From Advocatz President Betsy Combier:
Anyone interested in civil rights, Constitutional rights, tenure, and labor and employment arbitration may want to read about the people on both sides of the table and the arbitrators who participate in Education Law 3020-a hearings in New York City. I will do that, after being inside the NYC rubber rooms and at Education Law 3020-a arbitration throughout NY State as a paralegal and nonlawyer advocate for 18 years.
I am starting with the case of Teddy Smith (pictured above) because his story, which I did a lot of research on and worked closely with Teddy throughout his several hearings and court cases, showed the corrupt practices of the NYC Department of Education clearly, at least for me, and the terrible consequences of the NYC DOE collaborating with the press to get their side of the story published before any facts are proven. “Their side of the story” is that the accused is guilty, and must be terminated.
I don’t believe this until I see proof.
I started observing these hearings in 2003-4 after teachers told their NYSUT attorney that they wanted an open and public hearing so that I could sit in the room. I did that, voluntarily, for 8 years, in order to figure out what was going on inside the offices of the NYC DOE at the 49-51 Chambers Street location (now moved to 100 Gold Street, 3rd floor). In 2011 I started representing accused educators and/or working with an Attorney, assisting in representing the accused. I have completed and/or negotiated more than 120 cases at the present time, and have assisted educators who proceed pro se. I have won most – not all – of the 3020-a cases, meaning the accused tenured educator was not terminated, and I have assisted educators in vacating the decisions of arbitrators in forty-seven (47) Article 75 Appeals in the Supreme Court. I am not an attorney. But everyone has the right to have someone assist in research or interviews in order to get the story straight.
My goal is simple: to have a fair and just outcome for everyone who requests my help, based on the facts. In order to do this, a great amount of research and interviewing must be done for the accused person, and I read every word of every document and transcript. If the person I am helping permits me to post the documents and transcripts, I will post everything that is relevant.
I believe it is important to show exactly what an arbitrator has heard and read during a hearing to understand whether the decision he/she made is fair and just. I will, on this website and on my blog NYC Rubber Room Reporter, post the details of cases I think were outrageously unfair, and look for your comments either to this website or to my email email@example.com. I will delete any comments I feel are derogatory, untrue, nasty, or inappropriate.
In order to understand 3020-a arbitration in NYC you should read the backstory, and then the case of Teddy Smith.
In the compulsory Arbitration known as Education Law Section §3020-a (“§3020-a”) in New York City, there are significant and unlawful procedural and substantive deficiencies in the pre-hearing process that interfere with the public policy protections for teachers with tenure. These blatant violations of the tenure law deny a fair hearing to all individuals who are accused of an act of misconduct or incompetency and are charged with §3020-a charges (called “Specifications”). See MORE
by Betsy Combier, NYC Rubber Room Reporter, December 28, 2008
NYC BOE Attorney Susan Jalowski (at left)
The Special Commissioner of Investigation, Richard Condon, and his group of former police officers/investigators must be fired, and the Department of Investigation must be re-organized. Teddy Smith is just one of hundreds of teachers, public school staff, parents, and children who have been maliciously prosecuted by the corrupt New York City Board of Education-SCI-OSI-Corporation Counsel Complex. We ask that Joel Klein resign or that Mayor Michael Bloomberg fire him along with dissolving the offices of SCI and OSI due to a pattern and practice of fabricating evidence and for violating the due process rights of New York City staff, parents and children who work in or attend NYC public schools. NYC at present has established no oversight or management for the investigation process, leading to a fraudulent free-for-all immunity from reprimand for NYC BOE administrators and principals. No one should be placed above the law.
Black’s Legal Dictionary defines “corruption” as:
An act done with an intent to give some advantage inconsistent with official duty and the rights of others. (p.345)
“fraud” is described as:
An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.” (p. 660)
We are creating an online record of the battle between Theodore Smith, known as “Teddy”, and the New York City Board of Education (“NYC BOE” ) because the story is unfolding as the model of “rubberization” and as an example of how one teacher who was caught in the NYC BOE perfect storm of injustice is escaping the unjust punishment ‘they’ have in store for him. This ‘punishment’ consists of more than two years in a “rubber room” followed by, ‘they’ hope, termination for reporting that he was hired to teach physical education to 100 children in a gym at Manhattan’s Museum School, that was not equipped with proper safety equipment during the 2004-2005 school year. The corrupt Richard Condon and his untrained attack dogs, the SCI investigators, couldn’t get a handle on how to end Teddy’s career (testimony at his 3020a hearing consistently spoke about what a caring man and a great teacher Teddy was) so they used an unproven, hearsay/confidential conversation between Teddy and his former Attorney David Kearney, to scathe Teddy, malign his character, and end his career. Condon issued a report on October 4, 2007, that stated Teddy threatened to kill his 3020a arbitrator Jack Tillem, according to his Attorney David Kearney (who evidently cannot be found). The allegation should never have made it into the press, but Condon went ahead anyway, exhibiting what I call an “arrogance of immunity”. The SCI office issued a press release on October 9, 2007, about this alleged threat, and both the Daily News and The Chief published the report without speaking with Teddy – who has always denied threatening to kill anyone.
