Judge Halts Suspension Of Teacher Accused Of Threatening Arbiter
By DAVID SIMS

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.