The Plight of Ted Smith

I know Ted. I appeared on his radio show back in March of 2009. He is a good person, a warm hearted person. He does not deserved what has happened to him. He blew the whistle and got screwed. What is sad is where is the UFT in all this, where is the outrage? The following is from Ted Smith's own words which appeared in Gotham Schools tonight. THIS IS WHY TEACHERS NEED TENURE AND LIFO!!!


Ted Smith Teacher

I am making a complaint to various government agencies and asking for an investigation based on evidence that the Department of Education (DOE) of New York City, the Special Commissioner of Investigation (SCI),  Arbitrator Bonnie Weinstock (Weinstock) and my former attorney David Kearney (Kearney) committed  conspiracy, corruption, fraud and “fraud on the court”, in particular the Appellate Division, the First Department of New York and other Courts.  They violated the color of law statute, falsified government agency reports, lied under oath and severely violated the Constitution. The schemes involved are truly frightening.  The U.S. and the New York State governments, and the New York State Commissioner of Education, must conduct an investigation, since the rights of everyone are involved. This scheme and corruption cannot be ignored.  This letter covers a small part of what has occurred. There is documentation for every statement of fact referred to in this letter. (E-mails, letters, tapes and transcripts are available in the public records, some of which I am enclosing).

Briefly, I am a former tenured teacher employed by the DOE from 1995 through 2010.  Until 2005, I had only the highest annual evaluation ratings in every category. For 15 years I also worked with the United Nations After-School program, until the program was discontinued in 2010.  I have earned a Supervisory License and had planned to become a principal.

This entire situation began in 2004 when I accepted a position of teaching physical education at the New York City Museum School (Museum School) since I was told that an assistant principal position would be opening up. The principal,  Lindley Uehling, (Uehling) misrepresented the program to me. I was a full-time teacher, but I was hired for what amounted to a part-time program. Instead of making the program full time, the school had fewer than needed number of classes, cramming over 60 students into many of the classes, without proper advance notice to me or to the Chancellor of Education.  When I complained to the DOE, Chancellor Joel Klein and Mayor Michael Bloomberg that the school had illegally and dangerously put too many students into it classes, without assistants much of the time, I was charged with incompetence and insubordination.  The principal testified under oath that it was part of my job to supervise about 100 children without an assistant. I was given a first unsatisfactory rating in 2005, and the DOE further violated the New York State Education Law, 3020-a, by denying me peer intervention and sending me in September, 2005, to the notorious Teacher’s Reassignment Center, also known as “the Rubber Room.” 

While in the “Rubber Room”, separated from the Museum School since September, 2005, and waiting to have a hearing regarding the charges against me for the 2004-2005 school year, a new principal, Darlene Miller (Miller) was assigned to the School. I have never met her, yet in January of 2008, when I had not been at the Museum School since the 2004-05 school year, additional charges were submitted by the DOE on January 9, 2008, regarding Arbitrator Tillem.  Darlene Miller signed a Principal’s Determination of Probable Cause, stating to me and the New York State Education Department, “In view of your unprofessional conduct as a teacher at the New York City Museum School, during the 2006-2007 school year, the following charges are being preferred…”. She was accusing me of threatening the Arbitrator.  In 2006-2007, I was in the “Rubber Room”, and thus not under Miller’s supervision. And then again in May, of 2009, in violation of the Education law, again signed a probable cause regarding absences. This same principal, who has never known me was arrested in December, 2011, after hitting a police car and as stated in the NY Post.”…smelled of alcohol and had impaired speech and coordination, according to the officer’s deposition”, and refused a breathalyzer.  Education officials were quick to point out that  Miller did not follow protocol in reporting her arrest.

I had spent two and a half years of unlawful confinement in the Rubber Room, where rules did not permit any meaningful work to be done, before hearings finally got started in January, 2007.  The Arbitrator was Jack Tillem (Tillem), and my attorney was David Kearney (Kearney) an associate with the law offices of Neal Brickman.  Representing the DOE was Susan Jalowski (Jalowski).

