2014-08-25 Torrance Decl Re Nee Remand

8/11/2019 2014-08-25 Torrance Decl Re Nee Remand

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5. The changes relevant to the matter now before the Court occur in paragraphs 1 and

5 of the draft stipulations. As explained in the letter to the Court of August 25, 2014, the January

2010 draft permitted the Monitor (as the proposed officer was then called) to veto proposed

appointments to office of both the District Council and the Benefit Funds, and to dismiss current

officeholders of both entities. In the weeks that followed, the parties agreed that the Monitors

powers should be different in this respect regarding the Funds and the District Council.

Accordingly, changes were made to specify that the Monitors power to veto extended only to the

District Council, not to the Funds. Changes in language were made to reflect that agreement, and

to streamline the stipulation. However, no party ever suggested that the power to dismiss currentofficeholders of the District Council should be deleted from the stipulation, and no party ever

suggested that the changes to the stipulations language had that effect. It was the governments

understanding throughout this negotiation that the power to dismiss current officeholders of the

District Council, which was made clear in the initial draft, remained a part of the parties

agreement, and no one ever contradicted that understanding.

6. I base these assertions on my own recollection of the negotiations in 2009 and

2010; on recent conversations with my colleague, Tara La Morte, who was also assigned to the

case at that time and participated in the negotiations; and on my review and Ms. La Mortes review

of the correspondence among the parties and the proposed Monitor/Review Officer during that

time. The only correspondence relating to these changes that I found was an exchange of emails in

which Mr. Walsh noted concerns that may be raised by the Funds, i.e., that a veto authority applied

to them could interfere with their fiduciary and statutory duties.


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I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New YorkAugust 25, 2014

/s/ Benjamin H. Torrance

BENJAMIN H. TORRANCEAssistant United States AttorneyTelephone: 212.637.2703Fax: 212.637.2702


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Exhibit A


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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------- xUNITED STATES OF AMERICA,

Plaintiff,

v.

DISTRICT COUNCIL OF NEW YORK CITYAND VICINITY OF THE UNITEDBROTHERHOOD OF CARPENTERS ANDJOINERS OF AMERICA, et al.,

Defendants.

90 Civ. 5722 (CSH)

STIPULATION AND ORDER REGARDING APPOINTMENT OFA MONITOR

------------------------------------------------------------- x

WHEREAS, on March 4, 1994, the Court approved a Consent Decree (the ConsentDecree) in the above-captioned action, brought under the civil remedies provisions of theRacketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961 et seq. , between plaintiff the United States (the Government) and defendants, including the District Council of NewYork City and Vicinity of the United Brotherhood of Carpenters and Joiners of America(District Council). The Consent Decree among other things permanently enjoined all currentand future officers, employees, and members of the District Council and its constituent localsfrom engaging in any act of racketeering activity as defined in 18 U.S.C. 1961; knowinglyassociating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs (collectively,barred persons); and obstructing or interfering with the work of the officers described in theConsent Decree;

WHEREAS, the Court has held that the District Council Benefit Funds is bound by theConsent Decree, and the interests of the Benefit Funds as pertinent to the terms and objectives of the Consent Decree are no different from the interests of the District Council. See United Statesv. District Council , 1996 WL 221584 (S.D.N.Y. May 2, 1996);

WHEREAS, by Order dated December 18, 2002, the Court entered a Stipulation betweenthe United States and the District Council (the December 2002 Stipulation and Order), whichcreated the position of Independent Investigator and empowered the Independent Investigator to,among other things, investigate allegations of wrongdoing concerning the operation of the jobreferral system and/or corruption or violations of federal, state, or local law by District Councilrepresentatives, including without limitation officers, employees, delegates, business managers,

business agents, and shop stewards . . . concerning the operation of the job referral system.December 2002 Stipulation and Order 6.a. A successor Independent Investigator was


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appointed by Order dated August 22, 2005 (the August 2005 Order), with substantially thesame powers as the original Independent Investigator;

WHEREAS, on April 18, 2007, the District Council and its President, Peter Thomassen,were adjudicated in contempt of court for violating the Consent Decree by failing to give the

Government prior notice of the District Councils intent to enter into collective bargainingagreements in 2001 with associations of contractors that altered job referral rules contained in theConsent Decree, see United States v. District Council , 2007 WL 1157143 (2d Cir. Apr. 18,2007);

WHEREAS, on September 17, 2007, Michael Forde, Executive Secretary-Treasurer of theDistrict Council and a trustee of its Benefits Funds, was held in contempt of court for violatingthe Consent Decree by participating in an unlawful shop steward referral, see United States v.

District Council , 2007 WL 2697135 (S.D.N.Y. Sept. 17, 2007);

WHEREAS, on August 5, 2009, an indictment by a grand jury in this district was unsealed,

charging various acts of racketeering against numerous employees and representatives of theDistrict Council, including Michael Forde, Executive Secretary-Treasurer and a trustee of theBenefit Funds; John Greaney, Business Manager of Local Union 608, a constituent local of theDistrict Council; Brian Hayes, Business Representative for Local Union 608 and Local 608Executive Board Trustee; and Shop Stewards Michael Brennan, Brian Carson, Joseph Ruocco,John Stamberger, and Michael Vivenzio, along with Joseph Olivieri, a contractor associationrepresentative, and Finbar ONeill, a contractor. See Superseding Indictment, United States of

America v. Forde , S3 08 Cr. 828 (S.D.N.Y.);

WHEREAS, following the indictment described in the previous paragraph, the UnitedBrotherhood of Carpenters and Joiners of America (UBC) determined that the affairs of theDistrict Council are being conducted in a manner detrimental to the welfare and best interests of the District Council, the UBC, and its members, and/or contrary to the provisions andrequirements of the UBC Constitution, and that the continued operation of the District Council isin jeopardy; further determined, pursuant to its authority under the UBC Constitution, that anemergency situation exists regarding the District Council requiring immediate action by the UBCto protect and preserve the welfare and interests of the membership; and therefore placed theDistrict Council under emergency trusteeship. See Letter from UBC General Pres. Douglas J.McCarron to District Council President Peter Thomassen dated Aug. 10, 2009;

WHEREAS, pursuant to the UBC Constitution and Laws, the UBC appointed a trustee (theUBC Trustee) to assume full supervisory authority over the District Council, including the

power to assume and exercise full and complete authority over the conduct of the DistrictCouncils affairs;

WHEREAS, the UBC Trustee of the District Council is empowered under the UBCConstitution to consent to the relief contained herein on behalf of the District Council and itsconstituent locals, and so binds these entities and their members to the terms and conditions of this Stipulation and Order Regarding Appointment of a Monitor (Stipulation and Order);


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WHEREAS, the United States and the District Council agree that the presence and activityof an independent court-appointed officer granted powers beyond those provided to theIndependent Investigator in the December 2002 Stipulation and Order and the August 2005Order, as set forth below, is essential to the accomplishment of the objectives identified by theConsent Decree and necessary to ensure compliance with the Decree; now, therefore,

IT IS HEREBY ORDERED, upon the stipulation and agreement of the Government and theDistrict Council, as follows:

1. Definitions .

a. Benefit Funds means the New York District Council of Carpenters Pension Plan,the New York District Council of Carpenters Welfare Fund, the New York DistrictCouncil of Carpenters Vacation Fund (now part of the Welfare Fund), the New York District Council of Carpenters Annuity Fund, the New York District Council of Carpenters Retirement & Pension Plan for Officers and Employees, the New York

District Council of Carpenters Apprenticeship Journeymen Retraining Educationaland Industry Fund, the New York District Council of Carpenters Supplemental Funds,and any other fund or plan established for the benefit of members of the DistrictCouncil pursuant to section 302(c)(5) of the Labor Management Relations Act,29 U.S.C. 186(c)(5), or employee benefit plans established by the District Councilsubject to the provisions of Title I of the Employee Retirement Income Security Act,29 U.S.C. 1001 et seq. (ERISA).

b. District Council means the District Council of New York City and Vicinity of theUnited Brotherhood of Carpenters and Joiners of America. As used herein, DistrictCouncil includes all constituent local unions and the Benefit Funds. During the termof the UBC trusteeship, the UBC Trustee is deemed to act on behalf of the DistrictCouncil.

c. Job Referral Rules means the job referral rules established by the Consent Decree,as modified by any subsequent order of the Court.

d. Member of the District Council means any person who is a member of any union or labor organization that constitutes part of the District Council.