Teddy’s new Attorney, William A. Gerard, wrote High School Superintendent Francesca Pena a brilliantly written letter on November 23, 2007, which highlighted the incompetence of the investigators, and the unethical conduct of David Kearney; below are some excerpts:
“the Arbitrator’s contemporaneous notes of his conversation with Kearney on May 8, 2007, show that Kearney specifically told him that, Smith sent him an E-Mail denying he ever said any of those things.
SCI’s apparent disregard of these internal contradictions and inconsistencies discloses an inexcusable lack of attention to the very details that are critical to the integrity of its findings. The report’s conclusions are necessarily dependent on the truthfulness and accuracy of the statements of Kearney and Europe, yet SCI failed to notice or resolve these inconsistencies within its own report.
Failure to Investigate Facts
The SCI report is replete with obvious inconsistencies and inaccuracies, demonstrating a lack of investigational integrity that undermines the report’s conclusions. The record shows that there was much valuable and reliable information that they either failed to pursue or disregarded.
For instance, Mrs. Smith, Teddy’s mother, wanted to attend the SCI interview with Ted Smith on July 16, 2007, but SCI refused to interview her or even allow her in the interview room. This failure is inexplicable, considering that according to Kearney’s affirmation, she was a party to the conversation during which the threats were allegedly made. As a result, the report’s findings of Smith’s threats appear to be based solely on Kearney’s affirmation, since SCI did not interview Smith or his mother about that conversation, and the report does not quote anything said by Kearney on this subject during his SCI interview. Kearney’s affirmation was demonstrably false, and it was supplied to SCI in the futile hope that a proper inquiry would confirm this. If SCI had been at all inclined to investigate the affirmation’s allegations, they would have learned that this document does not provide viable support for their conclusions.
One of the stated grounds for Kearney’s motion to be relieved as Smith’s attorney in the Federal case against DOE is the claim that Smith violated the retainer agreement by failing to pay for the attorney’s services. Although there was a written retainer agreement between Smith and Kearney’s firm, it was a contingent fee agreement, awarding the attorney a percentage of the amount recovered in the Federal case, and it did not call for any payments to the lawyers. Kearney’s demand for attorney’s fees was instead based on the claim that Smith had orally agreed to pay an hourly rate for his representation in the disciplinary proceeding, however, Smith denies this, and an attorney is not permitted to enter such an arrangement with a client unless the agreement is in writing (see 22 NYCRR 1215.1).
Concerning when the alleged threats were actually made, Kearney’s affirmation places them on March 23, 2007, during a conversation concerning the production of a character witness and Smith’s failure to obtain certain medical records that were required in connection with the proposed medical testimony. In actuality, that conversation occurred on March 8, 2007, because that is the day that the subject medical records were needed for the scheduled testimony of Smith’s doctors, and that is also the day that the character witness testified. The transcript of the disciplinary hearing of March 8, 2007, confirms this, and quite remarkably, Kearney elicited testimony that day from the character Witness that he had never heard Smith say the F-word in the twenty years he had known him. (Mr. Herb Robinson)
Considering that an attorney is ethically bound not to elicit sworn testimony that he knows to be false, incorrect, or deliberately misleading, it defies reason to believe that several hours earlier on that same morning, Smith had engaged in a conversation with Kearney laced with the threats and profanities described in Kearney’s affirmation. Under the circumstances, the conclusion is inescapable that Kearney is either lying about Smith’s threats, or he is an unethical attorney who presented knowingly false testimony on March 8, 2007. In either case, the testimony provided by him in this matter must be viewed as inherently unreliable.
Kearney continued representing Smith, and his affirmation indicates that as the proceedings neared an end in the latter part of April 2007, Smith refused to pay us anything for our time and efforts, and disclaimed any obligation to pay us for the vindication of ” [his] rights.”
