U.S. v. District Council of New York City, 90 Civ. 5722 (CSH).
| Decision Date | 12 September 1996 |
| Docket Number | No. 90 Civ. 5722 (CSH).,90 Civ. 5722 (CSH). |
| Citation | 941 F.Supp. 349 |
| Parties | UNITED STATES, Plaintiff, v. DISTRICT COUNCIL OF NEW YORK CITY and Vicinity of the United Brotherhood of Carpenters and Joiners of America, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Richard A. Medina, New York City, for Appellant Anthony D. Fiorino.
Bernard B. Cohen, General Counsel, New York City, Sapir & Frumpkin L.L.P., White Plains, New York (Donald Sapir, of Counsel), for Appellant District Council of New York City & Vicinity, United Brotherhood of Carpenters and Joiners of America.
Latham & Watkins, New York City (Kenneth Conboy, Geoffrey Berman, of Counsel), for Appellee.
Anthony D. Fiorino appeals from a decision of an Independent Hearing Panel, convened pursuant to the Consent Decree entered in this case, sustaining certain charges preferred against Fiorino by the Investigations and Review Officer.1 The District Council supports Fiorino in his appeal, pursuant to a prior order of the Court granting the District Council limited standing to do so.
Familiarity with the Court's prior opinions is presumed. For present purposes, it is sufficient to say that in September 1990, the government filed a civil RICO action for injunctive relief against the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the "District Council") and certain of its officers. The government alleged that the individual defendants and others had engaged in a variety of forms of labor racketeering, and that the operations of the District Council and its constituent local carpenters' unions had been infected by organized crime.
During trial, the parties entered into a Consent Decree dated March 4, 1994. To implement its terms, an Investigations and Review Officer ("IRO") and a five member Independent Hearing Committee, all agreed to by the parties in the Consent Decree, were appointed. ¶ 3. The IRO has "the same right to initiate disciplinary charges against any member of the District Council and its constituent locals as has any officer or member of the District Council or its constituent members." Consent Decree, ¶ 4(b). The IRO commences a disciplinary proceeding by filing a charge in accordance with procedures set forth in the Consent Decree. Disciplinary hearings are held before a three-member Independent Hearing Panel, drawn from the five-member Independent Hearing Committee. Id. "The hearing shall be held under the rules and procedures generally applicable to labor arbitration hearings." ¶ 4(c). ¶ 6.
In written specifications dated December 5, 1994, the IRO brought eight charges against Fiorino. These charges accused Fiorino of engaging in improper conduct, committing offenses "discreditable to the Union," or violating the Consent Decree. Each of the charges alleged that Fiorino's specified conduct transgressed provisions of the national labor laws, the By-Laws of the District Council, the Constitution of Local Union 257 (of which Fiorino was a member), or the Consent Decree. Each charge did not allege violations of all of these sources of authority. The particular charges giving rise to this appeal are quoted supra.
For introductory purposes, it is sufficient to say that an Independent Hearing Panel ("the Panel") conducted hearings, received evidence, considered the submissions of counsel, and rendered a decision. The Panel unanimously held that the proof sustained Charges One, Five, Six, Seven and Eight. A divided Panel upheld Charge Two. The Panel unanimously held that Charges Three and Four had not been proven. On Charges One and Two, the Panel imposed upon Fiorino the penalty of expulsion from the union for life. Varying periods of suspension were imposed for the other charges that were upheld.
Fiorino appeals from those parts of the Panel decision adverse to him. He is supported by the District Council to the extent permitted by the Court's prior orders.
Fiorino and the District Council contend that the decision of the Independent Hearing Panel must be vacated because of the presence on the Panel of Alan R. Kaufman, one of the five attorneys constituting the Independent Hearing Committee.
The District Council says that it would not have agreed to Kaufman's presence on the Independent Hearing Committee if Kaufman had disclosed his legal representation of one Roger Levin, an attorney specializing in labor union matters. Fiorino and the District Council base their argument for vacatur of the Fiorino decision upon Kaufman's representation of Levin. The District Council takes the proposition one step further and contends that Kaufman should be removed from the Independent Hearing Committee.
