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Monday, November 28, 2011

Madness at 3020-a: Eric Fuller On Cheryl Smith Massena, Maria Elena Gonzalez Lichten, and 3020-a

Eric Fuller has already posted some interesting Youtube videos and a telephone conversation with Maria Elena Gonzalez Lichten, which I posted on this blog (available here, here, and here). He is, by the way, one of the few teachers who won his probable cause hearing with Martin Scheinman (on November 29, 2010).  He was then brought to 3020-a by the NYC Department of Education and Haydee Rosario terminated him. This is very curious, isnt it? well, there is no way that any tenured employee of any amount of years of service will get off with only a fine or exoneration if he or she does not testify in his or her own behalf, which is what happened here. Eric never said a word in his defense. Why this would seem to be a good idea I dont know, except that people rely on their attorneys perhaps too much. My opinion is, Maria Elena violated professional ethics here when she told Eric not to provide a defense for the allegations cited in his specifications. I have read Arbitrator Rosario's decision, and I must say that it infuriates me that an Attorney would give such advice to his/her client. This is my opinion, and I am not an attorney.

I am also angered by NYSUT Attorneys who force their clients to "irrevocably resign" when the charges are either absurd or bogus. If you are innocent of something yet the Department charges you, for petes sake, assert your innocence loudly, clearly, and often. Take as long as you need to say what you need to say about your charges, and leave nothing for conjecture. Dont forget to be "remorseful" that the Department made up the stuff about you.

Termination was also the decision reached in most of the arbitration cases in the Teachers4action lawsuit when famous scam artist disbarred Attorney Edward Fagan started the case in 2008. I knew Ed since 1998 as the person who stole the escrow account of my good friend Gizella Weisshaus, after she hired him to get her father's property held in Swiss banks. Gizella is the only survivor of her family who all died in Auschwitz during World War II. Ed's strategy was to sue the UFT so that all the NYSUT Attorneys would withdraw from helping the tenured teachers who signed up as plaintiffs. He was hoping to stop all 3020-a hearings. Instead, the Arbitrators went forward without the respondent there, in most cases. Almost every teacher/plaintiff who followed Ed's directive not to speak at the 3020-a in their own defense was fired.

Indeed, some arbitrators were very upset with the strategy of simply not defending him/herself. One arbitrator came to me during a break (I was attending another hearing) and had tears in his eyes. He asked me to please get in touch with the respondent, because he really liked the teacher, and wanted to clear her. He told me that if she did not return to the hearing he would have to proceed anyway, and then terminate her, and he did not want to do this, but he would have no choice. I had a mutual friend of this teacher call her up to tell her to get back to her 3020-a, but Fagan grabbed the telephone out of her hand and said "no way" and hung up. This teacher was terminated.

If any reader has a case brought to 3020-a where the Respondent did not present a case and did not testify in his or her behalf but won the case anyway, please send the case to me at

Now, Eric has another post.

Coincidentally, I am "the public" at a 3020-a at this time, with Cheryl Smith Massena ("Cheryl") and Maria Elena Gonzalez Lichten ("Maria Elena"),  and they have chosen to retaliate against me for posting this information and, in Smith-Massena's case, the matter concerning Steve Ostrin must embarrass her. They are also lying to Arbitrator Stephen O'Beirne, the arbitrator in this matter. At the hearing Cheryl stated that as "there is a blogger in the room, (she said this as if she was spitting it out, as in hairball) Ms. Betsy Combier, therefore the hearing must be closed to all members of the public when the complainant, a student, comes in to testify." She continued, "this blogger posts names of children on her blog."

OMG, this is a lie, and she knows it. I have never posted the name of a child under the age of 18 that I recall, on my blog. Over the past eight years I have read the transcripts of every hearing that I have attended, and many that I didnt attend, and I could have posted the names of all the children witnesses, but I did not do this. The children that lie under oath are pawns of the adults who harass, force, or otherwise bribe these children to come in. I fault the adults, and names are not important. My goal is to publish a book on all of this and all the adults involved so that the massive repudiation of substantive and procedural due process will stop.

Several years ago "they" - the DOE Gotcha Squad - started accusing me of secretly taping at the 3020-a hearings. Now, arbitrators are reminded that they must "remind" the public never to tape or take pictures. I have never brought a tape recorder with me to 51 Chambers Street. Have I seen employees bring secret tape recorders? Yep, sure have, and I never tell.

O'Beirne, of course, would not want me to defend myself and speak on the record, so Cheryl had her perfect chance to say anything about me that she wanted, and not have me refute it.