2. Authority of the Court . The Court has authority to enter this Stipulation and Order pursuant to its inherent power, including the inherent power to enforce, ensure compliancewith, and modify the Consent Decree; Rule 60(b) of the Federal Rules of Civil Procedure;the Courts contempt powers; and 18 U.S.C. 1964.

3. Appointment of Monitor . Dennis M. Walsh, of the law firm Fitzmaurice & Walsh inWhite Plains, New York, is hereby appointed as Monitor, effective upon entry of thisStipulation and Order.


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4. Role of the District Council . The appointment of the Monitor does not diminish theDistrict Councils responsibility for eliminating criminal elements, criminal activities,racketeering, and corruption from any part of the District Council and its operations;maintaining and running the District Council democratically and without unlawfulinfluence; and complying with and affirmatively furthering the terms and objectives of the

Consent Decree. Accordingly, in exercising his powers and responsibilities as described inthis Stipulation and Order, the Monitor, to the extent he deems it practicable, shouldconsult with the appropriate representatives of the District Council prior to taking anyaction, and to permit the District Council to act on its own in the first instance to effectuatethe terms and objectives of this Stipulation and Order and the Consent Decree. The DistrictCouncil, in turn, will consult with the Monitor as to what actions are advisable to effectuatethe terms and objectives of this Stipulation and Order and the Consent Decree. However,the Monitor need not consult with the District Council, or permit the District Council to actfirst, regarding any matter as to which the Monitor, in his sole, unfettered, andunreviewable discretion, determines such consultation or permission is inadvisable. In nocircumstances will the failure or declination of the Monitor to consult with the District

Council as to any matter be deemed a violation or breach of this Stipulation and Order.

5. Authority of Monitor . The Monitor is granted the following authority, rights, andresponsibilities:

a. General Authority . The Monitor is granted authority to ensure compliance with theinjunctions set forth in the Consent Decree; to investigate the operations of theDistrict Council, including but not limited to investigating allegations of corruptionand wrongdoing by officers, representatives, agents, employees, members, andtrustees; to bring disciplinary charges against such officers, representatives, agents,employees, members, and trustees; and to exercise the authorities, rights, and powersdescribed below.

b. Oversight Authority . The Monitor is granted review and oversight authority withrespect to the following matters and may, if necessary, prescribe exceptions and

procedures under which such matters are to be presented to the Monitor for review.

i. The Monitor must be given prior notice of, and is granted the authority toreview, all expenditures and investments of the District Council and to veto or require the District Council to rescind any expenditure or investment that (a)constitutes or furthers an act of racketeering as defined in 18 U.S.C. 1961; or (b) furthers or contributes to the association, directly or indirectly, of anymember, employee, officer, or representative of the District Council or itsconstituent locals, with any barred persons; or (c) is contrary to or violates anylaw or Court order entered in this case; or (d) is contrary to any fiduciaryresponsibility imposed by 29 U.S.C. 501 or ERISA; or (e) is inconsistent withthe purposes of the Consent Decree.


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ii. The Monitor must be given prior notice of, and is granted the authority toreview, all contracts or proposed contracts on behalf of the District Council(except for collective bargaining agreements) and to require the District Councilto rescind any contract or prevent the District Council from entering into any

proposed contract that (a) constitutes or furthers an act of racketeering as

defined in 18 U.S.C. 1961; or (b) furthers or contributes to the association,directly or indirectly, of any member, employee, officer, or representative of theDistrict Council or its constituent locals, with any barred persons; or (c) iscontrary to or violates any law or Court order entered in this case; or (d) iscontrary to any fiduciary responsibility imposed by 29 U.S.C. 501 or ERISA;or (e) is inconsistent with the purposes of the Consent Decree.

iii. The Monitor must be given prior notice of, and is granted the authority toreview, all proposed appointments to District Council office or employment,including any proposed appointment of Benefit Funds trustees (except trusteeswho represent employers in the administration of the Benefit Funds), and to veto

any proposed appointment that (a) constitutes or furthers an act of racketeeringas defined in 18 U.S.C. 1961; or (b) furthers or contributes to the association,directly or indirectly, of any member, employee, officer, or representative of theDistrict Council or its constituent locals, with any barred persons; or (c) iscontrary to or violates any law or Court order entered in this case; or (d) iscontrary to any fiduciary responsibility imposed by 29 U.S.C. 501 or ERISA;or (e) is inconsistent with the purposes of the Consent Decree. This provisiondoes not govern the election of District Council officers, as provided for in

paragraph 5.k of this Stipulation and Order.

iv. The Monitor is granted the authority to review the persons currently holdingoffice or employment within the District Council, including any Benefit Fundstrustees (except trustees who represent employers in the administration of theBenefit Funds), and dismiss any person whose continued officeholding or employment (a) constitutes or furthers an act of racketeering as defined in18 U.S.C. 1961; or (b) furthers or contributes to the association, directly or indirectly, of any member, employee, officer, or representative of the DistrictCouncil or its constituent locals, with any barred persons; or (c) is contrary to or violates any law or Court order entered in this case; or (d) is contrary to anyfiduciary responsibility imposed by 29 U.S.C. 501 or ERISA; or (e) isinconsistent with the purposes of the Consent Decree. This provision does notgovern the election of District Council officers, as provided for in paragraph 5.k of this Stipulation and Order.

v. The Monitor must be given prior notice of, and is granted the authority toreview, all proposed changes to the by-laws and any other rules, policies, and

practices of the District Council and to veto any proposed change that (a)constitutes or furthers an act of racketeering as defined in 18 U.S.C. 1961; or (b) furthers or contributes to the association, directly or indirectly, of any


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member, employee, officer, or representative of the District Council or itsconstituent locals, with any barred persons; or (c) is contrary to or violates anylaw or Court order entered in this case; or (d) is contrary to any fiduciaryresponsibility imposed by 29 U.S.C. 501 or ERISA; or (e) is inconsistent withthe purposes of the Consent Decree.

c. Access to Information . The Monitor is granted the authority to take such reasonablesteps that are lawful and necessary in order to be fully informed about the activities of the District Council. Specifically, to discharge the duties and responsibilities set forthin this Stipulation and Order, the Monitor must have access to information as follows:

i. The Monitor is granted the right to attend all meetings of the District Council,any governing body or committee, the District Council membership, or thetrustees of the Benefit Funds. The District Council must provide the Monitor with reasonable advance notice of all meetings.

ii. The Monitor is granted complete and unfettered access to, and the right to makecopies of, all books, records, accounts, correspondence, files and other documents of the District Council, including, without limitation, all books,records, accounts, correspondence, files, and other documents that are in the

possession or control of third parties.

iii. The Monitor is granted the right to compel audits and accountings of the assetsof the District Council.

iv. The Monitor is granted complete and unfettered access to, and the right to makecopies of, all bids submitted by all contractors for work to be performed bymembers of the District Council.

d. Investigative Powers . The Monitor is granted the following investigative powers:

i. The Monitor is granted the right to interview, and to take and compel the swornstatement or sworn in-person oral deposition of any officer, agent,representative, employee, trustee, or member of the District Council concerningany matter within the Monitors authority under this Stipulation and Order,

provided that the person to be examined receives reasonable advance notice of the deposition, and may be represented by legal counsel of his or her choice.

ii. The Monitor is granted the right, with authorization of the Court, to issuesubpoenas for testimony or documents from any person or entity. Application tothe Court for authorization to issue a subpoena must be made on notice to theGovernment. Notice must also be provided to the District Council, unless theMonitor determines that such notice would be prejudicial to his investigation, inwhich case the Monitor must provide the Court and the Government with

justification for issuing the subpoena without notice to the District Council.