The issue is an important one. I have considered all the submissions. They include the five briefs filed on this appeal; Kaufman's affirmations dated November 17, 1995 and February 12, 1996; the letter dated February 23, 1996 from Fiorino's counsel, commenting on Kaufman's second affirmation; and the letters submitted by the government dated February 8, 1996, by the District Council dated February 9, 1996, and the IRO dated March 12, 1996. Lastly, familiarity is presumed with respect to the Court's Memorandum Opinion and Order dated March 20, 1996, which rejected the District Council's contention that while the Fiorino appeal was sub judice, Kaufman should not sit on any other Independent Hearing Panels.
I begin the factual analysis with the two Kaufman affirmations. Fiorino and the District Council disagree with the conclusions Kaufman expresses in those submissions and the inferences he draws from them; but, with the exception of one factual assertion to which I will come, there is no basis in the record to disbelieve Kaufman's description of the timing and scope of his legal representation of Roger Levin.
Roger Levin and the law firm he controlled, Levin & Weissman, represented a number of local labor unions and their affiliated benefit funds. Those unions included the Mason Tenders District Council of Greater New York (the "Mason Tenders"); the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the "District Council" that is a party in the case at bar); and the Bricklayers District Council 95 of Greater New York (the "Bricklayers"). The United States Attorney for this District charged Levin with conspiring to pay and paying monies to union officials to obtain and retain that legal work, and failing to report such payments, in violation of 18 U.S.C. §§ 371 and 29 U.S.C.A. 1023(b)(3)(D). Levin agreed to plead guilty and signed a cooperation agreement with the United States Attorney dated September 2, 1994.
Kaufman did not represent Levin in his negotiations with the Federal government. A criminal defense lawyer named Frederick P. Hafetz did so. Kaufman's representation of Levin had begun at an earlier date.
In the summer of 1993, Levin received a grand jury subpoena from the New York Country District Attorney's office ordering him to appear and testify concerning that office's investigation into Local 2 of the Plumber's Union, its affiliated benefit plans, and one Louis Moscatiello. Levin retained Kaufman to represent him in that matter.
On August 16, 1993, at 4:00 p.m., Kaufman appeared in chambers before Judge Carey, who was supervising the grand jury. Also present were Larry Kravitz, a Levin & Weissman attorney, and Assistant District Attorney Carbone. Carbone wanted Judge Carey to rule on claims of attorney-client privilege that Levin raised during informal questioning by Carbone. Kaufman explained to Judge Carey the nature of his representation of Levin and the circumstances under which he advised Levin with respect to a possible invocation of the attorney-client privilege in the context of Levin's contacts with Local 2 of the Plumbers Union. Kaufman told Judge Carey that the Assistant District Attorney Transcript of August 16, 1993 in camera hearing at JMS 9. Kaufman explained to Judge Carey that "[t]here was a bit of confusion on our part as to what relationship he was talking about, because these other relationships did exist." Id. at JMS 10.
Kaufman and Kravitz then left chambers and Carbone spoke with Judge Carey alone. Carbone advised the judge that "the primary area we intend to ask [Levin] about" was Levin's conversations with Moscatiello about Local 2 of the Plumbers Union. Id. at JMS 16.
Accompanied by Kaufman, Levin testified before the state grand jury on August 17 and September 2, 1993. Fiorino includes in his papers on appeal several pages from Levin's grand jury testimony. Levin was asked whether he had any discussions with Moscatiello about one Vinny DiNapoli, and whether Levin had heard that Moscatiello and DiNapoli were associated with the Genovese organized crime family.
In March 1994, Kaufman accepted appointment as a member of the Independent Hearing Committee under the Consent Decree. The state case involving Levin and Local 2 of the Plumbers Union was quiescent during the rest of 1994. Levin had other problems, but other attorneys represented him with respect to them. Thus in May 1994, Levin asked the firm of Fried Frank Harris Shriver & Jacobsen to represent him in connection...
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