Case 1:90-cv-05722-RMB Document 1704 Filed 09/16/16 Page 1 of 25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,

90 Civ. 5722 (RMB)

-againstDISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, et al.,
Defendants.

THIRD INTERIM REPORT OF THE INDEPENDENT MONITOR

GLEN G. McGORTY
JOANNE R. OLEKSYK
Crowell & Moring LLP
590 Madison Avenue, 20th Floor
New York, NY 10022
(212) 223-4000
gmcgorty@crowell.com
joleksyk@crowell.com
Office of the Independent Monitor,
District Council of New York City
and Vicinity of the United
Brotherhood of Carpenters and
Joiners of America
September 16, 2016

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TABLE OF CONTENTS
I.

INTRODUCTION .............................................................................................................. 1

II.

THE DISTRICT COUNCIL ............................................................................................... 2
A.

Efforts in the High-Rise Concrete Sector ............................................................... 2

B.

Information Technology Upgrade........................................................................... 3

C.

OWL Rules ............................................................................................................. 4

D.

Goals ....................................................................................................................... 7

E.

III.

IV.

IT Upgrades ................................................................................................ 7

2.

Accounting Department .............................................................................. 7

3.

Oversight Policies and Tools for the Council Representative Center......... 8

4.

Revisions to the Bylaws and Policies ......................................................... 8

5.

Grievances Department............................................................................... 8

Litigation................................................................................................................. 9
1.

Ongoing Matters ......................................................................................... 9

2.

New Matters.............................................................................................. 10

THE BENEFIT FUNDS ................................................................................................... 11
A.

Condition of the Funds.......................................................................................... 11

B.

New Leadership .................................................................................................... 12

C.

Litigation............................................................................................................... 13

D.

Goals ..................................................................................................................... 14

THE OFFICE OF THE INDEPENDENT MONITOR..................................................... 14
A.

Goals Project......................................................................................................... 14

B.

Election Oversight ................................................................................................ 14

C.

Miscellaneous Investigations and Referrals.......................................................... 16

D.
V.

1.

1.

Council Representative Investigation ....................................................... 17

2.

Local Union Member Relief Fund Investigation ...................................... 17

3.

Working Dues Investigation ..................................................................... 19

4.

Jacob K. Javits Convention Center Investigation ..................................... 20

5.

Investigation of the Benefit Funds............................................................ 20

6.

Carpenters Training Center Instructor Termination Investigation............ 21

Review of the IG Office........................................................................................ 21

CONCLUSION................................................................................................................. 22
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I.

INTRODUCTION
Pursuant to Paragraph 5.l.iii of the Stipulation and Order filed in this matter on April 18,

2016 (the “2016 Stipulation and Order”), I respectfully submit this Third Interim Report as the
Independent Monitor (“IM”) of the District Council of New York City and Vicinity of the United
Brotherhood of Carpenters and Joiners of America (the “District Council” or “Union”), and its
affiliated Taft-Hartley fringe benefit funds (the “Benefit Funds” or the “Funds”). Herein, I
provide my assessment of the progress towards achieving the objectives of the 2016 Stipulation
and Order and the Consent Decree approved by the Court on May 4, 1994; my view on the
sustainability of reforms previously implemented; and my recommendations going forward. In
this Third Interim Report, I endeavor to do so in a more focused manner than in past Reports in
order to streamline the effort and conserve Union resources. Therefore, I have omitted the
general overview of departments where there have been no material developments related to the
objectives of the 2016 Stipulation and Order and the Consent Decree. Should the Court desire
additional information, it will be provided in a supplemental filing.
Before delving into developments at the District Council and the Benefit Funds, I should
begin by summarizing the renewal of the monitorship. As the Court is aware, my first term
began on January 1, 2015, pursuant to the prior Stipulation and Order filed in this matter on
November 14, 2014 (the “2014 Stipulation and Order”), and expired on March 31, 2016.
Following discussions among the District Council leadership, the Benefit Funds’ Trustees, their
respective counsel, and the Government, the parties agreed to extend the monitorship for another
year to continue our crucial efforts to ensure compliance with the objectives of the Consent
Decree. This current term will expire on March 31, 2017.

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I have engaged in conversations with the District Council and the Benefit Funds to
establish concrete goals for the organizations to reach in order to transition to self-monitoring or,
at a minimum, a more limited form of outside supervision. Those goals-related conversations are
discussed in more detail below. While I know the Consent Decree itself and its anti-corruption
principles will always be in place, my top priority remains readying that the District Council and
the Benefit Funds to prosper within a compliance-first environment without the daily scrutiny of
a Court-appointed monitor.
II.

THE DISTRICT COUNCIL
A.

Efforts in the High-Rise Concrete Sector

As discussed in the Second Interim Report of the Independent Monitor, ECF No. 1653 at
10, the United Brotherhood of Carpenters (the “UBC” or the “International”) created Local 212
to organize high-rise concrete workers. Pursuant to Section 10(M) of the UBC Constitution, the
officers and other representatives of Local 212 were appointed by the General President of the
UBC. My team reviewed all appointments and I had no objections to the International’s final
selections. There is no specific time frame given for the term of these appointed officers, but it
has been the practice that officers appointed in such a way could serve no more than 18 months
without an election. The common sense approach for Local 212 is to have the appointed
officers, delegates, executive committee members and trial committee members serve until June
2017 when the next local elections are scheduled for all Locals to elect their executive boards.
Additionally, the District Council expanded its program of lower cost Provisional
Journeymen Carpenters from residential and hospitality construction to all high-rise concrete
jobs. There are now approximately 175 such Provisional Journeymen Carpenters. The program
is jointly run by the Area Standards and Council Representative Departments. Currently, a
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contractor seeking to utilize Provisional Journeymen Carpenters calls the job into the Area
Standards Department so that the number of Provisionals permitted by the ratio specified in the
collective bargaining agreement (“CBA”) with The Cement League can be verified. The
notification of the Area Standards Department of job-starts also allows the Department to keep
tabs on the demand for Provisional Journeymen Carpenters, which informs its recruitment
efforts. Once a job has been called in, the Council Representatives then assign Provisional
Journeymen Carpenters from those who are available and fit the contractor’s needs. A Council
Representative accompanies the Provisional Journeymen Carpenters to the jobsite on the first
day to make sure their addition to the workforce goes smoothly. One area of transition has been
familiarizing the Provisional Journeymen Carpenters with concrete form work that is simply not
used in nonunion construction.
The goal for the program is to completely transition experienced Provisionals to the Out
of Work List (“OWL”) for referral by the end of the year, while the Council Representative
Department will continue to place new Provisional recruits at their first jobs. Concentrated
education efforts have been and will continue to be made to inform the contractors that they must
call the OWL to be referred Provisional Journeymen Carpenters, and to inform the Provisional
Journeymen Carpenters to utilize the OWL when they are out of work. Communication among
the OWL, Area Standards, and Council Representative Departments regarding the utilization of
Provisional Journeymen Carpenters will be crucial to ensure the program is administered fairly
towards both new recruits and experienced Provisional Journeymen Carpenters.
B.

