Razzle Dazzle
Kerik: No Benefit of Doubt

By RICHARD STEIER

On the surface, it would have seemed the odds were against Eric Deravin III prevailing in his Federal lawsuit claiming that he was improperly denied a promotion to Deputy Warden a decade ago.

Back in April, U.S. District Judge Kimba Wood had dismissed the primary claim in the suit: that Mr. Deravin had been retaliated against for reprimanding a Correction Officer who subsequently had an affair with a powerful agency official. What remained of the suit was his claim that another factor in the thwarted promotion was that he was African-American, and that figured to be a tough sell considering he worked in an agency where blacks during that same period rose to the top uniformed position, Chief of Department.

Yet city lawyers Nov. 26, just before the trial was supposed to begin, chose to pay Mr. Deravin, who eventually was promoted and retired in 2001 as a Deputy Warden, $125,000 to settle the case.

Kerik's Negative Attraction

The explanation, although it is not the official one coming from the Law Department, is simple: had the trial proceeded, Mr. Deravin planned to put Bernie Kerik on the witness stand.

The Chief-Leader/Pat Arnow A SLIGHT CREDIBILITY GAP: Bernie Kerik's reputation has taken such a beating in recent years that just the prospect of his appearance as a key witness in a case alleging that he discriminated against Eric Deravin (right) at the Correction Department persuaded the city to settle the lawsuit even though Mr. Deravin's prime evidence had already been ruled inadmissible by a Federal judge.

The former Correction and Police Commissioner is the man Mr. Deravin accused of denying him promotions he had earned based on exam performance and his overall record. Mr. Kerik's credibility flew south three years ago, when his aborted bid to be U.S. Secretary of Homeland Security produced revelations about many of his most-unsavory transactions, and his guilty plea in state court 18 months ago to having essentially sold his office to a mob-linked contractor and recent Federal indictment on expanded charges have further rendered him a man not to be believed.

None of the charges brought by prosecutors directly concern Mr. Kerik's conduct inside the city jail system. But his transgressions there were numerous enough, and egregious enough, that had Mr. Deravin's civil suit made it to trial, jurors would likely have found Bernie's behavior criminal.

"Me personally, I would rather have put him on the stand and let him embarrass himself," Mr. Deravin said of Mr. Kerik during a Nov. 27 interview. "My lawyer would have definitely torn him apart on the stand. But based on the advice of my attorney and the amount of time it took to get to this point [in the case], it seemed like the intelligent thing to do" to accept the city's settlement offer.

As he spoke, he communicated a distaste for Mr. Kerik that sometimes crossed over into contempt. Mr. Deravin, who is 54, since his retirement has served two tours of duty as an Army Reservist in Iraq, and currently holds the rank of Lieutenant Colonel. That offers a striking contrast with Mr. Kerik's own abbreviated stint there ostensibly training that country's police force but, according to military and civilian personnel there, spending most of his time hanging out and preening during photo opportunities.

Mr. Deravin, currently working as an assistant professor of military science in Fordham University's Reserve Officer Training Corps program, has a Ph.D. in criminal justice management and never missed a day of work during 20 years in the Correction Department. And so he felt more than a bit of anger back in 1998 at the response he got when he asked Mr. Kerik why he had been passed over for a promotion to Deputy Warden.

Rejected by 'A Clown With a GED'

"I'm sitting across from this clown with a GED telling me I'm not good enough," Mr. Deravin recalled. At the time, one of his competitors for the promotion was an Assistant Deputy Warden who had lost his weapon; another had been found using magnetic New York State plates to conceal the fact that he had registered his car in Connecticut, a violation of department regulations.

And then there was Tony Serra, who got a promotion to Deputy Warden the previous November even though at the time he was facing departmental charges for lying about a use-of-force incident under his command. Mr. Serra, who would later serve time behind bars for improperly using subordinates on agency time to renovate his upstate home and perform political work on behalf of Governor Pataki's 2002 re-election campaign, had just finished assisting Mayor Giuliani's re-election effort. In the eyes of Mr. Kerik, who at the end of 1997 would be promoted from First Deputy to Correction Commissioner, that political work offered justification for setting the precedent of advancing someone facing serious disciplinary charges.

Yet Mr. Kerik, according to Mr. Deravin, told him that his own problems involving a use-of-force under his command when he was a Captain worked against him. Given that the incident occurred five years earlier and had ended with a reprimand rather than formal charges, the disparity in Mr. Kerik's assessment of his case and Mr. Serra's was a bit startling.

