The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge:
This opinion emanates from the voluntary settlement of an action commenced by plaintiff United States of America ("the Government") against, inter alia, defendants International Brotherhood of Teamsters ("the IBT"or "the Union") and the IBT's General Executive Board embodied in the voluntary consent order entered March 14, 1989 ("Consent Decree"). Pursuant to the Rules and Procedures for Operation of the Independent Review Board for the International Brotherhood of Teamsters ("IRB Rules"), P O, the Independent Review Board ("IRB") has made an application to this Court seeking approval of its decision in this matter.
Application XXI presents for this Court's review the decision of the IRB regarding disciplinary charges brought against Robert T. Simpson, Jr. ("Simpson"), a former International Trustee of the IBT and the former President of IBT Local 743 ("Local 743" or "the Local"), located in Chicago, Illinois. Because the record in this application is voluminous, this Court will summarize the factual and procedural background of Application XXI before turning to the substance of this application and the numerous objections through which Simpson challenges this application.
On June 30, 1994, the IRB issued an investigative report concerning disciplinary charges it proposed against Simpson, and the evidence that supported these charges.
In this report, the IRB charged Simpson as follows:
From October 1989 to the present, while the principal officer of Local 743, you allowed and facilitated Donald Peters' continued representation of Local 743 and his continued involvement in IBT affairs, thereby bringing reproach upon the IBT and interfering with the Local's legal obligations in violation of Article II, Section 2(a) and Article XIX, Section 7(b)(1) and (5) of the IBT Constitution to wit:
As a result of the court-approved settlement agreement entered into by Donald Peters on March 14, 1989 in United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (S.D.N.Y.), effective June 1, 1989 Donald Peters was prohibited from "any position as an officer, agent, representative or employee of the IBT or any IBT subordinate body. . . ." Based upon this same court-approved settlement agreement, effective September 30, 1989 Donald Peters was prohibited from "all positions as a trustee, agent, representative or employee of any IBT-affiliated employee benefit fund . . . ."
Despite these prohibitions on Donald Peters' involvement with Local 743 and any other IBT entity, subsequent to October 1, 1989, you allowed Donald Peters to act as a representative of Local 743 and to be involved in the affairs of Local 743 and other IBT entities. Such conduct included, but was not limited to, the following: providing Peters an office on Local 743 premises; allowing Peters to address a rally in 1990 of Local 743 members and a Local 743 shop stewards meeting in 1991; approving a resolution which authorized Local 743 to pay for Peters' expenses while he traveled representing Local 743; allowing Local 743 to pay for expenses in connection with meetings attended by you, Peters and others where union business was discussed; permitting Local 743 to pay for Peters' hotel expenses at the 1991 IBT Convention in Orlando, Florida; and condoning Peters presence at the 1993 Central Conference of Teamsters Convention in Las Vegas, Nevada.
(Independent Review Board, Proposed Charges Concerning Local 743 President and International Trustee Robert Simpson, Jr. ("Proposed Charges"), at 33-34 (June 30, 1994).) The IRB forwarded these charges and its report to the IBT on June 30, 1994.
By letter dated July 5, 1994, the IBT referred the charges against Simpson back to the IRB for adjudication. A hearing on the above-quoted charges was scheduled for November 3, 1994 ("the hearing"). On October 5, 1994, the IRB sent a Notice of Hearing ("the Notice"), a copy of the IRB investigative report with exhibits, and the IRB Operating and Hearing Rules to Simpson. The Notice informed Simpson that the purpose of the hearing was to determine whether the charges contained in the investigative report were supported by the evidence, and the Notice stated that Simpson would "be permitted to present any facts, evidence, or testimony that is relevant to the issues before the IRB." (Independent Review Board Notice of Hearing, at 1-2 (Oct. 5, 1994).) The Notice further informed Simpson that he had the right to be represented at the hearing by counsel or by an IBT member. Id. at 1.
In response to the Notice, Simpson requested that the IRB change the hearing date to accommodate a scheduling conflict. (Letter from Dan K. Webb, Esq., to John J. Cronin, Jr., Administrator, Independent Review Board, at 1-2 (Oct. 7, 1994).) The hearing was rescheduled for December 20, 21, and 22, 1994 in Chicago, Illinois. Simpson then "request[ed] that the IRB cause to be issued a subpoena ad testificatum to Mr. Leroy Ellis ("Ellis") requiring him to be present for cross-examination at the hearing in this case. . . ." (Letter from Peter C. McCabe III, Esq., to John J. Cronin, Jr., Administrator, Independent Review Board, at 1-2 (Nov. 14, 1994) (requesting that this Court issue subpoenas to Leroy Ellis requiring him to be present at Simpson's hearing).) In a Memorandum and Order dated December 15, 1994, this Court denied the request that this Court issue subpoenas. December 15, 1994, Memorandum & Order [Simpson Subpoenas], 870 F. Supp. 557 (S.D.N.Y. 1994).
On December 20 and 21, 1994, the IRB held the hearing on the charges against Simpson. At this hearing, the IRB heard from Celia Zahner ("Zahner"), counsel to Chief Investigator Charles Carberry ("the Chief Investigator" or "Carberry") of the IRB. (In re: Robert Simpson, Transcript ("Tr."), at 12 (Dec. 20, 1994).) Zahner offered into evidence three volumes of exhibits as evidence of the charges against Simpson. Id.; see (Investigative Officers' Exhibits, In re: Robert Simpson, Local 743 ("I.O. Ex.") Vols. I-III.) Zahner categorized the exhibits, and she briefly explained to the IRB the information that the exhibits contain. (Tr. 18-29.) Zahner offered no other evidence or testimony at the hearing.