I filed a notice of claim against Cheryl and her boss, Theresa Europe and will probably file a legal action. I think that everyone should file a Notice of Claim whenever charged with anything, as the statute gives you a year and 90 days to file a lawsuit should you decide to pursue the matter.
Why didnt I ask Maria Elena to qualify this statement? Five minutes before the opening statement by Cheryl at which she accused me of this "cyber-crime", Maria Elena was outside, telling me and the  three other members of the observing public, her own untruth. She told us that the hearing officer, O'Beirne, would close the hearing to us while the child testified, because there was a Chancellor's Regulation that specifically stated that no members of the public could be present during a child's testimony at 3020-a for privacy reasons. I took out my pad to write down which Regulation this was, and asked Maria Elena, "Which Chancellor's Regulation are you referring to?"
Suddenly, Maria Elena turned towards me and started screaming words to the effect of, "You cannot speak with me, ever! You defame me, everything you write are lies!!!!". I quietly said, "what, exactly, am I lying about?" and Maria Elena screamed "EVERYTHING!!!! Everything is a lie!!! Everything!!!!"
The three other members of the public were stunned, and admonished me for lying on my blog and upsetting Maria Elena. The employee/respondent was inside the hearing room, but she sent me a text message and told me that Maria Elena told her that she did not want to speak with me, ever, so "please dont speak with Maria Elena". We all - Maria Elena, me, and the three other members of the public - went into the hearing room, and thats when Cheryl was able to put on the record her lie about my blog. I would have left and not stayed at the hearing, but the teacher/respondent asked me to stay. I'm very glad I did stay, or I would not have heard the superb, brilliant testimony of the worlds most arrogant fibber,  "confidential investigator" Vincent Di Mare (is this an alias?). More about him in another post, he deserves his own page.
Mecca Santana, OEO Director
Most people who have participated in the 3020-a experience - respondents, observers, witnesses, lawyers, arbitrators - know that something is very wrong with the procedure currently used by the ATU and TPU "Gotcha Squad" (see also here) to force the removal and termination of tenured teachers throughout New York City. And dont forget that the Office of Equal Opportunity, or OEO, is also a "Gotcha Squad" and totally owned and controlled by the New York City Department of Education.

Principals, APs, school staff, students and their parents, come into the 3020-a hearing room, take the oath not to lie, and proceed to do just that. No one seems to care, and no principal to my knowledge has been accused of perjury for lying at 3020-a  (or grievance hearings, where they do not come in at all, but testify by telephone).

But most people, especially children, dont lie very well. All witnesses are nervous when they testify, but if you look at body language, any observer can tell when someone is not telling the truth.  If you study transcripts as I do, the inconsistencies jump out and are very easy to spot.

I remember the misconduct charges filed against a Queens teacher and his accuser was a middle school student with special needs. The student had trouble remembering what the truth was, yet was very proud to be at a hearing where people were listening to him. His story of what happened made no sense whatsoever. The arbitrator exonerated the teacher. A few days after the arbitrator dismissed all the charges brought by the "Gotcha Squad" I was at 51 Chambers Street observing another case, and I thanked him when I saw the arbitrator. He whispered to me that he thought it was the right decision, but he was punished for giving it. He told me that he was admonished by the Department, and then transferred to the TPU, or incompetency cases, where he - and everyone else - does not want to be.

After this case, the Department started asking the arbitrators to rule on closing an open and public hearing to the public when a student witness came in to testify. You see, when someone frames someone else, there are always witnesses that need to lie and lie effectively. The Department is worried that "observers" may see a person lie, and make note of it. Or, as students dont lie very well, they may get flustered when they have people looking at them.

Whatever motive you want to give to the Department lawyers and NYSUT, both no longer will allow an open and public hearing, or, if someone demands it, then they will ask the arbitrator to rule against having any observers in the hearing room while a child testifies, for "privacy". I believe that this new 'policy' denies due process to the employee whose hearing is on for that day

As I watch the people who testify and the Attorneys who manage them at 3020-a I am reminded of the wonderful lines Shakespeare wrote in As You Like It, 1600:
All the world's a stage,
And all the men and women merely players:

The players are, of course, all those who participate in the 3020-a process - all paid to be on that stage for that show, the case presented for judgment. What needs to be told is the scam going on. Luckily for me and others documenting the process, the Department and NYSUT Attorneys are not careful with their lies and omissions about how this process is "fair and in accordance with due process", which it must be to satisfy the rules for 3020-a as discipline for tenured teachers. It's not.

For instance,last year a Department Attorney interviewed a witness for the case in chief of a tenured teacher, and told the witness words to the effect of "well, you really should leave now, because in incompetency cases it does not matter what you say, no one charged with incompetency wins" and "you could be in alot of  trouble at your school if you insist on testifying for this respondent".

