention 5 specifically to the 2009-2010 school year. Was Ms. 6 Rubino a member of Facebook at that time? 7 A. Okay. Yeah, yes. 8 Q. And how do you know that? 9 A. Because he and I--she and I were

10 mutual friends at that time last year. 11 Q. And what does it mean to be a friend 12 on Facebook? 13 A. Well, a friend is someone that has 14 their--has requested you or you have to request them 15 and then you two become friends and you can, like, 16 share conversations or, you know, view each other's 17 comments or what other people say, stuff like that. 18 Q. And how long--starting at June 2010, 19 at that time, how long had you been friends with Ms. 20 Rubino on Facebook? 21 A. Probably, you know, months, a few 22 months. 23 Q. And, on Facebook, approximately how 24 many friends did you have? 25 A. Did I or do I now? It was about--

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252 1 SENATORE - DIRECT - GAMILS 2 Q. [Interposing] At that time. 3 A. About over 100. It must have been 4 100, 150. 5 Q. And are you aware of how many friends 6 Ms. Rubino had around June of 2010 on Facebook? 7 A. Not specifically. 8 Q. Okay. 9 A. But, like I said, I'm sure--you know,

10 most of us do have, like, you know, at least 100 11 friends. Like, I can't pinpoint a number. 12 Q. Did you have mutual friends with Ms. 13 Rubino? 14 A. Yes, we did. 15 Q. Okay. And what would be a mutual 16 friend? Not--I'm not asking you for an 17 identification. 18 A. Okay. 19 Q. What does it mean to have a mutual 20 friend? 21 A. That would be somebody that's a friend 22 of mine and a friend of hers on Facebook. 23 Q. And approximately how many mutual 24 friends would you say you had? 25 A. Again, I couldn't pinpoint it. I

253 1 SENATORE - DIRECT - GAMILS 2 would say, you know, over ten. I can't give an exact 3 number. 4 Q. And of those approximate ten mutual 5 friends, where do those people come from? 6 A. The school also, P.S. 203. 7 Q. They were other staff members? 8 A. Yes, yes. 9 Q. Now, when one of your friends posts a

10 message on your page, how does that information make 11 its way to you? 12 A. Okay. Well, there's thing called the 13 wall, which is your homepage. And anybody that's a 14 friend of yours, whatever they post shows up on your 15 wall. And, also, like some--depending on what the--16 what the settings are, anybody that comments on a post 17 that your friends made, that could show up on your 18 wall too. 19 Q. So if one your friends posts something 20 on their wall, it shows up on your page? 21 A. Correct. 22 Q. Drawing your attention to June 23rd, 23 2010, did you receive any posts on your wall from Ms. 24 Rubino? 25 A. Yes.

254 1 SENATORE - DIRECT - GAMILS 2 Q. Can you explain to us what occurred? 3 A. Regarding that specific post, right? 4 Q. Correct. 5 A. Okay. Yeah, I was--may I talk about 6 the incident the day before? Just about, you know, 7 about regarding the post. 8 Q. Well, why don't you tell us what 9 happened on June 23rd, 2010?

10 A. Okay. 11 Q. Involving Ms. Rubino's Facebook page. 12 A. I read a post that I was kind of upset 13 by and I wasn't sure how to proceed. But it was based 14 on something that happened the day before and in the 15 media and, you know, did upset--was like a terrible 16 tragedy and it upset us. 17 Q. What are you--what are you referring 18 to, what event? 19 A. There was a public school that had 20 taken a trip to the beach or something. And I'm not 21 sure what borough it is, but a student had drowned in-22 -I'm not sure -- but there was -- that a student had 23 died on a school trip. 24 Q. And what happened in relation to that 25 following day, on June 23rd, 2010?



255 1 SENATORE - DIRECT - GAMILS 2 A. Well, the comment that I read was, you 3 know, was kind of related to that incident and the 4 nature of the comment, that's what was kind of 5 upsetting. 6 Q. What was the comment, do you recall? 7 A. Not word-for-word. 8 Q. Is there anything I can provide you 9 that would refresh your recollection?

10 A. I mean if you have a copy of the 11 comment. 12 MR. GAMILS: I'm going to hand the witness 13 what's been marked as Department's Exhibit, I believe, 14 7. 15 THE HEARING OFFICER: Go ahead. 16 Q. Mr. Senatore, do you recognize that? 17 A. Yes, yes. 18 Q. Does that refresh your recollection as 19 to the comment? 20 A. Yeah, it does. 21 Q. What was the comment? 22 A. May I read it? 23 Q. Does that--do you remember now? 24 A. Yeah. Well, yes. Yes I don't 25 remember it word-for-word. I remember basically what,

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256 1 SENATORE - DIRECT - GAMILS 2 you know, the content was. 3 Q. And what was the comment? 4 A. Well, no, just bringing up the 5 incident with the trip, saying that, you know, maybe 6 it was good idea for her--for her students to go on 7 that trip. 8 Q. Looking at Department's Exhibit 7, 9 specifically the two lines after it reads Christine

10 Doro [phonetic] Rubino, is that the posting that 11 you're referring to? Is that the posting that you 12 read? 13 A. Yes. 14 Q. Okay. And the significance of the 15 Christine Doro Rubino, what is that? 16 A. Well, that's her--that's her name. 17 Q. Okay. Is that also her name on 18 Facebook? 19 A. I--to my knowledge, I think so, yes. 20 Q. And when you first saw this posting, 21 how did you observe it? 22 A. How? On the computer. And, you know, 23 just like the original comment and then the two 24 comments afterwards. 25 Q. Did you observe all three comments at

257 1 SENATORE - DIRECT - GAMILS 2 one time or did you observe them as they were being 3 posted? 4 A. I believe they were all--it was all 5 together. 6 Q. And what did you do when you read 7 these comments? 8 A. Well, like I said, you know, I upset 9 by the comments but I wasn't--really didn't know how

10 to proceed. But I, you know, really think that there 11 could have been a problem if, you know, it could 12 somehow--whatever, it came to light or, you know, just 13 the fact that the things that comment said. So I-- 14 Q. [Interposing] Let me just stop you 15 right there. 16 A. Okay. 17 Q. Why did that upset you? 18 A. Because it was--I mean it was a 19 terrible tragedy that that happened to that, you know, 20 to that student. I don't know if it was a girl or a 21 boy. And, you know, this was almost like, you know, 22 making light of it. And I just, you know, I just 23 imagined if, like, somehow the--whatever, the parent 24 of the child that passed away had read something like 25 that or whatever, how it, you know, how upsetting it

258 1 SENATORE - DIRECT - GAMILS 2 would be, or any parent, you know, for that matter, if 3 they read that. 4 Q. Now, once you read these comments, 5 what did you do? 6 A. I contacted my supervisor. Really, it 7 was my--initially, it was--it was to get, you know, 8 advice about how, you know, maybe how I should handle 9 it or if I should, you know, do something about it.

10 Q. Who was your supervisor? 11 A. Mr. Sadowski. And I wasn't really 12 specific or anything, you know, initially. I just 13 told him I became aware of something that was--that 14 was, you know, potentially harmful and upsetting. And 15 he--you know, he had directed me that he needed to, 16 you know, me to pass the information over to him, 17 which I then did. 18 Q. During this phone conversation, did 19 you tell him what the comments were? 20 A. At the end, before I did--before I did 21 send it, yes. 22 Q. And did you identify-- 23 MR. GLASS: [Interposing] Objection. Just 24 he said phone conversation. I don't we established-- 25 A. [Interposing] Oh, by phone. Yes, I



259 1 SENATORE - DIRECT - GAMILS 2 contacted him by phone, sorry. 3 THE HEARING OFFICER: Okay. 4 A. Sorry. 5 Q. During--I'm sorry. During this phone 6 conversation, did you read him the comments? 7 A. I'm not sure if I read them exactly. 8 Q. Okay. 9 A. Word-for-word, I'm not--that, I don't

10 recall. 11 Q. Did you tell him who made the 12 comments? 13 A. Before--I did not initially but before 14 I had sent them, yes, I did because he would know 15 anyway if I sent them. 16 Q. And then, after that phone 17 conversation, what did you do? 18 A. That's it. He just said he would 19 handle it from there. And I didn't know what the 20 outcome was going to be or, you know, whatever. I 21 didn't hear any--I didn’t hear anything of this until 22 this year. 23 Q. Well, besides calling Mr. Sadowski, 24 did you do anything else? 25 A. Oh, I'm sorry. I'm sorry, yes. Oh,

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260 1 SENATORE - DIRECT - GAMILS 2 well I had to--when I sent it to him, I had to email 3 him the comment. 4 Q. Now, I'm going to hand you what's been 5 marked as Department's Exhibit 7. 6 A. Okay. 7 Q. Do you recognize that? 8 A. Yes. 9 Q. What is it?