Information Technology Upgrade

Data Research Group (“DRG”) continues to make progress in its development of the
District Council’s new IT system, which is paramount in cementing the compliance protocols
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initiated by my predecessor, fostered during my first term, and maintained by the District
Council’s leadership. The Compliance module, which houses applications for Grievances,
Charges, Shop Steward Reviews, and the Office of the Inspector General’s case management
system, some of which require additional layers of internal security, has been completed. The
Jobs modules are still in the testing phase, and both the Compliance and the Jobs modules have
an expected conversion date by the end of September 2016. The electronic reporting component
will be integrated in the following weeks. The OWL module, which interfaces with the Jobs
module, is scheduled for conversion in October 2016. The Area Standards module is being
prepared for beta-testing and is expected to be completed by November 2016. Council
Representatives will utilize many of these systems, so that the department’s IT upgrade is limited
to developing “views” and a note-taking capability. In sum, it is expected that the District
Council will be fully converted to DRG’s platform by the end of 2016. Though long in the
making, this IT upgrade is necessary for the District Council to serve its membership in an
efficient, compliant, and transparent way. The transition of all of the District Council’s activities
to a single platform will allow previously time-intensive tasks to be automated, and allow
members to have access to a wealth of information through a single online portal.
C.

OWL Rules

In my First Interim Report, I indicated that the OWL rules would benefit from an
“overhaul in the interest of creating a streamlined document (or documents) which sets forth the
rules in a clear manner to the intended audience, and reflects the present environment of modern
technology and full mobility.” First Interim Report of the Independent Monitor at 14, ECF No.
1628. In response to my request, counsel for the District Council labored to create a
comprehensive and clear version of the OWL rules which were submitted to my office for
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review. This quarter, I expect to provide the District Council with any comments on the
documents for consideration and adoption.
Also addressed in my last report, there have been many discussions concerning potential
changes to the OWL rules, both within the OWL Rules Working Group and with my office.
Primarily, these discussions have related to concerns that the three-referral rule creates unfair
scenarios because it has no sensitivity to the hours received from the referrals, meaning that an
individual could be referred to a years-long job and then return to the top of the OWL when it
ends; similarly, an individual could be referred three times to jobs that amount to only a handful
of hours in total. As I have previously stated, I will consider all proposals to modify the OWL
referral rules, as long as compliance is not negatively impacted.
In my Second Interim Report, I called for statistics to support any move away from the
current referral-based rule. Second Interim Report of the Independent Monitor at 12, ECF No.
1653. To further an informed discussion about the referral rules for the OWL, the District
Council provided my team with some statistics on the number of days of work obtained from a
carpenter’s three referrals before the carpenter was dropped from the OWL. Those statistics,
which come from the one-year period commencing January 2015, are as follows:
Number of
Days Worked
from 3
Referrals
<5
5-9
10-14
15-24
25-49
50-74
75-99
>100
5

Number of
Carpenters
198
452
386
633
891
474
354
1596

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These statistics show that approximately one-third of carpenters who place
themselves on the OWL receive less than 25 days of work from their three referrals and more
than half receive less than 50 days. This shows that while the OWL continues to provide
carpenters with an opportunity to demonstrate their capabilities to an employer, these
opportunities often do not result in long-term work assignments. This is not necessarily a
problem, as the current referral-based OWL rule attempts to provide equal opportunities rather
than equal outcomes for carpenters with varying skill levels who work in various industries.
However, the leadership of the District Council has expressed a desire to render
the OWL a safety net for unemployed carpenters by guaranteeing them a certain number of days
or hours of work before they will be dropped from the list. In the past, a days-based OWL rule
produced the problems of skill-puffing and job-quitting. Final Report of the Review Officer at 7,
ECF No. 1602. Given that 250 hours of work per quarter is required for members of the District
Council to qualify for Welfare Fund benefits the following quarter, I recognize that helping all
members attain that minimum hours of work is a valid objective for the benefit of the
membership. The data provided above constitute a partial answer: the data show that at least 1 in
3 carpenters who cycle through the OWL are not receiving the minimum number of days of work
in an OWL cycle to qualify for benefits. This leads to the obvious question: how quickly is the
OWL cycling for those receiving less than 250 hours of work per OWL cycle? If the majority of
carpenters receiving relatively few days of work before being dropped from the OWL would,
upon signing up again, be referred from the OWL again within the quarter, the current referral
system may be consistent with the goal of helping all members attain the minimum hours
necessary to qualify for health benefits.

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If it turns out that members who are receiving few days from their OWL referrals
are, after replacing their names on the OWL, not rising through the list to be referred again
within the quarter, this will provide empirical proof that the current referral system does not align
with the District Council’s stated objectives. In this event, I would be open to modifications to
the current rules, provided that a plan of enforcement is in place to adequately protect against a
return to skill-puffing and job-quitting.
D.

