Razzle Dazzle
Commer Trial About Context

by RICHARD STEIER

Roy Commer had just told the jury hearing his suit to regain his membership in the Civil Service Technical Guild about a group formed eight years ago to root out corruption within District Council 37 when the opposing counsel, Barry Levy, strenuously objected to a follow-up question about the wrongdoing.

U.S. District Court Judge Robert W. Sweet decided it was time to conclude the first day of testimony and sent the jury home for the afternoon. Once they left, Mr. Levy turned to Mr. Commer's attorney, Arthur Schwartz, and said, "I thought you weren't going to go ad nauseam into all the problems of the District Council."

Mr. Schwartz responded that if he didn't present at least a significant share of testimony about the corruption, "How can the jury understand the context" of the events that led to Mr. Commer's first being ousted as Tech Guild president six years ago and then being stripped of his union membership.

A Conspiracy or Paranoia?

The success of his civil suit figures to rise or fall on context: whether Mr. Schwartz can convince the jury that Mr. Commer was targeted by his superiors at both DC 37 and its international union, the American Federation of State, County and Municipal Employees, because he was an outspoken critic of them, and most particularly AFSCME President Gerald McEntee.

Mr. Levy, on the other hand, is predicating the defense case on the claim that Mr. Commer was beneath the notice of Mr. McEntee and AFSCME, and that what happened to him was the result of internal strife within the Tech Guild and his own poor judgment.

In his opening argument to the jury Oct. 11, Mr. Levy noted that several other local presidents who were active in the reform group known as the Committee for Real Change had criticized DC 37's leadership and that of AFSCME and suffered no retaliation at all. In fact, he contended, the only difference between the reformers and Mr. McEntee was their sense of timing. Where the reformers were advocating removal of DC 37's leadership before the most damning evidence of widespread corruption was revealed by the Manhattan District Attorney's Office in November 1998, Mr. Levy told the jurors, Mr. McEntee was constrained from acting so impulsively.

"This is not a situation, ladies and gentlemen," he said, "where you can simply snap your fingers and take control of 125,000 members. It happened a little more slowly than maybe it should have."

The suggestion that AFSCME wanted to do the right thing but had to proceed judiciously is where the two sides diverge. Mr. Commer over the years before he was ousted made clear that his lack of faith in Mr. McEntee on that score was rooted in his own experience. The unraveling of the DC 37 corruption scandal had given what were merely Mr. Commer's suspicions the gleam of indisputable truth, even to the eyes of those who examined the issues without his righteous certainty.

The Chief-Leader/Ginger Adams Otis JOUSTING WITH GOLIATH: Former Civil Service Technical Guild President Roy Commer (left) and his attorney, Arthur Schwartz, are trying to convince a Federal jury in Manhattan that he was ousted from his position because he blamed American Federation of State, County and Municipal Employees President Gerald McEntee for allowing corruption to fester inside District Council 37.

Two years before he became president of the Tech Guild, Mr. Commer had voiced the belief that the 1995-96 DC 37 wage contract vote had been tampered with to ensure that the deal was ratified. Mr. McEntee ignored such claims, including a letter on the same subject by a veteran DC 37 local president, Charles Ensley; then in November 1998, the Manhattan DA's Office revealed that the ballot box had been stuffed to ensure the contract's passage.

Election Literally Stolen

In November 1997, Mr. Commer narrowly defeated Lou G. Albano, who had been president of the Tech Guild for 17 years, but before final tallies were made in the vote for lower offices of the local, ballots were stolen from a locked room at DC 37.

The Tech Guild election committee ordered that a new vote be conducted, even for races like Mr. Commer's where the tallying had been completed. Mr. Commer protested that he was being cheated by the leadership of DC 37, but got no satisfaction; not when he wrote Mr. McEntee, nor even when he took the matter to court. It was only when the Tech Guild's members, apparently sharing his conviction that he had been robbed, responded by giving him a far greater margin of victory in the re-run vote and electing nine of his running mates who had lost their original contests, that he got a measure of justice.

Later, when the DC 37 corruption scandal brought to the surface all the sordid business that had been conducted by a union that was dragged into the sewer by some of its leading officials, it was revealed that a couple of those worthies had engineered the theft of the Tech Guild ballot boxes. It was business as usual for them; they had also altered the actual vote within the local on that DC 37 wage contract.