Heres another example: In a case before Arbitrator Josh Javits, the DOE Attorney went to the respondent witness' school principal immediately preceeding the hearing date and told this principal that he needed to give her the entire file of this employee as she would be a witness at a 3020-a for her former colleague at a different school, and did he realize that the witness had received a "U-rating" and shouldn't he consider firing this incompetent teacher?

And then there is the case of the Guidance Counselor who was forced to take PIP+. Guidance Counselors do not write lesson plans, and are not trained in writing lesson plans. The PIP+ observer recommended terminating the employee for not writing lesson plans, and then the NYSUT Attorney would not give the Arbitrator the notebook full of notes, memos, reports, and writing of the hard- working Counselor, who was then terminated for not writing lesson plans. The arbitrator ruled that he, the Guidance Counselor, was incompetent and no amount of remediation could help him. The NYSUT Attorney never mentioned to his client that he could have an open and public hearing. When the Counselor saw me and a friend of his whose hearing was going on at the same time, and his friend told him that I was attending his hearing, the Counselor was very upset, as he was not told that he could have an open and public hearing by his NYSUT Attorney. Other NYSUT Attorneys have been heard telling their clients who ask for an open hearing, "No! You cant have one! The arbitrator will terminate you if you ask for it!"....etc., all lies.

Even though I see each arbitration as a play with actors and actresses playing their parts, it is clear that the NYSUT and Department lawyers do not want an audience at the show. When people know that they are going to violate procedures and/or not do the right thing, they try to hide. This is what is going on, I believe. NYSUT and Department Attorneys talk about cases before they are brought into the arbitration, and I have heard deals made outside of the hearing room that promote a certain settlement and/or evidence omission that the Respondent may not know anything about. The "permanent panel" encourages a chummy relationship which encourages a detrimental environment for a fair hearing. In many cases the same threesome that has been together for 3-5 years (Arbitrator, Department and NYSUT Attorney) creates a sort of collusion that does not serve the respondent well. As we all know, or should know, New York City is the only place in New York State where there is no vote on charges by a school board before a tenured employee is given the charges, and no three member panel is allowed. It is also known that an Attorney may not like his or her client and not want to work on the case at all, so ends up telling the client either "dont call any witnesses" or, "dont testify". The person who does not testify is almost always terminated - look at the Teachers4Action federal lawsuit.

Some players are better than others in acting diplomatic while the hearing is on. Take Cheryl Smith, now using her married name, "Massena" (Cheryl graduated St. Johns University '95C, her hubby Alain Massena in '97C, '00L). Smith is soft-spoken, and I dont remember her raising her voice at a hearing, but she is deadly to fair due process. She knows that I believe this, so every once in a while she gives me a dagger look, as if she would wish serious harm would come to me, soon, and quickly. I'm not bothered at all, and must say I rather enjoy sensing her turmoil at being nice to me while seething inside. Cheryl Smith is picture number 7, above.
I had the experience of watching Ms. Smith frame one of my closest friends, teacher Polo Colon, in 2006 at his 3020-a on bogus charges of incompetency. As it turned out, Polo was given all the TAC memos filed by the Department, as well as the letter from Superintendent James Quail reprimanding Principal Liza Carabello for the wrong-doing that Polo had called SCI to investigate. He was right, but the "kill the messenger" script called for him to be targeted, not Carabello. Carabello got a tiny slap on the wrist and Polo three months without pay.

 Cheryl Smith was, at the time, paired with Arbitrator Howard Edelman. The Edelman-Smith combination was the pair who went after tenured teacher Steven Ostrin in 2009, seven years after Steve was removed from his classroom at Brooklyn Tech and two years after Cheryl Smith and Gotcha Squad Director Theresa Europe sent the smoking gun memo to Eric Nadelstern saying that there was no investigation in Ostrin's case, therefore his - Ostrin's - case was closed.

All the worlds a stage, and all the men and women.....


jaylen watkins said...

Bogus charges of incompetency are getting common.

Termination letters

Anonymous said...

Was the NYSUT attorney fighting for your right to be at the hearing? What do you expect to accomplish with that Notice of Claim. Please post.

Anonymous said...

So, your doing this for 8 years and see all of this injustice. What good has your blogging done? What tangible things can those of us brought up on charges can do? Is the answer a private lawyer?

Betsy Combier said...

In 3020-a hearings you do not need an Attorney. You can have a friend/advocate assist you, or you can do it yourself, pro se. I recognize that some people must have an attorney, and in those cases, I believe that a private attorney who is recognized as winning at labor arbitration is best.