Razzle Dazzle
Settlement a Stern Judgment

By RICHARD STEIER

Henry Stern had the good and bad fortune to serve his apprenticeship in the Parks Department shortly after the departure of Robert Moses, the great and terrible giant of municipal government from the mid-1920s through the mid-60s.

Mr. Moses was the colossus who in addition to his duties at Parks ran the Housing Authority, Triborough Bridge and Tunnel Authority and City Planning Department and oversaw the building of many of the highways running throughout the city.

As that portfolio suggests, he was a big-time power junkie who sought to control everything in his orbit, leading to confrontations with Mayors, Governors and the owner of the Brooklyn Dodgers, Walter O'Malley, who might not have moved the team to Los Angeles 50 years ago if Mr. Moses had yielded to his request for land adjoining the Long Island Railroad site in Brooklyn to build a new ballpark.

An Impish Autocrat

Mr. Stern never had Mr. Moses' ambition or his vision, and he was more impish than imperious during the 15 years he ran the Parks Department, in two separate tenures between 1983 and 2001. But he shared his mania for control, and a willingness to retaliate against those who stood up to him.

A $21-MILLION REPUDIATION: While former Parks Commissioner Henry Stern and city attorneys insisted that the decision to settle a suit claiming racial discrimination against minority employees should 'not be construed as an admission of wrongdoing,' the total $21-million payout made clear the concerns about the city's vulnerability if the suit went to trial.

Last year, during a symposium on Mr. Moses and his impact on the city and state, Mr. Stern took issue with the claim of some detractors that the Master Builder was a racist. The heart of the case that the city just settled involved the charge that Mr. Stern's personnel policies had the effect of preventing minorities from being promoted, even in cases where they had more experience and greater expertise than the whites who got the jobs.

A Federal District Court Judge, Denny Chin, 18 months ago ruled that there was sufficient evidence of "widespread discrimination against African-American and Hispanic employees" to allow the bias suit to go to trial.

But Judge Chin dismissed a claim in the suit that Parks under Mr. Stern had created a hostile environment toward people of color. Rather, he said that Mr. Stern ran the department like it was his own kingdom rather than a city agency, and it should be left to a jury to decide whether his actions showed bias or just an intoxication with his own power.

A case could be made that it was the latter based on Mr. Stern's first stint in Parks as its Executive Director in 1966, when most of his subordinates were white. In late May of that year, his decision to transfer several employees for what District Council 37 thought were arbitrary reasons spurred Lifeguards to be absent from duty at the start of the Memorial Day weekend that launched the city's beach season. That mess was resolved when Parks Commissioner Tom Hoving was reached at his summer home and countermanded the transfer orders, prompting the Lifeguards to suddenly materialize from under boardwalks and other nearby locations.

Rather than taking this as a cautionary tale about the need for harmonious labor relations, Mr. Stern continued to take a hard line with employees. By December the union decided the attention of a higher power than Mr. Hoving was needed, and it got it when Mayor John Lindsay, upon pulling the switch that was supposed to light the Christmas tree in City Hall Park, remained in darkness because Parks workers had loosened all the tree's bulbs. A month later, Mr. Stern was reassigned; as he put it a decade ago, "I couldn't really be fired: I was a member of the Liberal Party."

A High-Handed Style

He would eventually be elected a City Council Member At Large on the Liberal line, but when the at-large positions were abolished as a violation of the Voting Rights Act, Mr. Stern returned to Parks as its Commissioner for the last seven of Ed Koch's 12 years as Mayor. There were tales during those years of Mr. Stern using Parks employees to run errands for himself and his family, but because those enlisted were apparently all white and not inclined to file job complaints, it never morphed into a major issue.

After four years in exile during David Dinkins's mayoralty, Mr. Stern returned as Parks Commissioner in 1994 when Rudy Giuliani was elected with significant help from the Liberal Party. During the first Giuliani administration, he found a considerably more soothing labor climate than he encountered 30 years earlier. DC 37's leader at the time, Stanley Hill, was not inclined to rock the boat, and the two leaders of his primary local for park workers, the late Frank Morelli and Robert Taylor, had other priorities.

Mr. Morelli's last Christmas party as head of Local 983 was held at Leonard's of Great Neck, though for reasons that can only be guessed at the bill for more than $82,000 was paid to a travel agency in East Northport. Mr. Taylor made the party a local affair by having it catered by a restaurant just up the street from DC 37, but he managed to outdo Mr. Morelli, spending $91,888 on the 1995 shindig. He later went to prison for a series of corrupt transactions that were exposed in the DC 37 scandals of 1998.

