Success Stories: Positive Outcomes
Theodore "Teddy" Smith Wins His NY State Supreme Court Appeal To Overturn Arbitrator Howard Edelman's 3020a Decision and Award
New York State Supreme Court Judge Alice Schlesinger throws out arbitrator Howard Edelman's decision to punish excellent teacher Teddy Smith because, she writes, "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...…It is fundamental to the fact finding process to be present when testimony is given, testimony which constitutes the evidence upon which the determination will be made...When an individual is denied fundamental due process, an argument that substantial evidence supports the decision is irrelevant."
From Betsy Combier:
NYC public school teacher Teddy Smith has fought City Hall since 2004 and has won a small but precedent-setting battle against Mayor Michael Bloomberg, Joel Klein, Richard Condon, and New York media who blindly follow the directives of the Special Commissioner and publish false information in order to "get" someone. Anyone. It could be you, next time.
Read below about how Carrie Melago of the New York Daily News and Richard Steier of The Chief published stories on Teddy Smith's threats to kill arbitrator Jack Tillem, all made up by Teddy's former Attorney David Kearney, to convict Teddy for not paying his made-up fees. Ms. Anne Carroll, Attorney for the NY Daily News told me: "Whatever Richard Condon prints or says, we will print because he is a public person." In addition, she said that she saw no reason for Carrie Melago to call Teddy Smith and ask whether or not Condon's report was true.
Theodore "Teddy" Smith
Theodore (Teddy) Smith was born and raised in Suffern, New York and graduated from Hampshire College with a BA degree, Goddard College with an MA, attended Sarah Lawrence as a special student, and has a BS degree from Empire State College, an obtained certification as a School Administrator from Fordham University. He has lived in New York City for over fifteen years.
He currently works as a account manager and on-air personality working afternoon drive for Central Broadcasting in Worchester County, Massachusetts; on-air personality for WGHT in North Jersey; WTBQ AM/FM in Orange County, NY, and WPAT Multi-cultural Broadcasting in New York. He has also worked full-time in New York City for the Department of Education as a physical education and health teacher, currently with a Supervisory Administrator’s License (SAS), with “satisfactory” service for over ten years, with tenure in 1999. Concurrently, Mr. Smith taught part-time for the United Nations After-school Program as a physical education and martial arts teacher for thirteen years.
“Teddy” Smith is a New York City was harassed in 2004-2005 and 2005-2006 into teaching a part-time gym class with more than 65 children (often almost 100 at one time) at The Museum School on West 17th street in Manhattan. He also has a heart condition for which he asked his Principal to be accommodated – although he was and is able to perform his job - but was turned down and his needs were ignored. Following his request for class size reduction, which is mandated by the NYC BOE,Principal Lindley Uehling removed him from the school and told him to report to a re-assignment center at 333 7th Avenue, commonly known as a “Rubber Room” in 2005.
Two years later he was subjected to a 3020a hearing under arbitrator Jack Tillem. In October, 2007, Teddy's attorney, David Kearney, wanted out. Kearney had filed a federal court case against the New York City Department of Education on June 15, 2006, but made an agreement to work on a contingency basis, and did not want to continue. So, he told NYC BOE Attorney Theresa Europe that Teddy had made threats against arbitrator Jack Tillem's life, and she called the Special Commissioner For Investigation, Mr. Richard Condon, and told him that Teddy Smith had threatened to kill his arbitrator. Condon wrote a report that was posted online without ever interviewing Teddy Smith, and then Carrie Melago at the NY Daily News and Richard Steier of The Chief printed this story as if it was true, without checking the facts. Teddy never threatened to kill Jack Tillem. Jack Tillem recused himself, saying he had heard nothing from Teddy about killing him, but could not continue as the arbitrator in Teddy's case, and a second arbitrator was appointed: Mr. Howard Edelman.
Mr. Edelman decided Teddy's 3020a matter solely on the printed record, and suspended Teddy for 1 year without pay. Edelman decided that termination was too punitive, as Teddy was an "excellent" teacher. But, he had to be taught a lesson.