10 A. That's just the comments that I had 11 copied and then sent, emailed to Mr. Sadowski. 12 Q. When you copied these, were they 13 copied from your page or from Ms. Rubino's page? 14 A. From my page. 15 Q. And I notice that there are several 16 boxes that have X's and hyperlinks. Do you know what 17 information is contained in those boxes? 18 A. I would think it would be the photo, 19 maybe, because there's no--I don't think--I don't 20 think the photo would show up in--if you just copy and 21 page. 22 Q. Looking at Department's Exhibit 2, to 23 compare that. I noticed that there are pictures and 24 then postings on this exhibit. Would that be the same 25 set up as to your cut and paste without the

261 1 SENATORE - DIRECT - GAMILS 2 photographs? 3 A. Yes. Those are the--that's the only 4 thing that's different is--so that would probably be 5 the photographs that were missing. 6 Q. Now, I noticed there is some redacting 7 on the page. 8 A. Uh-huh. 9 Q. I know that you didn't do that

10 redacting. Do you know the order--do you know how 11 this was sent to Mr. Sadowski? 12 A. What do you mean how? 13 Q. How did you email--well, how did you 14 send it to him? 15 A. By, you know, copy. You know, 16 copying, pasting, and then just putting it into a--in 17 an email and sending it over to him. 18 Q. Okay. And what email address--not, 19 without saying what the address is, did you use a 20 private or a New York City address? 21 A. Oh, no. It was not the Departments. 22 It was a non-Department of Education email. 23 Q. And what email address did you send it 24 to, to reach Mr. Sadowski? Was it a private or a 25 public email?

262 1 SENATORE - DIRECT - GAMILS 2 A. I believe it was also, again, not a 3 Department email. 4 Q. Okay. 5 MR. GAMILS: Now, just to--I'm going to hand 6 the witness an unredacted copy because I think we 7 wanted clarification on the email, on what the lines 8 represent. Do we still want that done? 9 THE HEARING OFFICER: Yes, please.

10 MR. GAMILS: Okay. I'm going to hand the 11 witness a copy of the unredacted email, which is 12 Department's Exhibit 7. 13 Q. Now, looking at the lines, can you 14 just tell us what lines reflect your personal email 15 and the email address that you sent that to? 16 A. Okay. Well, that would be mine. 17 THE HEARING OFFICER: Okay. 18 A. On the redacted? Oh. Where would it 19 be? Over here? 20 Q. Well, it's exactly the same, so. 21 MR. GLASS: What's the top line, first? 22 THE HEARING OFFICER: Yeah. 23 A. The top--the top lines would be Mr. 24 Sadowski's and the bottom, with the next pair, the top 25 one would be mine and the to would be, again, Mr.



263 1 SENATORE - DIRECT - GAMILS 2 Sadowski's. And mine only--mine only appears once on 3 there. 4 Q. And where is that? 5 A. At the second pair, the first--the 6 first line, top line. 7 MR. GAMILS: So the fourth redacting line, 8 the witness is indicating, represents his personal 9 email address.

10 Q. And then you sent-- 11 A. [Interposing] Oh, you count this one 12 too, right? One, two, three, four. 13 Q. Correct. 14 A. Okay, okay. 15 Q. Correct. 16 A. Okay. 17 Q. Then which lines are Mr. Sadowski's 18 personal email address? 19 A. It would be all the other lines. 20 MR. GAMILS: Would the Hearing Officer like 21 to compare these? 22 THE HEARING OFFICER: May I? 23 [Pause] 24 MR. GLASS: Can I follow this? 25 THE HEARING OFFICER: As I read it, the top

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264 1 SENATORE - DIRECT - GAMILS 2 from is Mr. Sadowski's personal email address. The 3 middle from the to are both Mr. Sadowski's personal 4 email addresses, as if you would send something from 5 yourself to yourself. The third from is Mr. 6 Senatore's personal email address. And then the to is 7 Mr. Sadowski's personal email address, which is the 8 same email address as the top three redactions. 9 MR. GLASS: Okay.

10 MR. GAMILS: And just for Department 11 purposes, where it says Mr. Sadowski's name, under our 12 system, that's--his email address won't appear because 13 he's an employee of the system. So that name is 14 represents his work email. 15 THE HEARING OFFICER: I understand. Where 16 it says to and you didn't redact out his name and it 17 says 22k2o3. 18 Q. Now, prior to receiving--well, strike 19 that. Do you recall approximately what time you 20 observed those postings to your wall from Ms. Rubino's 21 Facebook page? 22 A. It was--not exactly. It was in the 23 afternoon, after 3:00. I'm not sure exactly what 24 time. 25 Q. Earlier that day, did you have a

265 1 SENATORE - DIRECT - GAMILS 2 conversation on Facebook about the death of the 3 student the day before? 4 A. I believe I may have, yeah. Someone 5 posted something, you know, about what a tragedy it 6 was. I believe I commented on it. 7 MR. GAMILS: I'm going to hand the witness 8 what's been marked as Respondent's Exhibit 2. 9 Q. Do you recognize that conversation at

10 all? 11 A. Yes. 12 Q. and what is it? 13 A. That was Ms. Rubino had posted, 14 commented that the incident had happened and the rest 15 of us are just saying, you know, what a terrible 16 tragedy it was, basically. 17 Q. Was--at that time, was Ms. Rubino's 18 comment inappropriate about the tragedy? 19 A. This-- 20 THE HEARING OFFICER: [Interposing] You're 21 asking for his opinion? 22 MR. GAMILS: Correct. 23 A. This specific comment, this comment 24 right here? No, I don't think so. 25 Q. Were you surprised, later that day, to

266 1 SENATORE - DIRECT - GAMILS 2 receive a posting from Ms. Rubino with a different 3 tone? 4 A. Yes, I was. It was, you know, it was 5 just--it was like, you know, shocking to hear 6 something like that. 7 Q. Now, after emailing this information 8 to Mr. Sadowski, did you have--did you take any other 9 steps?

10 A. No because he--you know, he told me he 11 would handle it. I had no idea what, you know, what 12 he was going to do with the information. He didn't 13 tell me anything. And I didn't hear anything until 14 this year, you know, when the special investigator 15 came to--was questioning me about it. 16 Q. Did you want to remain anonymous in 17 your report? 18 A. I mean the thing I wasn't--it wasn't 19 even like even reporting. I mean he--Mr. Sadowski had 20 made the, you know, made the complaint and the 21 investigator had told me that he was going to, you 22 know, withhold me name at that point. He was going 23 to--you know, after, you know, the steps were being 24 taken, he told me he was going to withhold me name. 25 At that point, I kind of was--



267 1 SENATORE - DIRECT - GAMILS 2 THE HEARING OFFICER: [Interposing] Can you 3 answer the question he asked you? 4 Q. Did you--strike that. I'll ask 5 another question. 6 THE HEARING OFFICER: Because I didn't--I 7 didn't hear any answer to that question. 8 Q. Did you ask--did you ask Mr. Sadowski 9 to keep you--keep you anonymous in reporting this

10 incident? 11 A. No because I didn't know he was 12 reporting the incident. 13 Q. Did Mr. Sadowski ever tell you that he 14 was reporting the incident? 15 A. No, he did not. 16 Q. Did you have any conversations with 17 Mr. Sadowski prior to speaking with the investigator, 18 expressing your wish to remain anonymous? 19 A. No, it did not. 20 Q. Did you tell the investigator that you 21 wish to be anonymous? 22 A. Well, yeah. He had told me that 23 that's what he was going to do, when he spoke to me. 24 After he questioned me he said--he says, oh, your name 25 will remain anonymous.

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268 1 SENATORE - DIRECT - GAMILS 2 Q. Did you ever ask him to keep your name 3 anonymous? 4 A. I didn't ask him because he--that's 5 what he told me he was going to do. 6 Q. Did you want to remain anonymous? 7 A. At that point, you know, I would think 8 so. 9 Q. And why?