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iii. The Monitor is granted the authority to take any other lawful action to be fullyinformed about the activities of the District Council and other persons or entitieswho are compensated for services rendered to the District Council as suchactivities relate to the District Council, whenever those activities occurred.

e. Referral of Matters to the Monitor . District Council representatives, officers,trustees, and employees must promptly report to the Monitor (1) any actual or suspected violations of the Consent Decree, including any actual or suspectedviolations of the Job Referral Rules; (2) any actual or suspected violations of local,state, or federal law related to the activities of the District Council or the employmentof District Council members; (3) any actual or suspected violations of labor law byany person associated with the District Council, including employers of DistrictCouncil members; (4) any actual or suspected violations of any Court orders enteredin this case; and (5) any actual or suspected violations of any District Councilcollective bargaining agreement. The District Council may also elect to refer anyother matter to the Monitor. In all cases where matters are referred to the Monitor,

the Monitor, at his election, may accept the matter for investigation or may decline toinvestigate. In the event the Monitor informs the District Council that he willinvestigate a matter, the District Council must take no action with respect to thematter unless authorized to do so by the Monitor. If the Monitor declines the matter for investigation, the District Council can investigate if it so chooses.

f. Disciplinary Authority . The Monitor is granted the responsibility and authority toensure that the District Council develops, implements, and maintains fair andeffective procedures to discipline officers, employees, agents, representatives, or members of the District Council and its constituent locals for misconduct.Misconduct as used herein includes, without limitation, any violation of federal,state, or local law; any violation of union rules, by-laws, or constitutional provisions;any violation of the Consent Decree or another order of this or any other court; or anyact that furthers the direct or indirect influence of organized crime or the threat of such influence now or in the future.

i. Within 30 days of the entry of this Stipulation and Order, the District Councilmust propose disciplinary procedures to the Monitor. Such procedures to be

proposed must provide for an adjudicatory body to determine whether chargesof misconduct have been established and, if so, what punishment or remedyshould be imposed on the person who has committed misconduct; for an officer to present charges of misconduct to the adjudicatory body; and for any other

procedure the Monitor specifies to the District Council. If the Monitor disapproves the procedures, the District Council must revise them by a datedetermined by the Monitor to address the Monitors objections. Once theMonitor approves the procedures proposed by the District Council (as revised if necessary), those procedures will take effect as soon as the Monitor determinesis practicable.


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ii. In the event the Monitor disapproves the procedures proposed by the DistrictCouncil, and the District Council fails to revise the procedures to address theMonitors objections within 60 days of the entry of this Stipulation and Order,the Monitor may unilaterally implement disciplinary procedures. Within 30days of the Monitors unilateral implementation of disciplinary procedures, the

District Council may petition the Court to review the Monitors disciplinary procedures. Any such petition will be adjudicated under the same standard of review applicable to review of final agency action under the AdministrativeProcedure Act, 5 U.S.C. 701 et seq.

iii. The disciplinary procedures described above must provide for the Monitor to beable to initiate disciplinary proceedings in a manner that is satisfactory to theMonitor.

iv. The Monitor must assess the operation of the disciplinary process, once it has been established in accordance with paragraphs 5.f.i and 5.f.ii of this Stipulation

and Order, to determine if it is fair and effective. Within one year of the entry of this Stipulation and Order, the Monitor must report in writing to the Court onthe operation of the disciplinary system, and such report must be served uponthe Government and the District Council.

v. At any time, if the Monitor determines, in his sole and unreviewable discretion,that the disciplinary process as it is being conducted by the District Council isnot fair or effective, the Monitor may require the District Council to makewhatever changes the Monitor determines are necessary. Such changes may, if the Monitor deems it necessary, include the appointment of an independentadjudicator or independent officer responsible for presenting disciplinarycharges. The District Council, the Monitor, and the Government will negotiatein good faith to appoint such persons and determine reasonable costs for their service, such costs to be borne by the District Council.

g. Litigation Authority . The Monitor is granted the right to authorize the initiation of civil actions on behalf of the District Council to recover damages incurred by theDistrict Council arising from any actions within the Monitors authority under thisStipulation and Order. That litigation authority may extend to any civil action thatcould be timely filed on behalf of the District Council. Notwithstanding paragraph 4of this Stipulation and Order, the Monitor must consult with appropriate officials of the District Council before any such litigation is initiated, and must periodically reportto the District Council on the progress of the litigation.

h. Proposed Changes to District Council Operations . The Monitor is directed tostudy the operations of the District Council, and to make recommendations andimplement changes and programs as described below:


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i. The Monitor may develop and mandate educational and training programs andstandards for all officers, employees, trustees, and representatives of the DistrictCouncil, including but not limited to business managers, business agents,

business representatives, shop stewards, field representatives, delegates, andorganizers.

ii. The Monitor must conduct an assessment of the overall functioning andeffectiveness of the Job Referral Rules, including without limitation whether they effectively further the objectives of the Consent Decree. The Monitor mustissue a report to the Court, the Government, and the District Council settingforth the findings of his assessment of the Job Referral Rules and hisrecommendations.

iii. The Monitor must conduct an assessment of the functioning and effectiveness of the electoral process governing elections of the District Council ExecutiveBoard, delegate body, and any other elected office. This assessment should

include, without limitation, the Monitors assessment of which District Councilofficers and representatives should be elected directly by the District Councilsmembers, elected by the District Councils delegate body, or appointed by theDistrict Council, consistent with governing law and the terms and objectives of this Stipulation and Order and the Consent Decree. The assessment should alsoinclude the Monitors assessment of the District Councils governing structure,including whether any offices should be eliminated or created and what powersthe holders of those offices should have. The Monitor must issue a report to theCourt, the Government, and the District Council setting forth his findings andrecommendations.

iv. The Monitor must conduct an assessment of the District Councils constituentlocals. The assessment should include, without limitation, an assessment of thedivision of the District Council into constituent local unions, whether thatstructure positively or negatively affects the achievement of the objectives of theConsent Decree and this Stipulation and Order, and whether a different structurewould more effectively further those objectives. The Monitor must issue areport to the Court, the Government, and the District Council setting forth hisfindings and recommendations.

v. The Monitor must conduct an assessment of the Benefit Funds. The assessmentshould include, without limitation, an assessment of whether the Benefit Fundsare administered in a way that furthers the goals of the Consent Decree and thisStipulation and Order, is consistent with ERISA, and that maximizes the benefitto the Benefit Funds beneficiaries. The assessment should also include anassessment of the structure of the Benefit Funds, the allocation of contributionsto the Benefit Funds by employers and District Council members, and whether that structure and those allocations positively or negatively affect theachievement of the objectives of the Consent Decree and this Stipulation and


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Order, and whether a different structure or allocation would more effectivelyfurther those objectives. The Monitor must issue a report to the Court, theGovernment, and the District Council setting forth his findings andrecommendations.

vi. The Monitor must study and make recommendations concerning any other factors, practices, and procedures that will effectively prevent, deter, detect, andaddress wrongdoing and corruption by the District Council and its members.

vii. With respect to any of the reporting obligations set out in this paragraph 5.h, theMonitor must, within 30 days of the entry of this Stipulation and Order, providethe Court, the Government, and the District Council with a timetable specifyingwhen each of these reports is to be issued, providing that at least one report will

be issued every six months.

viii. With respect to any recommendations the Monitor makes under this paragraph

5.h, the Monitor must apprise the Government and the District Council of anysuch recommendations, and may, in consultation with and with the consent of the Government and the District Council, implement such recommendations. Inthe event the District Council does not consent to implementation of theMonitors recommendations, the Monitor may petition the Court to require theDistrict Council to implement the changes the Monitor deems appropriate, andthe Government will be given notice and an opportunity to be heard regardingsuch petition.

i. Communication with the Membership . The Monitor may distribute to themembership written reports describing the activities of the Monitor or any other information he deems advisable. The Monitor may determine in his discretion whento publish such reports, and must be given access to any District Council publicationthat concerns the affairs of the union, including The Carpenter or any other newsletter, and any District Council web site, e-mail address list, or other means of electronic communication, to communicate with the membership. The Monitor mayalso communicate to the membership in person, at meetings or otherwise.

j. Job Referral Rules . The Monitor must supervise the implementation and operationof the Job Referral Rules, including implementation and operation of any stipulated or Court-approved changes to the Job Referral Rules. If the Monitor determines thatthere has been a violation of the Job Referral Rules, the Monitor may issue anydirection to the District Council as may be appropriate to remedy the violation.

k. Supervision and Conduct of Elections .

i. The Monitor is empowered to supervise all phases of any union electionconducted by the District Council during his tenure, and to certify the results of any such election. The term supervise as used herein has the meaning


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ascribed to it in cases arising under Title IV of the Labor-ManagementReporting and Disclosure Act, 29 U.S.C. 481 et seq.

ii. The Monitor must propose rules and procedures for the conduct of elections nolater than 120 days before the first election during his tenure is to occur. The

rules must set out procedures for nomination of candidates, dissemination of information about nominated candidates to the membership at union expense,and the conduct of the final secret-ballot election. The rules must seek to ensurethat those eligible members who reside outside of the New York metropolitanarea are able to vote. Draft rules will be disseminated to the membership, bymeans deemed appropriate by the Monitor, for comment. The Monitor mustconsider any such comments, then promulgate the final rules for the election bysubmitting an application to this Court. When approved by the Court, the finalrules will be incorporated into, and made a part of, the By-Laws of the DistrictCouncil.