Then, on April 30, 2008, New York State Supreme Court Judge Alice Schlesinger threw out Mr. Edelman's decision as a violation of Teddy Smith's due process rights. Read her decision, because we believe that she will lead the way in creating a more fair hearing process for all teachers currently sitting in NYC re-assignment centers.
Theodore Smith's story
New York City’s public school system in Manhattan includes Districts 1, 2, 3, 4 and 5. Researchers who want to find the most segregated and yet politically powerful schools in the NYC BOE need look no farther. Former PS 6 Principal Carmen Farina introduced fuzzy math and the workshop model to NYC at PS 6 (45 East 81st street) and prosecuted Susan Schwartz for helping implement the program. (See also NYC Rubber Room Reporter). Former District 3 Superintendent Patricia Romandetto was well-known for racial discrimination practices and for re-allocating federal funds away from the children who needed special services.
Teddy Smith, is a teacher who consistently received satisfactory and excellent ratings from 1995, and was given tenure in 1999. From 1995 to 2001 he worked for the Beacon School in District 3, and received satisfactory ratings for each of the six years he taught there. At the High School of Art & Design he received the highest praise and performance ratings, then transferred to Chelsea High School while he completed his administrative license at Fordham University. Teddy stepped into the quagmire of Manhattan public school politics when he was appointed a position with an experimental pilot school called the New York Museum School in or around July of 2004. The Museum School “was having difficulty retaining physical education teachers in part because it housed a mixed group of middle and high school students, did not have a functional gymnasium, and was devoid of safety equipment” Teddy reports.
When Teddy began his teaching at The Museum School, Principal Lindley Uehling gave him a full salary for a part-time .6 position, and directed Teddy to teach classes of sixty-five (65) students at a time with little or no assistance, far in excess of the 50-student maximum mandated by the teacher’s contract. He was told to teach up to 100 students in a separate program with no assistance at all. He was never notified officially by the Principal of the number of students as the contract specifies (article 7M). There was no gymnasium, no regularly scheduled meeting space, and no safety equipment for the group of 65 students sent to PE at one time. But, Teddy was well-received by Principal Uehling, who acknowledged the poor conditions and pledged additional personnel and resources. She also evaluated Teddy positively.
Teddy began to suffer from the unmanageable circumstances of his job, and wrote about his concern for the safety of the children and staff to the Priincipal. In 2004 he complained to Principal Uehling about the oversized classes and lack of promised support, but no action was taken. Immediately following Teddy’s complaints about the dangerous and overcrowded conditions and lack of support, Principal Uehling began to give him frequent “unsatisfactory” classroom evaluations and threatened him that if anyone was hurt it would “reflect very badly” on him.
In or around January 2005 Principal Uehling, seemingly tired of receiving Teddy’s complaints, wrote to Mr. LaForgia’s office and asked for advice of how to “get rid of” Smith. On January 29, 2005 at 7:26AM, Teddy received an email from Fay Pallen, an administrative staff support employee with LaForgia’s office. The email was sent in reply to Uehling’s message and was a confidential communication to Uehling. The email was mistakenly sent to Teddy’s home email account from Pallen’s Blackberry.
On February 2, 2005, Victor Ramsey, Regional Fitness and Physical Education Director for the NYC DOE arrived at the school to observe Teddy and evaluate his class. His written evaluation was, initially, overwhelmingly negative, but he changed this after being asked why he told Teddy that the class was “great”. Teddy filed an Article 23 Harassment Grievance with the United Federation of Teachers (“UFT”) on March 7, 2005. Two weeks later Principal Uehling sent a warning of termination and a “U” rating to Teddy. On March 23, 2005 Teddy submitted a letter to LaForgia, Ramsey and Uehling asking for accommodations for his medical condition. This letter was accompanied by a letter written by his doctor verifying his ability to do his job fully and competently.