Kearney’s complaints about this fee dispute were ignored by SCI, however, there is ample evidence that this dispute was the likely motivation for Kearney’s revelations to the Arbitrator about Smith’s alleged threats of two months earlier.”
(Gerard, pp. 5-7).
“After engaging in improper ex-parte discussions with the attorneys on May 8, 2007, a telephone conference was had on May 10, 2007, where the Arbitrator followed an agreed script and recused himself on a pretext. The record shows that the Arbitrator and Kearney both followed the plan, however, the DOE attorneys (Theresa Europe –Ed) unexpectedly insisted that the real reason be put on the record. At this point, the attorneys and the Arbitrator left Smith holding on the phone for over a half an hour while they conferred on other lines about what to do. When they returned to the record, the Arbitrator confessed that his real reason for recusal was that “as an ethical requirement of his profession” Smith’s attorney had told him that Smith had made death threats against him, resulting in his unwillingness to continue as an arbitrator.
The Arbitrator’s willingness to engage in these ex-parte discussions, and to welcome the disclosure of confidential information from a conflicted attorney, led him to agree to falsify the record of the Arbitration proceeding by placing a fictitious ruling on the record. No greater misconduct exists for an Arbitrator, considering that it is his sworn duty as a Judge to ensure that the proceedings are honest, fair, and just. An Arbitrator who shows the slightest inclination to engage in such conduct should be fired as an Arbitrator and disbarred as an attorney.
It is abundantly clear that the SCI report is yet another self-serving document prepared by the DOE, and for the DOE, in order to assist them in their ongoing litigation with Smith. SCI reported Smith to the Police even before conducting the investigation, and the only purpose served by this report is to manufacture a basis to discharge Smith and resolve the pending cases.
Its conclusions about Smith are unsupported by the credible evidence, and its recommendations are utterly baseless and totally devoid of legal support. Under the circumstances, it should be disregarded and a decision should be reached that no further action is warranted.
Thank you for your courtesy and assistance.” (Gerard, pp. 18-19)
The entire letter to Ms. Pena dated November 23, 2007, is well worth reading, (as is the decision of Brooklyn Supreme Court Judge Yvonne Lewis, who also criticized the investigation of the allegations against Booker T. Washington MS 54 teacher Neil Lovinger: “Neil Lovinger, Former Teacher at Booker T. Washington, Sues and Wins”).
Former Principal Lindley “Lindy” Uehling told Teddy throughout the 2004-2005 school year that his job was to teach PE to the children, and NYC DOE Attorney Susan Jalowski said that teaching 100 kids in a class was not illegal (April 18 3020a transcript):
“The — I don’t believe there is an issue of
7 notice, the oversized classes, as we know, is
8 allowed by the contract…
11 MS. JALOWSKI: So, there’s no
12 illegal oversized class and there was — there
13 was an illegal lunchroom class. She had
14 open — Ms. Uehling had allowed the kids to
15 have gym during lunch.” (Susan Jalowski, on the record)
Teddy testified that the program went on as is throughout the 2004-2005 school year. (April 18 record, p. 654).
Another lesson to be learned here is what not to do if you are an employee of the New York City Board of Education. The administrative trials unit of the NYC DOE, Attorneys Theresa Europe and Susan Jalowski, and 3020a arbitrator Howard Edelman, are, it seems, in a quandary, now that their tale of incompetence, insubordination, and wrong-doing by Teddy, (as in allegedly threatening to kill his former 3020a arbitrator Jack Tillem), is proving to be as false as the professionalism and ethics of Mr. David Kearney, Teddy’s former Attorney, is true.
Shakespeare wrote the following (excerpt from As You Like It 2/7): “All the world’s a stage, after all, and all the men and women merely players; They have their exits and their entrances; And one man in his time plays many parts…”
For purposes of this story, Teddy Smith (pictured at left) started as a physical education teacher at The Museum School in Manhattan under Principal Lindley “Lindy” Uehling, in September 2004. He took the job because Principal Uehling promised him that he would get a job in the administration. Then, after he discovered that he was supposed to teach oversized classes up to 75 students in addition to the 100 students in the gym program to make up the 25 hours of teaching, he notified Principal Uehling in December 2004, and also notified Michael LaForgia and Peter Heaney at the District level that he noticed unsafe conditions, and that he wanted a transfer. Teddy was not given a transfer, and Uehling continuously threatened him that the safety of the students was his responsibility, and also told him that if there was an accident it would be his fault. Teddy tried to do everything that he could to follow the directives of Uehling, but he continuously tried to resolve the safety issues, in vain. Thus, in December 2004 Teddy blew the whistle on the corruption and fraud being perpetrated by the NYC BOE, Special Commissioner of Investigation For the NYC School District Richard Condon, and Mr. Joel Klein, the CEO of the corporate entity known as the New York City Department of Education, Inc. He became a whistleblower as well as a victim of the collusion of the biggest local newspapers (The Daily News and The Chief) with the NYC BOE.