Small wonder then that during a June 1997 interview, Mr. Stern remarked, "Our employees are now working with us. You don't have any sense that the unions are fighting with us, trying to establish their primacy or sabotage us." Those sort of activities, after all, could have distracted Local 983 officials from lining their pockets.

Union Reactivated

In 1998, however, just after Mr. Giuliani began his second term, Mark Rosenthal unseated Mr. Taylor at Local 983, and Mr. Stern was confronted by a more-engaged union, particularly after Mr. Hill was forced out at DC 37 that November. Two lawsuits were brought on behalf of the union's locals which lost members while jobs they had traditionally performed were handed over to Work Experience Program participants. The 1997 State Social Services Law had prohibited WEP staff from being assigned work that was or had previously been handled by unionized workers.

Mr. Stern had used the WEP program to maintain and even improve services while his agency suffered cuts in paid staff under Mr. Giuliani despite having been decimated by layoffs during Mr. Dinkins's tenure. In the mold of Mr. Moses, he was a particularly hands-on Parks Commissioner; Judge Chin would later express surprise at the direct role Mr. Stern took on hiring and promotion decisions, as well as salaries for employees. He even, the judge noted, determined what civil service title employees should be given based on the salaries he allotted them.

Maximized Discretion

Mr. Stern was able to do this because in many cases he discontinued the exams for those titles, meaning that all promotions to them were made on a provisional basis. This also had the effect of maximizing his discretion over who advanced and whether they kept their jobs, since provisional workers could be demoted back to their tenured titles or fired if they did something that displeased him.

The belief that he was abusing that latitude to the detriment of minority employees prompted a lawsuit and, after a U.S. Equal Employment Opportunity Commission finding that it had merit, a U.S. Justice Department citation for alleged discrimination in promotions that was issued in 2002, not long after Mr. Stern left office along with Mr. Giuliani.

The former Commissioner claimed he had doubled the number of black managers at the agency, but Justice noted in its complaint against Parks that no white employees there reported to black supervisors and that whites had received 70 percent of the promotions even though they represented less than half the workforce.

College Springboard

A key element in this disparity, Judge Chin found, was Mr. Stern's reliance on the "Class Of" program, which he created to attract recent graduates of elite colleges to the department.

The lawsuit charged that "Class Of" members were virtually all white and they often were promoted, after just a year or two at the agency, to ranking posts while minority employees with a decade or more of service were passed over, sometimes without even being interviewed for positions.

Mr. Stern, during a Feb. 27 phone interview, expressed reluctance to comment about the settlement but defended his handling of the "Class Of" program.

"We went to black colleges to try to recruit people for the 'Class Of,' and we hired every African-American who applied" to the program, he said. "There was never any [incumbent] black employee who asked to be part of the 'Class Of' program, and the reason was they were being paid much more in the jobs they were in."

He was referring to the fact that the program's entry-level jobs often carried salaries of just over $20,000. But "Class Of" members who were willing to put up with the low pay and the "park names" Mr. Stern bestowed on much of the work force (his own was "Eagle") in many cases were rewarded with huge pay hikes once they were promoted. Perhaps the best-known graduate of the program was Ed Skyler (park name "Skylark") who quickly became Mr. Stern's spokesman and now is Mayor Bloomberg's Deputy Mayor for Operations.

Caucasian Catapult

The plaintiffs in the lawsuit asserted that they were discriminated against in the interview process for promotions, and there was one case, Judge Chin noted, where "a Caucasian applicant with the lowest interview scores was selected over an African-American applicant with the highest score."

The judge also noted in his 2006 ruling that Parks failed to keep records of the interview ratings, or to establish how much weight those interviews would be given in choosing between the candidates. And although an agency affirmative action plan set up under Mayor Dinkins that continued in the Giuliani administration required that Parks post notices of all available positions at least two weeks before they were filled, two agency managers stated in depositions that Parks "regularly failed to post vacancies."

"Even when a position was posted, interviews were not always held," Judge Chin wrote in his decision. He cited one case in which a black employee sought a transfer to fill a vacancy at the Asser Levy Center but was passed over in favor of a white colleague who didn't express interest in the job until a supervisor called to offer it to her.

