In any event, Respondent received a fair and impartial hearing before the Independent Administrator, a former federal judge. Mr. DiGirlamo was represented by counsel, submitted written briefs to the Independent Administrator, and was given the opportunity to, and did, cross-examine adverse witnesses. All evidence against Respondent that was introduced at the disciplinary hearing was given to him in advance of the hearing. Mr. DiGirlamo testified in his own behalf and called witnesses in his defense. After carefully considering all the evidence, the Independent Administrator issued a written opinion. As such, the disciplinary action against Respondent complied with the Consent Decree and all applicable law.
Finally, the disciplinary action against Respondent did not violate the LMRDA's free speech provisions. See 29 U.S.C. § 411(a)(2). As Respondent's counsel should have learned in the course of conducting legal research on his client's behalf, this Court has held that "the IBT's sanctioning members in order to rid itself of corrupt influence conforms with § 101(a)(2) of the LMRDA, and infringes no First Amendment rights." Aug. 27, 1990 Opinion & Order, 745 F. Supp. 908, 913 (S.D.N.Y. 1990), aff'd, 941 F.2d 1292 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 408, 112 S. Ct 1161 (1992). Thus, this argument is without merit.
4. The Penalty
Respondent's final argument, contained in his Brief in Opposition, is that the penalty imposed on Mr. DiGirlamo by the Independent Administrator is arbitrary and capricious because it is "far more harsh than that imposed in far more grievous cases." Brief in Opposition at 46. This argument is without merit. The Independent Administrator carefully considered Mr. DiGirlamo's participation in the charged offense as well as factors in mitigation of punishment. Mr. DiGirlamo's belief that the sanctions imposed are "harsh" does not make the Independent Administrator's decision arbitrary or capricious. See United States v. IBT, 981 F.2d 1362, 1371-2 (2d Cir. 1992).
Both this Court and the Second Circuit have held that the Independent Administrator, who presides over disciplinary hearings pursuant to the Consent Decree, is best situated to determine and fix the penalty to be imposed upon IBT members who violate the Consent Decree's disciplinary provisions. See United States v. IBT, 978 F.2d 68, 74 (2d Cir. 1992). In doing so, he is entitled to great deference. See United States v. IBT, 981 F.2d at 1372; United States v. IBT, 978 F.2d at 74; March 5, 1993 Opinion & Order, slip op., at 21 (S.D.N.Y. 1993). This is a matter of critical importance. The Independent Administrator conducts the hearings and thus is best equipped to evaluate the demeanor, credibility and, ultimately, the culpability, of those who appear before him. See id.; Feb. 9. 1993 Opinion & Order, slip op., at 47 (S.D.N.Y. 1993). It follows that he is also uniquely situated to choose an appropriate penalty. See June 10, 1993 Memorandum & Order, slip op., at 7 (S.D.N.Y. 1993); March 5, 1993 Opinion & Order, slip op., at 21-22. As the Second Circuit has stated, "the experienced independent administrator -- himself a former federal district judge -- heard the witnesses and fixed a penalty. On this record there is no basis for finding the penalty chosen by the administrator was either arbitrary or capricious." United States v. IBT, 978 F.2d at 74.
An example of the Independent Administrator's great discretion in determining an appropriate penalty is found in United States v. IBT ("Sansone"), 981 F.2d at 1371-2. In Sansone, the Second Circuit refused to overturn the Independent Administrator's decision to permanently bar the President of IBT Local 682, Robert S. Sansone, from holding Union office, even though the Court of Appeals indicated that it might have reached a different result. See id. at 1372. As the Second Circuit stated, "the apparent discrepancy between the penalty imposed here and those imposed in other cases does not inexorably compel the conclusion that the Independent Administrator acted arbitrarily or capriciously." Id.
Finally, no discrepancy exists between the penalty imposed here and that imposed in prior cases involving analogous conduct. See, e.g., July 13, 1992 opinion & Order, 803 F. Supp. 740, 741 (S.D.N.Y. 1992) (IBT officer permanently banished from the Union for failing to investigate allegations that fellow officers were members of the LCN). Many other IBT members found to have knowingly associated with LCN members have been permanently banished from the Union. See, e.g., April 27, 1992 Memorandum & Order, 791 F. Supp. 421, 423 (S.D.N.Y. 1992) (IBT member permanently banished for knowingly associating with LCN member); January 16, 1992 Memorandum & Order, 782 F. Supp. 238, 240 (S.D.N.Y. 1992) (same); October 16, 1991 Memorandum & Order, 777 F. Supp. 1130, 1131 (S.D.N.Y. 1991) (same). The Independent Administrator's decision to impose this penalty on Mr. DiGirlamo is well supported by the record in this disciplinary action.
Thus, Respondent's claim that the penalties imposed in the instant matter are arbitrary and capricious because they are "severe" or "harsh" is unpersuasive. The Independent Administrator carefully considered the evidence presented. In light of the seriousness of Mr. DiGirlamo's wrongdoing, the penalty fixed by the Independent Administrator was appropriate and was not arbitrary or capricious.
5. Respondent's Application for A Stay
Mr. DiGirlamo requests that this Court stay imposition of the penalties imposed by the Independent Administrator. The factors regulating the issuance of a stay are:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.