10 A. Well, just something--just for my best 11 interest because, you know, in a sensitive matter like 12 that, you know, we just--you wouldn't want your name 13 to come out as, you know, someone that people would 14 think reported, you know, reported something. 15 Q. Did you ever speak to Ms. Rubino about 16 the posting? 17 A. No, it did not. 18 Q. Did there come a time when you ever 19 apologized to Ms. Rubino? 20 A. No because they had--when the 21 investigator he had me that, you know, please don't--22 do not speak to anybody about this. So I could not--I 23 really didn't tell anybody this information. And, 24 like, what one of the things he said, you know, do not 25 discuss this with anybody, especially Ms. Rubino. And

269 1 SENATORE - DIRECT - GAMILS 2 I didn't say anything before that because I didn't 3 know what, you know, what was to become of--become of 4 it. 5 Q. Now, just going back to Department's 6 Exhibit 7, when you cut and posted this--cut and 7 pasted it, there's a time indicated, correct? 8 A. Correct. 9 Q. Can you explain to us what the time

10 indication means? 11 A. Well, six hours ago, that would refer 12 to approximately how long ago the comment was--the 13 original comment by Ms. Rubino was made compared to 14 the time I cut and pasted it. And then the following 15 comment, that would be five--you know, it says five 16 hours ago. So that comment was made by Mr. Lavine an 17 hour after, I guess, Ms. Rubino made her original 18 comment, approximately. 19 Q. And on this cut and paste does it 20 indicate how much longer the third comment was made? 21 A. No, there's no time frame for the 22 third comment. 23 Q. Okay. Would it have to have--based on 24 the set up on the page, would it have had to been 25 after the comment from Scott Lavine?

270 1 SENATORE - DIRECT - GAMILS 2 A. Yeah. It would have to be after that 3 and also, obviously, before he posted it. The rest of 4 them wouldn’t have been--they wouldn't have been on 5 there. And before I cut and pasted it because it 6 wouldn’t have been on there then. 7 MR. GAMILS: I have no further questions at 8 this time. 9 THE HEARING OFFICER: Mr. Glass?

10 MR. GLASS: I need some time. 11 THE HEARING OFFICER: A few minutes, sure. 12 Off the record. 13 [Off the record] 14 [On the record] 15 THE HEARING OFFICER: Back on the record. 16 Just to revisit something that I was holding off on 17 until one thing. -- copy of the statute but Mr. 18 Gamils provided it during our most recent break. 19 Under the statute Conduct of Hearing, subsection B, it 20 says that it is at the Arbitrator, or I should say 21 Hearing Officer's, discretion to exclude any persons 22 other than parties and witnesses and their attorneys 23 from any portion of the hearing where such exclusion 24 is warranted for the protection of the privacy or 25 reputation of any person under the age of 18 years.



271 1 SENATORE - DIRECT - GAMILS 2 Therefore, it lies within my discretion to close the 3 hearing to the public during the course of testimony 4 of minor witness, which I will do. 5 MR. GLASS: I'd just like to make a record 6 on that because-- 7 THE HEARING OFFICER: [Interposing] You can 8 make a record on that. Go ahead. 9 MR. GLASS: My understanding is that

10 there've been at least four case--from what I believe, 11 you can close the hearing -- . 12 THE HEARING OFFICER: Excuse me? 13 MR. GLASS: I've heard in the previous case 14 you didn't close the record on a similar application. 15 THE HEARING OFFICER: Can you tell me which 16 case that was? 17 MR. GLASS: I was told. At least I can get 18 it for you now. I can't--I'd have to go off the 19 record to do that. And at least three other cases 20 we're aware of where these hearings have not been 21 closed. 22 THE HEARING OFFICER: That's true but it 23 does say in his or her discretion. And I would assume 24 that-- 25 MR. GLASS: [Interposing] Well, I'm saying

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272 1 SENATORE - DIRECT - GAMILS 2 in your discretion-- 3 THE HEARING OFFICER: [Interposing] My 4 discretion is my discretion. 5 MR. GLASS: But what in particular did he 6 articulate to make this closed? What factors are you 7 relying upon? I'd like to make a record of that 8 because I don't see--I didn't see or hear anything 9 that articulated a reason why you would close it.

10 THE HEARING OFFICER: In my discretion, I am 11 closing the hearing while minor witnesses are 12 testifying, not during the course of the hearing when 13 people over the age of maturity are testifying but 14 while minor witnesses are testifying. And if that is 15 interspersed from the witnesses who are--as I assume 16 Mr. Senatore appears to be over the age of maturity, 17 then those portions of the hearing will then be 18 reopened and then closed again if another minor 19 witness is here. 20 MR. GLASS: Is there a rationale for that 21 that you're giving or just-- 22 THE HEARING OFFICER: [Interposing] It is my 23 discretion. That's what the statute says. That's my 24 rationale. 25 MR. GLASS: I'd just like to make a record

273 1 SENATORE - DIRECT - GAMILS 2 that-- 3 THE HEARING OFFICER: [Interposing] You did. 4 MR. GLASS: No, I'm just saying that there 5 is other cases that I don't think there was--I 6 understand it is within your discretion. I'm not 7 disputing that. I'm just saying that given the 8 factors that were articulated by Mr. Gamils, I don't 9 think that--I'm more concerned about the opposite

10 effect that it has in empowering witnesses or molding 11 witnesses who don't fear the limitation on their 12 testimony being public. 13 THE HEARING OFFICER: I'm not excluding you, 14 Mr. Glass. 15 MR. GLASS: I understand that. 16 THE HEARING OFFICER: And you will have 17 every opportunity to examine these witnesses. And 18 should you chose to leave this room and shout from the 19 rooftops, I can't stop you from doing that. What I 20 can exclude are people who are not parties. 21 MR. GLASS: All right, since it's your 22 discretion. I'm just saying I don't see a basis for 23 it. I think -- says the discretion the other way. 24 THE HEARING OFFICER: Well, that was the 25 request.

274 1 SENATORE - DIRECT - GAMILS 2 MR. GLASS: Yeah. 3 THE HEARING OFFICER: But it is, as it says, 4 within my discretion. Having exercise my discretion, 5 and I've heard you and you have made a record of it, 6 but I'm sorry. Moving on to the cross-examination. 7 MR. GLASS: All right. 8 CROSS-EXAMINATION9 BY MR. GAMILS

10 Q. Mr. Senatore, you said you've known 11 Ms. Rubino for quite some time, right? 12 A. Yes. 13 Q. For over ten years would you say? 14 A. Yes. 15 Q. And you had conversations with her in 16 the school? 17 A. Yes. 18 Q. And had commented on her Facebook 19 postings before? 20 A. I'm sure I did. I couldn't say how 21 many times. 22 Q. Okay. And has she commented back on 23 your postings at all? 24 A. Probably. 25 Q. All right. And you--



275 1 SENATORE - CROSS - GLASS 2 MR. GAMILS: [Interposing] I'm sorry. Just 3 for clarification, are we talking about on Facebook or 4 in real life? 5 MR. GLASS: On Facebook. 6 MR. GAMILS: All right, not in person? 7 Q. So, on Facebook, you've actually had 8 comments back and forth with her? 9 A. Yeah, yes.

10 Q. Okay. And, in fact, that very day, in 11 the morning, you saw a posting that she had posted 12 about the drowning and you, in fact, commented on it, 13 right? 14 A. Right. 15 Q. And did it occur to you when you 16 commented on this that you might be putting your 17 employer in a bad light by your comment? 18 A. At that time or-- 19 Q. [Interposing] At the time you posted 20 it. 21 A. At the time I posted that initial-- 22 Q. [Interposing] I'm talking about 7:11 23 a.m. on June 23rd, 2010, you posted a comment. 24 A. Right. 25 Q. That said I heard that this morning

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276 1 SENATORE - CROSS - GLASS 2 some terrible and totally irresponsible and negligent 3 from all the adults involved in planning this thing. 4 Now, some of the adults you're talking about are the 5 DOE people who organized this trip, correct? 6 A. Or all the people going, the staff 7 that was going on the trip. 8 Q. And those staff members are-- 9 A. [Interposing] Right.