The exhibits that Zahner provided the IRB set forth both the background and the substance of the charges against Simpson. (Opinion and Decision of the Independent Review Board, In re: Robert Simpson, IBT Local 743 ("IRB Opinion and Decision"), at 2 (July 30, 1995).) Donald Peters ("Peters"), the former President of Local 743 and a former International Vice President, was a named defendant in the civil RICO case United States v International Brotherhood of Teamsters, 88 Civ. 4486 (DNE) ("the civil RICO case"). Id. at 3. On March 14, 1989, the eve of trial in the civil RICO case, Peters entered into a voluntary, court-approved settlement agreement with the Government ("Peters's consent decree"). Id. at 8; see (I.O. Ex. 11.) Under the terms of Peters's consent decree, Peters agreed to resign permanently from all his IBT International positions effective immediately, "permanently retire from all positions as an officer, agent, representative or employee of the IBT or any IBT subordinate body by June 1, 1989," and "to permanently retire from all positions as a trustee, agent, representative or employee of any IBT-affiliated employee benefit fund no later than September 30, 1989." (IRB Opinion and Decision at 8-9); (I.O. Ex. 11.)
The IRB's Opinion and Decision determined that despite the terms of Peters's settlement agreement, Peters continued to have an active role in the affairs of Local 743. Pursuant to a resolution passed by the Local 743 Executive Board, Peters maintained an office at Local 743, attended Local 743 meetings, was paid "for consulting work while traveling and representing the interest[s] of Local 743 and its members," and continued to travel to various IBT functions including the 1991 IBT Convention in Orlando Florida, (IRB Opinion and Decision at 22); (I.O Ex. 54-55), and the 1993 Central Conference of Teamsters Convention in Las Vegas, Nevada. (IRB Opinion and Decision at 23); (I.O. Ex. 45 at 19-25.) In addition, Peters joined Simpson in attending meetings pertaining to union business for which Local 743 paid Peters's expenses. (I. O. Ex. 6 at 43.)
The IRB found that although Local 743's Bylaws require investigation into allegations of wrongdoing by an officer of the Local, (I. O. Ex. 13), Simpson failed to investigate Peters during the period from June 28, 1988, when Peters was named as a defendant in the civil RICO case, to May 31, 1989, when Peters permanently resigned from the Local pursuant to his settlement agreement with the United States. (IRB Opinion and Decision at 5.) Moreover, Simpson facilitated Peters's continued prohibited involvement with the Local and the IBT in contravention of the terms of Peters's consent decree from the time that Peters agreed to resign permanently from the IBT until approximately early 1993. Id. By allowing Peters to maintain an ongoing relationship as a representative of Local 743, to incur expenses that were paid by Local 743, and to attend IBT functions, Simpson ignored the prohibition against Peters's acting as an IBT representative, thereby violating Article II, Section 2(a) and Article XIX, Section 7(b)(1) and (5) of the IBT Constitution.
Id. at 5-6.
In response to the evidence offered by Zahner, Simpson and his attorneys presented their case to the IRB. First, Simpson took the stand. Simpson testified about his background, his family, and his first contact with Local 743. (Tr. 48-52.) He testified that he joined Local 743 in 1954, id. at 52, that he became a trustee of the Local's executive board in 1963, id. at 53, that he became President in 1988, id. at 54, and that he has known Peters since 1953. Id. at 58. Simpson stated that he never believed that Peters was a member of, or affiliated with, organized crime. Id. at 62-63.
Simpson then testified about the various events and accusations that comprise the IRB's charges against him. Simpson first explained that on February 19, 1988, before Peters was named a defendant in the civil RICO suit, Simpson and the other members of the Local 743 Executive Board unanimously passed a resolution regarding Peters that the Local membership later approved ("February 1988 Resolution"). Id. 64, 70. The February 1988 Resolution designated Peters as President Emeritus of Local 743 for life, id. at 71, allowed Peters to act as an advisor and consultant for the Local, id. at 71-77, permitted Peters to be reimbursed by the Local for expenses he incurred in the course of consulting for and advising Local 743, id. at 73, and provided Peters with an office in Local 743's offices from which to carry on this work. Id. at 73-4. Simpson testified that the purpose of this resolution was to honor Peters for "his many years of faithful service to the local," id. at 67, 71, and to retain Peters's services for the purpose of negotiating oral agreements and contracts with employers in the future. Id. at 65-66. Throughout his testimony, Simpson indicated that he relied on Marvin Gittler ("Gittler"), Local 743's General Counsel, for approval of this resolution, id. at 67-80, 88, and for advice regarding the impact of Peters's consent decree on Peters's continued relationship with the Local. Id. at 190-91.
Simpson stated that Peters received a salary from Local 743 under the terms of the February 1988 Resolution. Peters's salary as President of Local 743 had been $ 200,00 per year; when Peters stepped down as President, he became a Trustee of the Local and drew a salary of $ 100,000 per year for that position. Id. at 75, 77. Peters continued to receive this salary until he resigned from the IBT in March or April of 1989. Id. at 77.