While at The International Whistleblower Conference in Washington DC in May 2008, I asked others in attendance how a person becomes a “whistleblower” and, does a person ‘become’ a whistleblower? Based upon our personal stories of speaking out about wrong-doing and the subsequent retaliation in our lives, we concluded that most people do not think about becoming a whistleblower, but simply are “bell-ringers of wrong-doing”, a “truth-tellers”, or whatever you want to call someone who cannot be silent when he/she sees a situation or action that could potentially bring harm to another person. Teddy is just this kind of person. His concern was for the 100 children he was given to teach in an unsafe PE class, and he could not stay silent about the unsafe conditions at The Museum School during the 2004-2005 school year. He did not think of his own well-being, but placed the welfare of the kids in the school, first.
When Teddy was hired in September 2004, he was a 10-year tenured teacher with the NYC DOE who had never received a U rating or unsatisfactory observation. He also taught at the after-school program at the United Nations for 13 years. On March 1 2007, the Director of the program, Virginia Olney, testified on Teddy’s behalf that he was an excellent and caring teacher. His background is described in more detail here: Theodore “Teddy” Smith Wins His NY State Supreme Court Appeal To Overturn Arbitrator Howard Edelman’s 3020a Decision and Award”.
In the March 8, 2007 transcript of Teddy Smith’s 3020a hearing, his witness Mr. Nick Ragusa, who taught with Teddy 2-3 periods/day for two years at Chelsea High School 2002-2004, told arbitrator Jack Tillem for the record that Teddy was an excellent teacher and the kids loved him:
“A. I thought he was an excellent
8 teacher. I personally learned a lot from
9 working with him when it came to health issues
10 and exercises. And Mr. Smith had extensive
11 training in Marshall Arts and the kids looked
12 to him for that. Not that he bragged about it,
13 but you know, of course, the kids find out. And
14 he was just a caring — a caring man. He was
15 always there to help the students in the class.
16 He was always there to help me. He also did a
17 nice job with the junior varsity basketball,
18 which he did for two seasons; I’m the athletic
20 I wish he was still at
21 Chelsea. I was very sorry to see him go.” (p. 578).
John Lachky, who as the Assistant Principal at the High School for Art and Design while Teddy was there, testified:
“A. You know I’m not — well,
16 I — in general, yes. I remember I gave him a
17 very good obser — a positive observation
18 report. He did — as a matter of fact, I know
19 that he did a very good job for us –.
20 MS. JALOWSKI: Objection.” (Transcript of April 18, 2007, p. 695).
Victor Kurniaputra, a math teacher at the Museum School from February 2005, was told by Uehling to assist Teddy in the PE classes. He testified on March 8 as well that the Principal asked him to spy on Teddy, and come up with actions that she could give him an unsatisfactory rating “U” for:
“A. She would ask me about
15 details in Mr. Smith class and she is
16 particularly interested in subjects that finds
17 incriminating evidence for Mr. Smith…
A. She would ask if Ted Smith
23 did something that, you know, I don’t like,
24 that feels wrong. (p. 591)
A. I told her that I’m — I am
10 in the Museum School for teaching, not to be a
12 Q. And how did she react to
14 A. She wasn’t very happy about
15 it.” (p. 592)
Mr. Kurniaputra resigned in September 2005, even though Ms. Uehling was no longer Principal:
“Q. But Lindy wasn’t — wasn’t
3 the principal in 2005, correct — in September
4 of 2005.
5 A. No. He — she told me that I
6 wouldn’t be teaching there anymore because —
7 well, it was — it was confusing really.
8 Q. So it’s your opinion that
9 it — is it your feeling that she just rated
10 you unsatisfactory because you wouldn’t spy
11 on — on Ted Smith?
12 A. Yes.
13 Q. It had nothing to do with
14 your ability as a math teacher?
15 A. No.” (p. 606)
Mr. Howard Edelman, in his decision, wrote that Mr. Kurniaputra’s testimony was not credible – even though he never heard it in person.