10 Q. --members of the DOE? 11 A. Right, right. 12 Q. Correct? 13 A. Right. 14 Q. And by calling them negligent, in 15 fact, you're obviously suggesting there might be some 16 kind of liability the DOE can face, correct? 17 A. Well, the child--I mean if a child 18 dies, I mean I would assume someone was being 19 negligent. 20 Q. And who may bear the cost of that 21 negligence? Your employer, correct? 22 MR. GAMILS: I’m going to object. Mr. 23 Senatore is not legal counsel for the Department of 24 Education. I don't think he's qualified to answer 25 these questions.

277 1 SENATORE - CROSS - GLASS 2 THE HEARING OFFICER: Sustained. 3 Q. Well, did you think about the 4 consequences when you posted that about how this might 5 reflect on your employer? 6 A. No. 7 Q. Okay. And has any--has your employer 8 questioned you about this comment in any--in any way? 9 A. How would my employer know about this

10 comment? 11 Q. Well, did you--did you tell Mr. 12 Sadowski about this conversation you had with Ms.--13 that there was a previous Facebook posting earlier 14 that same day, before the comment you posted--before 15 the comment you revealed to Mr. Sadowski? 16 A. No, I don't think that--I don't think 17 this one was discussed with him. 18 Q. You chose not to disclose it, correct? 19 A. Well, I didn't think it needed to be 20 disclosed. 21 Q. Why not? 22 A. Well-- 23 MR. GAMILS: [Interposing] Objection. 24 THE HEARING OFFICER: I'll allow it. I'll 25 allow it.

278 1 SENATORE - CROSS - GLASS 2 Q. Why not? 3 A. Because I didn't--why would it need to 4 be--well, why would it need to be disclosed? 5 Q. Don't you think--don't you think it 6 would have been fair to Ms. Rubino to talk about her 7 previous comment which you didn't find inappropriate 8 in the same day to give some context of what had been 9 said later in the day?

10 A. Well, I mean I don't think--I don't 11 think one comment has to do with the, you know, has 12 bearing on the other one. People make hundreds of 13 comments on Facebook. 14 Q. Yes but the first comment she made, 15 you didn't find to be inappropriate, correct? 16 A. No, of course not. It wasn't. 17 Q. Okay. And why didn't you just tell--18 talk to her that day and say, you know, Christine, I 19 think this might be a little overboard. Why don't you 20 remove it? 21 A. That could have been an option too. 22 You know, I didn't--I chose not to go that route and 23 i--that's why, you know, I was--I did seek advice from 24 my, you know, assistant principal, you know, how to 25 proceed. And, you know, that's what he told me to do.



279 1 SENATORE - CROSS - GLASS 2 Q. Well, you found out--you found out 3 about this, what, about 3:00 you saw the post? 4 A. In the afternoon. I'm not sure 5 exactly what time. 6 Q. Right. But you didn't--you didn't 7 report this until, like, 9:30 at night, right? 8 A. Yes, it was--it was later on. So I 9 do--I do work, you know, in--I don't leave the

10 building till about 6:00, so. 11 Q. Did you mentioned it to Mr. Sadowski 12 while you were in school? 13 A. I don't--no, I don't think so, no. 14 Q. How long have you known Mr. Sadowski? 15 A. Since he's been working at the school. 16 Q. How long has that been? 17 A. Probably maybe three years, I would 18 say. 19 Q. Is he your direct supervisor? 20 A. Well, Ms. Esposito is the principal of 21 the school. He's a direct supervisor for the upper 22 grades. 23 Q. Did he--did you see him that evening 24 outside the school? 25 A. No.

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280 1 SENATORE - CROSS - GLASS 2 Q. Do you ever see him outside the school 3 socially? 4 A. At, like, parties and stuff. You 5 know, some, you know, teacher gatherings and stuff, 6 you know, there are Christmas parties. 7 Q. When was the last time you saw him 8 physically out of school before you made--before that 9 day?

10 MR. GAMILS: Objection to the relevance of 11 seeing Mr. Sadowski outside the school. 12 THE HEARING OFFICER: Before--hang on. I'm 13 trying to find out where you're going with this in 14 order to rule on the objection. Before June? 15 Q. Before June 23rd, have you seen him 16 socially June 22nd that night? 17 A. I couldn't tell you. 18 THE HEARING OFFICER: I'll allow it. 19 A. I don't know. I don't think--I don't 20 know what I did June 22nd. 21 Q. How frequently did you see him outside 22 of the school? 23 A. No, not frequently. 24 Q. More than once a week? 25 MR. GAMILS: I'm going to renew my

281 1 SENATORE - CROSS - GLASS 2 objection. I don't know if there's any relevance of 3 Mr. Sadowski seeing Mr. Senatore or opposite or not 4 seeing them. 5 THE HEARING OFFICER: I'll allow it. I'm 6 not sure what the relevance is either, but I'll allow 7 the question. 8 Q. Was it--was it more than once a week? 9 A. No.

10 Q. How would you characterize your 11 relationship with Mr. Sadowski? 12 A. He is my supervisor. We, you know, we 13 did, you know, kind of talk, you know, about other 14 things because, you know, he is close to my age. He 15 went to the same high school as myself. So it was--16 you know, honestly he was a different type of 17 relationship then maybe I would have with the 18 principal because that's someone I see as more as my 19 senior and my--so it just--and the fact that he's a 20 man too and I’m a man, so. But it was--you know, we 21 talked. WE joked around and whatever. It's just like 22 it was nothing. It was never any-- 23 Q. [Interposing] Does he have a Facebook 24 account? 25 A. I don't know.

282 1 SENATORE - CROSS - GLASS 2 Q. You don't know? 3 A. I’m not--I'm not a friend of his on 4 Facebook. He might. 5 Q. Now, how did you first communicate 6 this to him? 7 A. By telephone. 8 Q. Did you send--did you forward the 9 comment to him first before you spoke to him on the

10 telephone? 11 A. No, I spoke to him first. 12 Q. What time did you call him? 13 A. Again, it was in the evening. I'm not 14 sure exactly what time. 15 Q. Why didn't you wait till the next day? 16 Why 9:30 at night? 17 A. That's when I decided to call him. 18 Q. What, exactly, did you say to him when 19 you called him? 20 A. I don't know the exact particulars. I 21 said--I told him--you know, I told him I was aware, 22 you know, of a possibly dangerous comment that was 23 made and I was asking him how--if I should do 24 anything, speak to the person, or how we should 25 proceed with something like that because I felt this



283 1 SENATORE - CROSS - GLASS 2 comment could be damaging, you know. He said he 3 needed, you know, he would--he asked me that I send 4 him the information. 5 Q. So you asked him if you should speak 6 to the person first and he said-- 7 A. [Interposing] Well, I said how--I said 8 how should, you know, how should this be handled. And 9 he says I--you know, if--and I kind of told him the

10 details of the comment without disclosing anyone's 11 name. And, you know, after hearing that, he's like, 12 you know, I do need to know, you know, I need to see 13 who this person was and I need to be--I need the 14 comment. 15 Q. Did you tell him the exact comment on-16 - 17 A. [Interposing] I don't think I told him 18 what was--I don't think I told him exactly over the 19 phone but I--you know, at that point, I just sent it 20 to him, so. 21 Q. But you presented the option to him of 22 perhaps you just talking to the person that posted it 23 and he rejected that? 24 A. Yeah because he did ask me for the 25 comment. That was his--that's what he--that's what

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284 1 SENATORE - CROSS - GLASS 2 he, you know, said he, you known, that that should be 3 done, that-- 4 Q. [Interposing] No, my question was you 5 suggested to him as one of the alternatives perhaps 6 just speaking to the teacher? 7 A. Yeah, I believe--I believe I did, 8 yeah. 9 Q. And he rejected--he rejected that,

10 right? That yes or no? 11 A. Well, he decided--he just said I’m 12 going to need the comment. He didn't really say that, 13 you know, because he said this is what needs to be 14 done. 15 Q. And were you reluctant to give it to 16 him? 17 A. Well, I mean just honestly, again, my 18 goal was not get anyone, you know, get anyone in 19 trouble. I thought it needed to be dealt with, 20 definitely. But, you know, I didn't want to decide in 21 the matter how but--in the manner how. But so-- 22 Q. [Interposing] My question was were you 23 reluctant to disclose to him, you know, the identify 24 of who put the comment on? 25 A. Well, anytime you turn information