Goals
Earlier this year, I had a preliminary meeting with the Executive Secretary-

Treasurer (“EST”) of the District Council to discuss objectives that must be met in order for me
to recommend that the monitorship in its current form be concluded. We have identified a
handful of areas where concrete steps in furtherance of the purposes of the Consent Decree need
to be taken. It is imperative that the systems of the District Council function consistently and
effectively to guard against corruption. We have preliminarily identified the following areas:
1.

IT Upgrades

As described above and discussed in prior interim reports, the upgrade to the District
Council’s IT systems is essential for the District Council to serve its membership in an efficient,
compliant, and transparent manner. Assuming DRG’s estimates are correct, and all systems are
in place and functioning by the end of the year, there will be some time before the expiration of
the current monitorship term to assess whether these functions are working properly.
2.

Accounting Department

The Audit Committee commissioned an audit of the Accounting Department. The
resulting Audit Report is attached as Exhibit 1. The District Council must implement the
recommendations of the Audit Report. In addition, the Independent Monitor’s office has been
provided with a draft of the Accounting Department’s operating manual and offered some edits
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and suggestions, which were accepted and incorporated into the manual. The manual has been
submitted to the Office of the United States Attorney for review.
3.

Oversight Policies and Tools for the Council Representative
Center

The Council Representative Center has a very flat organizational structure, with dozens
of Council Representatives reporting to only three managers. The limitation of managerial
bandwidth has come to light in a recent investigation by the Inspector General (“IG”), where a
deficiency in jobsite attendance by a Council Representative was uncovered. Tracking the
movement of Council Representatives in the field is currently burdensome for both the
management and the Council Representatives. This burden should be alleviated with the new IT
system, and policies and procedures that reflect the new system can be put in place to aid the
Council Representative Center’s managers with oversight of the agents in the field.
4.

Revisions to the Bylaws and Policies

The Bylaws and some policies of the District Council need to be revised to account for
post-monitor governance. More than one year ago, a working group was convened to propose
revisions to the Bylaws. I anticipate reviewing the proposed revisions and their passage.
5.

Grievances Department

I have reported on a backlog of grievances in my First Interim Report, ECF No. 1628 at
27, and my Second Interim Report, ECF No. 1653 at 20-21. The District Council has taken
some steps to address this backlog, including efforts aimed at categorical resolutions, with the
approval of my office. The backlog must continue to be addressed and some assurance must be
provided that such a backlog cannot rebuild in the future.

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6.

Trial Committee and Office of the Inspector General

My office has made a series of recommendations regarding the Trial Committee process
and procedures and expects to do the same upon completion of its review of the Office of the
Inspector General (“IG Office”), which is referenced below. The District Council must address
the recommendations of the reports from my office, both issued and forthcoming, either by
implementing the recommendations or making other changes to alleviate the concerns voiced
therein.
I intend to meet again with the District Council’s leadership in the next month to discuss
objectives at a greater level of specificity and draft a more concrete list of goals.
E.

Litigation
1.

Ongoing Matters

Below we have summarized on-going litigations involving the District Council in federal
and state court:

United States v. District Council of N.Y.C. and Vicinity, No. 15-3300-cv (2d Cir. filed
Oct. 16, 2015), on appeal from No. 90-CV-5722 (RMB) (S.D.N.Y. Sept. 16, 2015).
Former Executive Delegate and Shop Steward to the District Council, John Daly,
appealed to the Second Circuit this Court’s affirmation of his removal. Briefing has been
completed and oral argument took place on September 12, 2016.

New York City & Vicinity Dist. Council v. Association of Wall-Ceiling & Carpentry
Indus. of NY, No. 14-CV-6091 (RMB) (S.D.N.Y. filed Aug. 5, 2014). On June 20, 2016,
the Second Circuit vacated Your Honor’s decision in this matter and remanded for Your
Honor to reconsider approval of the CBA in light of the arbitrator’s interpretation of the
agreement.

Creative Constr. Servs. Corp. et al. v. District Council of N.Y.C. and Vicinity, No. 14CV-07629 (AKH) (S.D.N.Y. filed Sept. 19, 2014). This is an action filed by a signatory
contractor and its principal under 42 U.S.C. Section 1981 and New York City’s Human
Rights Law. Plaintiffs allege, among other things, that the District Council purposely
referred “unproductive and unskilled employees,” including Shop Stewards, to the
contractor because of its and its principal’s minority status. The parties are currently in
the discovery process. There are no settlement proposals pending.
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The Cement League and District Council of N.Y.C. and Vicinity, Joint Petitioners v.
National Nat’l Labor Relations Bd., Respondent, and Northeast Regional Council of
Carpenters, Charging Party Intervenor, No. 16-495 (2d Cir. filed Feb. 19, 2016). This is
an appeal by The Cement League and the District Council of a decision and order of the
National Labor Relations Board finding that the one-to-one matching provisions under
the anti-corruption features of full mobility in The Cement League-District Council CBA
violate the National Labor Relations Act. The joint petitioners filed their briefs and
supporting appendices with the Second Circuit on June 30, 2016. The briefs of the
NLRB and the Northeast Regional Council of Carpenters are due on September 29, 2016.

Herzog v. NYC Dist. Council of Carpenters Pension Fund, et al., No. 154427/2015 (N.Y.
Sup. Ct. N.Y. Cnty. filed May 4, 2015). Arbitrator Robert Herzog brought this action
seeking fees allegedly owed to him for serving as the arbitrator in numerous proceedings
involving delinquent Benefit Funds’ contributions. The District Council’s and the Funds’
motions to dismiss the complaint were granted, but that ruling was reversed on appeal.
All defendants have filed answers at this time and the Funds filed with the appellate court
a motion for reconsideration supported by the District Council.
For additional detail, please refer to my First and Second Interim Reports, ECF

Nos. 1628 at 37-39, and 1653 at 24-26.
2.