Simpson repeatedly testified that he did not see anything wrong with the arrangements that the February 1988 Resolution provided for Peters, id. at 71, 73, 80, and he stated that he thought the resolution served Local 743's best interests. Id. at 81. In addition, when asked whether "[at] the time that [the February 1988] resolution was passed, as the new president of the union, did [he] have any idea that several months later the Department of Justice would actually name Don Peters as a defendant in the civil RICO case?" Simpson replied "No, I didn't." Id. at 80. Simpson then indicated that although he eventually did learn of the civil RICO suit and about Peters's status as a defendant in that suit, Simpson did not know when or how he learned these facts. Id. at 83.
Simpson testified that Peters's consent decree raised a question in Simpson's mind whether there was any conflict between Peters's consent decree and the February 1988 Resolution, and that he consulted Gittler in order to resolve this question. Id. at 88. Simpson recalled that Gittler informed Simpson by letter that there was no conflict between the two documents. Id. at 88-92. When asked if he took the letter from Gittler "as full authorization from a lawyer that you could go forward and have contact with Don Peters," Simpson replied "Yes, I did. . . ." Id. at 95.
Simpson also claimed that during the period of time in question, he neither held out Peters as a representative of the Local, id. at 96, 103, nor believed that he was holding out Peters as an agent or representative of Local 743. Id. at 95-96, He further asserted his belief that using Peters as a consultant for Local 743 business did not violate Peters's consent decree. Id. at 97. He admitted that the "main consent decree" bound IBT locals, but stated that he believed that Peters's consent decree did not bind his local. Id. at 105. Simpson also indicated that after Peters entered into his consent decree with the Government, Peters continued to have contact not only with Local 743, but also with the IBT International, id. at 97-98, as well as with Simpson himself. Id. at 109. Simpson stated that he did not believe that any of these contacts was wrong. Id. at 103.
Simpson also discussed Peters's appearances at and addresses to two labor rallies in 1990 and 1991. He stated that the first rally, held at Teamster City Union Hall in Chicago on January 20, 1990, was "recommended" by PUSH, a community-based African-American organization, and was run by PUSH and one of Simpson's business agents. Id. at 113-14. Simpson admitted that Peters spoke at the rally, but denied that Simpson was responsible for Peters's actions. Simpson asserted that the master of ceremonies of the rally, a local media personality who did not work for the Local, "spontaneously" called Peters out of the audience to speak. Id. at 115-16. Simpson further claimed that Peters neither was introduced nor spoke as a current representative of Local 743 at the rally. Id. at 118.
The second rally was a shop stewards' meeting held on September 14, 1991, at Teamster City. Id. at 119-20. Simpson testified that he organized this meeting in conjunction with the IBT International, id. at 120-21, and that the IBT International representatives suggested that Peters give a brief talk on the history of the Union. Id. at 122. Simpson stated that he concurred with this suggestion, invited Peters to the meeting, and clearly introduced Peters "as the former president" of the Local, not as a current representative or agent of Local 743. Id. at 123-24. According to Simpson, Peters spoke only about the history of the Union, and this speech lasted only about five minutes. Id. at 123.
Simpson next discussed the IRB's allegation that Simpson "approved a resolution authorizing Local 743 to pay Peters's expenses while [Peters] traveled." Id. at 126-27. Simpson stated that, as he recalled, the travel for which Peters was to be reimbursed "occurred prior to 1991," id. at 127, and included trips to Hilton Head for an Eastern Conference of Teamsters meeting, St. Louis for a Central Conference of Teamsters meeting, and Florida for an unspecified conference. Id. at 127-28. Simpson explained that he viewed reimbursing Peters for Peters's travel with Local 743 funds as "an investment," and "a service to the union," because Simpson intended to run for IBT International office in 1990 and Peters's presence at these events would assist Simpson in Simpson's campaign for International office. Id. at 129-30.
Simpson then discussed the IRB's allegation that Simpson "allowed 743 to pay the expenses in connection with the meetings attended by [Simpson], Peters, and others, where union business was discussed." Id. at 130. When asked by his attorney if he "actually attended certain luncheon and dinner meetings where Don Peters and others were present in which union business was discussed," Simpson replied, "Yes." Id. Simpson further stated that, at each of these meetings, he tried to seek advice from Peters on various matters. Id. at 131. He claimed that he sought such advice pursuant to the February 1988 Resolution and Gittler's letter advising him that there was no conflict between the February 1988 Resolution and Peters's consent decree. Id. Simpson maintained that it was necessary for him to seek advice from Peters because during Peters's long history with the IBT, Peters had developed "specialized knowledge" about Local 743 issues, such as the most effective negotiating techniques to use with specific employers, and the customary practice for handling bills from the Local's accounting company. Id. at 133, 138.
Finally, Simpson testified about the IRB's charge that Simpson "permitted Local 743 to pay for Peters's hotel expenses at the 1991 IBT Convention in Orlando, Florida," as well as Peters's trip to the 1993 Central Conference of Teamsters' Convention in Las Vegas, Nevada ("Central Conference Convention"). Id. at 141. Simpson stated that Peters was invited to the 1991 Convention as a guest of Local 743 because "as a past practice, we had always invited many of our retired officers or our retired business agents to also go down as guests of the local union. . . ." Id. at 143. He further indicated that Peters never represented himself as a current agent or representative of Local 743 during the convention, id. at 144, and that Peters never did anything during the convention that Simpson thought violated the IBT Consent Decree. Id. at 145. Regarding the Central Conference Convention in Las Vegas, Simpson testified that he neither knew in advance that Peters would be in attendance at the convention nor could recall how Peters came to be present at the convention. Id. at 146-48. Simpson also was unable to remember what Peters did at the convention, but Simpson stated that he did not think that there was anything in Peters's consent decree that would have barred Peters from attending such a convention. Id. at 148-49.