After the DOE completed its case, Arbitrator Tillem  determined that I should take a 3 to 6 month suspension. This was before any of my witnesses were heard.  I rejected Mr. Tillems offer of a suspension, since certainly he knew from the evidence and facts in the record that I was in an illegal program, that I did not have assistants most of the time to work with me in classes that had over 60 students, and that the testimony and facts clearly showed  that even the school’s administration had concerns regarding the safety of putting so many children in a class.  I wanted to be heard on these issues.

In October ,2005, I had engaged the law firm of Neal Brickman, to file a Federal lawsuit against the DOE.  My agreement with the law firm precluded billing for services for the 3020-a proceedings. The Federal lawsuit that the firm was handling was on a contingency basis, and Kearney appeared at the 3020-a hearings beginning in January, 2007.  Starting on or about April 27, 2007, Mr. Kearney began to threaten me that he would not attend the final hearing in May 10, 2007, unless I signed a document stating that I would pay at a future time for the 3020-a hearings, contrary to the agreement with the Brickman law firm. (Enclosed are Kearney’s taped threats). As can be seen, on May 3, 2007, Kearney said, “You need to sign the consent form or we don’t show up on the 10^th.  I don’t know much clearer I can be.”  There is no indication of his storytelling in his telephone taped messages of any threats – in fact, even after telling Tillem on May 8, 2007, that I threatened him, he continues to pressure me into signing a consent form.

In response to this harassment, and because I feared that I would not have proper representation for the final hearing which was scheduled for May 10, 2007, I sent a letter to Arbitrator Tillem on May 3, 2007.

On May 8, 2007, Kearney notified me that Tillem was going to recuse himself because of my letter of May 3, 2007. However Kearney was still harassing me and threatening not to appear at the final hearing.

Unknown to me on May 8, 2008, Kearney was conspiring with Arbitrator Tillem and the DOE attorney, Jalowski, to make false claims which Kearney said were made in a private phone conversation with him, that I had threatened to kill Tillem and him. The evidence and facts show that Tillem,  Jalowski and Kearny made an “agreement” on May 9, 2007 that  Tillem would recuse himself based on my May 3, 2007 letter. Kearney testified under oath at the SCI, in June, 2007.  He asked the Arbitrator Tillem, not to mention the threats he had reported.  He stated, “The last thing that I want is for there to be a record of my disclosure, which could be used for any number of purposes.”  As stated and in the record, Tillem and Jalowski agreed to this scheme, the “agreement”.  This conspiracy is clearly shown in the transcript of May 10, 2007, in a conference call in which I participated. The other participants were Kearney, Tillem, Jalowski and Theresa Europe, Deputy Counsel to the Chancellor. The collusion is also shown in various e-mails among the parties, including e-mails from me in which I pleaded to have my side of the story heard and was ignored.  The conference call on May 10, 2007 is documented to have lasted for 57 minutes. The transcript copy shows only about five minutes of testimony. The reason is that most of the time Europe, Jalowski, Kearney and Tillem were in private discussions, excluding me.  Kearney requested that he go off the record to speak with Europe.  Europe agreed, and Tillem said, “Well, in all fairness to the process, I---I’m inclined to agree with Ms. Europe…”.  Fairness to the process??

I am also enclosing my letter to Richard Condon, the Special Commissioner of Investigation (SCI) for the New York City School District, of May 22, 2007, which includes parts of the conversation that I recorded but did not end up in the official transcript. This behavior of Arbitrator Tillem, the DOE and Kearney to condemn me without hearing one word from me regarding Kearney’s false story of threats, along with the dishonest behavior of the DOE’S lawyers is unethical, and it gets much worse as I will explain.  The transcript of May 10, 2007 is clear.  Arbitrator Tillem, acting in the capacity of a judge, recused himself and changed his reason for recusing himself as directed by Kearney.  Suddenly, during the conference call, I was accused of being a threat and a danger, and before I could say anything to rebut those false charges, everybody immediately hung up. 

