Pandora's In-Box: Housing Authority E-Mail War Could Cost

Mitch Feder has this annoying habit of standing up when he thinks he's right. What is particularly exasperating to those he's antagonized — his superiors at the Housing Authority and at the Civil Service Technical Guild — is that to remove him from their windshields, they've been forced to take actions which are embarrassing or hypocritical, or both.

Mr. Feder, who unsuccessfully ran against Tech Guild President Claude Fort last year, is in his seventh year as the union's HA chapter president. Despite that lengthy tenure, the HA's Deputy Director of Labor Relations, David Marcinek, testified Sept. 16 during a hearing where the agency is seeking to fire Mr. Feder that to his knowledge the chapter president had no official standing to act as a union representative.

The issue that could cost Mr. Feder his job is his use of the HA e-mail system for union communications, many of which Mr. Marcinek said involved electioneering. Before the hearing was adjourned until early November, Steve Disch, the HA official in charge of forensic investigations of possible misuse of agency computers, said he had examined a year's worth of e-mails sent by Mr. Feder from his work computer and discovered "about 1,400 to 1,450 that were union-related."

VICTIM OF LABOR/MANAGEMENT VENDETTA?: Mitch Feder (left) and his attorney, Arthur Schwartz, said that testimony from a Housing Authority manager that an investigation was begun of his use of agency e-mail for union business because of a complaint lodged by an official of the Civil Service Technical Guild was evidence that the union wanted him fired because he has been a political threat to its leadership.

Defining 'Limited Personal Use'

HA officials told the arbitrator, Craig Tessler, that this number was sufficiently excessive as to violate agency policy stating that "limited personal use [of the e-mail system] is appropriate and expected; however, such use should be kept to a minimum."

Mr. Feder's attorney, Arthur Schwartz, said that while the aggregate number seems high, it is much more reasonable when viewed in the context of the year over which those e-mails were sent. Even discounting weekends, holidays and vacation days, those 1,400-odd e-mails amount to about a half-dozen per workday.

In one instance Mr. Disch cited, two weeks before the chapter presidency vote was tallied late last December, the agency's check of Mr. Feder's computer showed "about 20 e-mails" from him that day. Mr. Schwartz said following the hearing that all of them concerned a single e-mail Mr. Feder sent to the 300 or so members of the HA chapter, which prompted 20 member responses, all of which he answered.

That thoroughness is characteristic of Mr. Feder; he has a tendency to overdo things. Ask him for documentation of a particular charge and he likely as not will send 200 pages of material, much of it only peripheral to the issue at hand. It is as if he cannot leave to chance the possibility that any allegation against him will go without rebuttal, and so he covers every base at the risk of obscuring his primary point.

This has been true as well in his battles with Claude Fort, the president of the Tech Guild, which is Local 375 of District Council 37. The bitterness between the two men can be deduced from the mere fact that Mr. Feder is facing these charges: during last week's hearing, Mr. Marcinek testified that while a member of the chapter had complained prior to last year's election about postings on an agency bulletin board, it was a complaint by a Tech Guild official whom he would not identify that prompted the HA to do the forensic examination of Mr. Feder's computer.

Since Mr. Marcinek made clear his unwillingness to accept Mr. Feder as a bona fide union representative, it seems fair to draw an inference that he would not have taken a complaint against him by another union official seriously unless it came from pretty high up in the Tech Guild hierarchy.

Fort: 'Don't Know, Can't Comment'

Asked about the matter during a phone interview the day after the hearing, Mr. Fort said, "I don't know anything about the case and I don't want to comment on it."

It was mentioned to him that this would seem to be a case he would want to be fully informed about for a couple of reasons.

The most obvious one is that if the arbitrator finds Mr. Feder guilty of misusing his computer for union-related purposes, it could have a significant impact not only on those represented by and/or working for DC 37 but for those throughout the country belonging to affiliates of its international union, the American Federation of State, County and Municipal Employees. The other is that, for more than a year, the Tech Guild has devoted considerable energy to lobbying against the municipal time-keeping system known as CityTime because of its capacity to track employees wherever they go within an agency. Mr. Fort and, in particular, the union's first vice president, Jon Forster, have been vociferous in objecting to the system as an improper intrusion on employee privacy.

If a system that can merely ascertain where employees are in a building is overly intrusive, what does that make an agency's exhaustive look at how an employee is using his computer? Making a big deal about CityTime without similar objections to what the HA is doing to Mr. Feder is, in the kindest light, hypocritical; it looms as something considerably uglier given Mr. Marcinek's testimony that someone in the union — and presumably high up — dropped a dime on Mr. Feder.

But Mr. Fort, asked how he could not be aggressively involved in defending Mr. Feder — even when it was a political rival's job that was at stake — responded, "This is not a case I'm involved in at all." He said Mr. Feder would have taken the matter to a union grievance representative, and that there was no reason for him to have sought any details about the matter.

Calls to Mr. Forster were not returned.

'Guild Wants Me Out'

Mr. Feder said he believed a political ax was being ground. "Basically, the local is behind this," he said. "They want to see me removed or suspended, [then] they'll refuse my dues payments and make me ineligible to run in the next election."

His lawyer, Mr. Schwartz, said he believed the internal feuding had blinded Mr. Fort to the larger implications of what the HA was doing.

"I think that things are so polarized in the local that guys over there don't care what happens to him or how it affects the local," he said. "It's one of the more astounding cases that I've had to deal with. They're basically charging [Mr. Feder] with union activity. They're not even saying he did it on agency time; just that he did it using agency resources."

During his cross-examination of Mr. Marcinek last week, Mr. Schwartz established that while Mr. Feder was seeking re-election, he had the option to take two 15-minute breaks over the course of the day to tend to union business, provided he worked longer so as to complete a full seven hours of work time.