Prior to completing his direct examination, Simpson testified about a conversation he had with Gittler in January 1993, regarding Gittler's presence at a hearing involving parties from another IBT local in Chicago. Simpson recalled that Gittler told Simpson that the parties involved in that hearing alleged that Peters was associated with members of organized crime. Id. at 150. Simpson testified that he did not personally know certain individuals alleged to be members of organized crime, and he was not aware of any "Mob figures" among his acquaintances. Id. at 151. He admitted, however, that he knew Dominick Senese ("Senese") because Senese ran another union in Chicago. Id. Simpson testified that in response to Gittler's information regarding Peters's alleged association with members of organized crime, Simpson thought that he should investigate this matter and asked Gittler to initiate an investigation. Id. at 153. Simpson stated that he chose Gittler to investigate because "the work load was such that no one had the time or had the skills, either, to do it." Id. at 152-53. Simpson testified that he and Gittler then had a conversation about what to do regarding Peters and Peters's alleged ties to organized crime. Id. at 153. According to Simpson, Gittler told Simpson that "it just doesn't look like this is going to go away, and you've got to make some decisions." Id.
Simpson explained that, following his conversation with Gittler, Simpson had a meeting with Peters regarding the allegations that Peters had ties to organized crime. Id. at 154. According to Simpson, as a result of this conversation, Peters wrote a letter to Local 743's Executive Board in which Peters severed all contacts and relations with Local 743 and its retiree club, resigned from all Local 743 offices, and relinquished his designation as President Emeritus of the Local. Id. at 154-55. Simpson indicated that, after the receipt of Peters's letter, Peters was denied access to his Local 743 office. Id. at 155. Simpson testified that he could not remember whether Peters's name was removed from the Local 743 stationery. Id. at 155. Simpson concluded this portion of his testimony by stating that he did not think it was fair to either the Local or to Peters that Peters was forced to abandon his contacts with the Local, and that Simpson never had any reason to believe that Peters was connected with organized crime. Id. at 155-58. Simpson continued, however, that he accepted Peters's departure from the Local because of Gittler's opinion that the issue of Peters's affiliation with organized crime was never "going to go away." Id. at 155-58.
On cross-examination, the Chief Investigator's office elicited testimony from Simpson regarding certain points that Simpson covered during his direct examination. First, Simpson acknowledged that he was aware of a Local 743 bylaw that imposed upon members of Local 743's Executive Board a duty to investigate allegations that a Local officer had breached his fiduciary duties to the Local. Id. at 184. Second, he admitted to reading the civil RICO complaint at approximately the time it was filed, and to noting that Peters was a named defendant in that case. Id. at 185-86. Third, he admitted that he had asked Peters about at least two of the allegations against Peters in the civil RICO complaint at the time the complaint was filed, even though he previously testified that he had never asked Peters about any of the allegations in the civil RICO complaint. Id. at 186. In addition, Simpson testified that, although he asked Peters about some of the allegations against Peters in the civil RICO complaint, he never asked Peters to produce any of the evidence that the Government had produced against Peters. Id. at 187, 189.
Simpson also responded to questions about Gittler on cross-examination. He indicated that he never asked Gittler to summarize the evidence that the Government had produced against Peters. Id. at 189. He also testified that he knew that Gittler's firm represented Peters in connection with the civil RICO suit, and that Peters's legal fees were paid by the International, but Simpson claimed that he was unsure whether Gittler was representing Peters. Id. at 189. Simpson indicated, however, that he did not think that any conflict of interest existed between Gittler's representation of Peters and Gittler's service as Local 743's General Counsel. Simpson stated that he relied on Gittler, id. at 230, and believed that if Gittler thought that a conflict of interest existed, that Gittler would have informed Simpson. Id. at 190-93, 231-32.
During cross-examination, Simpson also discussed various Local 743 business meetings that both he and Peters attended after Peters resigned from the Local. Id. at 209-21. Simpson reiterated that many of the agreements and contracts that Local 743 made with employers were oral in nature, and that Peters had negotiated these oral agreements prior to the time Peters left the Local. Id. at 219-20. In response to a question from the IRB, Simpson admitted that he never asked Peters to commit any of these agreements to writing, even after Peters left the Local. Id. at 220-21.
Following his own testimony, Simpson called as a witness Mr. Marvin Gittler, the General Counsel of Local 743. Gittler stated that he began representing Local 743 in 1967, and that he has provided legal services to the Local continuously since that time. Id. at 238. He then testified at length about the February 1988 Resolution. Gittler told the IRB that in late 1987, he was advised that Peters was going to retire and understood "that a transition was going to be necessary." Id. at 241-42. In light of these facts, Gittler stated that he drafted the February 1988 Resolution "which would give the Local Union, the Executive Board, the authority to deal with and consult with Mr. Peters for the future." Id. at 242. He testified that Peters's designation as President Emeritus was an honorary title, id. at 243, and that the purpose of authorizing Peters to act as an advisor and consultant to the Local following his retirement was "so that there would be full disclosure of the fact that the Executive Board may be calling upon him to obtain whatever knowledge he had to assist them in the future." Id. at 244. Gittler stated that, in his view, it would be in the best interest of the Local to be able to have contact with Peters after Peters retired. Id. at 244-45. He further indicated that he believed that the February 1988 Resolution was a proper legal resolution, that it is the type of resolution commonly drafted and passed by IBT locals, and that providing Peters with an office at Local 743 was normal and proper. Id. at 245-47.