New Matters

Below we have summarized notable new litigations involving the District Council:

Stampone v. Walker (Director of Operations) and New York City Dist. Council of
Carpenters, et al., No. 15-cv-6956 (JLL) (JAD) (D.N.J. filed Sept. 18, 2015). This action
is by a pro se plaintiff who is a member and Shop Steward against the District Council,
the Funds, and the Northeast Regional Council of Carpenters Pension Fund. The
amended complaint makes a multiplicity of claims for relief. On August 30, 2016, a
conference with the pro se plaintiff and counsel for the District Council and the defendant
Funds was held before a Magistrate Judge. The District Council anticipates working
through the Magistrate Judge and the Court to resolve the case.

BD Dev., LLC v. District Council of N.Y.C. and Vicinity, No. 16 CV 1073 (LDH) (CLP)
(E.D.N.Y. filed Mar. 3, 2016). This action, by a contractor without a CBA with a
Building and Construction Trades Council union, alleges violations of secondary boycott
law and seeks unspecified damages of added labor costs, lost profits, and related
expenses, allegedly caused by the District Council engaging in area standards and
publicity activities, at several construction sites in Queens and Brooklyn. The District
Council answered the complaint and discovery commenced, but, at plaintiff’s request, the
lawsuit was voluntarily dismissed on August 26, 2016 without costs or fees payable by
any party.
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III.

THE BENEFIT FUNDS
A.

Condition of the Funds

The Pension Fund held in excess of $2.85 billion in assets as of June 30, 2016, achieving
investment growth of approximately 2.59% in the course of the first two quarters of 2016. The
Pension Fund was 95% funded as of July 1, 2016. This figure is based on the July 1, 2015
actuarial valuation and review. The Welfare Fund held over $450 million in assets as of June 30,
2016, and experienced investment growth of approximately 2.5% over the first two quarters of
2016. The Annuity Fund exceeded $2.1 billion in assets as of June 30, 2016. The Hollow Metal
Pension Fund had approximately $108 million in assets and was 84% funded as of January 1,
2015.
The Trustees have been mindful of fees paid to outside financial advisors. In 2015, the
Trustees requested that Arthur J. Gallagher & Co., which serves as an investment consultant to
the Funds, conduct a Fee Benchmarking Analysis of the retirement plan recordkeeping service
provider for the Annuity Fund. Although Gallagher found that fees for that service provider
were within the range of reasonability for a fund of its size, the Trustees decided to issue an RFP
for the position earlier this year. Though the Trustees ultimately chose the existing service
provider, they were able to negotiate lower fees, saving $274,000 per year.
As the Court is well aware, there has been significant discussion over the last six months
regarding the Court’s interest in the Trustees’ solicitation of outside auditors to evaluate whether
its current financial advisors’ methodologies are consistent with, if not surpassing, typical market
practices. After much back-and-forth between the Court and counsel for the Funds, I am
genuinely confident that the Trustees will devise an outside review that will satisfy the Court,
and that the Funds can engage in such an inquiry without fear that whatever recommendations
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are made will be binding on them. I expect in the coming weeks that the Co-Chairs of the
Trustees, Funds counsel, and I will meet with the Court to further discuss this project.
B.

New Leadership

After a lengthy search for an Executive Director, the Trustees of the Funds have filled the
position of Executive Director. David B. Stewart commenced his employment as Executive
Director of the Funds in June 2016. His CV is attached as Exhibit 2. Previously, Mr. Stewart
served as the Assistant Funds Director at the Northeast Carpenters Funds, and prior to that, he
served as the Funds Director at the Empire State Regional Carpenters Benefit Funds. Mr.
Stewart is CEBS certified and has expertise in benefit program design; plan documentation and
reporting; regulatory compliance and audits; and policy and procedure development and
implementation.
In addition, the Funds have established a new position: Chief Financial Officer. Robert
W. Lesniewski has joined the Funds in this role, and his CV is attached as Exhibit 3. Prior to
joining the Funds, he served as the Director of Finance and Administration at the New York
State United Teachers and previously as the Deputy Executive Director of Administration and
Chief Financial Officer of the New York State Nurses Association. Also CEBS certified, Mr.
Lesniewski brings expertise in accounting oversight, member services management, and plan
administration.
The Trustees have also recently hired Allan M. Bahn to serve as the new Chief
Compliance Officer. His CV is attached as Exhibit 4. Mr. Bahn is an attorney with decades of
investigative experience in government as well as private practice, and he has a high level of
familiarity with the construction industry. Prior to entering private practice, Mr. Bahn served as
the Deputy Inspector General for the Metropolitan Transportation Authority, and was previously
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employed as the Deputy Commissioner for the New York City Department of Citywide
Administrative Services.
The combined experience of Messrs. Stewart, Lesniewski, and Bahn will no doubt be of
great value to the Funds. I would like to take this opportunity to thank Regina Reardon for her
year of service as Interim Executive Director. Ms. Reardon came to the Funds at a crucial
juncture, and continued to build on the progress the Funds have made over the last several years.
I am grateful for her commitment to the Funds for many more months than originally anticipated.
Likewise, I would like to thank Julie Block for her service as the Funds’ first Chief Compliance
Officer. During her tenure, she made incredible strides in training the workforce of the Funds in
contemporary information security and compliance measures, and developed and maintained
compliance standards essential to safeguarding the members’ information and benefits.
C.

Litigation

Arbitrator Robert Herzog filed an appeal to the Order granting dismissal of the litigation,
discussed in my Second Interim Report, ECF No. 1653 at 24, and my First Interim Report, ECF
No. 1628 at 39. His appeal was granted on July 28, 2016. Believing that the reversal Order
ignored key admissions of the plaintiff, the Funds filed a motion for reargument.
The litigation initiated by former Executive Director Joseph Epstein, discussed in my
First Interim Report, ECF No. 1628 at 29, is ongoing. On April 28, 2016, the Court granted the
Funds’ motion to dismiss all claims except for the breach of contract claim. The Funds are
proceeding with discovery on that claim.
The Funds are also defending an employment discrimination action and a pro se suit by a
participant whose claims the Funds contend are without merit.