On April 5, 2005, Ramsey wrote a letter accusing Teddy of “unprofessional” conduct, “irresponsibility”, and a lack of motivation and effort. He also criticized Teddy for his medically approved absences. Teddy was told the same day to report to a DOE medical examination on April 28, 2005, which was re-scheduled for May 24, 2005. When Teddy asked why he was directed to submit to a medical exam, he was told that there were documents in his file, submitted by Uehling and endorsed by LaForgia, detailing a pattern of absences that could be seen as fabricated by Smith – but Teddy had never seen these documents. Teddy told Uehling that he needed to see the documents accusing him of lying about his condition before he would go to any DOE medical office. He filed a second grievance with the UFT on May 5, 2005 and several other grievances on May 18, 2005, demanding that he have access to his file and that the discrimination and harassment against him immediately cease. Principal Uehling responded by charging him with insubordination on May 26, 2005. Throughout June 2005 Teddy complained about the conditions he had to work with, and asked the Principal, AP, and Chancellor Klein to please let him transfer to another school. His pleas were ignored.
On June 8, 2005 Teddy’s doctor sent to all parties a second letter detailing Teddy’s medical condition and confirmating that Teddy could nonetheless perform his job competently and fully. On June 17, 2005 Teddy received an “unsatisfactory” performance rating from Principal Uehling. This was the first “U” that Teddy had ever received during his 10 years as a teacher for the NYC BOE. Teddy's grievance was denied.
Teddy was examined by the BOE medical office on June 21, 2005, and was found fit to work. In July Teddy requested a “prosecutorial investigation” in several letters to Mayor Michael Bloomberg and others. Teddy was in constant contact with Mayor Bloomberg, Joel Klein, (see letter 2) and NYC BOE Local Instructional Superintendent Michael LaForgia, who did nothing to end the complaints filed by Teddy of disability discrimination and retaliation.
Instead of investigating the Principal, Mayor Bloomberg and Joel Klein started an investigation of Teddy Smith under the Special Commissioner of Investigation, Richard Condon. Mr. Condon is a well-known soldier in the Bloomberg administration whose job it is to violate a victim’s due process rights if that victim has been randomly assessed by Klein to be a danger to the racketeering club known as the NYC Board of Education. No one is immune from Condon’s made-up “investigators” who are, for the most part, retired policemen looking for ways to earn a second pension and double benefits. If someone has information that could nullify or in any way show the falsity of an investigation, this person is never interviewed or his/her “testimony” is falsified.
On or about August 18, 2005 Teddy was placed on the Ineligible/Inquiry List, re-assigned to a “rubber room”, and advised he was going to be charged with insubordination, absenteeism, incompetence, and creating safety issues. He received 27 charges (“specification”) in December 2005. Lindley Uehling was removed from The Museum School at the end of July 2005, and was immediately hired by Hunter College High School where she now works as Director of the admissions office.
While sitting in the “rubber room” Teddy took action, filing a complaint with the Equal Employment Opportunity (EEOC) and with EEOC permission, he filed a federal lawsuit in June 2006. Judge Buchwald stayed this case until the 3020a procedure is finished.
Teddy reports the following:
“The charges against me are ridiculous, false, and are made in bad faith and with malice. Principal Uehling and the NYC BOE forced me into a dangerous situation and hoped that I would not whistleblow their scheme to endanger the lives of students in their school while saving money. (See Susan Jalowski's admission that Principal Uehling did "find out" that Teddy had no assistants). For my efforts to change the illegal practices going on I was sent to a “rubber room” where I sat for two years – a severe, unjustified punishment.
The ensuing ‘3020a’ proceeding beginning in January 2007 was an absolute sham. The DOE – represented by Attorney Susan Jalowski – presented their side of the case, and before I ever had a chance to testify or have any witnesses testify on my behalf Arbitrator Jack Tillem told my Attorney at the time, David Kearney (of counsel to Neal Brickman, the law firm handling the Rubber Room movie) and Ms. Jalowski that he had determined that I take a 3-6 month suspension without pay and keep the completely unjust “U” rating from the DOE. A “U” rating on a teacher’s record makes it virtually impossible to find another good teaching job. My attorney Mr. Kearney negotiated with the BOE who offered to drop the suspension time if I would agree to keep the “U” rating and to drop the Federal lawsuit. Of course, having been treated so unjustly, and especially for also having not been responsible for any wrong-doing, I refused.