Teddy received an email on January 29, 2005 (middle of the school year) from a woman by the name of Fay Pallen:
“You need to get the next letters written and in his file. In addition, is Ramsey going to write? You cannot get him out this year to my understanding because he is tenured. You need 2 U annual performance reviews unless it is so dangerous that the safety of the students is in question and you must document that. Try to limit the time you spend on him. Fay”
In the stunning email, Ms. Pallen is giving advice to The Museum School Principal on how to get Teddy removed from his position. He believes she sent this email to him by accident. Suffice it to say here that Teddy Smith came to Principal Uehling as a tenured teacher with wonderful references and glowing recommendations, but was not liked as soon as he started asking why the classes he had were so oversized, and why there was insufficient safety equipment available for the kids. Two weeks after the start of school in September 2004 there was a leak in the roof of the gym, so Principal Uehling closed the gym for repairs. For the next 8 weeks, Teddy had to find other rooms to provide the children the PE required. In November 2004 he told Uehling about his medical condition known as atrial fibrillation (AF or afib). This is a medical condition known to cause cardiac arrhythmia (abnormal heart rhythm) that involves the two upper chambers (atria) of the heart. Atrial fibrillation is often asymptomatic, and is not in itself generally life-threatening, but may result in palpitations, fainting, chest pain, or congestive heart failure.
As Principal Uehling gave Teddy an assistant only occasionally, his medical issue became problematic, especially since Uehling refused to give Teddy any accommodations, although he asked constantly. Uehling testified on February 8, 2007:
A. I discussed with him the
14 difficulty that — that Ted Smith and I were
15 facing with these oversized classes and that I
16 was asking him a number of questions relative
17 to conducting phys ed. (p. 1014)
And, on p. 1169 line 13:
A. That was part of his job
Q. And why — did Mr. Smith, at
6 some point, tell you that he was unwilling to
7 teach a hundred students single-handedly, —
8 A. Yes.
9 Q. — without assistants?
10 A. Yes.
11 Q. And you didn’t accuse him at
12 that time of insubordination, did you?
13 A. No. I closed the gym.
14 Q. And you did that because
15 someone advised you that that wasn’t proper;
16 isn’t that a fact?
17 A. I did it because I no longer
18 had anyone to cover the gym.
In fact, the Principal and the NYC BOE decided to pursue Teddy for not treating the illegal venue as a robot would: provide PE to 100 children in an unsafe environment without concern for the safety and welfare of the students who possibly could be harmed while in the gym. Testimony of all of Teddy’s witnesses state for the record that he is a caring man and that the kids love him for this. According to Teddy, Lindy Uehling confronted him daily at the school and threatened him about the safety of the students as his responsibility. Uehling also placed a letter in Teddy’s file every week and submitted student class rosters to the NYC DOE that had been downsized (she altered the roster for the class with 65 students and made it around 50).
Witness Marissa Russo Aragonez testified that she saw Teddy making xerox copies of his lesson plans to give to the Principal every Monday, and she thought this was very unusual. She had never heard of anyone having to do this. (March 20 2007 hearing).
The current state of affairs inside the NYC BOE star chamber is that high scores on tests, increases in numbers of students who graduate, and silence about wrong-doing (in violation of the mandated reporter policy) are the most important criteria for what “they” call ‘good’ teachers to focus on. Caring for students’ health, safety and welfare comes into play dead last, if at all. The Special Commissioner’s role is to enforce these priorities, even if it means to create false allegations and “facts” about a person, no matter what role this person plays at the school – teacher, secretary, paraprofessional, custodian, etc., it really doesn’t matter. SCI investigators, most of whom are retired from the NYC Police Department, are adept at “proving” that whatever the victim of a NYC BOE crime or error says, it is always not credible. Time and time again I have heard from teachers placed in temporary re-assignment centers, or “rubber rooms” that, after they told the SCI or OSI (Office of Special Investigations) investigators about an incident or crime, a few days or weeks later these same investigators come back to the school with the conclusion that the reporter of the wrong-doing is actually guilty of the crime.
This process is as old as time itself. There are countless reports of the ancient Greeks killing the messenger; we now call this “whistleblower retaliation”, and, thankfully, legislation is currently being written in Washington DC to prevent or stop this kind of “if you tell you’ll be sorry” practice. Most of us have come to realize that almost everyone who works in a job wants to keep working and making a salary; kids and parents often want to succeed in school, even if the “A” or “Level 3” score is bought or traded for false testimony and is not earned. People can, and do, trade honesty for rewards that meet an immediate need. The NYC BOE has fine-tuned this phenomenon into an art form because the education business can suffer harmful financial consequences if the profits and results are not up to “par” (‘their’ standard, of course). No one who works in a public school in NYC is immune to the fear of failure that causes people to lie, cheat and steal in order to achieve even a false reality for Joel Klein and his cronies.