iii. The Monitor is granted the authority to prescribe threshold qualifications for anycandidate seeking a position as an officer of the District Council.

iv. Any candidate seeking to run for a position as an officer of the District Councilduring the Monitors tenure must first be approved by the Monitor, who willdetermine whether in light of the terms and objectives of the Consent Decree thecandidate is qualified to run for office and represent the union membership.Any such decision by the Monitor will be final and non-reviewable.

l. Retention of Records . No later than one week after entry of this Stipulation andOrder, the District Council must provide the Monitor with a comprehensive recordsretention schedule applicable to all records of the District Council. Upon theMonitors request, the District Council must notify the Monitor prior to thedestruction of any specified record or category of records.

m. Reports to the Court .

i. The Monitor may report to the Court whenever the Monitor deems fit but, in anyevent, must file a written report not less than every six months regarding theMonitors activities. Copies of all reports to the Court must be timely served onthe Government and on the District Council. At least once each year, theMonitors reports as described in this paragraph 5.m must include the Monitorsassessment of the state of the District Council, its progress toward achieving theobjectives of the Consent Decree and this Stipulation and Order, and theMonitors recommendations for the District Council going forward.

ii. The Monitors reports as described in this paragraph 5.m and elsewhere in thisStipulation and Order should be filed on the public docket in the above-captioned case, unless the Monitor determines that public filing will be


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in the present Stipulation and Order. The operation of the hotline will be transferredfrom the Independent Investigator to the Monitor as soon as possible during thetransition period described in paragraph 6.a above.

c. The District Council is directed to pay Unitel a reasonable amount in compensation

for services reasonably rendered to ensure an orderly and effective transition, asdescribed in this paragraph. The District Council and Unitel are directed to attempt inmutual good faith to agree upon the amount of compensation required. Any disputeswill be resolved by the Court upon the written application of the District Council,Unitel, or the Government.

d. During the transition period and thereafter, the Monitor is to have full and completeaccess to all records and documents of the Independent Investigator, in whatever form, concerning or relating to the District Council, and the functions and duties

performed by the Independent Investigator.

e. Except as specifically described in this paragraph 6, the provisions of the December 2002 Stipulation and Order and the August 2005 Order remain in effect as modified

by subsequent orders of the Court.

7. Cooperation . The District Council, including all officers, employees, trustees, andmembers, must cooperate with the Monitor in any matter undertaken by the Monitor

pursuant to this Stipulation and Order. Failure to cooperate with the Monitor is a violationof this Stipulation and Order punishable by contempt of Court.

8. Compensation, Term, and Hiring Authority .

a. Hiring . The Monitor may employ or engage the services of any personnel necessaryto assist in the proper discharge of the Monitors duties. The Monitor is also grantedthe authority to designate persons of his choosing to act on his behalf in performingany of his duties as outlined in this Stipulation and Order.

b. Compensation and Expenses .

i. The compensation and expenses of the Monitor, and of all persons hired under his authority, must be paid by the District Council. The parties agree that$95,000 per month is a presumptively reasonable amount for the total cost of theMonitors activities, but that the actual cost may be less or more in any

particular month.

ii. To effectuate this provision, the District Council must deposit $95,000 withinfive days of the entry of this Stipulation and Order, and an additional $95,000 onthe first day of each month thereafter, with the Monitor.


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iii. The Monitor will provide monthly statements to the District Council and theGovernment setting forth an accounting of all claimed compensation andexpenses, including supporting materials. Thereafter, the Monitor will deductthe total amount specified in the monthly statement from the amounts depositedwith the Monitor by the District Council. The Monitors monthly statement will

also specify the balance remaining on deposit with the Monitor after the Monitor has deducted compensation and expenses for that month. If that balanceexceeds $55,000, the amount of the deposit to be made by the District Councilon the first day of the next month will be reduced to $150,000 less the balanceremaining on deposit with the Monitor.

iv. If the balance remaining on deposit with the Monitor is insufficient to cover theamount specified in the Monitors monthly statement, the District Council must,within five days of receiving the Monitors monthly statement, pay the Monitor the amount by which the Monitors monthly statement exceeds the balance ondeposit with the Monitor. If such a shortfall occurs more than once during the

Monitors tenure, the Monitor may seek agreement with the District Council toincrease the District Councils monthly deposit, and if no agreement can bereached may petition the Court to increase the District Councils monthlydeposit.

v. If the Monitor anticipates that a monthly statement will exceed $110,000, theMonitor will advise the District Council as soon as practicable in advance of submitting the monthly statement.

vi. Within 30 days of the Monitors submission of his monthly statement, theDistrict Council may challenge the amount specified in the statement, or anyexpenses detailed in that statement, by filing a written objection with the Court.If the District Council is successful in its challenge, it will be entitled to a creditin the amount by which the compensation and expenses are reduced by theCourt.

c. Term of Monitor . The authority of the Monitor will extend for 60 months from theentry of this Stipulation and Order by the Court, except that the Monitor may continueand complete any disciplinary and review matters initiated before the termination of his term.

i. At any point prior to expiration of the Monitors term, the Monitor, theGovernment, or the District Council may petition the Court to extend the termof the Monitor, and the Court will extend the term upon consent of the parties or upon a showing of good cause.

ii. The Monitor, the Government, or the District Council may apply to the Court toreduce the length of the Monitors term upon a showing, by clear andconvincing evidence, that the District Council is in compliance with the Consent


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Decree and that the objectives of this Stipulation and Order and the ConsentDecree have been achieved.

iii. The Government may petition the Court, on notice to the District Council andthe Monitor, to dismiss the Monitor for good cause. If the Monitor is dismissed

upon such a petition by the Government, or otherwise fails to complete his termof office, the Government and the District Council must promptly meet todiscuss the appointment of a replacement Monitor. In the event the parties areunable to agree, the Government must promptly submit a list of replacementcandidates to the Court, from which the Court, after hearing from the DistrictCouncil, must promptly select a replacement Monitor.

9. Indemnification . Within 30 days of the entry of this Stipulation and Order, the DistrictCouncil must purchase a policy of insurance, bonds in an appropriate amount, or somecombination of both sufficient to protect the District Council, the Monitor, and any personshired by or acting on behalf of the Monitor from personal liability (and any costs incurred

to defend against any claim of liability) for any of their actions taken pursuant toStipulation and Order. Alternatively, the District Council can agree to indemnify theMonitor out of its own funds. In addition, the Monitor and any persons designated or hired

by the Monitor to act under this Stipulation and Order are to be entitled to whatever privileges and immunities from personal liability that may exist under the law for court-appointed officers.

10. Modification of this Stipulation and Order .

a. Petition for Modification . The parties acknowledge that this Stipulation and Order is entered while the proceedings in United States v. Forde , 08 Cr. 828 (S.D.N.Y.),have not yet been completed, and that further investigations by the Government mayresult in the need for additional relief. Accordingly, the Government may apply to theCourt to modify this Stipulation and Order without being required to carry a burden of establishing that a significant change in circumstances warrants revision of theStipulation and Order, but need only show that the requested modification iswarranted under all the circumstances.

b. Establishment of Labor-Management Committee . The District Councilcontemplates the creation of a permanent labor-management committee pursuant to29 U.S.C. 186(c)(9), or the modification of an existing labor-managementcommittee, for the purpose of implementing anti-corruption and anti-racketeeringmeasures for the benefit of the District Council, its members, and employers of District Council members. At whatever time it is prepared to do so, the DistrictCouncil will consult with the Monitor about the formation of such a labor-management committee, then present its proposal for such a labor-managementcommittee to the Monitor. The Monitor will then recommend to the Governmentwhether the District Councils proposal should be adopted. The Government and theDistrict Council will then attempt in good faith to agree on the establishment of a


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and Order. The Monitor or any party to this Stipulation and Order may apply to theCourt for any orders necessary or appropriate to implement the Consent Decree andthis Stipulation and Order, including orders preventing non-parties from interferingwith the implementation of the Consent Decree or this Stipulation and Order. TheMonitor will have the right to intervene in any matter or proceeding concerning this

Stipulation and Order.

e. Status of Consent Decree and Other Orders . The entry of this Stipulation andOrder does not supersede or affect the Consent Decree or the rights and obligations of the parties under the Consent Decree or subsequent orders of the Court. Except asspecified herein, the entry of this Stipulation and Order does not supersede or affectany other Order that the Court has entered in this case.

f. All Writs Act. The Government or the Monitor may apply to this Court at any time pursuant to the All Writs Act, 18 U.S.C. 1651(a), for relief as against non-parties tothe Consent Decree or this Stipulation and Order, including employers of members of

the District Council, and any other non-party who may be in a position to interferewith the implementation of the Consent Decree or this Stipulation and Order. Uponsuch application, the Court may grant such relief as may be necessary or appropriateto prevent the frustration of the Consent Decree and this Stipulation and Order. TheGovernment or the Monitor may apply to the Court for the issuance of subpoenasnecessary to obtain any information, documents, or testimony relevant to such anapplication.

g. Attorneys Fees and Costs . The entry of this Stipulation and Order is withoutattorneys fees or costs to any party.

h. Counterpart Signatures . This Stipulation may be executed in two or morecounterparts, each of which is to be deemed an original, but all of which together constitute the same instrument.