Gittler then spoke about Peters's involvement in the civil RICO suit against the IBT. He explained that he represented Peters as a defendant in this suit, id. at 251, that he reviewed the allegations against Peters, and determined that there was no conflict of interest preventing Gittler from representing Peters in this suit. Id. at 252-53. He also stated that he "made it clear to Mr. Peters that responsibility for [the] bill for services would be his," and that Peters asked Gittler "to be kind" in his billing of Peters. Id. at 253. Gittler then discussed the discovery that followed the filing of the civil RICO complaint. He recounted that Peters was required to give a deposition, but that it was never completed. Id. at 254-55.
Gittler continued his testimony, focusing on the court-approved settlement of the charges against Peters. He testified that on the eve of trial in the civil RICO case, the parties resolved the case, and Peters approved of this resolution. Id. at 259-60. Gittler then recounted a conversation that he had with one of the Government's attorneys in the civil RICO case during which Gittler told the Government attorney that Peters would approve the consent decree, and that Peters wanted to "retire honorably." Id. at 260. According to Gittler, the Government had no objection to Peters's request, and Peters and the Government then entered into a consent decree that set forth the terms of Peters's "retirement." Id. at 261-63. Gittler went on to testify about other individual consent decrees that arose from the settlement of the civil RICO case. He reviewed examples of such settlements and testified that some of them "barred some of the civil defendants from having any contact with Teamster representatives." Id. at 266.
Gittler then indicated that, at some point, Simpson became aware of the terms of Peters's consent decree and asked Gittler whether there was any conflict between Peters's consent decree and the February 1988 Resolution. Id. at 266-67. Gittler testified that he reviewed both Peters's consent decree and the February 1988 Resolution and "was fairly well satisfied in my mind that there was no inconsistency between the two, and expressed that to Mr. Simpson." Id. at 267. Gittler then stated that he advised Simpson of this position and that Gittler "saw no prohibition" against Peters's association with the Local." Id. at 268. Gittler testified that he then reduced this opinion to writing in a letter addressed to Simpson and the Local 743 Executive Board. Id.
Gittler next testified about his legal work for Local 743. He represented that, at the time that Simpson consulted him on the above-mentioned matter, Gittler was the General Counsel for Local 743. Id. at 269. He stated that his representation of Peters in the civil RICO case was the first time that he had represented Peters individually. Id. at 269. He proceeded to explain the details of Peters's consent decree. Gittler testified that although Peters's consent decree required Peters permanently to retire from the IBT, Gittler believed "that at most the commitment to the consent decree meant that Mr. Peters could not be on the payroll, could not earn a salary or derive an income from the Local or any affiliate." Id. at 274. Gittler also acknowledged that Peters's consent decree did not explicitly prohibit Peters from holding a paid IBT position in the future, but that because the decree spoke of Peters "permanently" retiring from the IBT, Gittler interpreted the decree as prohibiting Peters from ever holding a paid position. Id. at 275. Gittler stated that he expressed this view to Simpson. Id. at 275-76.
Gittler then addressed the issue of why he thought Peters's consent decree, which stated that Peters had to retire permanently from all positions in the IBT, was not inconsistent with the February 1988 Resolution. When asked to explain why he did not think the two documents were inconsistent, Gittler answered that there were "no findings relating to Mr. Peters, no conclusions" in the decree, and that there was "a specific non-admissions clause in the decree." Id. at 276. Gittler also asserted that Peters's consent decree only barred Peters from holding the positions of "business agent" or "business representative" in the union, that these terms were terms of art within the labor field that referred to specific labor positions, and that consequently, Peters's consent decree only prohibited Peters from holding either of these specific positions, not from holding any other positions. Id. at 277. Accordingly, Gittler stated that his legal opinion was that Simpson could consult with and have contacts with Peters. Id. at 278.
Gittler then discussed Peters's continued involvement in Local 743 affairs. Gittler admitted that he was aware that during the three years following the signing of Peters's consent decree Simpson had contact with Peters and used Peters as a consultant under the terms of the February 1988 Resolution. Id. at 279-80. He acknowledged that Peters's contacts with Simpson related to issues about which Peters had historical knowledge and that would be helpful to the Local, that the Local paid for certain meal expenses in connection with this work, and that Simpson was following Gittler's advice when Simpson conducted this business with Peters. Id. at 280. Gittler further professed that without Peters's continued consultations with the Local, "Simpson could have made strategic mistakes that might have affected the rights of employees under contracts or enforcing those rights," and that Peters's involvement in the affairs of the Local benefitted the Local. Id. at 280.
Gittler then testified about the impact that the various consent decrees had on Local 743. He claimed that Local 743 was not a party to Peters's consent decree and, consequently, was not bound by the terms of Peters's consent decree. Id. at 282. He also stated that he was aware that some locals are bound by the Consent Decree that settled the Government's civil RICO suit against the IBT, even though those locals were not parties to the original suit. Id. at 283. He then indicated that he was unaware of any Second Circuit opinion that has bound a local, like Local 743, to a consent decree entered by an individual. Id. at 284.
