Said AFSCME Retaliated
Commer Loses Suit On Ouster At Guild

By RICHARD STEIER

A Federal jury Oct. 19 concluded that former Civil Service Technical Guild President Roy Commer's free-speech rights were not violated when he was removed as the local's leader and then lost his union membership for failing to make restitution for unauthorized mailings.

ROY COMMER: Couldn't convince jurors.

Mr. Commer had sued the American Federation of State, County and Municipal Employees, charging that it targeted him for ouster after he sharply criticized its president, Gerald W. McEntee, for not responding more swiftly to allegations of corruption within District Council 37.

Turncoat Key Witness

The case, tried in U.S. District Judge Robert W. Sweet's lower Manhattan courtroom, featured testimony on Mr. Commer's behalf by Uma Kutwal. Mr. Kutwal initially turned against him and brought the internal charges that led to his ouster but then rallied to his side after a corruption scandal that festered because of the inattention of some of Mr. Commer's critics.

AFSCME's attorney, Barry Levy, lashed into Mr. Kutwal's credibility, citing the numerous times he had shifted allegiances and telling jurors that his most recent change of heart was motivated by the belief that he could help himself politically by aligning with Mr. Commer prior to Tech Guild officer elections next month.

Mr. Levy said that AFSCME had no hand in the drive to remove Mr. Commer from office aside from its mandated role as the judicial body for the 6,800-member Tech Guild, which is Local 375 of District Council 37. He denied Mr. McEntee had any knowledge of the proceedings and noted that more visible dissidents within DC 37 suffered no retaliatory action.

'Don't Feel Stifled'

The nine-person jury barely required an hour to deliberate before returning its verdict. Mr. Commer, who had spoken of seeking union office again if he regained his eligibility as a result of the court case, said the following morning, "My prayer is that the members, agency-fee payers and retirees do not allow what has been done to me to chill or stifle their freedom of speech and political dissent. If we all will continue working to take back our unions, then we will all have won."

UMA KUTWAL: Inconsistencies in his actions.

Mr. Commer's case rested on convincing jurors that the penalties imposed against him by the head of the AFSCME Judicial Panel were disproportionately harsh compared to how other transgressors, including DC 37 Executive Director Lillian Roberts, were treated for violations that were at least as serious. But his attorney, Arthur Schwartz, said he knew their chances were dicey when he noticed several jurors not looking at him as he weaved the strands of his argument together during a 102-minute summation.

No Smoking Gun

"They basically decided that we didn't have enough proof that the international instigated it," he said, referring to the removal proceedings.

Mr. Commer was one of several activists within DC 37 who became vociferous critics of its leadership a decade ago in part because of suspicious actions that affected them politically. He was an early opponent of a 1995-96 wage contract with the city and raised suspicions that the DC 37 ratification vote was rigged, but that claim by himself and several local presidents was ignored by Mr. McEntee until one union official told the Manhattan District Attorney's Office in November 1998 how he and others had stuffed the ballot box so the deal would pass.

After Mr. Commer narrowly defeated 17-year incumbent Tech Guild President Louis G. Albano in November 1997, the counting of the ballots for lower union offices was suspended because of the lateness of the hour. When the count was due to resume the following month, it was discovered that some ballot boxes had disappeared from a locked room at DC 37 and others had been damaged.

Rerun Spurred Backlash

ARTHUR SCHWARTZ: Cited disparate penalties.

The Tech Guild election committee, which had been selected by Mr. Albano, ordered that the vote be rerun for all offices, prompting a furious protest by Mr. Commer that was denied first by AFSCME and later, in an earlier court proceeding, by Judge Sweet. There was widespread suspicion within the Tech Guild that DC 37 officials sympathetic to Mr. Albano had swiped the ballots - which eventually was revealed to be the case - and this caused a backlash that led not only to Mr. Commer winning the rerun vote by a larger margin but swept into office nine members of his slate who had been defeated in the initial vote.

Although that gave him a majority on the Tech Guild board, Mr. Commer soon found himself at odds with even many of his supporters there, who accused him of running the local in a high-handed fashion and questioned whether his strident criticism of DC 37 and AFSCME was hurting the union. He made himself conspicuous during the AFSCME convention in Hawaii in August 1998 when he spoke on 24 separate occasions, and it was believed that he antagonized officials of the national union by pressing for an amendment to its constitution that would have exempted union members from disciplinary charges for urging secession.