285 1 SENATORE - CROSS - GLASS 2 over then you always, you know, whether it's 3 appropriate or not, you still feel like, you know, 4 that you're, you know, betraying someone. 5 Q. Had you ever turned over information 6 before? 7 A. No, not a post, no. 8 Q. And there's never an opportunity that, 9 you know, required it. I’m not saying that I wouldn't

10 if there was an opportunity that, you know, was a 11 serious situation because that's our job as, you know, 12 as teachers. 13 Q. Do you know a Lauren Coda? 14 THE HEARING OFFICER: I'm sorry? 15 MR. GLASS: Lauren Coda, CODA. 16 A. Yes. 17 Q. Have you had any conversations with 18 her about this recently? 19 A. Yeah, I did speak to her briefly the 20 other day. 21 Q. In what context? 22 A. In what context? Well, a lot of 23 things were being miscommunicated in our school, 24 number one, about the person that did this, you know, 25 meaning me. Before they even knew it was me. And I

286 1 SENATORE - CROSS - GLASS 2 mean I really wanted Christine to know that, you know, 3 it was--it wasn't against personally being against 4 her. And that's how it seemed like it was being 5 communicated in the school, which I thought was unfair 6 to me. That I thought I wasn't being represented, you 7 know, that my, you know, my name--I now became the 8 enemy and the person that sets out to get somebody and 9 that wasn't the case. And I really couldn't talk to

10 Christine about it because I was directed not to, you 11 know, not to say anything at all. But I-- 12 Q. [Interposing] So you wanted--did you 13 want Ms. Coda to pass that on? 14 A. Well, I just wanted to-- 15 Q. [Interposing] I'm sorry. Did you ask 16 Ms. Coda to pass a message on to Christine that you 17 feel sorry about the whole situation? 18 A. Well, I was--it's an unsettling 19 situation for all of us. And I'm--but it was almost, 20 you know, intimated in the school that I purposely did 21 this to try to get Ms. Rubino for some reason. Which 22 was preposterous because I, you know, there was 23 definitely no goal or motive behind it. And I didn't 24 know--I mean I take, you know, accountability for the, 25 you know, forwarding the comment but that's it. There



287 1 SENATORE - CROSS - GLASS 2 was no--and I didn't want it to be--I mean for my own 3 reputation too, I didn't want--I didn't want the staff 4 to think that I was--that I would just try to get 5 somebody, you know, fired or in trouble for whatever--6 for whatever reason because I have nothing against Ms. 7 Rubino personally. 8 Q. In fact, don't you--don't you and Ms. 9 Rubino have other mutual Facebook friends in the

10 school? 11 A. Yes, we do. As Mr. Gamils said, yes. 12 Q. And did any of these other teachers 13 report this comment on Ms. Rubino? 14 A. I don't--I don't think so, not to my 15 knowledge, no. 16 Q. Did you have any conversations with 17 them about what Ms. Rubino has said or what allegedly 18 was-- 19 A. [Interposing] No one in the school--I 20 don't think it was--no one really discussed it. 21 Q. Do you know if Mr. Rubino has other--22 gives access to her account to other people? 23 THE HEARING OFFICER: I'm sorry. 24 A. Could you repeat that? 25 THE HEARING OFFICER: Hang on for a second.

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288 1 SENATORE - CROSS - GLASS 2 I don't know what that means. 3 Q. Do you know if Ms. Rubino gives access 4 to her Facebook--does she let other people post on her 5 Facebook account? 6 A. I wouldn't know. 7 Q. Do you know a Joanne Engle by any 8 chance? 9 A. No. What was the last name?

10 Q. Joanne Engle. 11 A. No. 12 Q. When did the investigator first come 13 to talk to you about this? 14 A. I believe in October, November. I'm 15 not sure of the exact date but it was in the fall. 16 Q. So prior to--so the investigator 17 didn't come to you until October, you're saying, 18 right? 19 A. Correct. I didn't hear anything. 20 After forwarding the message, I did not hear anything 21 of the situation until the investigator came to speak 22 to me, several months later. 23 Q. Did you notice whether that comment 24 was even on the page as of October, November? 25 A. No, I don't even--I wouldn't even know

289 1 SENATORE - CROSS - GLASS 2 if it was on there. I couldn't say. 3 Q. Do you know if it was ever pulled 4 down? 5 A. I couldn't say for sure. 6 Q. You had access to the--when did you 7 stop your Facebook friends with-- 8 A. [Interposing] Well, I mean after that 9 incident I did--I did drop--I did, you know, drop

10 friends and some friends in school and some I put back 11 because--and because it's like--you know, it's a 12 difficult situation to in your workplace to have, you 13 know, a lot of--a lot of people find that to not to 14 have--to be friends with people you work with and so, 15 you know, I was torn between--so I did get rid of a 16 lot of friends and I--and I took some back. 17 Q. My question, sir, is when did you--18 when did you drop Christine? 19 A. I-- 20 MR. GAMILS: [Interposing] I'm sorry to 21 interrupt. I have to use the restroom. Can we just 22 take two seconds? 23 THE HEARING OFFICER: Sure. Off the record. 24 MR. GAMILS: I'm sorry. 25 [Off the record]

290 1 SENATORE - CROSS - GLASS 2 [On the record] 3 THE HEARING OFFICER: Back on the record, 4 please. Go ahead, Mr. Glass. 5 Q. Now, I asked before and you didn't 6 really answer. When did you drop Ms. Rubino as a 7 Facebook friend? 8 A. I don't have the exact date. 9 Q. Was it right after? Was it weeks

10 after, a month after? 11 A. I don't think it was right after. 12 That's all--that's all I'm sure of. 13 Q. So did you notice whether, in fact, 14 she actually pulled the comment down before you 15 removed her as a Facebook friend? 16 A. Again, it's--I'm not sure. 17 Q. So it's possible it was gone, you 18 know, like the next day? 19 A. Because, you know, people post so many 20 comments and things afterwards to--it would--just 21 takes a long time just to scroll all the way back to 22 see. It could take, like, ten, 15 minutes just to go 23 back a week. And I wasn't sitting there doing that. 24 Q. And, after you--so Sadowski, that 25 conversation was--when was the conversation with



291 1 SENATORE - CROSS - GLASS 2 Sadowski on the phone? That was the next day, the 3 24th? That was the same day, right? 4 A. That was the same day that was before 5 that it was sent. 6 Q. Okay. And what did Sadowski tell you 7 at the end--at the end of that conversation, what he 8 was going to do? 9 A. He said he would just handle it and

10 thank you and that's it. He did not say what he was 11 going to do or if I--if he wanted -- something. He 12 just said, oh, thank you and that's it. And, like I 13 said, I did not hear anything about it until the fall. 14 Q. So the investigative report says--the 15 investigation says you were interviewed on October 16 12th. Does that-- 17 A. [Interposing] That sounds--yes. I 18 said October or November, yeah. 19 Q. So you didn't hear a thing about this 20 from Sadowski or anyone after? 21 A. No. 22 Q. Do you know if Ms. Rubino was even 23 alerted to anything between June 24th and October 24 13th, when the comment was made? 25 A. If she--if she was alerted to

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292 1 SENATORE - CROSS - GLASS 2 something, I wasn't aware that she was. 3 Q. Did Sadowski tell you that she was 4 going to talk to Rubino about this? 5 A. No, he didn't say--he did not say 6 anything to me about what was--what was, you know, how 7 he was going to proceed. I was--I said I was kind of 8 surprised when they called me by the investigator. 9 Q. How were you called in by the

10 investigator? Just explain what happened that day. 11 A. They just called me to the office and-12 - 13 Q. They, who is they? 14 A. I think it was Ms.--it might have been 15 Mr. Sadowski or Ms. Esposito because I was in chorus 16 at the time. And then called me to be in chorus to go 17 to the office. 18 Q. So you got to the office and who was 19 present? 20 A. He was--an investigator was there and 21 it might have been either one of them, one of the 22 administrators. I’m not sure if Ms. Esposito was 23 there. She might have been there. 24 Q. Was it one investigator or two? 25 A. It was definitely one investigator.

293 1 SENATORE - CROSS - GLASS 2 3 A. I don't recollect his name. I have 4 his card somewhere at home. 5 Q. And one of the administrators was 6 there? 7 A. Yes. 8 Q. Either Sadowski or Esposito? 9 A. Yes, one of them was there.