Please note as you read Teddy’s story that the SCI investigators claim that Teddy had threatened to kill arbitrator Jack Tillem, but during their investigation, Teddy says, THE INVESTIGATORS NEVER ASKED TEDDY WHETHER OR NOT HE ACTUALLY MADE THIS STATEMENT. Teddy wrote two emails to Theresa Europe, on May 10, 2007, and then sent an email on May 14 to Europe and Tillem to report that the alleged threats were false and he wanted to meet with an investigator, but no one responded. On May 22 Teddy wrote to Mr. Richard Condon, also saying that the allegations about the threats were untrue, but Condon ignored him. See Condon’s report, p. 12:
“Conclusion and recommendations
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.”
Following this conclusion dated October 4, 2007, Condon’s press office issued the press release on October 9 that both Carrie Melago at the Daily News and Richard Steier at The Chief picked up and published. If after David Kearney had released the information that Teddy had threatened to kill arbitrator Jack Tillem and he, Kearney, had really believed this, he should have immediately gone to the police or the Manhattan District Attorney. But he did not do that. Condon, in his report, wrote that he had “advised” the DA of the situation. Basically, no one believed the alleged threats were valid or true.
I suggest that the SCI investigators were so anxious to get Teddy’s character maligned that they could not allow that most important question to be asked…what if he told them “no, I never said that”? The case SCI hoped to build against Teddy would have been thrown out by this answer, so the strategy was not to ask whether or not the threat was made. We may never know the true motive, as no NYC BOE personnel is allowed to admit error in any situation.
Also, let’s not forget that conversations between an attorney and his/her client are protected by the Attorney-Client Privilege. Wikipedia says this about Attorney-client privilege: “…a legal concept that protects communications between a client and his or her attorney and keeps those communications confidential. The policy underlying this privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-client privilege is considered one of the strongest privileges available under law. In regards to the attorney-client privilege as applied to legal representation in pending judicial claims and defenses, the United States Supreme Court has ruled that the privilege generally does not terminate upon the client’s death and continues on into perpetuity. Duties attendant to this privilege are directly connected to the attorney’s duties of loyalty, competence, and due care to his clients. See Swidler & Berlin v. United States. …An attorney speaking publicly in regard to a client’s personal business and private affairs can be reprimanded by the ABA and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client’s or past client’s dirty laundry is viewed as a breach of fiduciary responsibilities.”
David Kearney evidently wanted to end his representation of Teddy Smith and thought that the easiest way to do that would be to tell a story that would be so outrageous as to make Teddy dismiss him, or he, Kearney, would be released from his obligations to Teddy because Teddy was insane, and a “psycho”. David couldn’t keep his erroneous “facts” straight, however. He gave different dates for Teddy making his threat: to Judge Buchwald in the US Federal Court, Second Circuit, (case 06 CV 4613) he said the threats were made on March 23, 2007; DOE Attorney Susan Jalowski said the date was May 2007 (October 1 transcript); to Tillem, it was April 12. Kearney also informed Jack Tillem and Richard Condon that Teddy was a “psycho” similar to Norman Bates in the movie “Psycho”. Kearney furthered his goal to have the NYC BOE and Mr. Tillem fearful of Teddy by stating on the record (and in a May 23, 2007 affidavit to Federal Judge Buchwald) that Teddy never went through security at the front door of 49-51 Chambers Street, where the 3020a hearings are held. Thus, Kearney was hoping all parties would believe that Teddy, being a “psycho,” could very well be bringing in the building a knife, meat cleaver or submachine gun. This is, of course, ridiculous, because Teddy has no “DOE” pass and always goes through security like everyone else. This could have been easily checked. His strategy worked. Mr. Tillem recused himself after citing the potential danger of being near Teddy, and second arbitrator Edelman did not give Teddy – represented by a new Attorney, Mr. Gerard – a new hearing. In Condon’s report there are notes written by Jack Tillem, who called DOE Attorney Theresa Europe on May 11, 2007:
“Europe telephoned Tillem and advised him of her conversation with Kearney.
The arbitrator subsequently telephoned Kearney and asked about his security request.