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CONSENTED AND AGREED TO:

Dated: New York, New York PREET BHARARAJanuary ___, 2010 United States Attorney for the

Southern District of New York

Attorney for Plaintiff United States

By:BENJAMIN H. TORRANCETARA M. La MORTEAssistant United States Attorneys86 Chambers Street

New York, New York 10007Telephone: 212.637.2703, .2746Fax: 212.637.2702E-mail: [email protected]

[email protected]

Dated: Los Angeles, California DeCARLO, CONNOR & SHANLEYJanuary ___, 2010 Attorney for Defendant

District Council of New York City andVicinity of the United Brotherhood ofCarpenters and Joiners of America

By:JOHN T. DeCARLO533 South Fremont Avenue, 9th floor Los Angeles, California 90071Telephone: 213.488.4100Fax: 213.488.4180E-mail: [email protected]

DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITEDBROTHERHOOD OF CARPENTERSAND JOINERS OF AMERICA

By:FRANK SPENCER Trustee

[[Counsel for Benefit Funds]]

By:


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BENEFIT FUNDS

By:FRANK SPENCER Benefit Funds Trustee

By:[[Employer Trustee]]Benefit Funds Trustee

SO ORDERED.

Dated: New York, New York January ____, 2010

___________________________________________ CHARLES S. HAIGHT, JR., U.S.D.J.


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Exhibit B


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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------- xUNITED STATES OF AMERICA,

Plaintiff,

v.

DISTRICT COUNCIL OF NEW YORK CITYAND VICINITY OF THE UNITEDBROTHERHOOD OF CARPENTERS ANDJOINERS OF AMERICA, et al.,

Defendants.

90 Civ. 5722 (CSH)

STIPULATION AND ORDER REGARDING APPOINTMENT OFA MONITOR

------------------------------------------------------------- x

WHEREAS, on March 4, 1994, the Court approved a Consent Decree (the ConsentDecree) in the above-captioned action, brought under the civil remedies provisions of theRacketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961 et seq. , between plaintiff the United States (the Government) and defendants, including the District Council of NewYork City and Vicinity of the United Brotherhood of Carpenters and Joiners of America(District Council). The Consent Decree among other things permanently enjoined all currentand future officers, employees, and members of the District Council and its constituent localsfrom engaging in any act of racketeering activity as defined in 18 U.S.C. 1961; knowinglyassociating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs (collectively,barred persons); and obstructing or interfering with the work of the officers described in theConsent Decree;

WHEREAS, the Court has held that the District Council Benefit Funds is bound by theConsent Decree, and the interests of the Benefit Funds as pertinent to the terms and objectives of the Consent Decree are no different from the interests of the District Council. See United Statesv. District Council , 1996 WL 221584 (S.D.N.Y. May 2, 1996);

WHEREAS, by Order dated December 18, 2002, the Court entered a Stipulation betweenthe United States and the District Council (the December 2002 Stipulation and Order), whichcreated the position of Independent Investigator and empowered the Independent Investigator to,among other things, investigate allegations of wrongdoing concerning the operation of the jobreferral system and/or corruption or violations of federal, state, or local law by District Councilrepresentatives, including without limitation officers, employees, delegates, business managers,

business agents, and shop stewards . . . concerning the operation of the job referral system.December 2002 Stipulation and Order 6.a. A successor Independent Investigator was


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appointed by Order dated August 22, 2005 (the August 2005 Order), with substantially thesame powers as the original Independent Investigator;

WHEREAS, on April 18, 2007, the District Council and its President, Peter Thomassen,were adjudicated in contempt of court for violating the Consent Decree by failing to give the

Government prior notice of the District Councils intent to enter into collective bargainingagreements in 2001 with associations of contractors that altered job referral rules contained in theConsent Decree, see United States v. District Council , 2007 WL 1157143 (2d Cir. Apr. 18,2007);

WHEREAS, on September 17, 2007, Michael Forde, Executive Secretary-Treasurer of theDistrict Council and a trustee of its Benefits Funds, was held in contempt of court for violatingthe Consent Decree by participating in an unlawful shop steward referral, see United States v.

District Council , 2007 WL 2697135 (S.D.N.Y. Sept. 17, 2007);

WHEREAS, in recent years numerous persons have been convicted of criminal offenses

relating to the District Council and the Benefit Funds;

WHEREAS, on August 5, 2009, an indictment by a grand jury in this district was unsealed,charging various acts of racketeering against numerous employees and representatives of theDistrict Council, including Michael Forde, Executive Secretary-Treasurer and a trustee of theBenefit Funds; John Greaney, Business Manager of Local Union 608, a constituent local of theDistrict Council, and a trustee of the Benefit Funds; Brian Hayes, Business Representative for Local Union 608 and Local 608 Executive Board Trustee; and Shop Stewards Michael Brennan,Brian Carson, Joseph Ruocco, John Stamberger, and Michael Vivenzio, along with JosephOlivieri, a contractor association representative and a trustee of the Benefit Funds, and Finbar ONeill, a contractor. See Superseding Indictment, United States of America v. Forde , S3 08 Cr.828 (S.D.N.Y.);

WHEREAS, following the indictment described in the previous paragraph, the UnitedBrotherhood of Carpenters and Joiners of America (UBC) determined that the affairs of theDistrict Council are being conducted in a manner detrimental to the welfare and best interests of the District Council, the UBC, and its members, and/or contrary to the provisions andrequirements of the UBC Constitution, and that the continued operation of the District Council isin jeopardy; further determined, pursuant to its authority under the UBC Constitution, that anemergency situation exists regarding the District Council requiring immediate action by the UBCto protect and preserve the welfare and interests of the membership; and therefore placed theDistrict Council under emergency trusteeship. See Letter from UBC General Pres. Douglas J.McCarron to District Council President Peter Thomassen dated Aug. 10, 2009;

WHEREAS, pursuant to the UBC Constitution and Laws, the UBC appointed a trustee (theUBC Trustee) to assume full supervisory authority over the District Council, including the

power to assume and exercise full and complete authority over the conduct of the DistrictCouncils affairs;


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WHEREAS, the UBC Trustee of the District Council is empowered under the UBCConstitution to consent to the relief contained herein on behalf of the District Council and itsconstituent locals, and so binds these entities and their members to the terms and conditions of this Stipulation and Order Regarding Appointment of a Monitor (Stipulation and Order);

WHEREAS, the United States and the District Council agree that the presence and activityof an independent court-appointed officer granted powers beyond those provided to theIndependent Investigator in the December 2002 Stipulation and Order and the August 2005Order, as set forth below, is essential to the accomplishment of the objectives identified by theConsent Decree and necessary to ensure compliance with the Decree; now, therefore,

IT IS HEREBY ORDERED, upon the stipulation and agreement of the Government, theDistrict Council, and the Benefit Funds as follows:

1. Definitions .

a. Benefit Funds means the New York District Council of Carpenters Pension Plan,the New York District Council of Carpenters Welfare Fund, the New York DistrictCouncil of Carpenters Vacation Fund (now part of the Welfare Fund), the New York District Council of Carpenters Annuity Fund, the New York District Council of Carpenters Retirement & Pension Plan for Officers and Employees, the New York District Council of Carpenters Apprenticeship Journeymen Retraining Educationaland Industry Fund, the New York District Council of Carpenters Supplemental Funds,and any other fund or plan established for the benefit of members of the DistrictCouncil pursuant to section 302(c)(5) of the Labor Management Relations Act,29 U.S.C. 186(c)(5), or employee benefit plans established by the District Councilsubject to the provisions of Title I of the Employee Retirement Income Security Act,29 U.S.C. 1001 et seq. (ERISA).

b. District Council means the District Council of New York City and Vicinity of theUnited Brotherhood of Carpenters and Joiners of America. As used herein, DistrictCouncil includes all constituent local unions.

c. Job Referral Rules means the job referral rules established by the Consent Decree,as modified by any subsequent order of the Court.

d. Member of the District Council means any person who is a member of any union or labor organization that constitutes part of the District Council.