10 Q. Had you had any conversations with 11 Esposito about this-- 12 A. [Interposing] No. 13 Q. --at any time prior to this? 14 A. No, no. 15 Q. She never approached you to ask any 16 questions about this? 17 A. No. 18 Q. Okay. And what happened? Who was 19 talking at this--during this meeting? 20 A. He speak--most of the talking was done 21 by the investigator. He was just asking, you know, 22 asking me again how--about if I did send, you know, 23 forward the comments to Mr. Sadowski. And basically 24 that was it. And he--I mean he did say my name was 25 going to remain anonymous and it was basically--it was

294 1 SENATORE - CROSS - GLASS 2 ten minutes and that was it. And he left. 3 Q. He was the one who told you directly 4 that it was--you were going to--he was going to keep 5 you anonymous? 6 A. He--I mean that's what he said, right. 7 I did not--I did not ask him. He, you know, he said--8 but was--but that's what they always seen to tell you, 9 right? You know, that you're names--

10 Q. [Interposing] You've had this 11 experience before? 12 A. No, I'm saying but like, you know, 13 when people make a report and they would like to be 14 anonymous, you'll be anonymous. 15 [Crosstalk] 16 A. That's like the rule of thumb that you 17 would think that the person, the reporter or whatever 18 is going to remain anonymous. That's just, you know, 19 I think we all assume that. 20 Q. Well, did he also tell you that your 21 identity may have to be disclosed at some point during 22 that conversation? 23 A. I don't--I don't recall. I don't 24 think so. 25 Q. And he also told you to keep



295 1 SENATORE - CROSS - GLASS 2 everything confidential that was said there? 3 A. He did say don't discuss this. You 4 know, he did say don't discuss with anybody, you know, 5 with staff, with staff and whoever. 6 Q. Did he explain why? 7 A. He just--he just said don't, just 8 don't. 9

10 consequences if you did? 11 A. No, he didn't say--he didn't say that. 12 He didn't, like, threaten me or anything. He just 13 said, you know, it's, you know, just asked me just not 14 to discuss any of this information with anybody. 15 Q. Did he--but he didn't explain why? 16 A. No, not specifically. He didn't say 17 what the implications might be. 18 Q. All right. 19 A. I just figured it was best not to 20 discuss it anyway. 21 Q. Has anyone ever questioned you--and so 22 you never disclosed that you had, earlier that 23 morning--well, first of all, that interview with the 24 investigator and the principal, did you discus with 25 them that you had actually had had--there was previous

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296 1 SENATORE - CROSS - GLASS 2 comments from Ms. Rubino about the drowning earlier 3 that day? 4 A. No, I didn't. And it wasn't even 5 intentional. I just really didn't, you know. 6 Because, as I said, we make so many posts and I 7 comment on, you know, many posts that I didn't really 8 even think about posts at that time. So I wasn't 9 like, you know, I wasn't withholding it intentionally.

10 He didn't ask me. If he did ask me, you know, I would 11 refer to it. 12 Q. So the investigator never asked you if 13 there had been prior-- 14 A. [Interposing] No, no. 15 Q. Is there a prior chain of 16 conversations in Facebook about this? 17 A. No, he didn't ask anything about--18 anything about that. It was just about that specific-19 - 20 Q. [Interposing] Did he ask you about 21 your previous contacts with Ms. Rubino on Facebook 22 prior to that particular comment? 23 A. No, not really. It just--was just, 24 you know, very to the point, very specifically about, 25 you know, that comment and just the fact that I did

297 1 SENATORE - CROSS - GLASS 2 forward it and that was it. 3 Q. But he didn't--he was probing about 4 how long you'd been on Facebook with her, how long a 5 Facebook friend you were with her, any of that? 6 A. No, he just--he just asked me, like, 7 the basic questions. That I was friends with her and 8 just very basic. 9 Q. Ms. Rubino remained in the school. I

10 mean you reported this July 24th, correct, of 2010, I 11 believe? 12 A. July? 13 THE HEARING OFFICER: June. 14 Q. June 24th, 2010, correct? 15 A. Yes, yes. 16 Q. And she continued--she continued 17 teaching the next school year? 18 A. Yes. 19 Q. Without--she had been removed from the 20 classroom or anything? 21 A. Right. 22 Q. And, in fact, she was there even until 23 February of this year, correct? 24 A. Yes. 25 Q. So no one took it as that serous that

298 1 SENATORE - CROSS - GLASS 2 she was-- 3 MR. GAMILS: [Interposing] Objection. I 4 don't believe this witness is qualified to answer that 5 question. 6 THE HEARING OFFICER: Sustained. 7 Q. As far as you understood, no one had 8 removed her based on this comment, right? 9 A. Well, she was--she was in the

10 building. She was in the school. 11 Q. And even after you were interviewed in 12 October, she remained in the building, teaching the 13 same--teaching the kids? 14 A. Yeah, she was. 15 Q. Were you aware of any--are you aware 16 of any Facebook policy regarding what the DOE has 17 regarding the use of Facebook? 18 A. No, I am not. 19 Q. When you use Facebook, do you expect 20 that--what is your expectation about friends who can 21 see your Facebook account? 22 A. Well, it varies person to person, 23 depending on what your settings are, privacy settings. 24 I mean you could--you could have your settings open to 25 everyone so everyone could see your postings,



299 1 SENATORE - CROSS - GLASS 2 regardless if they have a Facebook account or not. Or 3 you can-- 4 Q. [Interposing] You don't--you don't do 5 that, though. You have--do you have, like, limited to 6 certain people that you share-- 7 A. [Interposing] Right. Well, I mean 8 anybody with common sense would have, you know, would 9 have certain privacy settings on that--and maybe

10 people just have, you know, only their friends can see 11 their page. 12 Q. Why do you say that's common sense? 13 A. Because you just never know. I mean 14 you never--it protects stuff but not from like, you 15 know, saying stuff. It's just to protect yourself 16 from people on the outside just, you know, just prying 17 in. And you don't--you don't want, like, anybody to 18 just go type in your name and see everything you 19 wrote. And if you post pictures--people post pictures 20 of their family. You don't--you don't want the 21 general public, you know, looking through those 22 things. 23 Q. When you make--when you makes posts on 24 Facebook--I assume the principal is not your friend on 25 Facebook, right?

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300 1 SENATORE - CROSS - GLASS 2 A. No, no. 3 Q. So you assume that the principal is 4 never going to see what you're saying on Facebook, 5 right? 6 A. I would assume that, yeah. Yeah, I 7 wouldn't--you know, I try to keep my posting, like, 8 separate from--like you wouldn't--you wouldn't know 9 I'm a teacher, really, from the postings because I

10 think it's important just to keep it separate. So I 11 mean if the principal did look at my postings, you 12 know, I would never say anything, you know, anything 13 really--I mean say anything school related because I 14 like to keep it separate because you're right. You 15 never know who could--who could see it. 16 Q. Would it concern you if this posting 17 got to the principal? 18 A. No, I don't-- 19 Q. [Interposing] What is on Respondent's 20 Exhibit 2? 21 A. I don't think so. I don't think I 22 said-- 23 Q. [Interposing] In your perception, you 24 don't feel like you did anything wrong, right? 25 A. Based on that comment? I don't think-

301 1 SENATORE - CROSS - GLASS 2 -I don't think so. I was--I wasn't saying anything 3 damaging, you know, about anybody in my school or, you 4 know, my principal. 5 Q. Did you say anything damaging about 6 your employer? 7 A. You mean the Department of Education? 8 Q. Yeah. 9 A. I couldn't say. I don't want to make

10 that assumption either. 11 Q. Could you see how it could be 12 construed as perhaps potentially damaging to your 13 employer? 14 A. Because of--because of the word, 15 because I used the word negligence? 16 Q. Yes. 17 A. Well, I said--like I said, I mean if-- 18 MR. GAMILS: [Interposing] I don't--I don't 19 know that there's a question. 20 THE HEARING OFFICER: Are you still looking 21 for the answer to the same question? 22 MR. GLASS: I didn't hear an answer to that 23 question. 24 A. Could you repeat the question? 25 Q. What was my question? Would you--

302 1 SENATORE - CROSS - GLASS 2 would you consider this to be construed as damaging to 3 your employer? 4 A. Well, you can construe--I mean anybody 5 can construe anything just to, you know, just from 6 their point of view. 7 Q. And you made a--you construed 8 something about the posting you saw regarding Ms. 9 Rubino and what was on Ms. Rubino's account, correct?