Clash Over Legal Unit

There were further conflicts with board members when he sought to make changes at the Tech Guild's Professional Employees Legal Services fund, asserting that it was poorly administered and that two of the attorneys were using union time and equipment to represent private clients. Mr. Commer also did not endear himself to board members, who included presidents of the Guild's various chapters, when he sent a mailing to members telling them to seriously evaluate the chapter leaders and to vote for change if they believed they weren't getting adequate representation.

When Mr. McEntee came to DC 37 at the end of October 1998 to answer questions from local presidents who were upset that he had ordered an audit of all locals' finances because of growing questions about possible corruption within the union, Mr. Kutwal spoke to him briefly afterward. Mr. Schwartz said Mr. McEntee's response encouraged him to organize a rebellion against Mr. Commer; Mr. Levy countered that Mr. McEntee had merely listened politely and given no advice on the matter.

A Board Mutiny

Less than a week later, Mr. Kutwal persuaded the DC 37 official in charge of its headquarters to change the locks on the Tech Guild's offices to bar Mr. Commer, and the Guild executive committee voted to suspend its president and brought 19 different charges against him. Later that month, Mr. McEntee ordered Mr. Commer reinstated, which Mr. Levy told the jury made clear that he wasn't targeting the Tech Guild president, noting that he could have dragged out the proceedings for a year if he intended to retaliate for past criticism.

GERALD W. McENTEE: Denied retaliation.

Mr. Schwartz countered that Mr. McEntee had little choice at the time, because revelations about the massive corruption within DC 37 made it difficult to explain to the media why one of the few union officials who had been removed to that point was an outspoken critic of the union's leadership who was never implicated in the scandal.

'An Evil Person'

As opposition to Mr. Commer grew, several board members, including Mr. Kutwal, sought advice from Eliot Seide, a veteran AFSCME official who had been appointed a deputy administrator after DC 37 was placed in trusteeship.

Mr. Kutwal claimed during testimony Oct. 17 that in one private conversation, Mr. Seide called Mr. Commer an "evil person" and stated that he had to be "removed from the union." Mr. Schwartz contended that Mr. Seide was acting as an agent of AFSCME when he made those remarks, and that rather than representing mere venting, his words reflected the rage expressed by a number of the national union's officials, including Mr. McEntee, about dissidents taking their complaints to the media rather than allowing them to be handled internally.

Denies Advocacy

Mr. Seide, who was called to the stand the following day by Mr. Levy, denied making those remarks to Mr. Kutwal, saying, "It's absolutely not true." He said he never discussed Mr. Commer with either Mr. McEntee or his top aide, Lee Saunders, who served as DC 37 administrator during that time.

Mr. Seide, who is currently the head of AFSCME Council 5 in Minnesota, said that he spoke with Mr. Kutwal and several other executive committee members who feuded with Mr. Commer on several occasions. He denied having urged them to bring charges against Mr. Commer, however, saying he had merely responded to issues they raised by explaining the AFSCME disciplinary process to them. After the AFSCME Judicial Panel sustained charges against Mr. Commer and ordered him to pay $10,195 in unauthorized mailings, Mr. Seide testified, those board members "expressed concerns that he was not complying with the orders of the panel."

"I told him," he said of Mr. Kutwal, "you have to go to the panel to do that."

The two Judicial Panel members who sustained charges that led to Mr. Commer's removal as president of the Tech Guild, including its chairman, John Seferian, denied on the witness stand that they were pressured to come down hard on Mr. Commer. The other panelist, Robert Lyons, said that he had been unaware of Mr. Commer's criticism of DC 37's leadership, even though he was one of the officials who were given four volumes of newspaper clippings about the scandal as part of the process under which they voted to place DC 37 in trusteeship in November 1998.

Double Jeopardy?

Mr. Schwartz told jurors that Mr. Commer had been penalized twice for the same offense: he was removed as president by the Judicial Panel for failing to make restitution for the unauthorized mailings, and a year later was removed from union membership because he still hadn't made restitution.