2. Authority of the Court . The Court has authority to enter this Stipulation and Order pursuant to its inherent power, including the inherent power to enforce, ensure compliancewith, and modify the Consent Decree; Rule 60(b) of the Federal Rules of Civil Procedure;the Courts contempt powers; and 18 U.S.C. 1964.


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3. Appointment of Monitor . Dennis M. Walsh, of the law firm Fitzmaurice & Walsh, LLP,in White Plains, New York, is hereby appointed as Monitor, effective upon entry of thisStipulation and Order.

4. Role of the District Council and the Benefit Funds . The appointment of the Monitor

does not diminish the responsibility of the District Council and the Benefit Funds toeliminate criminal elements, criminal activities, racketeering, and corruption from any partof the District Council and the Benefit Funds and their respective operations; maintainingand running the District Council democratically and the District Council and the BenefitFunds without unlawful influence; and complying with and affirmatively furthering theterms and objectives of the Consent Decree. Accordingly, in exercising his powers andresponsibilities as described in this Stipulation and Order, the Monitor, to the extent hedeems it practicable, should consult with the District Council or the Benefit Funds, asappropriate, prior to taking any action, and permit the District Council or the Benefit Funds,as appropriate, to act on their own in the first instance to effectuate the terms and objectivesof this Stipulation and Order and the Consent Decree. The District Council and the Benefit

Funds, in turn, will consult with the Monitor as to what actions are advisable to effectuatethe terms and objectives of this Stipulation and Order and the Consent Decree. However,the Monitor need not consult with the District Council or the Benefit Funds, or permit theDistrict Council or the Benefit Funds to act first, regarding any matter as to which theMonitor, in his sole, unfettered, and unreviewable discretion, determines such consultationor permission is inadvisable. In no circumstances will the failure or declination of theMonitor to consult with the District Council or the Benefit Funds as to any matter bedeemed a violation or breach of this Stipulation and Order.

5. Authority of Monitor . The Monitor is granted the following authority, rights, andresponsibilities:

a. General Authority . The Monitor is granted authority to ensure compliance with theinjunctions set forth in the Consent Decree; to investigate the operations of theDistrict Council and the Benefit Funds, including but not limited to investigatingallegations of corruption and wrongdoing by officers, representatives, agents,employees, members, and trustees; to bring disciplinary charges against any DistrictCouncil officers, representatives, agents, employees, or members; and to exercise theauthorities, rights, and powers described below.

b. Oversight Authority . The Monitor is granted review and oversight authority withrespect to the following matters and may, if necessary, prescribe exceptions and

procedures under which such matters are to be presented to the Monitor for review.

i. The Monitor must be given prior notice of, and is granted the authority toreview, all expenditures and investments of the District Council and the BenefitFunds.


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ii. The Monitor must be given prior notice of, and is granted the authority toreview, all contracts or proposed contracts on behalf of the District Council(except for collective bargaining agreements) and the Benefit Funds.

iii. The Monitor must be given prior notice of, and is granted the authority to

review, all proposed appointments to office or employment with the DistrictCouncil or the Benefit Funds, including any proposed appointment of BenefitFunds trustees. This provision does not govern the election of District Councilofficers, as provided for in paragraph 5.k of this Stipulation and Order.

iv. The Monitor is granted the authority to review the persons currently holdingoffice or employment with the District Council and the Benefit Funds, includingBenefit Funds trustees. This provision does not govern the election of DistrictCouncil officers, as provided for in paragraph 5.k of this Stipulation and Order.

v. The Monitor must be given prior notice of, and is granted the authority to

review, all proposed changes to the by-laws, trust agreements, and any other rules, policies, and practices of the District Council and the Benefit Funds.

vi. Upon reviewing any matter described in paragraphs 5.b.i5.b.v, the Monitor may determine that the matter reviewed (a) constitutes or furthers an act of racketeering as defined in 18 U.S.C. 1961; or (b) furthers or contributes to theassociation, directly or indirectly, of any member, employee, officer, trustee, or representative of the District Council or the Benefit Funds with any barred

person; or (c) is contrary to or violates any law or Court order entered in thiscase; or (d) is contrary to any fiduciary responsibility imposed by 29 U.S.C. 501 or ERISA; or (e) is inconsistent with the purposes of the Consent Decree.Upon such a determination in the case of the District Council, the Monitor mayveto or require the District Council to rescind its action, proposed action, or lack of action. Upon such a determination in the case of the Benefit Funds, theMonitor must give written notice to the Benefit Funds that the action, proposedaction, or lack of action presents a reasonable basis to believe that the matter meets one of the conditions specified in this paragraph 5.b.vi.(a)(e), but theabsence of such notice may not be construed to establish a presumption of conformance with the Consent Decree or applicable law.

c. Access to Information . The Monitor is granted the authority to take such reasonablesteps that are lawful and necessary in order to be fully informed about the activities of the District Council and the Benefit Funds. Specifically, to discharge the duties andresponsibilities set forth in this Stipulation and Order, the Monitor must have accessto information as follows:

i. The Monitor is granted the right to attend all meetings of the District Council,any governing body or committee of the District Council, the District Councilmembership, the trustees of the Benefit Funds, or any governing body or


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violations of local, state, or federal law related to the activities of the District Councilor the Benefit Funds or the employment of District Council members; (3) any actualor suspected criminal violations of labor law by any person associated with theDistrict Council or the Benefit Funds, including employers of District Councilmembers; (4) any actual or suspected violations of any Court orders entered in this

case; and (5) any actual or suspected violations of any District Council collective bargaining agreement pertaining to payment of wages or benefits or the union securityclause. The District Council or the Benefit Funds may also elect to refer any other matter to the Monitor. In all cases where matters are referred to the Monitor, theMonitor, at his election, may accept the matter for investigation or may decline toinvestigate. In the event the Monitor informs the District Council or the BenefitFunds, as appropriate, that he will investigate a matter, the District Council and theBenefit Funds must take no action with respect to the matter unless authorized to doso by the Monitor. If the Monitor declines the matter for investigation, the DistrictCouncil or the Benefit Funds can investigate if it so chooses.

f. Disciplinary Authority . The Monitor is granted the responsibility and authority toensure that the District Council develops, implements, and maintains fair andeffective procedures to discipline officers, employees, agents, representatives, or members of the District Council and its constituent locals for misconduct.Misconduct as used herein includes, without limitation, any violation of federal,state, or local law; any violation of union rules, by-laws, or constitutional provisions;any violation of the Consent Decree or another order of this or any other court; or anyact that furthers the direct or indirect influence of organized crime or the threat of such influence now or in the future.

i. Within 30 days of the entry of this Stipulation and Order, the District Councilmust propose disciplinary procedures to the Monitor. Such procedures to be

proposed must provide for an adjudicatory body to determine whether chargesof misconduct have been established and, if so, what punishment or remedyshould be imposed on the person who has committed misconduct; for an officer to present charges of misconduct to the adjudicatory body; and for any other

procedure the Monitor specifies to the District Council. If the Monitor disapproves the procedures, the District Council must revise them by a datedetermined by the Monitor to address the Monitors objections. Once theMonitor approves the procedures proposed by the District Council (as revised if necessary), those procedures will take effect as soon as the Monitor determinesis practicable.

ii. In the event the Monitor disapproves the procedures proposed by the DistrictCouncil, and the District Council fails to revise the procedures to address theMonitors objections within 60 days of the entry of this Stipulation and Order,the Monitor may unilaterally implement disciplinary procedures. Within 30days of the Monitors unilateral implementation of disciplinary procedures, theDistrict Council may petition the Court to review the Monitors disciplinary


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procedures. Any such petition will be adjudicated under the same standard of review applicable to review of final agency action under the AdministrativeProcedure Act, 5 U.S.C. 701 et seq.

