Election Officer concluded that disqualification was indispensable in this case to protect the IBT's democratic processes. Cheatem, (Carey Disqualification Decision) at 72-74. He determined that a level playing field in the rerun election with Carey on the ballot could not be achieved because of the huge campaign benefit Carey procured through his misconduct. Id. at 73. Further, the Election Officer found that given the egregious nature of the misconduct, failure to disqualify would constitute a damaging precedent that would undermine the deterrent effect of the Election Rules in the future and would open future IBT elections to the risk of repeated injury, both by Carey and his supporters, and other parties. Id. at 72. Thus, the Election Officer concluded that disqualification was necessary because no other action would adequately protect the integrity of the Consent Decree and its goals. Id. at 73.
Second, Carey argues that the Election Officer "fundamentally misperceived" his role and "overstepped his authority" because he disqualified Carey in order to punish misconduct rather than to ensure a fair rerun election. Carey Br. at 83, 79. This argument is without merit.
In selecting the appropriate remedy, the Election Officer specifically concluded that this remedy was necessary to prevent Carey and others from repeating the misconduct in the rerun, to preserve the deterrent effect of the Election Rules, to level the playing field in the rerun, to protect the integrity of the institution-building goals of the Consent Decree, and maintain confidence and respect for the Consent Decree and its goals among the membership. Cheatem, (Carey Disqualification Decision), at 72-73. As discussed, the Election Officer's decision was remedial in nature, did not constitute punishment and was well within the Election Officer's authority under the Consent Decree and the 1996 Election Rules.
Third, Carey asserts that "case law under the [LMRDA] . . . compels the conclusion that disqualification is inappropriate here." Carey Br. at 79 n.34. He claims that the LMRDA is designed to promote union democracy, and that the LMRDA does not provide for disqualification as a remedy. Id. This argument reflects a fundamental misunderstanding of the Consent Decree. As the Government notes in its papers, "the electoral reforms required by and implemented under [the] Consent Decree are premised on the notion that LMRDA standards were not sufficient to rid the IBT of corruption and the influence of organized crime, or to bring democracy to the IBT. This Court and the Second Circuit have often noted that the remedies under the Consent Decree were designed to supplement remedies provided under other laws. See, e.g., United States v. IBT ("Star Market"), 954 F.2d 801, 809 (2d. Cir.), cert. denied, 505 U.S. 1205 (1992); United States v. IBT (Election Rules Order), 896 F. Supp. 1349, 1366 (S.D.N.Y. 1995), aff'd as modified, 86 F.3d 271 (2d Cir. 1996). The Consent Decree provides the Election Officer with the authority to fashion appropriate relief to ensure a fair, free democratic and informed election. He is not constrained by the remedies available under other laws.
Finally, Carey has the audacity to suggest that disqualification is unwarranted "where, as here, allegations of improper fundraising by both slates are pervasive." Carey Br. at 76. This Court will not entertain such irrational arguments. Cf. United States v. IBT ("Windsor Graphics"), 765 F. Supp. 1206, 1211 (S.D.N.Y. 1991) (finding that the argument that the prior conduct of union officers was more corrupt than the current improper conduct was "sheer sophistry"). The new Election Officer, Michael Cherkasky, is currently investigating the allegations against the Hoffa slate and will determine appropriate remedies should it become necessary.
The remedy in this case is both "proportionate to the misconduct at issue . . . and appropriate for ameliorating the harm that this misconduct caused." Montante, 1996 WL 315825, *6. Therefore, the Election Officer's choice of remedy was not arbitrary nor capricious and will not be disturbed.
III. HOFFA APPEAL
On December 1, 1997, the Hoffa slate filed its appeal of the Election Officer's decision to disqualify Carey from the rerun election. According to the Hoffa slate, "the members of the Carey Slate must be required, jointly and severally, to repay the illegal contributions identified in Election officer Conboy's decision and must be disqualified from participating in the rerun election." Statement in Support of Appeal of the Hoffa Slate from the Decision of Election Officer Kenneth Conboy in Post-27-EOH et al ("Hoffa Br.") at 7.
The Hoffa slate argues that the Election Rules require this Court to order members of the Carey slate to return the illegal contributions identified in Cheatem, (Carey Disqualification Decision). The Hoffa slate relies on the provision of the Election Rules holding candidates strictly liable to "insure that each contribution received is permitted under the Rules," and requiring the return of any prohibited contributions. 1996 Election Rules Art. XII, Section 1(b)(9).
First, this Court charged Election Officer Conboy solely with the duty of investigating and deciding the question of disqualification of Carey. Furthermore, in her decision of August 21, 1997, ordering a rerun election, Election Officer Quindel concluded that, other than the issue of the disqualification of Carey and other slate members, the Election Officer "will not consider any additional evidence or further protest relating to the conduct of the initial election." Cheatem, (Rerun Decision) at 129. Rather, Election Officer Quindel stated that the "investigation of the initial election is considered closed," and the outstanding matters are left to other forums, including the IRB and the Government to pursue. Id. In fact, "the United States Attorney's Office has already taken steps to force the disgorgement of the bulk of [the contributions about which the Hoffa slate complains]." Letter from Beth E. Goldman, Assistant United States Attorney, to Honorable David N. Edelstein (Dec. 18, 1997) at 2.
There is no basis on which to conclude that the proper remedy in this matter would be an order holding the members of the Carey slate jointly and severally liable for the repayment of the improper contributions. Given Election Officer Conboy's narrowly defined duties, and the fact that the investigation into the initial election was considered closed, the Election Officer acted well within his discretion not to order repayment of the improper contributions.
Finally, the Hoffa slate urges this Court to disqualify the entire Carey slate from running in the rerun election. There is absolutely no merit to this request. As Election Officer Quindel stated in her decision, disqualification is a "drastic remedy." Cheatem, (Rerun Decision) at 115. Whether or not to impose such a remedy is a matter within the discretion of the Election Officer. Cheatem, (Carey Disqualification Decision) at 53. In this case, the Election Officer determined that he would not disqualify Carey unless there was evidence that Carey had knowledge of the schemes. Id. at 15 (stating that "if Mr. Carey had no knowledge of these schemes, disqualification . . . would be inappropriate [but] if . . . Mr. Carey participated in certain of the schemes or had contemporaneous knowledge of them, then disqualification of Mr. Carey would have to be considered as a possible remedy to these serious violations").
There is no evidence in the record, nor does the Hoffa slate produce any evidence, that any other member of the Carey slate had any knowledge of the improper campaign contribution schemes. The Hoffa slate's argument that such a remedy is warranted because the members of the Carey slate are strictly liable under the Election Rules is without merit. As Election Officer Quindel noted in Cheatem, (Rerun Decision):
this argument confuses the finding of a violation with the choice of a particular remedy. It is correct that if a candidate or slate accepts a prohibited contribution, it has violated the Rules whether it acted with bad intent or complete innocence. . . . Article XII, Section 1(d) of the Rules demonstrates that the choice of remedy is still dependent on the surrounding circumstances.
Cheatem, (Rerun Decision) at 117. The Election Officer was well within his discretion not to consider the remedy of disqualification with respect to the other members of the Carey slate.
The remedy of disqualification imposed by the Election Officer in this case is both proportionate to the misconduct at issue, and appropriate to help ameliorate the harm caused by this misconduct. The Election Officer's choice of remedy was not arbitrary nor capricious and thus is AFFIRMED without modification.
DATED: New York, New York
December 30, 1997.
David N. Edelstein