And so what Mr. Schwartz wanted to convince the jury of was that if Mr. Commer sometimes conducted business at the Tech Guild as if the whole union was against him, it wasn't without justification. Mr. Levy, who as this newspaper went to press Oct. 16 was engaged in what was expected to be a blistering cross-examination of Mr. Commer, wanted to keep it simple by convincing jurors that what happened to Mr. Commer should be viewed only in the light of whether his actions were inappropriate and the penalties for them reasonable.

'Tried to Destroy Local'

In his opening statement, he pointed out that it was his clients that signed off on the re-run election, as if this was a service to Mr. Commer rather than an attempt to snatch legitimate victory from him that ultimately backfired. He argued that Mr. Commer was targeted for removal not by Mr. McEntee but rather by other officers of the Tech Guild, because "he was unilaterally, from their standpoint, trying to destroy the local."

There is some truth to that assertion. The Tech Guild forces that aligned against Mr. Commer included some old Albano supporters who were politically conservative, and some erstwhile Commer allies who were far to his left, but there were also non-ideological officials who believed he had overstepped his bounds and resented it when he questioned their honesty in response.

"We didn't go out looking for things to do," Mr. Levy told the jurors in trying to convince them that AFSCME had nothing to do with Mr. Commer's troubles. "We had enough on our hands at the time."

The Easiest Target

This argument nimbly slides past what many reformers believe was the primary reason that Mr. Commer alone among the reform leaders was ousted by AFSCME. The other prominent in-house critics of DC 37 and AFSCME - Mr. Ensley, Ray Markey, Mark Rosenthal - were firmly entrenched as leaders of their locals. Mr. Commer never consolidated his power, making him a ripe target for an attempted take-out, and on Nov. 2, 1998, he came to the Tech Guild's offices and discovered that the locks had been changed and he had been suspended as president in a coup staged by a majority of his executive committee. The precipitating event, Mr. Levy contended, was Mr. Commer's attempt to take control of the Tech Guild's Professional Employees Legal Services fund, get rid of its in-house lawyers, and steer the business to an attorney who had assisted him during his election campaign.

Denied That Was Plan

When this charge was first made by those behind the palace coup, Mr. Commer denied that he was giving the business over to the attorney, Stuart Salles. He insisted that he had merely asked him to examine the fund's operation and that he was told that there were several problems, including the fact that two of the lawyers were using union time and resources to run their own practices.

One of those attorneys, Ira Pearlstein, said this arrangement had existed since early in Mr. Albano's tenure and was partly the product of the union being unable to pay its lawyers enough to make it worthwhile for them unless they were allowed to assist private clients as well.

Costly Lack of Scrutiny

Mr. Pearlstein had not informed Mr. Commer of this arrangement, however, until it was brought to his attention. Subsequent history offered a bit of additional context that made Mr. Commer's uneasiness about the fund's operation seem well-grounded: in 2004 it was discovered that a union bookkeeper who had been retained shortly after Mr. Albano took office more than two decades earlier had embezzled about $1.8 million from PELS. He was able to do so because Mr. Pearlstein, the administrator who should have been minding the store, had not bothered to check the fund's books.

Mr. Levy noted that towards the end of November 1998, it was Mr. McEntee who ordered that Mr. Commer be reinstated as president until the charges against him were adjudicated. If the AFSCME leader was so determined to rid himself of Mr. Commer, he asked the jurors, "Why did he reinstate him?"

An Image Problem

Again, what was missing from that argument was context. Mr. Commer's reinstatement occurred less than a week after the corruption scandal exploded, and shortly before Mr. McEntee forced DC 37 Executive Director Stanley Hill to resign and placed the union under administratorship. He was facing questions from the news media about why a prominent reformer had been removed from his job, and restoring his leadership was the best way to ensure that there wasn't a new tributary opened in the reporting of the scandal that had begun attracting national attention.

Minus that history, Mr. Levy could argue that Mr. Commer was found guilty in a cut-and-dry, nonpolitical fashion: he twice sent out mailings to his rank and file without prior authorization from his executive committee, and when he was ordered to reimburse the local for those mailings, Mr. Commer failed to pay any of the $11,000-plus that was owed.

