The opinion of the court was delivered by: Preska, District Judge.
This opinion emanates from the voluntary settlement of an
action commenced by the United States of America against, inter
alia, the International Brotherhood of Teamsters ("IBT" or
"union") and the IBT's General Executive Board. The settlement
is embodied in the voluntary consent decree order entered March
14, 1989 ("Consent Decree"). The goals of the Consent Decree are
to rid the IBT of the hideous influence of organized crime and
establish a culture of democracy within the union. The long
history of this case has been set forth in the Court's numerous
prior opinions. Accordingly, only those facts necessary for
resolving the instant matter shall be set forth.
Currently before the Court is Application 90 of the
Independent Review Board ("IRB") ("Application 90"), dated
November 14, 2000. In Application 90, the IRB requests that the
Court affirm the IRB's November 13, 2000 Opinion and Decision
("IRB Decision"). For the reasons set forth below, I grant IRB
Application 90 and affirm the IRB Decision in all respects.
During the 1996 IBT election, the campaign of James P. Hoffa
requested that Thomas O'Donnell ("O'Donnell"), then candidate
for IBT Vice President-at-Large and currently Local Union 817
President and IBT Vice President-at-Large, hire Kevin Currie
("Mr. Currie") as Campaign Coordinator. See IRB Decision at 2.
In an interview with Mr. Currie in May 1996, O'Donnell asked
whether Mr. Currie had a criminal record. See id. Although he
had been convicted of grand larceny in the State of New York,
Mr. Currie answered that he did not have a criminal record, and
O'Donnell hired him as Campaign Coordinator with a salary of
$700 per week. See id. Shortly thereafter, O'Donnell learned
of Currie's criminal record, became upset, and began thinking of
ways to punish Mr. Currie. See id. at 3. For the purpose of
offending Mr. Currie, O'Donnell decided and informed Mr. Currie
that he would pay Mr. Currie's salary to Currie's wife, Marianne
Currie ("Mrs. Currie"). See id.
From May 1996 through October 1996, O'Donnell's campaign wrote
eleven checks to Mrs. Currie, signed by O'Donnell, totaling
$12,684.75, reflecting Mr. Currie's salary as Campaign
Coordinator, less taxes, which were withheld in Mrs. Currie's
name. See id. at 3-4. In November 1996, O'Donnell fired Mr.
Currie and stopped paying his salary. See id. at 4. Mr. Currie
was then hired by Hoffa's campaign, with a similar payment
arrangement to Mrs. Currie. See id.
Under the Rules for the 1995-1996 IBT International Union
Delegate and Officer Election ("IBT Election Rules"), every
candidate was required to file periodic Campaign Contribution
and Expenditure Reports ("CCERs" or "Reports" or "forms")
detailing each contribution and expenditure over $100. O'Donnell
signed and certified as true five such CCERs listing "Mary Ann
Currie" as the "payee" of the salary that was due to Mr. Currie
on account of his services. Next to Mrs. Currie's name, the
purpose of the expenditure was described as "salary/campaign
coordinator." See IRB Investigative Report, Exs. 1,6,8,10,12.
Each of these CCERs listed Mr. Currie separately, on the same
page, as the "payee" of various other expenditures, for the
stated "purpose" of "misc supplies" and "campaign materials."
See id. The CCERs were prepared at O'Donnell's request by
Matthew Dapolito, who served as the CPA for Local Union 817 and
for O'Donnell's campaign, based on information provided him by
O'Donnell or the staff secretary of Local Union 817, Kathleen
Kreinbihl. O'Donnell reviewed, signed and submitted the CCERs.
See IRB Decision at 5-6.
On December 3, 1998, the IRB issued an Investigative Report
and forwarded it to Tom Sever, then Acting General President of
the IBT, recommending charges against O'Donnell for bringing
reproach upon the IBT in violation of Article II, Section 2(a)
of the IBT Constitution by filing CCERs in which he failed to
disclose the payments to Mr. Currie. See IRB Hearing
Transcript, Ex. 1, at 1. Sever filed the proposed charges and,
after taking office on March 19, 1999, C. Thomas Keegel, General
Secretary-Treasurer of the IBT ("Keegel"), referred the charges
to Joint Council 16 ("Joint Council") for resolution. See IRB
Hearing Transcript, Ex. 4.
On May 20, 1999, a panel appointed by the Joint Council held a
hearing on the matter and on October 20, 1999, the panel issued
a Report and Recommendation. See IRB Hearing Transcript, Ex.