He also contrasted the severity of the initial penalty with the way that Ms. Roberts was treated for a similar offense. Shortly before she was re-elected as DC 37's executive director in January 2004, she entered into a secret agreement to extend a $10,000-a-month lobbying contract with a firm that was suspected of assisting her campaign.

When Mr. Seferian found her guilty of an illegal expenditure because she had not gotten the required authorization from the DC 37 executive board, the only penalty he imposed was a reprimand.

Mr. Schwartz also called witnesses, including current Tech Guild Secretary Ahmed Shakir, who testified that Mr. Commer had in fact submitted a check for $3,717 as partial restitution shortly before the hearing that led to him being stripped of his union membership.

'Wouldn't Accept It'

David Grant, who at the time was the Tech Guild's director of operations, said that on April 30, 2001 he was given the check by Mr. Commer and presented it to Robert Mariano, who was then the union's treasurer.

"I handed it to him," he testified. "He would not take it. I put it on the desk ... and I left." Mr. Grant said he had testified about the incident at the Judicial Panel hearing that led to Mr. Commer's banishment from Tech Guild membership.

The check was never deposited, nor was an earlier check Mr. Commer wrote for $50 as the first installment in a repayment plan that Mr. Mariano told him was unacceptable.

No Prior Requirement

Earlier, Mr. Schwartz called Mr. Mariano as a witness. He testified that the Tech Guild had always set its budget for newsletters in advance, and that there were never meetings at which the executive committee considered the content of Mr. Albano's messages in membership newsletters before they were sent out. Mr. Seferian had told the jury, however, that the local's constitution required executive committee authorization, and he made his decision based on the violation of that standard. He gave no consideration, he testified Oct. 16, to what the past practice in the Tech Guild had been.

Mr. Schwartz contended to the jury that even if that standard was the appropriate one, the restitution imposed against Mr. Commer was so excessive as to suggest that it was intended to be punitive. He pointed out that the Tech Guild president had the authority to make any expenditure he chose of up to $1,000 without getting prior authorization. Because there were five separate mailings involved in the charges that led to Mr. Commer's ouster, he noted, the restitution assessed should have been $5,000 below the actual cost of the mailings.

Got Maximum Penalty

He also pointed out that if the members of the Judicial Panel had imposed fines, rather than using restitution as the penalty, Mr. Commer would have had to pay no more than a year's dues under the local's constitution - about $10,000 less than the $11,440 that was actually assessed.

When Mr. Commer initially balked at paying, Mr. Schwartz pointed out in his summation, none of his antagonists sued to recoup the funds. "Their intention wasn't to get the money back," he told jurors. "Their intention was to bring him up on charges and get him out of the union."

Mr. Levy in his summation played a tape of Mr. Kutwal during the 2000 AFSCME convention making an impassioned plea to uphold the penalties against Mr. Commer because he had shown "sheer contempt of the [Tech Guild] constitution."

'Undoing Democracy'

In response, Mr. Schwartz in his summation played another section of that videotape showing DC 37 Local 371 President Charles Ensley appealing to convention delegates to overturn the ruling so as not to undo the will of the Tech Guild rank and file.

"Roy Commer can be a very abrasive person," Mr. Ensley told the convention. "He is so opinionated that one could even call him pigheaded. But he was democratically elected by his members." Mr. Schwartz concluded his own case by telling the jurors that the case was "about the right of members to decide whether this 'pigheaded' man" should have a role in their union.

After the jurors concluded that this was not the issue on which the case should pivot, Mr. Schwartz said he believed Mr. Levy won the case "by making Uma look as bad as possible," rather than as someone who became contrite after the corruption within Local 375 that Mr. Commer had warned might be brewing was exposed in July 2003. That was when it was revealed that a longtime union bookkeeper had embezzled $2.4 million from the Tech Guild and its legal services plan.

Why the Delay?

Mr. Levy argued that nearly 14 months elapsed after that revelation before Mr. Kutwal wrote a letter urging the Judicial Panel to reinstate Mr. Commer to union membership, suggesting that something other than a nagging conscience had produced the change of heart.

Mr. Schwartz conceded that Mr. Kutwal's vacillations over the years made him a less-credible witness than Mr. Seide. "There were no inconsistencies in anything Eliot had done, while there were inconsistencies with Uma," he said. "I think it's a very unfortunate thing for the members of Local 375 to lose someone like Roy."