Tillem and Kearney consistently testified at SCI that he replied, “There’s some
information that I need to tell you.” Kearney then told Tillem of Smith’s threat to harm him, which, he said, he did not regard as credible at the time. Kearney reported that he said, “However, due to Smith’s escalating behavior, including calls to my boss’s wife and letters to the arbitrator, I felt he posed enough of a potential violent threat that Smith needed, at the very least, to be passed through security.”At his appearance at SCI, Tillem produced a typewritten note which he said that he wrote immediately after Kearney’s call:
“Tuesday, May 8, 2007
Spoke to David K
Says Smith on phone April 12 stated: I’ll kick your fucking head in and kill that fucking arbitrator Jack Tillem. He’s crooked and I’m going to bust his head in. Dave said Smith has threatened to kick his head [sic] in and kill him numerous times. Dave made a memo and when he confronted Smith with his threats, Smith sent him an E-Mail denying he ever said any of those things. Dave said he doesn’t think the threats are credible. I said it may not be worth the risk if you’re wrong. On the other hand, Dave says he thinks he may be psychotic or mentally unbalanced. Compared him to Norman Bates in Psycho.
I called terry (Europe) (telephone number omitted). Left message.”
Tillem telephoned Kearney later the same day and advised him that in the circumstances, he would recuse himself from further consideration of Smith’s case. But at the May 10 hearing, he would first tell Teddy that he was recusing himself because Teddy had accused him of being biased. Theresa Europe broke the secret deal made with Tillem and Kearney not to tell the real reason and made Tillem put into the record that he was too afraid of Teddy to continue to arbitrate the case. Second arbitrator Howard Edelman decided that Teddy should be suspended without pay for a year, and he based his decision solely on the testimony in the record. Meanwhile, starting on April 30th and continuing until May 9th, 2007, David Kearney was calling Teddy with threats that he would not show up at the May 10th hearing unless Teddy paid him. Richard Condon knew all of this, including the outrageous Kearney allegations, from documents submitted in the Article 75 appeal served on the Corporation Counsel on January 8, 2008.
Now the NYC BOE starts getting confused. On December 18, 2007, Teddy received a letter from Ms. Pena, Superintendent of High Schools, saying that she agreed with the SCI findings, that the letter would go into his file, that he received an unsatisfactory rating for the 2006-2007 school year, and that disciplinary charges were being prepared that could lead to his termination. NOTE: during the 2006-2007 school year Teddy was sitting in the “rubber room” at 333 7th avenue. Teddy replied on December 31, 2007, that he protested Ms. Pena’s decision.
On January 8, 2008, the Article 75 petition and affirmation written by William Gerard was served on the Corporation Counsel at 100 Church Street early in the afternoon (1:30 PM). The next day, January 9, 2008, Teddy received two letters via Express mail from the new principal of The Museum School, Darlene Miller. Teddy has never met or spoken with Ms. Miller. Evidently, she was so anxious to charge Teddy with threatening the life of Jack Tillem that she – or someone – went to the all-night post office on 33rd Street and 8th Avenue in Manhattan and sent these two letters at 10:55 PM and 11:15 PM on January 8, 2008. In these documents, Ms. Miller stated, “In view of your unprofessional conduct while a teacher at the New York City Museum School, during the 2006-2007 school year, the following charges are being preferred…” and, in the second letter, Teddy was charged with threatening the Arbitrator Mr. Jack Tillem.
Again note that Teddy did not work at The Museum School in 2006-2007, he taught there in 2004-2005, and he has never spoken with Darlene Miller. How did she find probable cause???
On April 30, 2008, Teddy won his Article 75 appeal, as I previously wrote in my articles listed above. However, as the City has filed a Notice of Appeal of the Schlesinger decision, Teddy remains on suspension without pay as a result of Howard Edelman’s decision. I called NYC BOE Attorney Susan Jalowski to find out when Teddy could return to the rubber room and be back on salary awaiting his new 3020a hearing, and she said that he would return after his suspension is up, not before. But Teddy has been told that he will have a hearing before arbitrator Bonnie Weinstock on the new charges. Weinstock scheduled a pre-conference hearing for August 6, 2008, then adjourned this date for September 16 at 51 Chambers Street. Further dates for the new 3020a hearing will be set at the September conference. Evidently, Ms. Bonnie Weinstock will be the arbitrator who hears testimony and decides the case against Teddy for threatening to kill Jack Tillem and the award. Will David Kearney come in to testify? If so, he will possibly be disciplined for breaking his attorney-client privilege.
I called Mr. David Kearney’s law firm, the Law Offices of Neal Brickman, on Thursday, August 21, 2008. I asked to speak with Mr. Brickman about Mr. Kearney’s conduct towards Teddy Smith, and Mr. Brickman told me that he had “no comment”. David Kearney has been fired. No one seems to know where he is, even today.