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D.

Goals

Recently, I met with the Co-Chairs of the Board of Trustees and counsel to discuss
implementation of goals which, if achieved, would permit the conclusion of the current form of
monitorship. In the coming weeks, I will sit down with the new Executive Director, Chief
Financial Officer, and Chief Compliance Officer, as well as the Co-Chairs, to identify any areas
of concern that need to be addressed. I am pleased that the timing of the new executives’ hire
will allow me a not insubstantial period of time to work with the new executives and to monitor
their management of the organization and its compliance protocols, prior to the conclusion of the
term of the 2016 Stipulation and Order.
IV.

THE OFFICE OF THE INDEPENDENT MONITOR
A.

Goals Project

As discussed in the preceding sections, I have had meetings with the EST of the District
Council and with the Co-Chairs of the Benefit Funds’ Board of Trustees and we are drafting
specified goals which can potentially lead to either or both organizations transitioning from a
full-time Independent Monitor to a different system of outside review or ultimately to selfmonitoring and reporting. I consider the establishment of these goals of paramount importance
in my role as Independent Monitor.
B.

Election Oversight

In connection with the union elections held earlier this year, I received first an inquiry
and then a formal protest arising from the issue of whether a member can run for both the
position of Executive Committee member and Delegate. I reviewed the UBC Constitution, the
District Council Bylaws, the Consent Decree, the 2016 Stipulation and Order, and the applicable
Election Rules, looking for any guidance on the question as to whether a member could hold
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both of these positions. None of these documents explicitly prevent an individual from holding
both offices, but they also do not explicitly endorse such a practice. Accordingly, absent clear
guidance, I determined one had to look beyond these documents to what actually makes sense
considering the roles of the Executive Committee and the Delegate body. In doing so, I reached
the conclusion that a member should not be permitted to hold both offices and, accordingly, he or
she should only be permitted to run for one or the other.
As an initial matter, there is the general practice of the District Council. While there are
many examples of members of the Union holding two different positions, notably none of them
are the positions at issue: Executive Committee Member and Delegate. This made sense because
the Executive Committee was designed to review and approve the decisions of the District
Council Executive Leadership (EST, President and Vice-President) and make recommendations
to the Delegate body for their vote. In principle, it seemed to make no sense to me that the same
individual should be reviewing the decisions of leadership in the Executive Committee meetings,
reaching conclusions and consensus, making recommendations to the Delegate body, and then
leaving the Executive Committee meeting to vote as a Delegate on the recommendation he or she
previously made as an Executive Committee member. Accordingly, it did not surprise me that
there is no history (at least in recent years) of individuals holding both offices.
Further, I concluded that the principles set forth in the UBC Constitution, the Consent
Decree, and the Bylaws were all consistent with democratic diversification of power and
decision-making. Fundamentally, the idea of one individual holding two jobs which, practically,
serve as a check on the other (the Delegate body must approve recommendations of the
Executive Committee) seemed inconsistent with the idea that as many members as possible
should play a role in the governance of the union. These ideas were set forth in connection with
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various anti-corruption provisions of the Bylaws which do identify positions which cannot be
held by the same person (i.e., Section 4(A) of the Bylaws states that “no Council Officer or
Executive Committee Delegate shall receive salary or other compensation or hold an elected or
appointed position as an Officer of an affiliated local union.”). While I did not believe that
provision, or any provision of the Bylaws, addressed the idea of a single person serving as an
Executive Committee member and as a Delegate, the principle behind it suggested that one
person should not play those two important roles in running the Union.
To be clear, I did not conclude that a member of the District Council could only hold one
elected position at any level. But when it comes to the positions of Executive Committee
member and Delegate, I determined that they should be mutually exclusive from each other and a
member must choose one or the other to pursue in an election. To the extent that the rules did
not make that explicitly clear -- and I agreed that they do not -- it was my recommendation to the
District Council leadership, the Executive Committee, and the Delegate body, that they should
consider promulgating election rules or amendments to the Bylaws that make that prohibition
explicit. In any event, armed with my analysis and memoranda from the District Council’s
general counsel, the Executive Committee and the Delegate Body formally interpreted the
application of the Bylaws in the manner just described. Subsequently, two separate members
filed appeals with the UBC. Those appeals were recently found to be without merit and denied
substantially for the reasons described above.
C.

Miscellaneous Investigations and Referrals

The Independent Monitor’s investigative team frequently responds to hotline calls, as
well as calls received directly by me, from members with concerns ranging from unpaid benefits
to jobsite related issues. Most times these issues can be resolved by contact with the appropriate
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District Council departments. At times, our responses involve our own investigative efforts or
referral to the IG Office. Below is an anonymized sample of some of the investigations we have
worked on since the last interim report.
1.

Council Representative Investigation

An investigation was conducted regarding allegations that a Council Representative was
submitting time-keeping documents that falsely represented time spent working. Although the
matter was initially investigated by the IG Office, which confirmed the allegations, the Council
Representative challenged those findings. As a result, my staff conducted an investigation. Our
work included a review of documents and interviews of multiple persons, including the Council
Representative. At the conclusion of the investigation, it was determined that the Council
Representative had in fact submitted inaccurate and misleading time records with regard to one
particular day. However, we found insufficient evidence to establish a broader pattern of
misconduct by the Council Representative. Recently, the matter was referred to the EST for
whatever disciplinary action he deems appropriate.
2.