Offer Rebuffed

Mr. Commer at one point, Mr. Levy noted, told the union's treasurer at the time, Bob Mariano, that he would pay off the fine at the rate of $50 or $100 per paycheck, and Mr. Mariano told him that was not acceptable to the executive committee members, led by then-Vice President Uma Kutwal, who had brought the charges against him. Mr. Levy said Mr. Commer claimed to have given Mr. Mariano a couple of checks toward payment, but that there was no evidence of his having done so.

Mr. Schwartz, however, is expected to call to the stand another former union official, David Grant, to testify that he was given the larger of the two checks - for $3,800 - and turned it over to Mr. Mariano as partial reimbursement. And in cross-examining Mr. Mariano, who was scheduled to appear as a witness for AFSCME, he could be expected to ask about why Mr. Mariano is no longer an officer of the Tech Guild.

A $600G Oversight

Like Mr. Pearlstein, Mr. Mariano did not bother to examine financial records that were within his province because he trusted the longtime bookkeeper, Lloyd Clarke. This allowed Mr. Clarke to embezzle roughly $600,000 from the Tech Guild's general treasury; that discovery led to Mr. Mariano's ouster at the same time that Mr. Pearlstein was fired.

A linchpin of Mr. Commer's case will be the testimony of his old ally turned antagonist, Mr. Kutwal, who said last year that he had to radically revise his view of what had transpired during Mr. Commer's tenure when he learned of the embezzlement that occurred partly because of the inattentiveness of two of the officials who joined him in pushing for Mr. Commer's ouster. Mr. Kutwal was expected to come as close as any witness to directly implicating AFSCME in a plot to drive Mr. Commer from power: he has said in a deposition that veteran AFSCME official Eliot Seide told him that Mr. Commer was "a devil [who] must be removed from the union."

Mr. Levy, who said Mr. Seide would come before the jury to deny having made such remarks to Mr. Kutwal, sought to inoculate his clients against Mr. Kutwal's testimony by telling jurors that his reasons for rejoining Mr. Commer's side were self-serving.

A Political Impact

When he was listed as a defendant in Mr. Commer's original lawsuit, Mr. Levy stated, Mr. Kutwal submitted an affidavit in response stating that neither AFSCME nor Mr. Commer's outspokenness on DC 37 corruption had anything to do with the internal charges he brought against him. He also noted that after Mr. Commer was deposed in 2000 and Mr. Kutwal succeeded him as president, he lost his bid for a full term to Claude Fort, who ran with Mr. Commer's backing and benefited from rank-and-file anger over Mr. Commer's removal.

Testifying for Mr. Commer accomplished two things for Mr. Kutwal, Mr. Levy told jurors: it got him removed from the list of officials being sued and thus exempted from any award for damages (Mr. Commer is seeking $5 million), and could benefit him politically in the Tech Guild's elections next month.

Given the number of times that he has changed sides in the ongoing battle, Mr. Levy told jurors, anything Mr. Kutwal says now is "completely unbelievable."

Impeaching Defense

When Mr. Commer took the stand in his own behalf a short time later, Mr. Schwartz began the process of undermining the credibility of Mr. Levy's claim that Mr. McEntee neither knew Mr. Commer nor cared enough about him to involve himself in the process that led to his removal. One of the more interesting weapons at his disposal on this score was the fact that Mr. Commer was thrown out of office and barred from running in the subsequent election just two months after he publicly raised questions about DC 37's use of a prescription drug provider that included Mr. McEntee's daughter among its top executives and also employed his ex-wife.

In sometimes-plodding fashion, Mr. Schwartz elicited from Mr. Commer testimony that showed the disparate treatment he was given from the time that he began stirring things up. Where the AFSCME judicial panel acted against Mr. Commer three months after charges were brought against him, Mr. Schwartz noted, when Mr. Commer sent a letter as a rank-and-file member accusing the Tech Guild of agreeing to a city redeployment plan without a required membership vote, more than 18 months passed before the panel addressed the matter. Mr. McEntee had ignored a follow-up letter on the subject until Mr. Commer filed a Federal lawsuit, prompting the Judicial Panel to finally act.