In the February 8, 2007 transcript there is evidence that I did secure a job (e-mails with the Principal Marissa Lindsley), and my testimony on February 28 shows that she was harassing me out of my job for speaking out about the oversize classes. After she hired me and I accepted, I received a letter at about the end of August saying that I was put on the ineligible list. The process must have been started months earlier when I received my first “U”, and since the Museum School program was point .6, there was nowhere for me to have peer intervention, and this was their way of dealing with this… i.e., sending me to the rubber room. Uehling testified that she did not know that a U rating would prevent me from moving on.
From this point I found myself being compromised by my own attorney. First, he refused to submit specific documents and exhibits that would assist my case. Second, he was having “ex parte” conversations with the BOE lawyers. On April 18, 2007 NYC BOE Attorney Susan Jalowski stated on the record that the gym program at the Museum School had no illegal oversize classes because I had assistants. Both of these “facts” were refuted by the Principal, Lindley Uehling in her testimony. I tried to obtain the school budget for 2004-2005 but was denied this important information by the arbitrator. This was, indeed, a no-win situation.
Then, on May 10, 2007, in a telephone conference regarding the 3020a hearing, there was clear collusion between my attorney, David Kearney, the attorney at the BOE Theresa Europe, and the arbitrator, Jack Tillem. The conversation – from which I was excluded – centered around Kearney’s “deal” with the BOE to claim that Tillem was not impartial and should leave the case due to some of his rulings, however Kearney had already lied to Tillem and Europe saying that I had threatened to kill Tillem. Theresa Europe put on the record that she wanted Tillem to state the “real” reason for his recusing himself – so that I could not appeal on the grounds of improper, biased rulings – and say that he (Tillem) feared for his life. The record reflects that Jack Tillem recused himself from my case on May 10, 2007, due to my threatening to kill him, a libelous statement made up by Kearney. DOE Attorney Theresa Europe told SCI Special Commissioner about this, and then Condon based his report on this falsely reported threat. A press release was sent out to Carrie Melago at the NY Daily News and to The Chief. Both newspapers published reports of this threat on the life of Tillem as “actually” happening, without interviewing me. I wrote Mr. Condon a letter on May 22, 2007.
For several weeks David Kearney had called me and demanded his money - $58,000 - that I had never agreed to pay him. I tried to speak with Ms. Europe, but she wouldn't speak with me, and then I was told to go to the BOE medical office in Brooklyn for an examination. I went, in June, and was found fit to work.
A new arbitrator was appointed by the New York State Education Department in June, at the same time that I was told to go to the BOE Medical Office for an examination. Howard Edelman refused to grant me a new hearing (p. 44) even though he was aware that the record had been tainted. On October 1, 2007, my new Attorney Mr. William Gerard, stated that he would not participate in a hearing that he considered a “sham” based only upon a prior proceeding that was tainted. The closing statement of Susan Jalowski can be seen as contradictory to the record.”
Mr. Gerard, Teddy's Attorney, wrote a letter in November 2007 to Francesca Pena, High School Superintendent, in which he described the unreasonable procedure and false information that had just been processed against Teddy.
In his decision dated December 6, 2007, (73 pages) Mr. Edelman writes that Teddy had “certified teachers to assist in the performance of [his] duties” (footnote 2, p. 16), when he did not have any assistants, as placed in the record on February 28 2007 (p. 327) and in a letter sent to him after he filed a Freedom of Information request on April 28, 2008. Edelman found Teddy guilty of specification 19 (refusing to go to Peer Intervention) even though it has been dismissed by the DOE and he gives the page number from the transcript quoting Tillem. In addition there were voluminous other statements and exhibits from both Uehling and Teddy stating that he never refused peer intervention, as well as documents showing that he applied. Also, on Feb 8th, Uehling testified that teaching 100 students single handedly was a part of (his) job, not to mention up to 75 students without assistants.