On May 10, 2007, following the above conference call, I e-mailed Europe, as did my mother, Lillian Smith demanding a meeting with an investigator.  Europe forwarded the e-mails to Regina Loughran, an attorney for the SCI.  There was no response to meet with an investigator, not even after I and Lillian Smith complained to the District Attorney’s office, and that office referred the complaints to the SCI. In fact, a case number was opened by the SCI.  As explained below, the DOE and SCI, secreted these documents for two years, at which time I was kept in the “Rubber Room”. It is important to know that the SCI refused to interview Lillian Smith.

Meanwhile, on May 11, 2007, one day after the conference call, at Europe’s direction, Jalowski on behalf of the Office of Legal Services at the DOE, requested that paperwork be submitted that I have a psychiatric evaluation under Section 2568 of the New York State Education law.  Michael  LaForgia, a Local Superintendent, sent me a letter in which he stated that I made verbal threats to my attorney about the arbitrator and further stated that I can be a threat to others.

On May 16, 2007, I was directed to attend a medical examination by the Medical Department of the DOE. The exam was ordered for June 11, 2007.  On June 12, 2007, I received two letters dated June 11, 2007 from the State Education Department, dated June 11, 2007. One stated that Howard Edelman (Edelman), an Arbitrator, had agreed to serve as the Hearing Officer and that the Hearing Officer had scheduled a hearing date for June 15, 2007. I was also advised that the hearing would proceed whether or not I was in attendance.  I immediately called the State Education Department and explained that I had received no advance warning of a hearing scheduled to be held in only three days.  I was advised to call the Office of Legal Services at the DOE. In response to my inquiry, on June 12, 2007, I received an e-mail from Europe, in which she stated that Jalowski was still the attorney assigned and that the hearing was a continuation of the matter formally assigned to Arbitrator Tillem.  On June 13, 2007, I informed Jalowski in an e-mail that I knew nothing regarding the hearing scheduled for June 15, 2007 and requested that she please inform Arbitrator Edelman to which she responded.

Before there was any decision regarding my Section 2568 medical evaluation on June 11, 2007, I was notified nevertheless, that arrangements had been made for me to meet with the new arbitrator. Edelman.  The hearing was held at the Office of Legal Services, at the DOE, with Edelman, Jalowski and me on June 15, 2007. Edelman stated in part that he would write to the prior arbitrator, Tillem, to get all of the prior transcripts.

As this conspiracy and fraud unfolded, it became clear that after the Office of Legal Services of the DOE, made accusations on May 11, 2007 that I was a threat to the Arbitrator and to others, directing me to attend a medical evaluation on June 11, 2007, as stated above, and without any decision regarding my Section 2568 examination, on that very same day, June 11^th, I was notified nevertheless that arrangements were made for me to meet with the new arbitrator, Edelman. on June 15, 2007.  

On July 12, 2007, I received a fax from the medical office of the DOE that on July 11^th, 2007, it was found there were “no objective findings to preclude return to work”.  The DOE knew all along that I was not a threat and a danger, and that Kearney’s story was false, but that did not stop an ongoing conspiracy  between the SCI , the DOE and several arbitrators.

There were continued hearings with Arbitrator Edelman following June 15^th, 2007.  On August 10,  2007, at a conference call hearing I attended with Edelman, Jalowski, William Gerard (Gerard), my new attorney at which time, Gerard , wanted to the discuss what had occurred at the May 10, 2007 hearing with Tillem.  Jalowski objected to any discussion regarding Tillem’s recusal and stated, “I – I think that in the interest of justice, that it was not necessary for him [Edelman] to know the – reason for the recusal” (interest of justice????) and then … "that he does not have the record for that”.  Edelman repeatedly stated, “I don’t need it, I really don’t want to hear it”. Clearly, death threats were never an issue to the DOE, and yet the DOE falsely charged me with making death threats, that I was a threat and a danger, got the SCI and the Arbitrators to back up their false statements, knowing that Jalowski stated they secreted from Edelman the facts of what occurred at the May 10, 2007 hearing –  it is important to know that Weinstock, the Hearing Officer for the new charges which I am enclosing, knowing of my meeting with Edelman on June 15, 2007,  prior to any determination of the examination on June 11, 2007,  totally ignored this crucial fact and the fact that I was subsequently found determined to be fit for DOE employment on July 11, 2007; nevertheless falsely concludes on June 4, 2010, that I suffer from a rage, and am not fit for DOE employment, a total contradiction of Section 2568 of the New York State Education Law, which determined that there was no reason to preclude my return to work. This continued disregard of the law and the facts, cannot be overlooked. If Weinstock’s statements and determinations were true, then it would appear that the DOE expected me to kill Edelman, who was unaware of the fact that I was accused of threatening to kill Tillem and Kearney.  Again, this corruption and fraud by the DOE, SCI and Weinstock must not be sanctioned by any government agency.