Gittler next discussed his involvement in a December 1992 administrative hearing concerning members of another labor union, IBT Local 738. Id. at 284-301. During the course of this representation, Gittler read the affidavit of an FBI agent who stated that Peters was a Chicago LCN associate, and that Peters resigned from Local 743 to settle civil RICO charges filed against him. Id. at 286. Gittler told the IRE that he was "taken aback" and "surprised" by the FBI agent's allegation, and that prior to reading the agent's affidavit, Gittler had neither known nor believed that Peters was associated with La Cosa Nostra. Id. at 287. Gittler stated that because he was General Counsel to Local 743, he felt he had an obligation to bring this allegation to Simpson's attention, and that he did bring it to Simpson's attention. Id. at 288-89. Gittler testified that after he and Simpson discussed the allegation regarding Peters, Simpson told Gittler to investigate the matter and that Gittler investigated it. Id. at 291. Gittler stated that this investigation yielded no evidence that supported the FBI agent's allegation. Id. at 293-301.
Gittler also stated that at some moment in time, a second affidavit by the same FBI agent surfaced, and that it contained more references to Peters's contacts with organized crime. Id. at 301-02. Gittler testified that this affidavit led him to conclude that he, once again, had to advise Simpson of this matter, and "that whatever relationship may have existed, whatever benefits Mr. Peters was still receiving, whatever communications Mr. Simpson may have had with Mr. Peters [should] stop, be severed and ended." Id. at 304-05. Gittler testified that Simpson accepted this recommendation. Id. at 307. Gittler explained that he met with Peters and discussed this matter with him, and that Peters consented to separating himself from the Local by writing a letter to the Executive Board of Local 743 stating that Peters would terminate and sever all relationships with Local 743. Id. at 308-10.
On cross-examination, the Chief Investigator's office revisited several topics about which Gittler testified on direct examination. Gittler discussed his representation of Peters and testified that Gittler's bill of $ 150,000 for representing Peters was paid by the International. Id. at 315-16. Gittler further admitted that while he was representing Peters, Gittler had access to all the discovery material in the civil RICO suit, including a computer data base from which individuals could retrieve information by entering search requests, id. at 317-18, material generated by the New York law firm of Mudge, Rose, Guthrie and Alexander, id. at 320-21, and wiretaps. Id. at 323. Gittler testified that despite having access to these sources of information about Peters, Gittler never reviewed them during the investigation of Peters that he conducted at Simpson's request. Id. at 318, 321, 323-24.
Gittler also discussed his understanding of the Consent Decree. He stated that although he was aware that the Consent Decree forbids IBT members from knowingly associating with members of organized crime, he believed that such association had to be for "illegal purposes" in order to fall within the terms of the Consent Decree. Id. at 325. Gittler then admitted that he was familiar with case law generated by the Consent Decree holding that a lack of illegal purpose is no defense to a charge of knowingly associating with members of organized crime in violation of the Consent Decree. Id. at 325-26.
In addition, Carberry asked Gittler several specific questions regarding Gittler's conduct. Carberry asked whether if Gittler had reviewed all the discovery material available to him, Gittler could have discovered evidence to support the FBI allegations that Peters knowingly associated with members of organized crime. Id. at 326-29. Although Gittler's response to this inquiry was evasive, Gittler conceded that if he had reviewed the discovery material available to him, the evidence contained in the material would have raised doubts in his mind about whether Peters knowingly associated with members of organized crime. Id. at 329. In addition, Carberry asked if Peters violated the terms of his individual consent decree, would Peters have been in contempt of court? Id. at 331. Carberry also asked whether anyone who knowingly assisted Peter in violating that agreement would have been in contempt of court? Id. at 332. Gittler replied affirmatively to both of these questions. Id. at 331-32. Gittler's testimony concluded the first day of the hearing.
On the second day of the hearing, Simpson called ten witnesses to testify on his behalf. These witnesses range in their professions and their respective relationships with Simpson from Eugene Sawyer, former Mayor of Chicago, id. at 407-10, and Roland Burris, the Attorney General for the State of Illinois, id. at 454-58, to Dennis F. Glass, an investment manager who runs the Local 743 Health and Welfare Fund, id. at 354-64, Louis Montenegro, the retired Vice President and Regional Director of the Ladies Garment Workers' Union, id. at 410-437, and Dick Scheidt, an employee of Montgomery Ward. Id. at 444-54. Each witness testified regarding his relationship with Simpson and his opinion of Simpson's character and reputation. In addition, several witnesses testified about specific instances in which they have observed Simpson's work as an IBT Local and International official, see, e.g., id. at 358-63 (testimony of Dennis F. Glass), 371-76 (testimony of Thomas J. Walter), 420-36 (testimony of Louis Montenegro), or Peters's continued involvement in Local 743 affairs. See, e.g., id. at 418-22 (testimony of Louis Montenegro), 449-52 (testimony of Dick Scheidt).