But Mr. Deravin suspected the real reason Mr. Kerik rejected him was that, during his time at the Bronx House of Detention, he had two confrontations with a Correction Officer who later became Mr. Kerik's girlfriend, Jeanette Pinero.

Wanted Special Treatment

"She was a good officer - she could handle the job in the housing area," Mr. Deravin said last week of Ms. Pinero, who is still a Correction Officer. "Her problem was she thought she was too pretty to have to work with inmates and deserved to be 5 and 2 and weekends off," referring to a work schedule that most officers prefer over the standard rotating tours that require them to work for four consecutive days and then get two days off that are often not weekends.

The first incident in 1994 was minor: when then-Captain Deravin approached her jail post, Ms. Pinero was sitting and reading a book and didn't stand to salute him, leading him to issue a command discipline. The second time, he said, she was supposed to be supervising another Correction Officer as he fed inmates, but instead "she was down in the mess hall BS-ing."

He said the Assistant Deputy Warden who was the tour commander told him to bring charges against both officers for violation of departmental policy, but subsequently asked his superior to dismiss the complaint "after she went crying to him."

Ms. Pinero, through a Correction Department spokesman, declined to respond to Mr. Deravin's assertions.

Ms. Pinero also brought Equal Employment Opportunity complaints against Mr. Deravin over both incidents. Subsequently, he said, "I was exonerated."

Differ on Conversation

But he believed those two run-ins figured into Mr. Kerik's decision to deny him the promotion to Deputy Warden, and to initially balk at a 1996 promotion to Assistant Deputy Warden. He was convinced regarding the latter upgrade after a conversation with Peter Meringolo, who was the president of Mr. Deravin's union at the time, the Correction Captains Association.

Mr. Deravin and Mr. Meringolo disagree, however, about a conversation the two of them had that became a key issue in the Federal lawsuit he eventually brought. Mr. Meringolo, who left the CCA job earlier this year and is now head of the Public Employee Conference, said last week that as a general policy he had objected to any case in which Mr. Kerik as First Deputy Commissioner recommended against promoting Captains who had passed the exam for Assistant Deputy Warden. He said when he approached Mr. Kerik on behalf of Mr. Deravin, the explanation he got was, "He's got a lot of EEO's against him."

Mr. Meringolo said he responded that the only such complaints had been made by Ms. Pinero, and that they were dismissed because "the girl lied."

He said he spoke to Mr. Deravin later that day and told him what Mr. Kerik had said. "The next morning, Eric was promoted to ADW," Mr. Meringolo said. "I never had any further conversations with him about it."

Says He Cited Pinero

In his lawsuit, however, Mr. Deravin alleged that Mr. Meringolo had told him that Mr. Kerik's opposition had been influenced by his affair with Ms. Pinero. A tape-recording of his conversation with the CCA leader, in which Mr. Meringolo's voice is clearly recognizable, has the union leader remarking, "How stupid is this man that he was going to actually pass you over for Pinero?"

Mr. Meringolo, however, denied making that statement, and Judge Wood ruled against permitting the tape to be played at trial because the voice making that remark could not be authenticated as the former CCA leader's.

If the case had gone to trial and Mr. Kerik had taken the witness stand, however, Mr. Deravin's attorney would have been able to ask him about another case in April 2000 - this one involving a close friend of Ms. Pinero's - in which the department was found to have permitted the trumping-up of sexual-harassment charges against a different Captain who had tried to discipline her.

In that case, after the complaint against Capt. Herbert Reed by Correction Officer Mildred Gonzalez, the department appointed Angel Barbosa to investigate her claims. This was a curious choice, since Mr. Barbosa had previously dated Ms. Gonzalez's sister. When this was pointed out to Mr. Kerik, he changed investigators, but also saw to it that additional charges were brought against Captain Reed.

ALJ Scolded Brass

Eventually, the case went to the Office of Administrative Trials and Hearings, and a remarkable opinion was issued by Administrative Law Judge Ray Fleischhacker. He found that there had been efforts - apparently emanating from the upper reaches of Correction - to obstruct justice and suborn perjury, resulting in "gross abuse of power and the misuse of the EEO and disciplinary processes to protect a favored employee."

Mr. Reed later filed a Federal lawsuit that was settled for a reported $250,000 by the Bloomberg administration.