10 A. Well, I guess I did. I did. 11 Q. Okay. And, knowing Ms. Rubino, you 12 didn't have--you didn't know any history of violence 13 with her or anything like that, correct? 14 A. Not that I know of, no. 15 Q. As far as you know, she was a 16 satisfactory teacher that might have had a bad day? 17 A. We all--I mean we all have--we all 18 have days. That's true. But I mean I wouldn't go as 19 far as to compare, like, that comment to--I mean Ms. 20 Rubino's comment, if that's what you're trying -- . 21 Q. So would it be upsetting to you if 22 this was revealed to your employer and led to 23 disciplinary action? 24 A. Actually, I would not--I would not be 25 upset, no. Because I don't think it says anything--I



303 1 SENATORE - CROSS - GLASS 2 don't think it says anything damaging or it doesn't--3 it's not implying anything. It's not--it's just--no, 4 a girl--a girl drowned because people were not doing 5 their job properly. I'm not--I didn't point out 6 someone specifically but someone was at fault, I would 7 think. 8 Q. But you--I mean we understand your 9 thought process in reporting this. You were concerned

10 because you feel-- 11 A. [Interposing] About this comment or 12 the other? 13 Q. Ms. Rubino, the thing on Ms. Rubino's 14 account. Your concern was what, that Ms. Rubino was 15 going to act violently towards the children? 16 A. No, it was just the nature. I was 17 just--I said I was concerned about the nature of the 18 comment that it's, you know, that's something that, 19 you know, if that did get out somehow, that could be 20 on, like, the--something that could be on, like, the 21 front pages of a paper, just the nature of the 22 comment. Because it was like--it was almost like 23 making light of, you know, someone's death. 24 Q. So you felt that would reflect poorly 25 on the Department, right?

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304 1 SENATORE - CROSS - GLASS 2 A. As a school, as a staff, as, you know. 3 Q. Okay. And your comment, you didn't 4 feel the same way when you posted at 7:11 in the 5 morning. You didn't feel that that could be construed 6 as damaging to your employer? 7 MR. GAMILS: I think we've been through this 8 line of questioning. 9 THE HEARING OFFICER: Sustained, asked and

10 answered. 11 Q. Did you tell Ms. Sadowski--Mr. 12 Sadowski, at one point, that you just were 13 uncomfortable forwarding this comment--forwarding this 14 comment to him? 15 A. You mean like at that conversation 16 before I forwarded it? 17 Q. On June 24th, did you ever tell him 18 you felt uncomfortable forwarding this comment to him? 19 A. I'm not exactly sure. I don't know if 20 I did. 21 Q. You might have, you just can't recall 22 if-- 23 A. [Interposing] I don't remember if I 24 said that specifically. 25 Q. Did he threaten you in any way that if

305 1 SENATORE - CROSS - GLASS 2 you didn't disclose-- 3 A. [Interposing] No. 4 Q. --it, you would face disciplinary 5 consequences? 6 A. He didn't say--he did not say that. 7 Q. Well, if you didn't forward it, did 8 you understand there would be a consequence to you? 9 A. I didn't assume there would or

10 wouldn't be. I mean he just said, you know, that's 11 what we--you know, he thinks that's the best thing 12 that we should do. 13 Q. Since June 24th, have you had any 14 conversations with him about where this has gone, this 15 comment, the forwarding? Have you had conversations 16 about this-- 17 A. [Interposing] Not with--no, not with 18 him or Ms. Esposito, no. 19 Q. I mean at the time that Ms. Rubino was 20 removed, was there any conversation with Mr. Senatore? 21 A. There was none, not with Mr. Sadowski 22 or Ms. Esposito. 23 Q. So you haven't had any conversations 24 at all since that June 24th with Mr. Senatore about-- 25 THE HEARING OFFICER: [Interposing] That's

306 1 SENATORE - CROSS - GLASS 2 Mr. Senatore. 3 A. You mean Mr. Sadowski? No. No, I 4 have not. 5 MR. GLASS: Just give me one minute. I'm 6 probably finished. 7 THE HEARING OFFICER: Off the record. 8 [Off the record] 9 [On the record]

10 THE HEARING OFFICER: Ready? Back on the 11 record. Mr. Glass? 12 MR. GLASS: Just a few last questions. 13 Q. Are you aware that Ms. Rubino, at a 14 point, was an F status teacher? Do you know what that 15 means? 16 THE HEARING OFFICER: Which question is it? 17 Are you aware that she was F status or do you know 18 what it means? 19 Q. Are you aware--first, do you know what 20 an F status teacher is? 21 A. I was kind of the impression F status 22 means you're not--maybe you're not necessarily working 23 there full time, maybe like three days. Usually, it 24 refers to teachers that work there like three days a 25 week or stuff like that.



307 1 SENATORE - CROSS - GLASS 2 Q. And was she--were you aware that she 3 was in that status for a while at the school? 4 A. Was I aware when she was--well, I knew 5 she was--when she was working only a few days a week 6 as opposed to, you know, the entire week. 7 Q. Okay. And was that that school year, 8 do you know? Do you remember if she was F status that 9 year?

10 A. I know she worked every day, as far as 11 this September 2010 school year. 12 Q. How about the previous year, was she 13 working every day? 14 THE HEARING OFFICER: If you know. 15 A. I believe so. 16 Q. Have you--were you aware of Ms. Rubino 17 having a grievance against the principal the prior 18 year about her status in school? 19 A. No, I did not. 20 Q. Mr. Sadowski never disclosed that to 21 you? 22 A. No. 23 Q. You know, in retrospect, would it-- do 24 you regret not just telling Ms. Rubino about the 25 comment rather than reporting it to Mr. Sadowski?

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308 1 SENATORE - CROSS - GLASS 2 A. That's a different question. I mean 3 in light of what happened or in light--I mean do I 4 reqret for myself or do I regret for Ms. Rubino? I 5 mean can you be more specific? Do I regret what I did 6 about reporting it or-- 7 Q. [Interposing] Do you feel like it's a 8 big blown out of proportion based on why you're here 9 today?

10 A. I mean I don't think I did any--I mean 11 I don't think I did anything wrong. And, you know, 12 things could always be handled different ways. I'm 13 not saying which way it was, you know, the best way or 14 the right way. That's, you know, I just chose to do 15 it that way, you know, at that time. I don't want to-16 -I really don't want to say whether I, you know, 17 whether I regret it or not. 18 Q. Do you feel it's been blown out of 19 portion, though, that it resulted in a disciplinary 20 hearing against Ms. Rubino? 21 A. I don't want to-- 22 MR. GAMILS: [Interposing] I'm going to 23 object. I don't believe it's the witness' choice how 24 the case ends up in a disciplinary hearing. He filed 25 a report.

309 1 SENATORE - CROSS - GLASS 2 THE HEARING OFFICER: No just he was asking 3 him his opinion. His opinion has no bearing on 4 whether or not an arm of the Department of Education 5 takes certain actions. He was just being asked his 6 opinion and, briefly, I'll allow an answer. 7 A. Again, my--I really hadn't--that was 8 not my goal, you know, to see Ms. Rubino with, you 9 know, this trouble because of that. Again, I’m not

10 saying that it was right. I'm not saying I did 11 anything wrong, you know, or the comment was okay. 12 But I, you know, I said it wasn't my intention to, you 13 know, to have, you know, this happen. 14 Q. Did you have reason to believe that--15 any reason to believe htat if you said something to 16 her she'd just taken the comment off and said thank 17 you? 18 A. Possibly. I said I mean hindsight is 19 20--I mean you can--you could always second guess your 20 judgment, right? 21 MR. GLASS: I have nothing further. 22 THE HEARING OFFICER: Mr. Gamils, any re-23 direct? 24 MR. GAMILS: Just briefly. 25 RE-DIRECT EXAMINATION

310 1 SENATORE - RE-DIRECT - GAMILS 2 BY MR. GAMILS 3 Q. Mr. Senatore, looking at Respondent's 4 Exhibit 2, I notice that there are, besides yourself 5 and Christine Rubino, several other pople engaged in 6 this conversation. 7 A. Correct. 8 Q. Do you know who those people are? 9 A. Just one of them.