iii. The disciplinary procedures described above must provide for the Monitor to be

able to initiate disciplinary proceedings in a manner that is satisfactory to theMonitor.

iv. The Monitor must assess the operation of the disciplinary process, once it has been established in accordance with paragraphs 5.f.i and 5.f.ii of this Stipulationand Order, to determine if it is fair and effective. Within one year of the entry of this Stipulation and Order, the Monitor must report in writing to the Court onthe operation of the disciplinary system, and such report must be served uponthe Government and the District Council.

v. At any time, if the Monitor determines, in his sole and unreviewable discretion,

that the disciplinary process as it is being conducted by the District Council isnot fair or effective, the Monitor may require the District Council to makewhatever changes the Monitor determines are necessary. Such changes may, if the Monitor deems it necessary, include the appointment of an independentadjudicator or independent officer responsible for presenting disciplinarycharges. The District Council, the Monitor, and the Government will negotiatein good faith to appoint such persons and determine reasonable costs for their service, such costs to be borne by the District Council.

g. Litigation Authority . The Monitor is granted the right to authorize the initiation of civil actions on behalf of the District Council to recover damages incurred by theDistrict Council arising from any actions within the Monitors authority under thisStipulation and Order. That litigation authority may extend to any civil action thatcould be timely filed on behalf of the District Council. Notwithstanding paragraph 4of this Stipulation and Order, the Monitor must consult with appropriate officials of the District Council before any such litigation is initiated, and must periodically reportto the District Council on the progress of the litigation.

h. Proposed Changes to District Council and Benefit Funds Operations . TheMonitor is directed to study the operations of the District Council and the BenefitFunds, and to make recommendations and implement changes and programs asdescribed below:

i. The Monitor may develop and mandate educational and training programs andstandards for all officers, employees, and representatives of the District Council,including but not limited to business managers, business agents, businessrepresentatives, shop stewards, field representatives, delegates, and organizers.


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ii. The Monitor may develop and recommend educational and training programsand standards for all officers, employees, trustees, and representatives of theBenefit Funds.

iii. The Monitor must conduct an assessment of the overall functioning and

effectiveness of the Job Referral Rules, including without limitation whether they effectively further the objectives of the Consent Decree. The Monitor mustissue a report to the Court, the Government, and the District Council settingforth the findings of his assessment of the Job Referral Rules and hisrecommendations.

iv. The Monitor must conduct an assessment of the functioning and effectiveness of the electoral process governing elections of the District Council ExecutiveBoard, delegate body, and any other elected office. This assessment shouldinclude, without limitation, the Monitors assessment of which District Councilofficers and representatives should be elected directly by the District Councils

members, elected by the District Councils delegate body, or appointed by theDistrict Council, consistent with governing law and the terms and objectives of this Stipulation and Order and the Consent Decree. The assessment should alsoinclude the Monitors assessment of the District Councils governing structure,including whether any offices should be eliminated or created and what powersthe holders of those offices should have. The Monitor must issue a report to theCourt, the Government, and the District Council setting forth his findings andrecommendations.

v. The Monitor must conduct an assessment of the District Councils constituentlocals. The assessment should include, without limitation, an assessment of thedivision of the District Council into constituent local unions, whether thatstructure positively or negatively affects the achievement of the objectives of theConsent Decree and this Stipulation and Order, and whether a different structurewould more effectively further those objectives. The Monitor must issue areport to the Court, the Government, and the District Council setting forth hisfindings and recommendations.

vi. The Monitor must conduct an assessment of the Benefit Funds, including theinteraction between District Council and Benefit Funds operations. Theassessment should include, without limitation, an assessment of whether theBenefit Funds are administered in a way that furthers the goals of the ConsentDecree and this Stipulation and Order, is consistent with ERISA, and thatmaximizes the benefit to the Benefit Funds beneficiaries. The assessmentshould also include an assessment of the structure of the Benefit Funds, theallocation of contributions to the Benefit Funds by employers and DistrictCouncil members, and whether that structure and those allocations positively or negatively affect the achievement of the objectives of the Consent Decree andthis Stipulation and Order, and whether a different structure or allocation would


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more effectively further those objectives. The Monitor must issue a report to theCourt, the Government, the District Council, and the Benefit Funds setting forthhis findings and recommendations.

vii. The Monitor must study and make recommendations concerning any other

factors, practices, and procedures that will effectively prevent, deter, detect, andaddress wrongdoing and corruption by or related to the District Council, itsmembers, and the Benefit Funds.

viii. With respect to any of the reporting obligations set out in this paragraph 5.h, theMonitor must, within 30 days of the entry of this Stipulation and Order, providethe Court, the Government, the District Council, and the Benefit Funds with atimetable specifying when each of these reports is to be issued, providing that atleast one report will be issued every six months.

ix. With respect to any recommendations the Monitor makes under this paragraph

5.h, the Monitor must apprise the Government, the District Council, and theBenefit Funds of any such recommendations. The Monitor may, in consultationwith and with the consent of the Government and either the District Council, theBenefit Funds, or both (whichever entity is affected), implement suchrecommendations. In the event the District Council or the Benefit Funds doesnot consent to implementation of the Monitors recommendations as required bythe prior sentence, the Monitor may petition the Court to require the DistrictCouncil or the Benefit Funds to implement the changes the Monitor deemsappropriate, and the Government, the District Council, and the Benefit Fundswill be given notice and an opportunity to be heard regarding such petition,

provided that the Monitor may not petition the Court to implement changesdescribed in paragraph 5.h.v above.

i. Communication with the Membership . The Monitor may distribute to the DistrictCouncil membership written reports describing the activities of the Monitor or anyother information he deems advisable. The Monitor may determine in his discretionwhen to publish such reports, and must be given access to any District Council

publication that concerns the affairs of the union, including The Carpenter or anyother newsletter, and any District Council web site, e-mail address list, or other meansof electronic communication, to communicate with the membership. The Monitor may also communicate to the membership in person, at meetings or otherwise.

j. Job Referral Rules . The Monitor must supervise the implementation and operationof the Job Referral Rules, including implementation and operation of any stipulated or Court-approved changes to the Job Referral Rules. If the Monitor determines thatthere has been a violation of the Job Referral Rules, the Monitor may issue anydirection to the District Council as may be appropriate to remedy the violation.


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k. Supervision and Conduct of Elections .

i. The Monitor is empowered to supervise all phases of any union electionconducted by the District Council during his tenure, and to certify the results of any such election. The term supervise as used herein has the meaning

ascribed to it in cases arising under Title IV of the Labor-ManagementReporting and Disclosure Act, 29 U.S.C. 481 et seq.

ii. The Monitor must propose rules and procedures for the conduct of elections nolater than 120 days before the first election during his tenure is to occur. Therules must set out procedures for nomination of candidates, dissemination of information about nominated candidates to the membership at union expense,and the conduct of the final secret-ballot election. The rules must seek to ensurethat those eligible members who reside outside of the New York metropolitanarea are able to vote. Draft rules will be disseminated to the membership, bymeans deemed appropriate by the Monitor, for comment. The Monitor must

consider any such comments, then promulgate the final rules for the election bysubmitting an application to this Court. When approved by the Court, the finalrules will be incorporated into, and made a part of, the By-Laws of the DistrictCouncil.

iii. The Monitor is granted the authority to prescribe threshold qualifications consistent with section 401 of the Labor-Management Reporting and DisclosureAct, 29 U.S.C. 481, and 29 C.F.R. 452.32 et seq.for any candidateseeking a position as an officer of the District Council, provided that theMonitor may not remove any qualification for office prescribed by the UBCConstitution as of the date of this Stipulation and Order.

iv. Any candidate seeking to run for a position as an officer of the District Councilduring the Monitors tenure must first be approved by the Monitor, who willdetermine whether in light of the terms and objectives of the Consent Decree thecandidate is qualified to run for office and represent the union membership.Any such decision by the Monitor will be final and non-reviewable.

l. Retention of Records . No later than 60 days after entry of this Stipulation andOrder, the District Council and the Benefit Funds must provide the Monitor with acomprehensive records retention schedule applicable to all records of the DistrictCouncil and the Benefit Funds, respectively. Upon the Monitors request, the DistrictCouncil and the Benefit Funds must notify the Monitor prior to the destruction of anyspecified record or category of records described in the records retention schedule. Inaddition, the District Council and the Benefit Funds must not destroy any records or documents of any kind prior to 90 days from the entry of this Stipulation and Order,except with the written approval of the Monitor.


