Kent V PEF Complaint

Case 1:17-cv-00268-GTS-CFH Document 1 Filed 03/07/17 Page 1 of 38
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
SUSAN KENT; CARLOS GARCIA; MAUREEN

KELLMAN; and KEN JOHNSON,
Plaintiffs,
COMPLAINT
-against-
Civil Action No.:1:17-CV-0268 (GTS/CFH)
THE NEW YORK STATE PUBLIC EMPLOYEES
FEDERATION, AFL-CIO WAYNE SPENCE, individually JURY TRIAL
and as President of The New York State Public Employees DEMANDED
Federation, AFL-CIO; DON MORGENSTERN,
individually and as a Member of The New York State
Public Employees Federation, AFL-CIO; and
KEVIN JONES, individually and as a Member of
The New York State Public Employees
Federation, AFL-CIO,
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Defendants,
Plaintiffs, SUSAN KENT; CARLOS GARCIA; MAUREEN KELLMAN; and
KEN JOHNSON, as and for their complaint, by their attorney, Cheryl L. Sovern, Esq.,
(DuCharme, Clark & Sovern, LLP.), allege as follows:
NATURE OF THE CLAIMS
1. This civil action is brought pursuant to 29 U.S.C. 10l(a)(2) and (5), 41l(a)(2)
and (5), 412 529 and 609 known as the Labor Management Reporting and Disclosure Act
("LMRDA"). The Plaintiffs seek equitable and injunctive relief pursuant to Federal Rules of
Civil Procedure 65 and 29 U.S.C. 412 preliminarily and permanently enjoining Defendant,
THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO (PEF) from
enforcing the September, 2016, Hearing Panel Report (the "Hearing Panel Report) which fined,
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suspended, expelled or otherwise disciplined the Plaintiffs within the meaning of 29 U.S.C.
411(a)(5).
2. The Plaintiffs bring this action for the violation of their due process rights by the
Defendants under 411(a) (5) of the LMRDA. Plaintiffs rights include but are not limited to,
the right to be free from: (a) improper union disciplinary action without first having been served
with written specific charges; (b) deprivation of a reasonable time to prepare a defense; and (c)
the right to receive a full and fair hearing.
3. The Plaintiffs also bring this action for the retaliation they suffered as a result of their
actions enforcing, adhering and upholding the mandates of the LMRDA requiring members be
afforded rights including, but not limited to, written charges, opportunity to respond and use of
the unions internal processes.
Jurisdiction
4. This Court has original jurisdiction of this action pursuant to 28 USC 1331 and 29
U.S.C.A. 412 and supplemental jurisdiction to entertain Plaintiffs' state law claims pursuant to
28 USC 1367.
5. The Plaintiffs demand a trial by jury on each and every one of the claims as pled
herein.
Venue
6. Venue is proper in the Northern District of New York pursuant to 28 USC 1391(b)
and 29 U.S.C. 412 in that the offices of the Defendant PEF headquarters is located in Albany,
New York and the acts complained of occurred in Albany, New York.
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Parties
7. Plaintiff, Susan Kent, (Kent) is the former President of PEF and is a current state
employee and, during the times set forth herein, a union member pursuant to 29 U.S.C.A.
402(o) of the bargaining unit represented by PEF. Plaintiff Kent resides in Albany County, New
York.
8. Plaintiff, Carlos Garcia, (Garcia) is the former Secretary-Treasurer of PEF and is a
current state employee and, during the times set forth herein, a union member pursuant to 29
U.S.C.A. 402(o) of the bargaining unit represented by PEF. Plaintiff Garcia resides in
Saratoga County, New York.
9. Plaintiff, Maureen Kellman, (Kellman) is a Trustee of PEF and, during the times set
forth herein, a union member pursuant to 29 U.S.C.A. 402(o) of the bargaining unit
represented by PEF. Plaintiff Kellman resides in Nassau County, New York.
10. Plaintiff, Kenneth Johnson, (Johnson) is a former Trustee of PEF and, during the
times set forth herein, a union member pursuant to 29 U.S.C.A. 402(o) of the bargaining unit
represented by PEF. Plaintiff Johnson resides in Bergen County, New Jersey.