10 Q. Which one is that? 11 A. The one at the bottom, Anthony. 12 Q. Anthony? 13 A. Anthony Alefieres [phonetic], whatever 14 his last name is. 15 Q. Frikazakis [phonetic]? 16 A. Yeah. 17 Q. Okay. Is that someone at the school, 18 at P.S. 203? 19 A. Yes. 20 Q. Is that someone that you and Ms. 21 Rubino shared as a mutual friend on Facebook? 22 A. I believe so, at that time, yeah. Or, 23 actually, I mean he was--Christine did the initial 24 comment. It might have--she might have been just her 25 friend. I'm not sure if she was my friend too.



311 1 SENATORE - RE-DIRECT - GAMILS 2 Q. Was this someone that you're familiar 3 with? 4 A. Yeah, yes. I can't say she was my 5 friend on Facebook at the time. I'm not sure of it. 6 She wasn't commenting on my post. 7 Q. Is that individual an employee at P.S. 8 203? 9 A. Yes.

10 Q. Now, on--I believe, during your 11 testimony counsel asked you--referred to the date June 12 24th, 2010. Isn't it correct that the incident was 13 reported to Mr. Sadowski on June 23rd, 2010? Do you 14 recall? 15 A. If it was the date that the email was 16 sent, that was the 23rd, then it was. 17 Q. Are you referring to Department's 18 Exhibit 7? 19 A. Well, yes. It says--it says 20 Wednesday, so it was the 23rd. 21 Q. And was that the date that you cut and 22 pasted the comments from your page and sent them to 23 Mr. Sadowski? 24 A. Yes. 25 Q. And was it on June 23rd, 2010, that

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312 1 SENATORE - RE-DIRECT - GAMILS 2 you received this comment from Christine Rubino 3 stating after today I'm thinking a beach sounds like a 4 wonderful idea for my fifth graders. I hate their 5 guts. They are all the devil's spawns."? 6 A. I read it on that day, yes. 7 Q. Was that the comment that you 8 received? 9 A. Yes, on the--on the 23rd.

10 Q. And did you also receive the comment 11 from Scott J. Lavine on that day, responding to Ms. 12 Rubino's comments saying, "Oh, you would not let 13 little Kwami float away"? 14 A. Yeah, that was posted as well. 15 Q. Did that also appear on your page? 16 A. Yes. Yes, it did. Because she--it 17 was a comment, you know, on a post that she had--she 18 had made. So it showed up on mine, even though he's 19 not one of my friends. 20 Q. Okay. And you don't know who that 21 individual is? 22 A. No, I do not. 23 Q. And you received her subsequent 24 response on your page stating, "Yes, I would not throw 25 a lifejacket in for a million"?

313 1 SENATORE - RE-DIRECT - GAMILS 2 A. Correct, yes. 3 Q. If you saw another staff member 4 posting those comments today, would that still concern 5 you? 6 A. I think it would be upsetting no 7 matter who--no matter who posted it. It was not--it 8 was nothing about the person individually, it was 9 about the comment.

10 MR. GAMILS: I have nothing further. 11 MR. GLASS: Some more questions. 12 RE-CROSS-EXAMINATION13 BY MR. GLASS 14 Q. How many--how many mutual Facebook 15 friend teachers did you have at the time, do you know? 16 THE HEARING OFFICER: I think--I think he 17 said it. 18 A. I said over ten. I wasn't sure what 19 the exact number was. 20 Q. As far as you know, you're the only 21 one who reported anything about this, right? 22 A. As far as I know. 23 Q. Did you ever have any conversation 24 with Anthony about this? 25 A. No.

314 1 SENATORE - RE-CROSS - GLASS 2 Q. And, by the way, when you gave the 3 information to Mr. Sadowski, did you give him your 4 passwords so he could see the account or you just cut 5 and pasted the text off your own Facebook account? 6 A. I just--I would not give--do that. I 7 just cut and pasted the information from my page. 8 Q. So Sadowski never would have had 9 access to--

10 A. [Interposing] No, of course not. 11 Q. --cut and pasted out of it? And you 12 never gave access to the investigators to her 13 personal-- 14 A. [Interposing] No, of course not. 15 Q. To your account so she could access 16 her account? 17 A. No. 18 MR. GLASS: I have nothing further. 19 RE-DIRECT EXAMINATION20 BY MR. GAMILS 21 Q. You indicated, during your testimony, 22 that sometime after reporting this incident you no 23 longer were friends with Ms. Rubino on Facebook? 24 A. Correct but I couldn't give you--I 25 couldn't give you the exact dates I decided to drop--



315 1 SENATORE - RE-DIRECT - GAMILS 2 when I dropped a lot of friends between MySpace-- 3 Q. [Interposing] At the time 4 investigators spoke with you in October of 2010, do 5 you know if you were still friends with Ms. Rubino at 6 that time? 7 A. I really couldn't tell you because I 8 said there's been several--I had, like, 150 friends 9 and a lot of them friends I thought I had and I didn't

10 have because it's--people were questioning this. Oh, 11 I thought he was--I thought I was a friend, right? So 12 I really couldn't tell you for sure at that point. 13 Q. And once you're not friends with 14 someone any more, you no longer have access to certain 15 areas in their page, correct? 16 A. If they have set the privacy settings. 17 The thing is you don't notice right away because, like 18 I said, you have so many people posting it takes a 19 while before you notice if someone's not there anymore 20 or if they--and when someone drops you, they don't--21 Facebook doesn't alert you when someone drops you. 22 You've got to go find out yourself. 23 MR. GAMILS: I have no further questions. 24 MR. GLASS: I have nothing further.25 THE HEARING OFFICER: Okay. Thank you, Mr.

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316 1 CHRISTINA RUBINO - 02/28/11 2 Senatore. You're concluded for today. I would 3 caution you, though, as the investigator did quite 4 some time ago, please do not discuss your testimony 5 today or anything else that transpired here with 6 anybody, at any time. This is still an ongoing 7 hearing and there might be other people from your 8 school or whatever who might be coming here. Even if 9 they said to you did they yell and scream and what

10 color was the room, just say that I really can't say. 11 Refer them to Mr. Gamils if anybody asks you any 12 questions. Okay? 13 MR. SENATORE: Yes. 14 THE HEARING OFFICER: Thank you very much. 15 Off the record. 16 [Off the record] 17 [On the record] 18 THE HEARING OFFICER: Back on the record. 19 Due to the hour, Mr. Gamils, I suggest we conclude for 20 the day. 21 MR. GAMILS: Absolutely. 22 THE HEARING OFFICER: And, Mr. Glass, okay? 23 MR. GLASS: Yes. 24 THE HEARING OFFICER: We will resume on 25 Wednesday, the 2nd at 10:00 a.m.

317 1 CHRISTINA RUBINO - 02/28/11 2 MR. GAMILS: Yeah. The Department expects 3 to call Mr. Sadowski and R.K., J.H., A.S. I don't 4 know if we're going to call all of those witnesses 5 that day. But that would be our witness list. 6 THE HEARING OFFICER: And are those last 7 three the student witnesses you had referred to? 8 MR. GAMILS: Correct, correct. 9 THE HEARING OFFICER: Okay, fine.

10 MR. GAMILS: We plan on-- 11 MR. GLASS: [Interposing] I'm sorry. Can 12 you just repeat that? You said R.K., J.H. Who was 13 the other student? 14 THE HEARING OFFICER: A.S. 15 MR. GAMILS: A.S. And we're going to have 16 the principal, Ms. Esposito, testify on Thursday. 17 THE HEARING OFFICER: At the moment, you 18 assume that. We'll see, obviously. 19 MR. GAMILS: Right, right, obviously. 20 THE HEARING OFFICER: Okay. But, obviously, 21 she's not coming on Wednesday. That's what you're 22 saying? 23 MR. GAMILS: She is not. 24 THE HEARING OFFICER: Okay. Off the record. 25 (The hearing adjourned at 5:30 p.m.)

318 C E R T I F I C A T E

I, Brandi Dean, do hereby certify that the foregoing typewritten transcript of proceedings in the matter of New York City Department of Education v. Christine Rubino, File No. 17,116, was prepared using the required transcription equipment and is a true and accurate record of the proceedings. Signature: _______________________________ Date: March 3, 2011



319 Student Index

Josiah Howard [phonetic], J.H. Amanda Smith [phonetic], A.S. Revon King [phonetic], R.K.

SHEET 63 2-28-11 In the matter of Ms. Rubino


Documents

Ms._Rubino-2