Also, DOE attorney, Victor Muellen (Muellen) in cross examination on June 10, 2009, (after waiting two years to be heard on these false charges as the facts show), confirmed the fact, “And it wasn’t until July 11^th that the medical review concluded with no objective findings to preclude return to work; Correct.” Additionally, there are the documents from the medical department, the SCI report stating , “Smith was examined as directed by the DOE, and was determined to be fit for DOE employment”, the e-mails of Europe and Jalowski, my own testimony, and yet this was entirely ignored by Weinstock, and she continued her misconduct and fraud.

I complained to the SCI in a letter dated May 22, 2007, which is enclosed.  On July 2, 2007, Michael Humphreys, (Humphreys) an SCI Investigator, confirmed our meeting to be held on July 10, 2007 (which was cancelled to July 16, 2007). I brought various information as requested, and my attorney submitted the affirmation that Kearney submitted to the Federal Court on May 25 ,2007, 16 days after his story to the DOE, accusing me of threatening him and arbitrator Tillem.  My attorney  gave this document to the SCI, since Kearney lied under oath and we wanted to discuss his false statements. They quickly looked it over, but never asked me one question, in fact, in the taped interview, which lasted for one hour and forty-eight minutes and produced 115 pages of testimony, not one question was asked of me regarding any death threats to Tillem or Kearney, as stated in Kearneys affirmation, and it wasn’t until about two years later when the DOE turned over discovery to be used in the hearing in May, 2009, on the charges that I threatened the arbitrator, that I learned that the DOE and SCI were surreptitiously in contact, and were aware of my communications with Europe, starting on May 10, 2007,  pleading to meet with an investigator, not to deprive me of my rights and also ignored the fact that Lillian Smith wrote to Europe, also asking to be heard.  Europe sent these emails , which I am enclosing to Regina Loughran, the attorney for the SCI.  No one responded, again not one question was asked of me on July 16, 2007, and yet the SCI falsified their report of October 9, 2007, by stating that my denials were not credible, among other serious misrepresentations, stating that I first met with Edelman in September of 2007, when they knew that it was June 15, 2007, at the instructions of Europe. I am also enclosing  internal memos of the SCI dated May 2007, written by Michael Humphreys (Humphreys) an SCI Investigator, in which he speaks about an e-mail he received from the Office of Legal Services, and the clear knowledge that the SCI knew I wanted to meet with an investigator.  This before my interview on July 16,  2007.  How can this be? This conspiracy between the DOE and SCI is too outrageous and I say again must be investigated. Arbitrator Weinstock received all of these internal memos from the SCI, during the hearing in May and June of 2009 and totally ignored every one.  The interview on July 16, 2007, was conducted by Gerald Conroy, Deputy Commissioner and Humphreyes. How can a government agency have absolutely no respect or regard for the law??

To further cause me severe grief and humiliation , the SCI submitted a falsified report to the press on October 9, 2007 and the District Attorney, to which Europe testified under oath in May, 2009 that she approved, when she knew that I was never asked a question regarding the report until after it was published, and directed me to meet with Arbitrator Edelman on June 15, 2007, prior to a determination by the Medical Department of the DOE, in compliance with Section 2568 of the New York State Education Law, that on July 11, 2007, that there was no reason to preclude me from returning to work.  I received a letter from Francesca Pena, a DOE Superintendent, after the publication to the  press stating that she wanted to meet with me regarding a complaint by the SCI, but would not say what the report was about. We arranged to meet on November 3, 2007.  The report was the October 9^th letter that was sent to the press and Chancellor Joel Klein.

