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Case 1:90-cv-05722-RMB-THK Document 1452

MINTZ LEVIN

lt 002/018 Filed 12/13/13 Page 1 of 17

MINTZ LEVIN A43

Bridget M. Rohde I 212 692 6883 I

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December 12, 2013

Chrysler Center 666 Third Avenue ew York, NY 10017 212-935-3000 212-983-3115 fax www.tnintz.com

BY HAND The Honorable Richard M.Berman United States District JudgE0 ORD7E7 ik.t.; 1 2 2013 Southern District of Nev 0 N1:Xtrciani Daniel Patrick Moynihan Courthous Richard M.Berm:n, U.S.LiqHMBE 500 Pearl Street HAMA 40 M.BERMAN New York, New York 10007 Re: United States v. District Council, et al., 90 Civ. 5722(RMB) Dear Judge Berman: We write in accordance with your endorsement of December 11,2013 on our December 10,2013 response to the most recent letter of Patrick Nee regarding the Special Election for Executive Secretary-Treasurer("EST")of the District Council. We set forth below the timeline of the Special Election, pertinent intervening litigation and re-set Special Election, as well as facts and circumstances regarding Mr. Nee not being approved to run for EST,in an effort to fully satisfy the Court's endorsement. The Special Election Process for EST The plain terms of the Stipulation and Order provide the Review Officer with broad authority to supervise and conduct elections. As Paragraph 5.k ofthe Stipulation and Order states,"The Review Officer is empowered to supervise all phases of any union election conducted by the District Council during his tenure, and to certify the results of any such election." The Final Election Rules approved by the Court, which are incorporated into the District Council Bylaws, further reflect that authority. This summer, consistent with his authority, the Review Officer initiated a Special Election for EST to replace Michael Mello. By Order dated August 15,2013, the Court approved the Review Officer's request for the special election, modifying certain election rules set forth in the Bylaws. See U.S. v. District Council et al., 90 Civ. 5722(RMB),Documents 1365 and 1366. The original schedule for the special election was set forth in the Review Officer's application, with the election notice to be sent August 26, petitions to be made available on August 27, completed petitions to be filed by September 13,the RO to complete petition review and begin interviews as part ofthe approval process required by the Stipulation and Order by September 18,and the candidate interview and review process to be completed by September 25, with part ofthe delegate body meeting that evening to be dedicated to ominations and acceptances of nominations from the RO-approved list of candidates. USDC SDNY DOCUMENT

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In accordance with the schedule, candidates who desired to run for EST and were able to collect a sufficient number of signatures from Union members submitted petitions. The Review Officer, assisted by staff interviewed four of those five candidates(one had withdrawn), with the outcome being that only one ofthe candidates was approved. On September 24,2013,the Review Officer issued his"RO's Findings Regarding Required Approval of Candidates for EST"(RO's Findings"), which is attached as Exhibit 1 for the Court's convenience, documenting his findings with respect to the three candidates he did not approve and also setting forth his view of the election process required going forward. Also on September 24, the Review Officer provided the Court with the RO's Findings. Additionally, because the Review Officer had approved only one candidate to run for EST and believed that the Consent Decree and Stipulation and Order contemplated a robust democratic process with a contested election, the Review Officer stated that he sought the consent of the Court to re-set the election schedule by approximately six weeks to allow notice to the members and time for additional candidates to prepare petitions and to be approved by the Review Officer. See U.S. v. District Council et al., 90 Civ. 5722(RMB), Document 1402. However,on September 25,2013, one ofthe candidates who was not approved to run for EST,James Noonan, challenged the Review Officer's decision. The Court set a schedule, indicating in its endorsement that "The Court would prefer any written responses to RO letter & findings by Oct 10,2013. RO may reply by Oct 17, 2013. Oral presentations on Oct 23,2013 @ 11:007 which was dated September 26,2013 and So Ordered by the Court. The Court then wrote"SAME SCHEDULE APPLIES TO ALL CANDIDATES." See US. v. District Council et al., 90 Civ. 5722(RMB),Document 1405. The matter was litigated before the Court, with Mr. Noonan,through counsel, filing a more expansive application overruling the RO's Findings and permitting him to run for EST,the Review Officer responding, and oral argument taking place, all according to the schedule. Also during this time period, another candidate who was not approved to run for EST, Mr. Nee, submitted a submission called a preliminary statement challenging the Review Officer's authority on October 8(before the October 10 deadline for any written responses to the RO's Findings), with the Review Officer responding on October 15 and Mr. Nee replying on October 16. Mr. Noonan appeared in court on October 23; Mr. Nee did not. By a Decision and Order dated October 23,2013, the Court denied Mr. Noonan's application, finding that there was a candidate application mechanism in place and that Mr. Noonan availed himself of it and that Mr. Noonan was without standing to review the matter, which is "final and non-reviewable." See US. v. District Council et al., 90 Civ. 5722(RMB),Document 1425 at 3. By letter dated October 29,2013, the Review Officer submitted a "Revised Schedule for Special Election ofEST," which sets forth various deadlines to be adhered to leading up to the counting of ballots for EST on January 24,2014. See Exhibit 2. So far, five ofthose deadlines have been reached:

12/2013 a:39 FAI / 12 452 N Gass 1:9U-cv-05722-RMB-THK litiOnali Mintz,Levin,Cohn,Ferris,Glovsky and Popeo,P.C. December 12,2013 Page 3