The major charge sustained against Mr. Commer by the Judicial Panel concerned a newsletter he sent to members in September 1998 telling them that if they were not satisfied with the representation they were getting from their chapter chairs, they should vote for change. From a political standpoint, the newsletter was dumb in several ways: it didn't target any particular chairs, minimizing its potential impact among the rank and file, but it enraged the chairs because there was always the chance that it could hurt them politically.

Selective Prosecution?

Mr. Commer testified that no official from the Tech Guild, DC 37 or AFSCME had told him he needed the authorization of the executive committee before sending out the newsletter, and that on numerous occasions besides that he sent out newsletters without prior authorization but was never charged with wrongdoing.

The second charge involved a postcard he sent to members notifying them of an election for a DC 37 vice president's post. Mr. Levy told the jury that Tech Guild delegates - the only ones who could cast votes in the contest - had been notified already by DC 37. Mr. Commer said at the time that he sent the postcards to let his members know that any one of them could run for the job. He testified Oct. 12 that he had given a draft of the postcard to seven fellow executive committee members, including Mr. Kutwal and another of his prime opponents, Michelle Keller, and "there had been no question" raised when he explained why he was sending them out.

Farewell Postcard

There was no obvious benefit to Mr. Commer in sending out the postcards. He and Mr. Kutwal were the only ones who ran for the position, and Mr. Commer won by a delegate vote of 6-5, but the postcards did not advocate for his candidacy; they merely informed union members of the election and their own eligibility to run. Yet that postcard became the final straw on which AFSCME built the case for driving out Mr. Commer, not merely as Tech Guild president but as a union member. That was part of the context that Mr. Schwartz was referring to when he spoke of the corruption of a union that had at least as much to do with power as it did with money.

Roy Commer was cast out, if you believe Mr. Levy's claims that he never made any attempt at reimbursement, over expenditures of less than $12,000.

McEntee's Lethargy

Gerry McEntee ignored several complaints from both local presidents and union dissidents of serious wrongdoing in DC 37 between 1995 and 1998, a period in which the union's assets dropped by roughly $18 million. When AFSCME finally investigated the largest source of the problem, Board of Education Local 372, and discovered that it was $10 million in debt, the lawyer for Charlie Hughes, the president of that local, elicited testimony during an internal hearing from Stanley Hill that he and DC 37's treasurer at the time, Bob Myers, had placed Mr. Hughes under spending restrictions but then routinely allowed him to exceed them.

Yet the only disciplinary action taken as a result of that hearing was against Mr. Hughes. Mr. Hill got a free ride until the corruption became so massive and so public that it was no longer politically palatable for Mr. McEntee to allow him to remain in office. Mr. Myers was not ousted until he pleaded guilty to his own embezzlement of funds from Clerical-Administrative Employees Local 1549.

An outside investigation conducted at AFSCME's request found that one reason Local 1549 was able to escape the detection of millions of dollars being looted by its then-president, Al Diop, and his corrupt cohorts, was that for four years the local failed to submit a required audit to AFSCME without any sanction from the international union in Washington. Mr. Diop, like Mr. Hill, was an AFSCME vice president and a McEntee political ally.

In a pre-trial deposition, Mr. Schwartz established that top AFSCME officials were particularly dismayed at the media attention that the DC 37 scandal garnered, believing that it hurt the national union internally and blunted its attempts to add unorganized workers to its ranks. A key element of his case on behalf of Mr. Commer is that there was a special resentment of the in-house critics who gave the media information about the wrongdoing, based on the belief that they were undermining the union rather than acting in its best interests.

Sultan of Swag

In that context, it is not difficult to understand how Mr. Commer got booted from his union post over mailings that cost less than $12,000 and did not materially benefit him, while Mr. McEntee continues to collect a salary and other benefits worth $585,000 a year although his unwillingness to probe reports of wrongdoing until the dam had burst cost his largest District Council tens of millions of dollars.

It helps explain why AFSCME plans to call Mr. Mariano as a witness against Mr. Commer, notwithstanding his vulnerability to cross-examination about the $600,000 that got stolen from the Tech Guild treasury on his watch. After all, what's $600,000 alongside the treasure, in money and reputation, that Mr. McEntee has allowed to be squandered while training his guns on those willing to shout that he was wearing no clothes?