In, October, 2007, Richard Condon (Condon), the Special Commissioner of Investigation, after sending a press release on October 9, 2007, which was falsified and explained in this letter, then gave an interview to the publication, The Chief, that I threatened the life of Arbitrator Tillem.  This false statement, which again was part of a falsified report and falsified investigation, by the Special Commissioner is an assault on our democracy and me. 

In addition, unknown to me or my attorney, I was the target of an investigation on July 16, 2007, when I was interviewed by the SCI.  Two months prior to my interview, Europe, Jalowski, Tillem and Kearney were interviewed under oath as a part of an investigation against me.  This was more than unethical behavior by the SCI.  As indicated, based on my complaint of May 22, 2007, and Humphrey’s call on July 2, 2007, my interview was going to be based on my complaint.  There is not one word in the taped interview of July 16, 2007, that I was the target of an investigation which e-mails state were started in May, 2007.  Europe, Jalowski, Tillem and Kearney were interviewed under oath in May and June of 2007.

The 3020-a hearing with Edelman who took the place of Tillem regarding the Museum School charges continued on June 15, 2007. Arbitrator Edelman found me guilty of charges relating to the Museum School on December 4, 2007.  My attorney, William Gerard  filed an article 75.  Judge Alice Schlesinger, a New York State Supreme Court judge found in my favor, that I should have a new hearing. The DOE appealed and in keeping with their unethical and dishonest behavior, misrepresented to the Appellate Division, First Department, false statements which will be discussed below.  Judge Schlesinger stated in part, “These are very unusual and disturbing circumstances, circumstances that did not become public and relevant until petitioner and his former lawyer, David Kearney became involved in a nasty fee dispute”.

The appeal was overturned by the Appellate Division.  I was suspended for one year on December 4, 2007.  In January, 2008, I was charged with new charges regarding Arbitrator Tillem and the alleged death threats, and after the completion of my suspension as ordered by Edelman, I returned to the “Rubber Room” in January, 2008, and did not have a hearing of these charges until May, 2009 and further, no decision until June, 2010.

Kearney, my accuser, was not available to testify and to be cross examined. As the record shows, Kearney had left the country and did not respond to e-mails sent to him by the DOE.  The record shows that Muellen, a DOE attorney stated that Kearney did not respond to the DOE and how very difficult it was to try to find him. Nevertheless, since the 3020-a does not follow the strict rules of evidence, Weinstock determined Kearney’s affirmation to the Federal judge was reliable and would be accepted as hearsay evidence. This when she knew, that his affirmation to the Federal judge was perjurious, based on the evidence and facts in the record and the fact that he was unreliable as told by Muellen. Weinstock, the DOE and SCI knew that Kearney gave different dates as to when these alleged death threats occurred  to the Federal Judge with other untruths. In fact, following his affirmation on May 25, 2007, he sent a letter to the Federal judge, and gave yet another date of when he said the threats were made, during a private conversation regarding the production of medical records for a hearing, and yet another date to Arbitrator Tillem.  All in the record,  Weinstock states in her decision that she didn’t care if the date of the threat was early March, 2007, late March or April, 2007. The record shows there was no hearing on March 23, 2007 as Kearney claimed in his affirmation on May 25, 2007, and  the date of the threat was not important to Weinstock.  Neither Weinstock, the DOE or the SCI could justify the charge that I threatened Tillem on April 12, 2007 or at anytime. As the record shows, there were hearings with Tillem in 2007, on January 3, 11, February 8, 15, 22, 28, March 1, 8, 20, April 18, 23, and May 10^th. Except for May 10^th, 2007 which was a telephone conference hearing, all hearings were held at the Office of Legal Services, at the DOE. The fact that the final hearing, May 10, 2007, was held by phone, was based on the fact that Kearney told Tillem on May 8, 2007, that I had threatened to kill both him and the Arbitrator for threats Kearney told Tillem about on May 8, 2007, in which he said were made on April 12, 2007, while telling a Federal Judge on May 25, 2007, and again in a letter that it was March, months earlier. This did not matter to Weinstock, even though the facts and evidence could not have been more clear. Weinstock stated, “The Arbitrator finds the timing of the threat much less problematic. The important factor is that the Respondent was due to see Arbitrator Tillem again [May 10, 2007] in the confines of a small hearing room at the offices of the Department of Education”.  The same “small hearing room”, the same place, the Department of Education that Weinstock knew I had met with Arbitrator Tillem, on April 18, 2007 and April 23, 2007 with Kearney and Jalowski present and on June 15, 2007 with Arbitator Edelman, at the direction of the New York State Education Department, Europe, Jalowski and Edelman, in the same “small hearing room” at the Department of Education. “The important factor….???”  The important factor is the fact of the fraud and conspiracy committed by Weinstock, the DOE and the SCI.