To counter that point, HA attorney Howard Korman elicited from Mr. Marcinek testimony that even if Mr. Feder was doing the union work on his own time, he was not permitted to use HA resources.

Mr. Schwartz then sought to establish what the boundary line was for "limited personal use" of the agency computer for e-mails concerning union business.

Short-Term Memory

Mr. Marcinek, who for much of his testimony conveyed the sense that he considered it an imposition to have to answer Mr. Schwartz's questions, had previously responded, "I don't recall" when asked whether he had conversations with either Mr. Feder or his direct supervisor, Susan Vairo, about Mr. Feder's use of e-mails, as well as to a question about whether he had ordered him to stop sending e-mails between the time that the material from Mr. Feder's computer was downloaded in late January and the point at which charges were brought against him in April.

Mr. Schwartz, asking about the sending of union e-mails, said, "Is once a day too frequent?"

"It could be," Mr. Marcinek replied. "How is an employee supposed to know?" "Everything is done on a case-by-case basis."

"So you're testifying that an employee who sends one e-mail a day could be violating [Housing Authority] rules?"

"It could."

Dispute Became Personal

That terse exchange illustrates the acrimony that has developed in the relationship between Mr. Marcinek and Mr. Feder. The Deputy Labor Relations Director, who generally dispensed words as though they were thousand-dollar bills, became garrulous only long enough to point out that Mr. Feder had brought four improper-practice complaints against the HA in the past year, adding with relish that there had already been two rulings against him.

It had clearly become a personal matter to him. Mr. Schwartz sought to establish that there had been no complaints about Mr. Feder's productivity and that he had no problems with his supervisor, Ms. Vairo. There was also the implication that she never felt the need to warn him about his use of e-mail: when Mr. Schwartz asked whether Mr. Marcinek had instructed him not to use the e-mail system for political work, the Deputy Labor Relations Director responded, "It was the prerogative of his supervisor to do that, and I am not his supervisor."

Super Bowl Pool Permitted

Mr. Schwartz during cross-examination elicited from Mr. Marcinek that the rules about non-agency-related e-mail were enforced so loosely that one employee in the HA's Office of Design — where Mr. Feder worked for the first 12 of his 16 years at the agency — was able to run an annual HA Super Bowl pool over the system. Mr. Feder remarked following the hearing, "There is a lot of personal e-mailing going on, and they turn their back on it. They're only going after me because I criticize waste and mismanagement."

He has contended that the three transfers he was forced to accept over the past four years were retaliation for his union activism. The first one, from the Office of Design to the HA Department for Planning and Development, was said to be part of a reorganization, but Mr. Feder said that soon after someone from his new department with less experience was shifted into his old office. In December 2006 he was briefly moved into the HA Department of Finance, and then two months later was transferred to the agency's Office of Business and Revenue Development, where, Mr. Disch testified, he is currently working on parking and laundromat projects for the authority.

Sought Penalty on the High Side

After the charges were brought, Mr. Schwartz said he approached HA officials about a possible settlement and was stunned by what they demanded: a five-week suspension, acceptance of a final warning as a prelude to termination, and a $20,000 fine payable to the Conflicts of Interest Board.

The harshness of the proposed fine was shocking given the typical disposition of such cases by the Conflicts of Interest Board. In one recent ruling, two Steamfitters who moonlighted for a private company doing business with the city settled the cases against them by agreeing to pay $3,000 fines. Mr. Feder did nothing to potentially compromise the agency or profit financially, and he claims that the great majority of the e-mails that are being used against him were informational — such as alerting chapter members about matters ranging from problems in the HA to the union election — rather than to promote his own candidacy.

'Supervisor Let Him Do It'

Referring to Ms. Vairo, Mr. Schwartz said, "His supervisor was aware of what he was doing and permitted him to do it. She let him spread out his breaks so he could do this. They didn't have any problems with his work. They singled him out after he circulated a big critique of the agency."

The waste and mismanagement Mr. Feder has cited is a touchy subject because the HA for months has been reducing services as the result of a budget deficit that had approached $200 million. The financial problem is largely a consequence of drastic cuts in Federal aid to public housing throughout the nation, but it raises another question: why is the HA, given its budget woes, spending money and personnel to remove Mr. Feder for using its e-mail system to engage in union activity?

Mr. Marcinek acknowledged during cross-examination that he had never spoken to Ms. Vairo about whether she had given Mr. Feder any latitude to pursue union activity without it infringing upon his HA duties. All that seemed to matter to him was that Mr. Feder by his standards had used his HA computer to excess, although he never stated at what point that activity crossed the line, either to Mr. Feder prior to the charges being brought or on the witness stand.

The impression he left was that he was using his power to pursue a grudge against an employee he considered a pest. But in indulging himself this way, Mr. Marcinek was not targeting Mr. Feder alone; it represented a strike against the 300-plus HA workers who have elected him as their advocate for three consecutive terms. And, not incidentally, a strike against the Tech Guild, whether Mr. Fort realizes it or not.

More Political Club Than Union

Long ago, DC 37 was intrepid enough to publicly take on the King Kong of bureaucrats, Robert Moses, when it believed he was shabbily treating the workers under his command at the Parks Department. It's hard to conjure that union while considering DC 37 as it has existed for the past three decades, when it has often been run more like a political club than a labor organization, a style that has infected the Tech Guild as well.

That explains why whichever Tech Guild official made the call that spurred the forensic investigation of Mr. Feder's computer was oblivious to the incursion on basic union rights that this case represents. In their desire to screw Mr. Feder, an HA manager and the union are pursuing separate vendettas that have created the potential for a decision against him that could wind up having a chilling effect on the entire labor movement.