Following the live testimony, Simpson's attorneys offered three volumes of exhibits into evidence, id. at 476, then addressed the IRB directly on Simpson's behalf. Id. at 486-500. In addition, because the hearing lasted only two days, instead of the three that originally were scheduled, IRB Member Frederick B. Lacey ("Lacey") addressed the hearing participants because he wanted "to make sure . . . that nobody had felt under any pressure to curtail these proceedings." Id. at 486. Simpson's attorney responded to Lacey's inquiry as follows:
We felt no pressure. We understand the procedure and the mechanisms of conducting these hearings.
And we chose not to submit every witness live knowing that the Review Board will review all of the evidence we submit, and we are not suggesting nor do we feel that we've been curtailed in any way whatsoever.
At the conclusion of the hearing, the IRB imposed a post-hearing schedule on the hearing participants. The IRB informed the participants that within fourteen days after the receipt of the hearing transcript, Carberry would be required to deliver his post-hearing memorandum to the IRB, the IBT, and Simpson. Id. at 502. Within ten days of receiving the Carberry's memorandum, Simpson was required to serve an answering memorandum on the IRB and Carberry. Id. In addition, within five days after receiving the answering memorandum, the Carberry would be required to deliver his reply memorandum to the IRB, the IBT, and Simpson. Id.
Based on the evidence produced at the hearing, the IRB held that it had been established by a preponderance of the evidence, see (IRB Rules, P J.6), that "Simpson brought reproach upon the IBT and interfered with the Local's legal obligations by allowing Peters to act as a representative and agent of the Local and its Funds in violation of the Peters's court-approved settlement agreement." (Application XXI of the Independent Review Board--Opinion of the Independent Review Board in the Matter of Robert J. Simpson ("Application XXI Opinion") 2 (July 25, 1995)); (IRB Opinion and Decision at 29.) In reaching this conclusion, the IRB made several specific findings regarding Simpson's conduct during the period of time spanning from Local 743's adoption of the February 1988 Resolution to Peters's final resignation from the IBT in 1993.
The IRB found that Simpson facilitated Peters's continued involvement with the Local and the IBT despite Peters's involvement in the civil RICO suit. Based on the minutes of Local 743 Executive Board meetings and on media coverage of the Government's plans to file a civil RICO suit against the IBT, the IRB concluded that Peters and Simpson were aware that the Government might file a federal civil RICO suit against the IBT as early as August 1987, and that they brought the February 1988 Resolution to the Local 743 Executive Board and membership despite this awareness. (IRB Opinion and Decision at 3, 5); (I.O. Ex. 34, 37.) The IRB further found that for almost a year after the Government filed the complaint in the civil RICO suit, Simpson did nothing to halt the annual salary that Peters drew from the Local. Id. at 6. Moreover, despite Simpson's admission that Local 743 Bylaws required him to investigate allegations of wrongdoing by Local officers, Simpson did nothing to investigate the charges against Peters for almost one year following the filing of the civil RICO complaint. Id. at 7. During this year, Simpson neither asked Peters, Gittler, or Gittler's law firm whether the case against Peters was a cause for concern nor requested from these sources any evidence relating to the Government's charges against Peters. Id. Simpson's actions, as well as his inaction, prompted the IRB to opine that "for Simpson, it was as if the case [against Peters] did not exist." Id. In addition, Simpson's continued contact with Peters after Gittler advised Simpson in December 1992, that the FBI considered Peters to be associated with members of organized crime "was additional evidence of Simpson's willingness to facilitate Peters's continued prohibited involvement in union business." Id. at 28.
The IRB also made a finding regarding Simpson's reliance on Gittler for advice about the impact of the civil RICO case and Peters's consent decree upon Peters's continued relationship with Local 743. Based on Simpson's testimony that he knew that Gittler's law firm represented Peters in the civil RICO case and that the firm's obligations were to serve Peters's interests in that case, the IRB found that "Simpson did not fulfill his responsibilities as Local 743's principal officer [by] failing to obtain advice from independent counsel whose advice would not be colored by a concern for Peters' interests." Id. at 10.
The IRB further found that "contrary to Simpson's contention, Peters did not simply function as a passive informational resource to Local officials or lawyers," but actually acted as Local representative in dealing with non-Teamster unions." Id. at 13-14. The IRB based this finding on the lunch and dinner meetings that Peters attended to conduct Local 743 contract negotiations and other business, the oral contracts that he alone negotiated for the Local, his numerous contacts with employee labor organizations outside Local 743 and the IBT, and on the acknowledgement of Local 743's Executive Board that Peters continued to represent the Local after his forced resignation, as reflected in the minutes of the April 1, 1991, Executive Board meeting. Id. at 13-18. The events upon which the IRB based this specific finding occurred after October 1, 1989. See, e.g., id. at 14 (citing hearing testimony regarding a meeting Simpson and Peters attended in 1991 (Tr. at 198), and the Las Vegas Conference that occurred in 1993 (Tr. at 201)).
Moreover, the IRB found that Simpson's explanation of the activities that Peters conducted on behalf of the Local were "a startling confession that Simpson was using Peters's existing goodwill within the IBT structure beyond the confines of Local 743 to advance Simpson's political career in the IBT." Id. at 18. Simpson testified that reimbursing Peters for travel to various IBT conventions from Local 743 funds was in the interest of the Local because Peters's presence at these functions assisted Simpson's campaign for IBT International office. Id. at 129. According to the IRB, "the use of local union funds to promote a political career of a local officer is an independent violation of the [Labor Management Reporting and Disclosure Act] § 401(g)." Id. at 18. The IRB found that Simpson's testimony that Local 743 funds were put to such use was an admission that Simpson "actively facilitated, approved and benefitted from Peters'[s] representation of the Local and [that] the Executive Board clearly believed that it was paying Peters for advancing the Local['s] interests, consistent with the evidence that [Peters] was acting as a representative of the Local." Id. at 19.