Local Union Member Relief Fund Investigation

Earlier this year, a call to the hotline prompted a member of my team to review the
Membership Relief Fund (“MRF”), which is administered by a local union. The MRF is funded
by a check-off deduction from the wages of the dockbuilders who choose to participate, and it is
used to provide unemployment benefits to out-of-work dockbuilders. This check-off assessment
is provided for in the CBAs that govern dockbuilders’ work. In the Third Interim Report of the
Review Officer (“RO”), Mr. Walsh wrote that a comparison of assessments paid into the MRF
with remittances to the Funds (both based on hours worked) revealed that dozens of contractors
had not paid the assessment they owed in 2010 and 2011. See Third Interim Report of the
Review Officer at 14-17, ECF No. 1140. The RO subpoenaed the financial records of the ten
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companies he suspected were the most egregious nonpayers and determined that the precise
amount owed by those companies exceeded $140,000 combined. Id. at 16-17. Mr. Walsh stated
that he directed the District Council to determine and collect any other amounts owing from
other contractors, and nothing further on the subject was mentioned in the RO’s Interim Reports.
Id. at 17. However, inquiries this spring revealed that the threshold issues of what amounts are
owed to the MRF, and by whom, had still not been determined.
The long delay in tracking MRF assessments can be attributed to political upheaval in the
Local following the RO’s investigation, and the difficulty in comparing the MRF’s collections
with the Funds’ data. Following the RO’s investigation, the Local was consumed with warding
off the “threat” from the Amalgamated Union, which attempted to win representation of the
Local, ostensibly to bring it out from under the Consent Decree. See Fourth Interim Report of
the Review Officer at 4-8, ECF No. 1161. The Local then transitioned through four presidents in
a one-and-a-half-year period. As Your Honor may recall, one of the presidents was “vetoed” by
the RO because of impropriety surrounding the hiring of a vendor to determine the amount of
MRF assessments owed without receiving approval of the Local’s executive board or providing
notice to the membership. See Decision and Order, dated June 5, 2013, ECF No. 1329.
The Review Officer had identified the delinquencies he reported in his Third Interim
Report by roughly comparing the two data sets and then subpoenaing the books of the handful of
contractors he suspected had significant delinquencies. Obviously, the MRF was in need of a
system for accurately identifying delinquencies that did not rely on subpoenaing every
contractor’s books. The current president, who took office in 2013, hired an ex-Funds IT
employee to develop a software program to run comparisons between the Funds’ data and the
MRF’s participant and contribution data. However, the utilization of separate software systems
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by the Funds and the MRF, as well as other factors, hindered the accurate comparison of data.
Only in recent months has the software program become fully operational and able to provide the
information required to effectively administer the MRF.
The software program was initially run on February - December 2012’s contributions,
and showed there to be total delinquencies in the amount of approximately $20,000. A similar
figure was uncovered for 2011. Although these amounts are sharply less than amounts the
Review Officer had uncovered as owing, these amounts accrued during a period when the RO’s
collection efforts were still fresh in the minds of employers.
On June 6, 2016, a member of the Independent Monitor team met with a trustee of the
MRF, the MRF’s counsel, the IG, and investigators from the Department of Labor. Counsel to
the MRF has committed to sending notices to the contractors with outstanding assessments from
2011 and 2012 while we await comparison reports 2013-2015. The contractors’ response to the
notices will inform the next steps. I hope that the renewed focus on this issue speeds the
assessment and collection of monies owed to the MRF. For 2011 sums, time is of the essence
because the statute of limitations is fast approaching.
3.

Working Dues Investigation

An investigation was initiated after a delegate (the “Delegate”) contacted my office
alleging his payment towards his working dues assessment had not been processed in a timely
manner. The Delegate expressed a concern that the delay in processing placed him in an
“arrears” status which prevented him from being eligible to be listed on the ballot, as he was
seeking re-election to his delegate position. Numerous interviews were conducted and a variety
of documents were reviewed. We could find no evidence suggesting the District Council
delayed in the processing of the payment upon receipt. Evidence suggested the payment
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appeared to have been mailed after it was due. The Delegate subsequently sought dispensation
from the General President of the UBC, who denied the request, citing this was the Delegate’s
second offense.
4.

Jacob K. Javits Convention Center Investigation

Two separate investigations were conducted in connection with the Javits Center. The
first was initiated after a member contacted my office with several allegations, including racial
discrimination and unfair work practices. A thorough review of his allegations found no
corroborating evidence to support these claims. Additionally, it should be noted that the
member’s filing of an improper practice charge against the District Council was also deemed
deficient by the Public Employment Relations Board (PERB) and dismissed.
The second investigation was initiated after numerous calls were received by my office
from members employed at the Javits Center for many years. These members, many of whom
wished to remain anonymous, complained that they received too few hours of assigned work
given their union seniority. Individuals who were younger and with “less time,” these members
alleged, were given an unduly large share of work hours. We found, however that the
distribution of hours among workers complied with the applicable contractual rules, which allow
New York State, as the operator of the Javits Center, to assign labor as it deems appropriate. In
other words, while these members’ complaints might have proved meritorious in connection with
other work sites, their seniority status did not guarantee work hours at the Javits Center.
5.

Investigation of the Benefit Funds

In the course of the last year, my team conducted an investigation of the Benefit Funds,
focusing on the Welfare Fund. This investigation was prompted by a report to me by the Funds
Trustees’ counsel indicating errors in administration. My team, led by Katherine Lemire and her
staff at Lemire LLC (collectively “Lemire”), investigated this matter. As Your Honor shall be
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receipt of the report documenting the findings of the investigation, submitted under seal
concurrently with this report, I do not provide additional details regarding the investigation here.
I do wish to make clear, however, that the Trustees of the Funds were receptive of the
investigation’s findings and have since implemented structural and personnel improvements to
address the issues highlighted in the report.
6.

