Kent v. New York State Public Employees Federation, AFL-CIO
| Docket Number | 1:17-CV-0268 (GTS/CFH) |
| Decision Date | 31 March 2020 |
| Citation | 612 F.Supp.3d 50 |
| Parties | Susan KENT ; Carlos Garcia; Maureen Kellman ; and Ken Johnson, Plaintiffs, v. NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO ; Wayne Spence, individually and as President of NYS PEF ; Don Morgenstern, individually and as a member of NYS PEF ; and Kevin Jones, individually and as a member of NYS PEF, Defendants. |
| Court | U.S. District Court — Northern District of New York |
OF COUNSEL: CHERYL L. SOVERN, ESQ., SOVERN LAW, PLLC, Counsel for Plaintiffs, 100 Saratoga Village Boulevard, Suite 371, Malta, NY 12020.
OF COUNSEL: BARRY N. SALTZMAN, ESQ., ANDREW D. MIDGEN, ESQ., PITTA, LLP, Counsel for Defendants, 120 Broadway, 28th Floor, New York, NY 10271.
DECISION and ORDER
Currently before the Court, in this action pursuant to the Labor Management Reporting and Disclosure Act ("LMRDA") filed by Susan Kent, Carlos Garcia, Maureen Kellman, and Ken Johnson ("Plaintiffs") against the New York State Public Employees Federation, AFL-CIO ("PEF"), Wayne Spence, Don Morgenstern, and Kevin Jones, is Defendants' motion for summary judgment. (Dkt. No. 73.) For the reasons set forth below, Defendants' motion is granted.
Generally, in their Complaint, Plaintiffs assert three claims: (1) a claim that Defendants violated the LMRDA ( 29 U.S.C. § 411 [a][5]) by failing to (a) serve Plaintiffs with specific written charges, (b) give them reasonable time to prepare their defense to those charges, and (c) afford them with a full and fair hearing; (2) a claim that Defendants violated the LMRDA ( 29 U.S.C. § 411 [a][2]) by retaliating against Plaintiffs for engaging in protected speech when Plaintiffs followed their own interpretation of their duties under the LMRDA related to conducting an investigation into suspicious spending in one of PEF's Divisions; and (3) a claim that Defendants engaged in breach of contract when they failed to adhere to Article XIX(A) of the PEF Constitution and to various provisions of the PEF Code of Ethics. (Dkt. No. 1, at ¶¶ 145-245 .)
The following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts and either expressly admitted or denied without appropriate record citations by Plaintiffs in their response thereto. (Compare Dkt. No. 76 [Defs.' Rule 7.1 Statement] with Dkt. No. 78 [Pl.'s Rule 7.1 Resp.].)
5. In 2012, Plaintiff Kent was elected as PEF President on a slate she led (known as New York Union Proud) with Defendant Spence as Vice President, Plaintiff Garcia as Secretary-Treasurer, and Plaintiffs Kellman and Johnson as Trustees.
6. After her victory, Plaintiff Kent reappointed Defendant Morgenstern to continue his decade-long chairmanship of PEF's Ethics Committee.
7. PEF's Ethics Committee, whose members are appointed by PEF's President, reviews charges of ethics violations by PEF members to determine whether the matter should be referred "for a hearing before a Hearing Panel," which occurs in situations where "the Ethics Committee finds substantial evidence of a more serious violation of the PEF Constitution, Code of Ethics, or PEF policy."
8. During the spring of 2013, the Treasurer of PEF Division 235 reported concerns about problems obtaining documentation for expenditures from Division 235 Council Leader Deborah Lee.1
9. In October 2013, the Secretary of Division 235 requested that PEF perform an audit of the Division. 10. Plaintiff Garcia declined the Division's request that PEF perform an audit at that time, stating that the Division was required to perform its own internal annual audit (which had not yet been conducted at that time) before any PEF audit could take place.2
11. Plaintiffs Kent and Garcia referred the matter back to the Lee-led Division to complete its own internal audit for 2012-2013.
12. In October 2013, Defendants Spence and Morgenstern reviewed excerpts of Division 235's ledger that showed that Ms. Lee's personal expenditures for grocery stores, restaurants, and home accessories exceeded $2,000.
13. During that time, Defendants Spence and Morgenstern requested that Plaintiff Garcia refer the matter to law enforcement authorities.
14. Plaintiff Garcia declined to contact law enforcement authorities.
15. PEF Trustees have a duty under the PEF Constitution to periodically review the fiscal records no less than semi-annually in cooperation with the Secretary-Treasurer and a Certified Public Accountant, and to document and report to the membership any activities that they perceive as not being in the interest of the membership; they function independently of the President and Secretary-Treasurer, receive written requests from any member in the organization, and can review a request without the approval of any PEF officer.