At the time that the charges were initiated against Captain Reed, Mr. Deravin had already filed his lawsuit. He previously brought an EEO complaint, but Federal officials referred it back to the Correction Department, which assigned as its investigator none other than Mr. Barbosa. Not surprisingly, he concluded that Mr. Deravin's complaint was unfounded.

That didn't deter Mr. Deravin from pressing on. "They figure that with most people, they're just going to fold up and go away," he said last week. "I never fold up."

Promoted But Nixed Deal

As his case neared a hearing, Mr. Deravin was notified in May 2000 that he would finally be promoted. Just prior to the ceremony, he said, then-First Deputy Commissioner Bill Fraser - who succeeded Mr. Kerik as Commissioner when he moved over to head the NYPD three months later - asked him whether he intended to proceed with his lawsuit.

Mr. Deravin said he would drop the case if they gave him a two-step promotion, up to Deputy Warden in Charge. Mr. Fraser said that was not possible, even though such a jump had previously been made by Darryl Harrison, who went on to become Chief of Department.

"They didn't appreciate the fact that I'd challenged their authority," Mr. Deravin said. Despite his comfort with the kind of chain of command found in the military, or a paramilitary organization like Correction, he said, "I don't have a problem with challenging authority if I think there's something wrong. This was the first time in my life that I'd gone through discrimination of such proportions."

Proving that it was because he was black would have been difficult. The ethnic preferences that were indulged in during Mr. Kerik's tenure as First Deputy Commissioner and Commissioner had more to do with politics than race.

Emeralds' Sparkled

The favoritism shown to some Irish supervisors during that era was attributable to their prominence in the department's Emerald Society, which was Mr. Fraser's power base and strongly supported Mr. Kerik. At least one Latino supervisor claimed that he was told that if he wanted to advance, he was more likely to be helped by the department's Hispanic Society than by his union.

In December 1997, a contingent of black Correction Officers who called themselves the El-Beys was arrested for failing to pay taxes after claiming 99 exemptions on their W-2 forms. No legal action was taken against Ms. Pinero and John Picciano, a close friend of Mr. Kerik's who later served as his Chief of Staff at both Correction and the NYPD, even though they had claimed the same number of exemptions.

A year later, when he fired all the El-Beys, Mr. Kerik said in a statement, "By submitting false tax documents in an attempt to evade their tax responsibilities, they have dishonored their sworn oath to uphold the law and discredited themselves" - words with particular irony given his own current troubles.

The disparate treatment, which some Kerik colleagues put into plain language by distinguishing those who were on "The Team" from those who weren't, was rooted in agency politics rather than racial prejudice. Mr. Kerik, whose rise through city government began when he served as Mr. Giuliani's campaign security chief and driver during the 1993 mayoral campaign, ran Correction as a kind of political club, with a governing philosophy that Wardens' union President Sid Schwartzbaum summed up as, "The connected get protected."

Hogging the Credit

The guiding principle under Mr. Kerik was the same one applied by Mr. Giuliani: favored treatment depended on unstinting loyalty to the man at the top of the pyramid. This extended, naturally, to Mr. Kerik getting virtually all the credit for significant safety improvements in the jails, even though Mr. Deravin is among those who believes that "a lot of the [key innovations] were in place from [Chief of Department] Eric Taylor when Bernie took over."

He said he was not surprised that Mr. Kerik had fallen so far since the days when his work at Correction became the justification for making him Police Commissioner.

"When you think of some of the great guys who were up for Police Commissioner, especially Dunne (referring to then-First Deputy Police Commissioner Joseph Dunne), how could you slide him in there?" Mr. Deravin said. "It showed Giuliani's contempt for the city that he put this bum in those positions."

He added regarding Mr. Kerik, "His problem, like most criminals, is that they get greedy. He didn't need to be Director of Homeland Security. He should have been smart enough to just fade away and make his private money."

An Unbelievable Guy

Instead Mr. Kerik wound up under a national spotlight, and his past could not survive the glare. It appears that the Law Department concluded that having Mr. Kerik on the witness stand would bring needless embarrassment upon city government by laying bare the methods by which he operated at Correction. And besides guaranteeing negative publicity, his appearance might have been sufficient to produce a multi-million dollar judgment for Mr. Deravin, despite the difficulty he would have had proving racial bias. The words "benefit of the doubt" no longer fit very well alongside Mr. Kerik's reputation.

In that context, the $125,000 settlement looks like a bargain for the city. It's just a bit more than Mr. Giuliani used to get for speeches about the qualities that make a successful leader.

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