Carpenters Training Center Instructor’s Termination
Investigation

In late June, a complaint was filed alleging that an instructor at the Carpenters Training
Center (the “Instructor”) had asked first- and second-year apprentices in his classes to provide
him with their personal e-mail addresses, and then used these personal e-mail addresses to
distribute his election campaign materials. When interviewed by the Center’s director, the
Instructor confirmed that he had solicited these personal e-mail addresses. Initially, he claimed
to have done so for the purpose of helping the students schedule their classes, but when pressed
further, he conceded that he had in fact not used these e-mail addresses for that purpose.
It was determined that the Instructor’s actions created a serious conflict of interest
because he used his position as an instructor to gather personal information from students, which
he used for his personal political gain. In light of the Instructor’s violation of the Funds’ conflict
of interest policies and the exacerbating fact that the Instructor solicited these e-mail addresses
under false pretenses, the Instructor was terminated from the Center. At the request of a
member, we reviewed the circumstances surrounding the Instructor’s termination, and uncovered
no evidence to suggest that the Instructor was terminated for improper reasons.
D.

Review of the IG Office

As indicated in my last interim report, my team and I have commenced a review of the IG
Office. Several District Council members have erroneously mischaracterized this review as an
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“investigation” into some wrongdoing or misconduct. That is not the case. We have endeavored
to review the practices of the IG Office in the hopes that we can make recommendations to
ensure the successful efforts of the IG Office, well after the external monitorship of the Union is
complete. The IG Office, and all the compliance protocols established through the Consent
Decree and the Stipulation and Order, are paramount to the continued success of the District
Council. We expect to conclude our review within the next several months and, if appropriate,
we will report whatever determinations we have made in the next interim report.
V.

CONCLUSION
Should the Court require any additional information, please contact the undersigned at

Your Honor’s convenience. As indicated at the last status conference, we look forward to
appearing before the Court on October 5, 2016, at 2:00 p.m., to discuss this interim report and
developments in the coming months.
Date: September 16, 2016
New York, New York
Respectfully submitted,
By:

/S/ Glen G. McGorty
GLEN G. McGORTY
JOANNE R. OLEKSYK
Crowell & Moring, LLP
joleksyk@crowell.com
590 Madison Avenue, 20th Floor
New York, NY 10022
(212) 223-4000
gmcgorty@crowell.com
Office of the Independent Monitor,
District Council of New York City
and Vicinity of the United
Brotherhood of Carpenters and Joiners of
America

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CC:
AUSA Benjamin Torrance
AUSA Tara LaMorte
United States Attorney’s Office
Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007

James M. Murphy, Esq.
Spivak Lipton, LLP
1700 Broadway, 21st Floor
New York, NY 10019

Raymond McGuire, Esq.
Elizabeth O’Leary, Esq.
Kauff McGuire & Margolis LLP
950 Third Avenue, 14th Floor
New York, NY 10022

Barbara S. Jones, Esq.
Theresa J. Lee, Esq.
Bracewell LLP
1251 Avenue of the Americas, 49th Floor
New York, NY 10020

23

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Exhibit 1

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Exhibit 2

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Exhibit 3

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Robert W. Lesniewski, MBA, CMA, CEBS

SUMMARY
A highly experienced financial and administrative professional who has operated in demanding and high
pressure management roles. Demonstrated ability to develop new methods, systems and procedures to
improve efficiencies and productivity while generating substantial cost reductions. Leads by example while
managing change and providing developmental opportunities for others. Diverse background including all
occupational skills and strategic leadership capabilities required to effectively administer the financial,
administrative, information services and human resources functions of an organization.
PROFESSIONAL EXPERIENCE

New York State United Teachers, Latham, New York
A statewide organization representing the professional interests of over 600,000 education professionals
with a $150 million annual operating budget. Responsibilities included oversight of Accounting, Regulatory
Filings, Information Technology, Human Resources, Travel and Conference, Building Facilities (16 locations)
and Printing and Mailing supported by over 75 staff members.
Director of Finance & Administration,
January 2004–September 2015
x Served as Chair and Trustee of two staff pension plans with assets exceeding $325 million, Trustee
on a Member Benefits Fund serving 75,000 members, Chair and Director of Member Benefits
Corporation, Administrator to staff 401k plan with over $150 million in plan assets, Administrator of
the retiree health plan holding over $23 million in assets serving over 500 staff retirees and
responsible for over $35 million in organizational reserves.
x Position required daily involvement with elected leadership (Officers) as well as a Board of Directors
with eighty members.
x Negotiated union employment contracts with professional, legal and administrative employees.
x Served on core committee to plan annual representative assembly for 3,000 delegates.
x Direct oversight of construction of two regional offices and relocation or expansion of seven offices.

New York State Nurses Association, Latham, New York
Deputy Executive Director of Administration & Chief Financial Officer November 1993–January 2004
Responsible for all administrative areas of the organization including Accounting, Membership Services,
Information Services, Human Resources, Organization Services, Administrative Support Services and Plant
Management. Also Included management of investment portfolio(s) exceeding $30 million. Served as
administrator of two welfare plans with participants of 7,000 and 1,500 respectively and served as Trustee
and Plan Administrator to employee defined benefit pension plan with over 275 participants. Trustee and
member of administrative and investment committee for multi-employer pension and benefit plans with
assets exceeding $1.25 billion.
x Relocated headquarters to a new $9 million facility on time and under budget and was responsible
for all aspects of this project including construction oversight, financing and move logistics. Also
relocated NYC offices to larger space at a 30% reduction in cost per sq. ft.
x Restructured management of cash balances and investment portfolio(s) exceeding $30 million to
dramatically improve returns and monitor results at only marginally increased cost.
x Implemented new health care plan, providing improved benefits at 15% reduction in premium.
x Lead negotiator for union employment contracts with professional and administrative employees.
x Researched market, selected provider and implemented 401(k) Plan for 185 employees.
x Implemented new mainframe membership system to track 35,000 members.