16. In October 2013, Plaintiff Johnson received an oral request from Division 235's Assistant Council Leader Santhosh Thomas for the Trustees to conduct an audit of Ms. Lee's expenditures. Plaintiff Kellman was made aware in early 2014 of Division 235's concern with Ms. Lee's spending.
17. Plaintiffs Kellman and Johnson made no effort to begin a PEF audit in response to the requests by Division 235; instead, Plaintiffs Kellman and Johnson relied on the Kent Administration's direction to wait until Division 235 completed its internal audit.
18. In March and April 2014, Mr. Thomas and Division 235 Steward Elizabeth Falco each filed an ethics grievance petition against Ms. Lee.
19. Subsequently, in 2014, Plaintiffs Kent and Garcia invited Defendant Morgenstern to Plaintiff Kent's hotel room where, for between 10 and 30 minutes or more, they questioned Defendant Morgenstern regarding his decision to move ahead with the Ethics Committee's review of the ethics charges against Ms. Lee.
20. The Ethics Committee found that Ms. Lee had committed a major violation and directed that the matter be sent to an Ethics Hearing Panel.
21. Plaintiff Kent appointed the Hearing Panel members entirely from her own supporters.
22. On the day the hearing was conducted (November 5, 2014), in a one-paragraph decision that cites no evidence, the Kent-appointed Hearing Panel found Ms. Lee not guilty of malfeasance, but only of "negligence in record keeping for the details of the funds spent."
23. Mr. Thomas and Ms. Falco appealed the decision to the PEF Executive Board.
24. On December 5, 2014, during Plaintiff Kent's tenure as President, the PEF Executive Board reversed the Hearing Panel's decision and imposed discipline against Ms. Lee in the form of a three-year total membership suspension.
25. In the June 2015 PEF election, Defendant Spence headed a slate known as the Coalition of Union Professionals ("Coalition") opposing Plaintiffs Kent and Garcia.
26. Defendant Jones chaired the Coalition as an active member.
27. Defendant Morgenstern did not campaign for or with Defendant Spence or his slate.
28. The Coalition campaigned hard against Plaintiff Kent and her slate on, among other points, Plaintiffs Kent and Garcia's conduct regarding Ms. Lee. Plaintiffs could and did actively respond as incumbents.
29. Plaintiffs Kent and Garcia authorized legal action against Ms. Lee in April 2015.
30. Defendant Spence's Coalition won the election in June 2015, taking office in August 2015.
31. In December 2015, just four months after Defendant Spence assumed office (but over two years after Plaintiffs Kent and Garcia rebuffed Division 235's requests), PEF obtained a default judgment against Ms. Lee for $64,104, an amount that was far in excess of the amounts Plaintiff Kent and Garcia claimed were involved based on the internal audit for 2012-2013.
32. On February 3, 2015, Defendant Jones filed ethics charges against Plaintiffs and other non-plaintiffs for their conduct related to responding to the accusations of misappropriation against Ms. Lee.
33. Plaintiffs responded to those charges.
34. The Kent-appointed Ethics Committee, now chaired by a supporter from her slate, dismissed Defendant Jones' charges on July 24, 2015, in a shorter-than-one-page decision.
35. The Ethics Committee decided the charges on the merits but did not provide details regarding the basis of its finding other than that there were no violations of the PEF Code of Ethics or PEF Constitution.
36. In August 2015, Defendant Jones appealed the decision to the Executive Board.
37. Defendant Spence assumed the role of President as a result of the 2015 election, and he appointed Defendant Jones as his Director of Organizing and reappointed Defendant Morgenstern as Chair of the Ethics Committee.
38. On October 20, 2015, Defendant Morgenstern set the date of Defendant Jones' Executive Board appeal for the December 2015 meeting, and reviewed whether Defendant Jones could continue to pursue his ethics charges against Plaintiffs.
39. Upon continuing discussions with staff counsel, on October 29, 2015, Defendant Morgenstern first found that Defendant Jones did not have standing to pursue that appeal, but later, on November 13, 2015, notified Plaintiffs that Defendant Jones could proceed on the appeal due to counsel's advice and Defendant Jones' continuation as a dues-paying member still employed by the State.
40. At the meeting, the Executive Board gave each side five minutes total to present its argument for or against the appeal.
41. After hearing the arguments presented by both sides, the Executive Board voted to...
To continue reading
Request your trial