On page 42 of his decision to suspend Teddy for a year without pay, Mr. Edelman states “The reasons for Mr. Tillem’s recusal are irrelevant to this proceeding” (footnote 3) when indeed the recusal and reasons for Tillem doing so are the MOST relevant reasons for his decision. Edelman also “believed” everything that the BOE and Uehling said without hearing her, in person. On p. 50 Edelman writes: “Therefore, I find, there is no credible evidence to suggest that Principal Uehling, or anyone else, did not give Smith a fair opportunity to succeed.” And, “”I can think of no reason why the Principal would claim students were playing in the yard without supervision if it weren’t true.” (p. 52)…”I credit her observations.” (p. 54).. “Respondent’s [Smith’s testimony] lacks the ring of truth” (p. 61).
How does truth ‘ring’ from paper?
Edelman continues: “Principal Uehling credibly testified…” (p.63)…”Respondent’s behavior…[was] cavalier…” (p. 64). “Based on the Principal’s credible testimony, it is clear Specification 16 has been proven.” (p. 64). [Respondent’s witness Maria Aragonez’s] testimony was unclear and vague…Instead of following the ‘work now, grieve later,’ rule, Respondent decided to take matters into his own hands by refusing to comply with the Principal’s legitimate directive.” (p. 66). “When Uehling suggested he enroll in the Department’s Peer Intervention Program, Smith refused to do so.” (p. 67) [UNTRUE] “”At the very least, Smith should have enrolled. Then, he could have evaluated whether or not it had value for him. Had he done so, perhaps some of his misfortune could have been avoided.” (p. 68). Yet on pp. 73-75, Edelman states that Teddy is a good – excellent - teacher, it seems, from what he has read. John Latchy, from Art & Design, stated that “Respondent did a very good job for us” (p. 75).
Edelman writes, “Nonetheless and based on the foregoing, I conclude that the appropriate penalty in the instant matter is a one year suspension without pay. Any penalty more severe than this would be punitive rather than corrective. Further, this penalty is appropriate and proportional for the misconduct that Respondent has demonstrated. It is so ordered.” (p. 76).
Mr. Edelman had, it seems, already made up his mind about Teddy before reading any testimony. I have heard that this is his pattern and practice.
Then within 10 days of receiving Mr. Edelman’s decision and order, Mr. Gerard filed a Petition To Vacate Arbitration Award and an Affirmation that described the violations of Teddy Smith's due process rights in Edelman's December decision. The Corporation Counsel answered Teddy's papers, of course, saying that there is nothing wrong with testimony that is written rather than heard (see the Verified Answer of the Corporation Counsel). NYS Supreme Court Judge Alice Schlesinger decided in Teddy’s favor on April 30, 2008. The City of New York has appealed.
The Order and decision of New York State Supreme Court Judge Alica Schlesinger is important, because it puts on the record the unfair practices of the process known as “3020a”. All persons undergoing this process or about to participate should read the decision. I excerpt the following:
“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.”
In other words, the relevancy of due process in the literal sense can only be eliminated in voluntary arbitration. Id at 505.
Therefore, the question presented is whether the decision here based on an arbitrator’s exclusive reading of the record, without seeing or hearing any witness and thereby evaluating their credibility in such a limited fashion, comports with the dictates of due process. I find that it does not. (p. 4-5)
…It is fundamental to the fact finding process to be present when testimony is given, testimony which constitutes the evidence upon which the determination will be made.
When an individual is denied fundamental due process, an argument that substantial evidence supports the decision is irrelevant. (p. 6)…Once the recusal occurred… it was incumbent upon the new fact finder, one who was aware of these controversial and extraordinary circumstances, to grant Smith a hearing de novo. The fact that he did not, and proceeded to base virtually all of his findings on considerations of credibility without seeing and hearing the witness, was to deny Smith a fair hearing.
Therefore, the determination cannot stand. It must be vacated and the matter remanded for a new hearing before a different arbitrator.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the petition is granted, the December 4, 2007 decision by Arbitrator Edelman is vacated, and the matter is remanded for a new hearing in accordance with the terms of this decision.
Dated: April 30, 2008”
Alice Schlesinger, J.S.C.