10. The Joint Council found that O'Donnell violated Article II,
Section 2(a) of the IBT Constitution when he intentionally filed
CCERs that failed to disclose payments to Mr. Currie for his
services, but that O'Donnell did not intend to deceive the
Election Officer. See id. at 9. The Joint Council recommended
that O'Donnell forfeit thirty days salary from the IBT and cease
providing services as an officer of the IBT for this period.
See id. On November 1, 1999, having reviewed the Joint
Council's Report and Recommendation, Keegel issued a decision
finding that O'Donnell had violated his obligation to file
accurate and complete CCERs and thereby had violated Article II,
Section 2(a) of the IBT Constitution, and directing O'Donnell to
pay a fine of $6,500. See id. at 3-4.
Upon review of Keegel's decision, the IRB informed Keegel,
through John J. Cronin, Jr., Administrator of the IRB, in a
letter dated January 4, 2000, that it found the IBT's finding
and sanction inadequate and returned the matter to the IBT for
reconsideration. See IRB Hearing Transcript, Ex. 12 at 1.
Specifically, the IRB stated that the conclusion that O'Donnell
had acted without intent to deceive the Election Officer was
contrary to the facts and that, regardless of his motive,
O'Donnell had intentionally signed and submitted false CCERs.
See id. Accordingly, Keegel reviewed and reexamined the record
and his findings and conclusions, and by letter dated January
21, 2000, Keegel informed the IRB that he would not disturb the
original decision. See IRB Hearing Transcript, Ex. 13 at 1.
Additionally, Keegel stated his finding that O'Donnell believed
the CCERs were accurate and thus he did not intentionally fail
to disclose payments to Mr. Currie for services rendered to the
campaign. See id. at 4. The IRB again found Keegel's decision
inadequate and by letter dated February 3, 1999, the IRB
informed Keegel and O'Donnell that it had scheduled a de novo
hearing to consider the charges against O'Donnell. See IRB
Hearing Transcript, Ex. 14.
On May 22, 2000, the scheduled hearing was held before the
IRB. The IRB issued its Decision on November 13, 2000, finding
that, as detailed in the Decision, O'Donnell brought reproach
upon the IBT and violated the IBT Constitution by filing CCERs
that he knew improperly failed to disclose payments to Mr.
Currie for services rendered to the campaign. See IRB Decision
at 14. As a penalty, the IRB imposed on O'Donnell a nine-month
suspension during which he may not obtain employment, consulting
or other work, from any IBT or IBT-affiliated entity or
participate in any affairs of the IBT or Local Union 817 as an
officer or employee, but during which he may maintain his
membership in the IBT. See id. The IRB submitted Application
90 on November 14, 2000 for a ruling of the Court on the IRB
Decision. The parties filed papers responding to the IRB
The Court reviews determinations made by the IRB under an
"extremely deferential standard of review." United States v.
International Bhd. of Teamsters ("Simpson"), 120 F.3d 341, 346
(2d Cir. 1997) (quoting United States v. International Bhd. of
Teamsters ("DiGirlamo"), 19 F.3d 816, 819-20 (2d Cir.), cert.
denied, 513 U.S. 873, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994)).
Specifically, under both the Consent Decree and the Rules and
Procedures for the Operation of the Independent Review Board
("IRB Rules"), "[i]n reviewing actions of the IRB, this Court
shall apply the same standard of review applicable to review of
final federal agency action under the Administrative Procedure
Act." IRB Rules, ¶ O; Consent Decree, Art. K (same). See United
States v. International Bhd. of Teamsters ("Giacumbo"),
170 F.3d 136, 141 (2d Cir. 1999).
Therefore, as the Court of Appeals has directed, the Court
reviews the IRB's findings of fact for "`substantial evidence'
on the whole record." Id. at 143. Substantial evidence "is
more than a mere scintilla [and] means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." Id. (citations omitted). Therefore, for example,
"the possibility of drawing two inconsistent conclusions from
the evidence does not prevent [the IRB's] finding from being
supported by substantial evidence." Id. (quoting Illinois
Cent. R.R. v. Norfolk & W. Ry., 385 U.S. 57, 69, 87 S.Ct. 255,
17 L.Ed.2d 162 (1966)) (internal citations omitted).
Moreover, "[a]ssuming that the [IRB's] findings of fact are
supported by substantial evidence, inferences based on those
findings are discretionary and can only be disturbed if they are
arbitrary and capricious. When reviewing inferences, [the Court
is] obliged to guard against [the IRB] drawing inferences that
are arbitrary in relation to the facts found, no matter ...