In sum what we have here is a good teacher (Teddy Smith) whistleblowing unsafe conditions at his school (The Museum School), and the NYC BOE, as well as the SCI (Richard Condon) doing everything they possibly can to malign Teddy’s good name, destroy him personally and ruin his career to teach him and all those who dare to speak out, a lesson.
Mayor Bloomberg: fire Richard Condon and Joel Klein. Please.
See our story about Teddy Smith at:
I’m sure that all of us have heard about the Attorney-Client privilege? In fact, the ABA Model Rules 1.6 say:
Model Rules of Professional Conduct
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
So, Mr. Kearney must have decided that Mr. Smith’s alleged “threat” was so believable as to lead to the breaking of the confidentiality agreement between him and Mr. Smith! He was, therefore, protecting the life of Mr. Tillem.
Let’s see whether Mr. Kearney can provide documented proof of Teddy Smith’s threats at his – Mr. Kearney’s – Attorney Disclipline Committee hearing. If he cannot, I might suggest that the Committee consider disbarrment. Oh, but if that happened, what would happen to The Rubber Room Movie? David called me up and talked with me about doing The Daily Show with Jon Stewart on the NYC rubber rooms, and he told me that he was working on this movie. In what capacity, David?
I’m asking this question because Teddy Smith will be going into another 3020-a arbitration on the charges of threatening Jack Tillem. Will Kearney hire a lawyer, or will the NYC BOE represent him? If the NYC BOE represents him, then he is an employee of the NYC BOE. Interesting concept…
Below is an article published in The Chief about Teddy Smith’s win in the Supreme Court, as we told you in our previous articles (see above). Teddy asked for both the Daily News and The Chief to retract their previous statements about his wanting to kill Mr. Tillem, but, as Ann told me at the Daily News, “We print anything that Richard Condon says, as he is a public person”. No word from The Chief on this retraction. As an investigative reporter/journalist for 33 years I think that it would have been journalistically (is this a word?) logical to ask Teddy Smith if indeed he ever said anything about killing Jack Tillem before taking the word of David Kearney as the absolute truth. However, if Kearney has suddenly been hired by the NYC BOE and will now be represented by them, or paid to testify against Teddy, then we have another fascinating development in this case. I understand that Teddy plans to have an open and public 3020-a hearing, so watch for a time and date. At an open and public hearing, anyone may attend and observe. ONLY observe, not talk.
See you there!
Judge Halts Suspension Of Teacher Accused Of Threatening Arbiter
By DAVID SIMS, The Chief, July 7, 2015
A veteran teacher who was suspended for allegedly threatening to kill an arbitrator hearing a disciplinary case against him has had his suspension overturned by a judge because a second arbitrator who imposed it did so without hearing any testimony in the case.
Manhattan Supreme Court Justice Alice Schlesinger issued a decision stating that the disciplinary process against Theodore Smith contained “very unusual and disturbing circumstances” and that a new hearing must take place.
Lawyer Alleged Dual Threat
Mr. Smith was originally accused of 27 instances of misconduct, including excessive absences and lateness at his job at the New York City Museum School. At the first internal Department of Education trial, arbitrator Jack Tillem had an off-the-record conversation with Mr. Smith’s lawyer, David Kearney, saying that he had already made up his mind on a 3-to-6 month suspension for Mr. Smith, who was incensed when he overheard the proposal. A month later, Mr. Kearney alleged that Mr. Smith had told him “I am going to kick your f—— head in and kill that f—— arbitrator Jack Tillem, you hear me?”
Richard J. Condon, the Special Commissioner of Investigation for the New York City School District, recommended last October that Mr. Smith be fired after a hearing conducted by Mr. Condon’s office. DOE Arbitrator Howard Edelman subsequently decided to suspend Mr. Smith for one year.
The death threat was the chief cause of Mr. Condon’s recommendation that Mr. Smith be fired, as well as his referral of the case to the Manhattan District Attorney’s Office for prosecution. However, Mr. Smith has insisted that Mr. Kearney invented the death threat and was in collusion with Mr. Tillem.
Justice Schlesinger ruled that a new hearing had to be convened because Mr. Edelman imposed the suspension based solely on written testimony from the Tillem hearings, and did not call any witnesses. “The second Arbitrator … decided the controversy based solely on the transcript of the proceedings before the first Arbitrator, thereby violating his due process to a right and fair impartial hearing,” her decision stated.
A new hearing before a different arbitrator is scheduled to take place.