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Sunday, December 28, 2008

Teddy Smith Wins His Appeal of His 3020a Decision and Sets a Precedent

The case of Teddy Smith sets a new standard for New York City arbitrators and Hearing Officers
by Betsy Combier

On April 30, New York State Supreme Court Judge Alice Schlesinger threw out the decision of arbitrator Howard Edelman in the Administrative 3020-a Trial of Theodore "Teddy" Smith, writing that Teddy's due process rights had been violated. She ordered a new hearing because, she wrote, Mr. Edelman - who found that former Museum school Principal Lindley Uehling's testimony was "credible" by simply reading her testimony and not seeing her present it - could not make a determination on the credibility of any witness testimony simply by reading the transcript.

Here is her decision, and below are what I believe to be the most important parts:

“Mr. Smith is challenging the decision and penalty…of the disciplinary process and finally and most importantly the performance of the second Arbitrator who decided the controversy based solely on the transcript of the proceedings before the first Arbitrator, thereby violating his due process right to a fair and impartial hearing…These are very unusual and disturbing circumstances (p.2)…requests [for a hearing de novo] were denied although the Arbitrator offered William Gerard, petitioner’s new counsel, a one day opportunity to supplement the record. (p. 3).

Counsel for petitioner argues that virtually all the guilty findings made by Edelman involved credibility determinations. I believe this is borne out by the record…[the Arbitrator] “credits” or “accepts” the testimony of the witnesses testifying against Mr. Smith…in sustaining various specifications while finding petitioner and his witnesses lacking in credibility. (p. 3). …It should be noted that Arbitrator Edelman saw none of these witnesses present their testimony. All of his findings were made exclusively from the record. It should be also noted that these specifications were all vigorously denied by Mr. Smith, and to a large extent the determinations made by the Arbitrator were based on what was believable or not..

…the Education Law mandates arbitration of disciplinary matters such as this. Therefore, the court’s role is broadened considerably to include the factors of substantive and procedural due process. As Judge Breitel said in Mount St. Mary’s Hospital v. Catherwood, 26 NY2d 493, 500 (1970), when first considering the distinction between voluntary and compulsory arbitration.

“The simple and eradicable fact is that voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.”

As many of us know, Joel Klein ordered all administrators who were asked to testify in the grievance process to testify by telephone. Virginia Caputo, Director of the Office of Appeals and Reviews, enforces this rigorously. Teachers not allowed to face their accusers should now sue the NYC BOE for due process violations - in my opinion (I am not an attorney and do not give legal advice).

After Teddy's attorney David Kearney broke the Attorney/client privilege and told BOE Attorney Theresa Europe that Teddy Smith had threatened to kill his arbitrator, Jack Tillem, Richard Condon wrote a report recommending that Teddy be fired, and Richard Steier of The Chief published the following:

Part of Angry Tirade
Want Teacher Fired Over Death Threat


A veteran Teacher should be fired for threatening the life of the arbitrator hearing a disciplinary case against him, the school system's top investigator has recommended.

RICHARD J. CONDON (picture at right): Teacher crossed the line.
Richard J. Condon, the Special Commissioner of Investigation for the New York City School District, also referred his findings concerning Teacher Theodore Smith to the Manhattan District Attorney's Office for possible criminal prosecution.

Faced Slew of Charges

Mr. Smith in December 2005 was accused of 27 specific instances of misconduct by the Department of Education, ranging from failing to conduct his physical education classes properly to excessive absences, latenesses and missed meetings at the New York City Museum School.

A year later, as the case moved toward an internal DOE trial, Mr. Smith fired the attorney assigned to him by his union, the United Federation of Teachers, and retained a private firm, which picked David Kearney to serve as his lawyer.

On Feb. 22 of this year, as the departmental trial neared conclusion, the arbitrator hearing the case, Jack Tillem, asked to speak to Mr. Smith's lawyer and the DOE attorney without the accused man being present.

Mr. Smith, standing outside the room, overheard Mr. Tillem urging that the case be settled by having him accept a 3-to-6-month suspension. He subsequently confronted his lawyer, accusing Mr. Kearney of not advocating on his behalf and violating his fiduciary duty to him.

'I'll Kill That Arbitrator'

A month later, according to Mr. Kearney, he called Mr. Smith to discuss witnesses and medical records that he planned to use in his defense at subsequent hearings. He said Mr. Smith responded with an obscene tirade and stated, "I am going to kick your f------ head in and kill that f------ arbitrator Jack Tillem, you hear me?"

When Mr. Smith's mother sought to intervene, Mr. Kearney testified, Mr. Smith berated her in profane terms as well.

In early May, Mr. Smith sent a letter to Mr. Tillem at his home accusing him of bias. A few days later, Mr. Kearney called Mr. Tillem and told him of the threat Mr. Smith had made. This prompted Mr. Tillem to recuse himself from the hearing, although he did not state the true reason for his action.

Neither Mr. Kearney nor Mr. Tillem filed a police report about the threat; each told Mr. Condon that they believed it was the other person's responsibility.

Couldn't Support Defense

During a hearing conducted by Mr. Condon's office, Mr. Smith denied making any threats and claimed that Mr. Kearney had threatened to choke him when he did not produce medical records pertaining to his absences. But after he stated that he had secretly taped phone conversations he had with Mr. Kearney, Mr. Tillem and a ranking school official, Mr. Condon asked whether any of those recordings contained evidence that school officials had trumped up the case against him. He said Mr. Smith's attorney responded by saying, "Teddy, we're leaving," and they departed without producing any tapes to support his claims.

In deciding that the Teacher should be fired, Mr. Condon wrote, "Theodore Smith threatened the life of the arbitrator presiding over a disciplinary proceeding against him. His attorney's accounts of Smith's threats are entirely credible; Smith's denials are the complete opposite ... Smith understandably caused the arbitrator to fear for his life, and nearly sabotaged the disciplinary proceeding against him. His allegations against the DOE and his supervisors are without merit, and are similarly prompted by Smith's rigid preoccupation with the motives of his accusers, and a likely desire to undermine the disciplinary proceeding against him."

and Carrie Melago also published a story in the New York Daily News:

Teacher 'slay threat'
A Manhattan gym teacher facing 27 counts of misconduct allegedly threatened to kill the arbitrator presiding over his case, authorities said.
Theodore Smith, 46, who taught at the Museum School in Manhattan, allegedly said he was going to "kill that f---ing arbitrator" and "break him in half," according to a report by Special Schools Investigator Richard Condon.
The Education Department will continue to seek Smith's termination, a spokeswoman said.
Carrie Melago

Teddy contacted Ms. Melago and told her that he never threatened Tillem. Ms. Melago then sent him an email saying she would retract the story if and when he was "vindicated".

Ms. Anne Carroll, the Attorney for the NY Daily News, told me that as Richard Condon is a "public person", anything he says can be printed by the paper.

I think this is the start of something big - namely the return to the rule of law in New York City. Anyway, let's work on that.

For more information on Teddy and his case, go to:

Theodore "Teddy" Smith Wins His NY State Supreme Court Appeal To Overturn Arbitrator Howard Edelman's 3020a Decision and Award

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