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11/08/13: Mailing ofthe election notice by the District Council; 11/11/13: Petitions were made available for those interested in running; 11/22/13: Completed petitions were due to the Review Officer; /13: Review Officer completed petition review and began interviewing candidates as part 11/27 ofthe approval process required by the Stipulation and Order; 12/11/13: RO completed candidate interview and review process, with part ofthe delegate body meeting dedicated to nominations and acceptances of nominations from the RO-approved list of candidates. It was at last evening's delegate body meeting that the three approved candidates were announced. Pat Nee As indicated above, Pat Nee was one of the candidates who was not approved by the Review Officer to run for EST on September 24. The part ofthe RO's Findings specifically pertaining to Mr. Nee read as follows: This office has developed a record of problematic conduct in multiple matters relating to Mr. Nee,beginning with his service as President of Local 157(which was vetoed). The record ofeach proceeding is incorporated herein by reference (beginning from the time a Notice of Possible Action was first issued to Mr. Nee in November 2011). Further, a Notice ofPossible Action was issued to Mr. Nee on July 29,2013, relating to his improper behavior as a delegate on July 24,2013, when he threatened to "pound" the presiding officer at the delegate meeting. [The NPA has been held in abeyance based on Mr. Nee's in-person pledge to this office that he regretted his behavior and vowed that it would not happen again.] Exhibit 1 at 3. Review Officer's The Court's Decision and Order dated October 23,2012 addressed the to in the referred matter the veto of Mr. Nees service as Local I57's president and delegate 5722 Civ. 90 al., et Council first quoted paragraph about Mr. Nee above. See U.S. v. District . In the individuals) other two (RMB),Document 1197 at 9, 18. (It also addressed the vetoes of at appear Nee Mr. to relating course ofthat Decision and Order, specific facts and discussion the of one of declaration the in forth pages 9 through 12; of particular note are the facts set

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Mintz,Levin, Cohn,Perris, Glovsky and Popeo,P.C. December 12, 2013 Page 4 Review Officer's investigators, Bill O'Flaherty, which are summarized at page 11 ofthe Decision and Order. In sturunary, Mr. Nee was vetoed in his position as Local 157 president and delegate in connection with conduct involving a move of his local union's office. It was the Review Officer's position that as president of his local union, Mr. Nee was a fiduciary and responsible for ensuring that the officers did not engage in self-dealing and that work was democratically offered to the members he represented. As supported by the O'Flaherty Declaration, however, the opportunity for members to work on the move was not mentioned at the local union meetings after Mr. Nee was notified of the move and before the day of the move. Local union officials and a hand-picked rank and file member did the move and payment at time and a half was sought for them, although not authorized or paid. As noted the Court found that the RO's determination to veto Mr. Nee(and others involved) was supported by substantial evidence and were not arbitrary and capricious. We are awaiting a decision from the Second Circuit on this matter. We have attached the veto being held in abeyance involving Mr. Nees threat to "pound" someone at a delegate's meeting this summer. In his preliminary statement dated October 8,2013, Mr. Nee specifically stated that he was not appealing the Review Officer's decision not to approve him to run for the position of EST ofthe District Council, which is understandable under the circumstances. Rather, he argued that the one candidate approved by the Review Officer should be seated as EST without reopening of the election process. As we understand Mr. Nees letter of October 16, 2013, responding to our October 15 response, and ofDecember 2,2013, he is continuing to challenge the Review Officer's overall authority to re-open nominations and objecting to the Review Officer's final and non-reviewable decisions whether to approve candidates. He is not challenging the Review Officer's decision not to approve him to run for EST. Additionally, Mr. Nee agrees that the Review Officer's decision whether to approve a candidate to run for Union office is non-reviewable. See id. at 1. The plain terms of the Stipulation and Order so provide: Any candidate seeking to run for a position as an officer of the District Council during the Review Officer's tenure must first be approved by the Review Officer, who will determine whether in light of the terms and objectives of the Consent Decree the candidate is qualified to run for office and represent the union membership. Any such decision by the Review Officer will be final and non-reviewable. clear Stipulation and Order at 5.k.iv. The Court has previously noted its agreement that "the as precisely read be it that supports 5.k.iv of language intent ofthe parties as well as the clear

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Mintz,Irvin,Cohn,Ferris, Glovsky and Popeo,P.C. December 12, 2013 Page 5 written, to afford the RO the power he exercised and his decision in this regard final." See Decision and Order dated October 26,2011 (Document 1116) at 3. In short, the Review Officer's decision not to approve Mr. Nee to run for EST of the District Council, as well as his decision not to approve certain others who sought to run, is final and non-reviewable. That said, we respectfully submit that even if Mr. Nee was seeking review as to the Review Officer's decision not to improve him (Nee)to run for EST and the decision were reviewable, it should be upheld as an appropriate exercise of discretion, fully supported by substantial evidence and consistent with the objectives ofthe Consent Decree and Stipulation and Order. Respectfully submitted,

Bridget M.Rohde

gt-ifit1. csa 3

By Email cc: Patrick Nee AUSAs Benjamin Torrance and Tam LaMorte James Murphy,Esq. Barbara S. Jones, Esq. Raymond McGuire, Esq.

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