The IRB also concluded that Peters's continuing involvement in Local 743 affairs "formed a pattern with Simpson favoring Peters's interests above [Simpson's] obligations to the Local. . . ." Id. at 32. The IRB based this conclusion on: (1) Simpson's failure to investigate the charges against Peters after the civil RICO suit was filled, in violation of the Local's Bylaws, id.; (2) Simpson's vote to award Peters a car at Local expense, in violation the Local's Bylaws, id. at 33; and (3) Simpson's approval of Peters collecting a salary for almost a year after the civil RICO charges were filed. Id. at 33. Furthermore, the IRB stated that "allowing Peters to continue to represent the Local by campaigning at Local expense for Simpson's election as an International Trustee demonstrates that Simpson also favored his interests over the Local." Id. The IRB characterized Simpson's actions as a "pattern of Simpson facilitating and condoning Peters's prohibited involvement in the ongoing business of Local 743. . . ." Id. Because "a pattern of conduct [can] constitute a violation of the IBT Constitution, even if no single element of the pattern is itself a violation," the IRB found that Simpson's actions brought reproach on the IBT and interfered with the Local's legal obligations. Id.
The final finding that the IRB made regarding the charges that Simpson allowed Peters to continue to represent the Local concerned the benefit funds administered on behalf of Local 743 members. Simpson was aware that Peters's consent decree permitted Peters to serve as an officer of the Local in order to complete his duties as trustee of the Local's benefit funds for four months after Peters resigned from the Union. (Tr. 182.) The IRB found that Peters continued to serve as a representative of the Local to the Local's benefit funds after his designated resignation date "in the specific areas of investment performance, collections, resolution of claims, and definition of particular eligibility criteria." Id. at 20; see id. at 21-26. The IRB went on to explain that Simpson attended some of the meetings at which Peters functioned as a Local representative, id. at 22, allowed Peters to remain fully informed and to participate in the activities of the funds, id. at 26 n.25, and made no effort to limit Peters's involvement in the affairs of the benefit funds. Id. at 26. Although Simpson proffered various explanations for Peters's presence at benefit fund meetings, the IRB rejected these explanations, id. at 26-27, and specifically found that there were other Local 743 Trustees and professionals who were capable of handling the matters in which Peters was involved. Id. at 27.
In addition to making findings regarding the charge that Simpson facilitated Peters's continued involvement in Local 743 affairs, the IRB also rejected the defenses that Simpson raised in response to the charges against him. First, the IRB rejected Simpson's claim that because Peters's consent decree does not specifically prohibit Simpson's associating or working with Peters or being assisted by him, Simpson's contacts with Peters were permissible. The IRB not only disagreed with this characterization of Peters's consent decree, id. at 27, but also stated that its findings were not based on Simpson's association or work with Peters, but rather were "based on, among other things, Simpson maintaining Peters as a representative of the Local." Id. at 28.
Second, the IRB repudiated Simpson's position that under the court-approved agreement, Peters was barred only from the specific union positions of "business agent" or "business representative." Id. at 29-30. The IRB stated that Peters's court-approved agreement "set forth a broader prohibition" on Peters's activities and required him to resign from "all positions as an 'agent' or 'representative' of the IBT, any IBT subordinate body and any IBT affiliated benefit fund." Id. at 29-30. The IRB indicated that it was familiar with the designations "business agent" and "business representative" as union terms of art, and the IRB opined that "if the drafters of the court-approved settlement agreement intended to restrict the prohibitions on Peters to the positions of 'business agent' and 'business representative', those specific terms would have been used." Id. at 30.
Third, the IRB denied Simpson's claims that he was properly entitled to rely on Gittler for advice regarding the effect of Peters's relationship with Local 743. The IRB noted that Simpson, was "an experienced labor negotiator, who was familiar with the potential conflict of interest in an attorney's representation of two clients," and therefore, Simpson "could not have reasonably relied on Gittler's statements concerning Peters's ability to stay involved with the Local because Gittler was Peters' attorney." Id. at 30. Consequently, the IRB found that Simpson should have obtained advice from an independent counsel on this matter. Id. at 30-31.
Finally, the IRB rejected Simpson's claim that he needed Peters's special knowledge and assistance in order to carry out the affairs of the Local. The IRB noted that although Simpson had opportunity to protect the Local by requiring Peters to memorialize his knowledge of the Local's oral contracts and the Local's history, Simpson never did so. Id. at 32. As a result of this failure, the IRB concluded that Simpson "engaged in a pattern of conduct that allowed Peters to act as an agent and representative of Local 743 and its affiliate benefit funds," and that this pattern of conduct not only assisted Peters in violating the settlement agreement, but also brought reproach upon the Union. Id. at 31-32.
At the end of its Opinion and Decision the IRB "noted the inconsistencies between Simpson's hearing testimony and his prior statements which place his credibility in question." Id. at 33. The IRB found further reason to question Simpson's credibility as a result of his "attempt to conceal from the Investigations Office the Local's payments for Peters's attendance at the 1991 IBT Convention," id. at 34, and Simpson's attempts to justify the meetings that Peters attended ...