Additionally, the SCI report does not specify the date of the alleged  threats, and Humphreys testified that it was not his focus to determine when the threats were made.

Weinstock, not having any regard for the truth or the law, consolidated additional charges in May, 2009, even though Chapter II of the Commissioner’s Regulations, subpart 82-1.10 (c) only empowers the hearing officer to consolidate no later than five days before the pre-hearing conference.  Here, the pre-hearing conference occurred in September, 2008, eight months before the consolidation, over the objections of my attorney.

Weinstock not only ignores the evidence and facts, but changes it. Kearney’s taped telephone messages and emails are clear, that he will not attend the final hearing unless I sign a consent form but Weinstock said the he was prepared to attend the final hearing when she knew there was no final hearing since Tillem was recusing himself. She asked that the tape of my transcript of my interview of July 16, 2007 by the SCI be transcribed.  As stated earlier there were 115 pages of that interview, in which the DOE based their charges that I threatened Arbitrator Tillem.   Weinstock knew that the SCI report concluded that my denials that I threatened Tillem were not credible, when she knew the SCI never asked one question about the alleged threats. She totally ignored this fact and evidence.  What could be more corrupt?

Humphreys, testifying for the SCI, while testifying that I was not credible, could not identify a single instance in my SCI interview where my sworn testimony was inconsistent, or conflicted with the testimony of Tillem, Jalowski, or Europe.

               

I am enclosing the charges I was served in January of 2008.  Although there is a lot more to tell, I will make reference to several of the charges. The DOE acknowledged in Specification 2, that I mailed a letter to the office address of Jack Tillem, not his home.  Regarding the letter to Jack Tillem, Tillem testified that I never threatened him, the letter was preposterous, it did not frighten him, and it wasn’t until May 8, 2007 that he had concerns, when Kearney told him that I made a threat. Specification five was removed, since there was no evidence by the SCI that I made false statements on July 16, 2007. Further, there were never any criminal charges against me by any government agency, as falsely stated by the DOE and based on the falsified report of the SCI.

Weinstock further committed a “fraud on the court”.  The DOE falsely stated to the Appellate Division, the First Department, that I had threatened the arbitrator, when in fact no such findings had been made or substantiated by the Tribunal. This unsubstantiated finding was later referred too in the decision of Weinstock, thereby perpetrating this untruth to further tribunals.

In causing unsubstantiated allegations to be submitted to the Court and others, the DOE and Weinstock committed ”fraud on the court”. Weinstock eventually found me “Guilty” of these charges on June 4, 2010 and terminated me.  This has caused me to file appeals, based on the conspiracy and fraud by the DOE, SCI and Weinstock.

This scheme, this hoax, this conspiracy and fraud has caused me to suffer more than I can explain.  This assault hurts all of us and I am depending on the various government agencies to see that there is justice.

Theodore (Teddy) Smith