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m. Reports to the Court .

i. The Monitor may report to the Court whenever the Monitor deems fit but, in anyevent, must file a written report not less than every six months regarding theMonitors activities. Copies of all reports to the Court must be timely served on

the Government and on the District Council and the Benefit Funds. At leastonce each year, the Monitors reports as described in this paragraph 5.m mustinclude the Monitors assessment of the state of the District Council and theBenefit Funds, their progress toward achieving the objectives of the ConsentDecree and this Stipulation and Order, and the Monitors recommendations for the District Council and the Benefit Funds going forward.

ii. The Monitors reports as described in this paragraph 5.m and elsewhere in thisStipulation and Order should be filed on the public docket in the above-captioned case, unless the Monitor determines that public filing will be

prejudicial to an investigation or to the Monitors activities pursuant to this

Stipulation and Order. If the Monitor so determines, the Monitor (a) must filethe report under seal, but must file as much of the report on the public docket as

possible without causing the identified prejudice; (b) must provide the Court,the Government, the District Council, and the Benefit Funds with a justificationfor the sealed filing, which may also be filed under seal if necessary to avoid theidentified prejudice; and (c) must, no less often than once a year, review thesealed report to determine if the seal is still necessary, and either publicly filethe report if the seal is not still necessary or provide notice to the Court, theGovernment, the District Council, and the Benefit Funds of the justification for continuing the seal. The Government, the District Council, the Benefit Funds,or any person aggrieved by the sealing or continued sealing of a report may

petition the Court to unseal the report, and the Court may unseal the report inwhole or in part upon a determination that the interest in unsealing the reportoutweighs the justification for sealing it.

iii. Neither the reporting obligation in this paragraph 5.m nor any other reportingobligation in this Stipulation and Order precludes the Monitor from offering, or the Government, the Court, the District Council, or the Benefit Funds fromsoliciting, the Monitors interim advice or opinion on any matter.

6. Independent Investigator; Toll-Free Hotline . The office of Independent Investigator, asestablished by the December 2002 Stipulation and Order and the August 2005 Order, iseliminated, subject to the following provisions.

a. Unitel, currently serving in the office of Independent Investigator, will continue tohold office for a transition period of 30 days after the entry of this order. Unitel isdirected to brief the Monitor on the operations conducted by the IndependentInvestigator, including the telephone hotline; advise the Monitor of the status and

pendency of any investigations or inquiries the Independent Investigator has been


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conducting; make recommendations to the Monitor with respect to leads to befollowed, complaints to be investigated, and further actions to be taken in order for the Monitor to effectively discharge the responsibilities of his office; and, inconsultation with the Monitor, otherwise assist the Monitor in effecting the transitionof the Independent Investigators duties to the Monitor. The thirty-day transition

period may be extended if the Monitor and Independent Investigator agree that anextension is necessary for an effective and orderly transition.

b. The toll-free telephone hotline described in paragraph 2.e of the August 2005 Order will continue as provided in that order, and will be operated by the Monitor in placeof the Independent Investigator to solicit and receive allegations of wrongdoing or corruption by any person in connection with the operations of the District Council or the Benefit Funds. Paragraph 2.e of the August 2005 Order remains in effect, exceptthat the Monitor is substituted for the Independent Investigator, and to the extent that

paragraph refers to the scope of the Independent Investigators investigative authority,the provisions are amended to incorporate the scope of the Monitors investigative

authority as provided in the present Stipulation and Order. The operation of thehotline will be transferred from the Independent Investigator to the Monitor as soon as

possible during the transition period described in paragraph 6.a above.

c. The District Council is directed to pay Unitel a reasonable amount in compensationfor services reasonably rendered to ensure an orderly and effective transition, asdescribed in this paragraph. The District Council and Unitel are directed to attempt inmutual good faith to agree upon the amount of compensation required. Any disputeswill be resolved by the Court upon the written application of the District Council,Unitel, or the Government.

d. During the transition period and thereafter, the Monitor is to have full and completeaccess to all records and documents of the Independent Investigator, in whatever form, concerning or relating to the District Council, and the functions and duties

performed by the Independent Investigator.

e. Except as specifically described in this paragraph 6, the provisions of the December 2002 Stipulation and Order and the August 2005 Order remain in effect as modified

by subsequent orders of the Court.

7. Cooperation . The District Council and the Benefit Funds, including all officers,employees, trustees, and members, must cooperate with the Monitor in any matter undertaken by the Monitor pursuant to this Stipulation and Order. Failure to cooperate withthe Monitor is a violation of this Stipulation and Order punishable by contempt of court.

8. Compensation, Term, and Hiring Authority .


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a. Hiring . The Monitor may employ or engage the services of any personnel necessaryto assist in the proper discharge of the Monitors duties. The Monitor is also grantedthe authority to designate persons of his choosing to act on his behalf in performingany of his duties as outlined in this Stipulation and Order.

b. Compensation and Expenses .

i. The compensation and expenses of the Monitor, and of all persons hired under his authority except as specified in paragraph 8.b.ii, must be paid by the DistrictCouncil. The parties agree that the Monitors expenses will typically be

between $65,000 and $85,000 per month for the total cost of the Monitorsactivities, but that the actual cost may be less or more in any particular month.

ii. In addition to the expenses specified in paragraph 8.b.i, the Monitor may employor engage the services of additional investigators. The parties agree that the costof each such investigator will typically be between $70,000 and $90,000 per year, but that the actual cost may be less or more. These expenses will be paid

by the District Council or by the New York City and Vicinity Carpenters Labor-Management Corporation.

iii. To effectuate this provision, the District Council must deposit $75,000 withinfive days of the entry of this Stipulation and Order with the Monitor. Thedeposit will be kept by the Monitor, who may draw on it in the event the DistrictCouncil is delinquent on making the payments described below. If the Monitor draws on the deposit, the District Council must replenish the deposit by theamount the Monitor drew from the deposit. At the end of the Monitors tenure,the balance remaining on deposit with the Monitor will be returned to theDistrict Council.

iv. The Monitor will provide monthly statements to the District Council and theGovernment setting forth an accounting of all claimed compensation andexpenses, including time and activity records or other appropriate supportingmaterials. The District Council must pay the Monitor the total amount specifiedin the monthly statement within twenty days. Notwithstanding the division of expenses described in paragraph 8.b.ii above, failure to timely pay the amountspecified in the Monitors monthly statement is a breach of this Stipulation andOrder by the District Council and may be punishable as contempt of court.

v. Within 30 days of the Monitors submission of his monthly statement, theDistrict Council may challenge the amount specified in the statement, or anyexpenses detailed in that statement, by filing a written objection with the Court.Such an objection, however, does not relieve the District Council of itsobligation to pay the monthly statement within the time specified in paragraph8.b.iv. If the District Council is successful in its challenge, it will be entitled to


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a credit in the amount by which the compensation and expenses are reduced bythe Court.

c. Term of Monitor . The authority of the Monitor will extend for 30 months from theentry of this Stipulation and Order by the Court, except that the Monitor may continue

and complete any disciplinary and review matters initiated before the termination of his term.

i. Upon consent of the District Council, the Government, and the Monitor, theCourt may extend the term of the Monitor for any period.

ii. The Monitor may apply to the Court to extend or reduce the length of his term, by six months or less, upon a showing of good cause and upon notice to theGovernment and the District Council.

iii. The District Council or the Government may petition the Court, on notice to the

parties and the Monitor, to dismiss the Monitor for good cause. If the Monitor is dismissed upon such a petition, or otherwise fails to complete his term of office, the Government and the District Council must promptly meet to discussthe appointment of a replacement Monitor. In the event the parties are unable toagree, the Government must promptly submit a list of replacement candidates tothe Court; the District Council must also submit a list of replacementcandidates; and the Court must promptly select the candidate from the listssubmitted to the Court who is best qualified to further the objectives of theConsent Decree and this Stipulation and Order.

9. Indemnification . The District Council must indemnify out of its own funds the Monitor and any persons hired by or acting on behalf of the Monitor from personal liability (and anycosts incurred to defend against any claim of liability) for any of their actions taken

pursuant to Stipulation and Order. In addition, the Monitor and any persons designated or hired by the Monitor to act under this Stipulation and Order are to be entitled to whatever

privileges and immunities from personal liability that may exist under the law for court-appointed officers.

10. Modification of th

Documents

2014-08-25 Torrance Decl Re Nee Remand