Ignored WEP Chief

Perhaps the most egregious pass-over involved Paula Loving, who as Citywide Coordinator of the Parks WEP Program had been described by a supervisor as "smart, ambitious, reliable, a good communicator, and a very good worker." When a higher position of WEP Director was created, she would have seemed a natural choice for the job, but it was never posted, she was never interviewed, and it was given to a white employee with significantly less experience in the program. When that employee left, the successor was another white employee who had less than a year on the job and had been hired right out of college.

Even those minorities who were promoted didn't necessarily benefit: the lead plaintiff in the case, Robert Wright, actually had his salary cut by $6,500 when he was promoted to Parks Recreation Manager. There were other pay disparities: Elizabeth Rogers, the black Center Manager of the East 54th St. Recreation Center, was paid $8,000 less than her white counterpart at Asser Levy.

Mr. Stern insisted nonetheless that he had never discriminated based on race when it came to promotions or salaries. "The only time we took race into account for hiring and promotion was affirmative action," he said.

Didn't the size of the settlement, which will come to $21 million once attorneys' fees and other expenses are included, suggest the city believed it couldn't successfully defend his conduct of the agency in court?

'City Believed No Bias'

"No, no, not at all," Mr. Stern said. "Read the Corp. Counsel's statement. The city firmly believed we did not discriminate then, or ever."

He was referring to a press release from Georgia Pestana, Chief of the Law Department's Labor and Employment Division, that said the settlement "should not be construed as an admission of wrongdoing by the Parks Department." She said city officials did not believe that Parks had been guilty of bias but that "the risks presented by a lengthy, multi-phased trial" made settling the best course to take.

But Mr. Rosenthal surmised, "They wouldn't have settled for this kind of money if they were not guilty."

Had the case gone to trial, among the obstacles city lawyers would have had to overcome was the complaint by a black employee that a supervisor at Randalls Island had hung a noose as an annual Halloween decoration. Judge Chin noted that when the matter was brought to his attention, "Stern did not order any investigation of the nooses on Parks property though he considered them 'childish' and 'silly.'''

The attorneys for the plaintiffs were prepared to cite numerous cases in which ranking agency managers made blatantly racist comments without being disciplined. And Lewis Steel, one of those attorneys, said he would have submitted a deposition from the late journalist Jack Newfield that Mr. Stern had told him back in the 1970s that "blacks were genetically inferior."

Questionable Remarks

Mr. Stern declined comment on that allegation. It is known that Mr. Newfield supported Mr. Stern's re-election to the City Council in 1977 at the same time that he strongly opposed the mayoral candidacy of their old friend Ed Koch, with whom Mr. Newfield had a bitter falling-out.

There are others, including journalists and former city officials who are old acquaintances of Mr. Stern's, who have said that over the past 10 or 15 years the man who went to Mississippi in 1964 to push for black citizens' rights has made comments in private conversations that at best could be described as racially insensitive.

Those claims give credibility to the account offered by Tanya Bowers, a former Parks employee who is both Jewish and black, at the Feb. 26 press conference called by the NAACP Legal Defense and Educational Fund to announce the settlement.

She said Mr. Stern told her that he knew she was Jewish the first time he heard her speak, and added, "I can bring you home and know that the silverware will still be there when you leave."

Mr. Stern, who is 72, has a sense of humor that has an element of the naughty boy trying to shock the grown-ups, one that is as likely to bite him as those at whom he aims such jokes.

"Henry has always made statements about racial matters that have made people uncomfortable," one longtime acquaintance said. He viewed it as less a matter of racism than immaturity from someone who was precocious enough to have entered the Bronx High School of Science at 12 and City College at 15 but may have lost some of his adolescence in the process.

"He likes to be the center of attention, and he says things to make people notice him," this acquaintance remarked. "And sometimes, he's just looney-tunes."

Cloud Over His Legacy?

Talking about his tenure at Parks last week, Mr. Stern said, "When I was Commissioner, there was a lot of innovation - privatization, and we acquired thousands of acres of land. And what I'm proudest of is that we got kids into government who might never have come there otherwise."

Asked if he was concerned about the impact the case might have on his legacy, he declined comment, saying that to deal directly with the issues would undermine what city attorneys had tried to accomplish with the settlement.

Mr. Stern is perceptive enough to realize, however, that his tenure at Parks now is likely to be remembered less for "the kids we got into government" than for the minority workers who labored long enough in the agency to gain the experience and skills that merited promotion, only to languish in their jobs while those kids leaped over them.