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Matthew Bender, Albany, New York
Director of Tax and Analysis,
1990–1993
x Responsible for tax administration and planning in a multi-state environment, capital budgeting and
tracking, in-depth forecasting and analysis, and diverse special projects.
Manager of General Accounting,
1982 –1990
x Responsible for payroll and related tax compliance for 1,600 employees in 50 states, federal, state
and sales tax compliance, accounts payable for 10,000 vendors, expense reporting, general ledger,
cash management, purchasing, and monthly/quarterly financial reporting.
Senior Accountant,

1981 –1982

Cost Accountant,

1979 –1981

New York State Department of Taxation and Finance, Albany, New York
September1977- September 1979

Tax Auditor,
EDUCATION
College of St. Rose, Albany, New York
M.B.A

Siena College, Loudonville, New York
B.B.A
Concentration: Accounting
Minor: Finance & Economics

ADDITIONAL EXPERIENCE, EDUCATION AND PROFESSIONAL QUALIFICATIONS
x
x
x
x
x

x
x
x

Certified Employee Benefit Specialist (CEBS) - International Foundation of Employee Benefit Plans.
Instructor and Moderator – International Foundation of Employee Benefit Plans.
Certified Management Accountant (CMA).
New York College of Health Professionals - Trustee.
American Red Cross, Northeast NY Region 1990-2005 - Former Chairman of the Board & Executive
Committee, Chair of Strategic Planning Committee, Treasurer and Chair of Finance Committee and
Trustee.
Former Adjunct Instructor at Russell Sage College on Graduate Level.
Former Adjunct Instructor at Hudson Valley Community College.
Management Development Program, Rensselaer Polytechnic Institute, Troy, NY.

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Exhibit 4

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ALLAN M. BAHN, ESQ.
EMPLOYMENT
FORD HARRISON LLP
PARTNER

MAY 2016-PRESENT

Partner, co-chairman of the firm construction industry practice group, specializing in
due diligence investigations, corporate compliance, governmental relations, contracts,
construction law and civil and white collar criminal litigation.
BAHNMULTER, LLP
BAHN MULTER & GOLD LLP

Private Law Practice

AUGUST 2000 – MAY 2016
New York, NY

Founding senior partner in private law practice, specializing in civil and white collar
criminal litigation, due diligence investigations, corporate compliance, governmental
relations, contracts and construction law.
Projects include Time Warner Centre,
YMCA/Vornado Reality Westside Joint Venture and MoMA/Museum Tower Condominium
Construction Program.
DEPUTY INSPECTOR GENERAL, LEGAL/INVESTIGATION
GENERAL COUNSEL

FEBRUARY 1999 – AUGUST 2000
New York, NY

Metropolitan Transportation Authority
Office of the Inspector General

Deputy Inspector General for the largest regional public transportation authority in the
United States. Recruited by the Metropolitan Transportation Authority Inspector General to
increase the professionalism of the agency’s legal/investigations division. Responsible for
directing the oversight of agencies employing approximately 60,000 employees, with
combined operating and construction budgets in excess of 5 billion dollars per year.
Provided strategic and tactical direction to teams of attorneys, auditors, and criminal
investigators in numerous investigations related to municipal construction, contracts,
revenue frauds and public/private corruption. As General Counsel, oversaw the agency’s
legal staff and served as the primary legal counsel to the Inspector General.
DEPUTY COMMISSIONER/SPECIAL COUNSEL

New York City Department of Citywide Administrative Services

FEBRUARY, 1998 – FEBRUARY, 1999
New York, NY

Recruited by the Mayor’s Office to rehabilitate a troubled division of city government. As
Deputy Commissioner successfully executed a construction and maintenance program
involving city owned municipal and court buildings, totaling 13 million square feet of space.
Supervised a division which employed 1500 persons with a capital construction and
operating budget in excess of 120 million dollars per year. Directed all budget, contract,
integrity and compliance programs within the division. As Special Counsel to the
Commissioner, provided legal guidance on select agency wide issues.

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Allan M. Bahn, Esq.
Page 2

INSPECTOR GENERAL

New York City Department of Investigation

JANUARY, 1995 – JANUARY, 1998
New York, NY

Inspector General for the New York City Departments of Transportation and Design and
Construction. Maintained the legal and managerial integrity of governmental agencies
employing 5,000 persons, with combined budgets of approximately 1.5 billion dollars.
Directed teams of attorneys, auditors, and criminal investigators in numerous racket
investigations related to municipal construction contracts, revenue frauds and public/private
corruption. Acted as policy advisor to departmental commissioners.
ASSISTANT DISTRICT ATTORNEY; RACKETS BUREAU, TRIAL DIVISION

New York County District Attorney’s Office

1989 - 1995
New York, NY

Staff attorney in the Organized Crime Unit of the Rackets Bureau. Supervised long term
investigation of organized crime groups, with a special concentration in construction and
labor racketeering. Drafted eavesdropping and search warrants, memoranda of law, and trial
briefs. Assistant in the trial division, assigned to the Special Narcotics Unit, Asian Gang
Unit and Trial Bureau. Brought to trial numerous complex felony cases.
LAW CLERK

Honorable Robert J. Hallisey,

1988 - 1989
Boston, MA

Justice of the Massachusetts Superior Court

Principal law clerk to a Justice of the Superior Court. Researched and drafted memoranda of
law in all area of civil and criminal practice. Advised court on matters of law and equity.
TEACHING ASSISTANT

Northeastern University School of Criminal Justice

1987 - 1988
Boston, MA

Constitutional and Criminal law undergraduate classes.

EDUCATION
JURIS DOCTORATE

Northeastern University School of Law
BACHELOR OF ARTS: POLITICAL SCIENCE

University Of Massachusetts

1985 - 1988
Boston, MA
1981 - 1985
Boston, MA

BAR ADMISSIONS
New York State, Commonwealth of Massachusetts, and U.S. District Courts,
Southern District of New York and Massachusetts
PRO BONO
General Counsel to the Society of Publication Designers, an educational, not for
profit organization comprised of design editors at major publications.

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Allan M. Bahn, Esq.
Page 3

Board of Visitors, University of Massachusetts, Boston: Member of University
Board tasked with providing guidance and expertise to University Chancellor.
LECTURES
2014-Lorman Education Services, New York County Bar Association:
Lecturer on corporate compliance programs, ethical conduct in the construction
industry, response to government due diligence investigations.
2016-New York City Bar Association: “The nature of Government Investigations”.

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