11. Defendant, New York State Public Employee Federation (PEF), an unincorporated
association existing under the laws of the State of New York, having its principal place of
business located at 1168-70 Troy-Schenectady Road, in the County of Albany and State of New
York.
12. Defendant PEF is a labor organization as defined in 3(I) of the Labor-Management
Recording and Disclosure Act of 1959 (LMRDA) (29 U.S.C.A. 402(I)).
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13. Defendant PEF is a mixed union that represents both government and private
sector workers.
14. Wayne Spence (Spence), defendant, is the current, duly elected President of PEF.
15. Don Morgenstern (Morgenstern), defendant, was a member of PEF until April
2015, when he retired from New York State.
16. Kevin Jones (Jones), defendant, was a member of PEF until September, 2015,
when he was appointed to the PEF position known as Director of Organizing.
17. As of September, 2015, Defendant Jones was an employee of PEF.
18. PEF is governed by its duly elected officers pursuant to a written constitution.
STATEMENT OF FACTS
A. Initial Background Facts
19. On August 1, 2012, the Plaintiffs were elected to their respective positions with PEF
(hereinafter collectively referred to as the Kent/Garcia administration).
20. The PEF Executive Board is made up of elected leaders based on departmental
representation as defined by the PEF Constitution as well as Officers and a Retiree
Representative appointed by the President.
21. Within a short time of being elected, the Kent/Garcia administration became aware
that PEF was operating illegally(in violation of the Labor-Management Reporting and
Disclosure Act (LMRDA)) due to the previous Brynien-Igoe administration offering bank
cards to Divisions and Regions with the incentive of changing policy by eliminating the
requirement for Divisions and Regions to keep receipts. The Kent/Garcia administration
immediately began the process of bringing PEF into compliance with the LMRDA.
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22. As part of its efforts to get PEF in compliance under the LMRDA, the Kent/Garcia
administration arranged financial training to the PEF Executive Board.
B. Division 235/Debbie Lee Misuse of Union Funds
23. Division 235 (the Division) is one of several local unions that are represented and
supported by PEF.
24. PEF relies on the Divisions committees and treasurer to take an accountability role
in the disbursement of its funds.
25. At all times relevant to this complaint, only one PEF staff member, the Director of
Finance, is assigned to oversee all of PEFs 220 divisions. As such, PEF relies on its divisions to
comply with PEF procedure and perform their annual and/or quarterly audits.
26. From spring through summer of 2013, emails were exchanged between the Division
treasurer and PEFs Director of Finance pertaining to the concerns that the Division Council
Leader, Deborah Lee, (Lee) was not submitting receipts for all expenditures made.
27. Notwithstanding its concerns as expressed to PEFs Director of Finance, in August
2013, the Division re-elected Lee as its Council Leader.
28. In October, 2013, the Division wrote and asked PEF to perform an audit of the
Divisions ledger for 2012-2013.
29. PEFs Director of Finance informed the Division that the Division must first
complete its own internal audit as required by PEF policy and continued to provide information,
guidance and technical assistance throughout the audit process.
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30. On December 16, 2013, Defendant Spence wrote to Plaintiff Garcia to tell him that
he and Defendant Morgenstern wanted to involve law enforcement over concerns raised by
Division 235 about Lees undocumented expenditures.
31. Plaintiff Garcia consulted with PEF legal counsel regarding the informal allegations
concerning Lee and what PEFs course of action should be.
32. On December 17, 2013, Plaintiff Garcia informed Defendant Spence that PEFs
Legal Counsel advised him that PEF was obligated to first follow its own internal process.
33. Also in December, 2013, PEF legal counsel advised the Kent/Garcia administration
(which included Defendant Spence) that if PEF determined that money had been
misappropriated, their duty then was to take all steps to get it back and that it was not PEFs
obligation to pursue criminal charges.
34. In January, 2014, the Division appointed its audit committee.
35. In February, 2014, the Division submitted its 2012-2013 audit to PEF in which it
questioned $2,412 in charges made by Lee.
36. Throughout the month of February, 2014, the Kent/Garcia administration was in
contact with Lee and the Division regarding the audit and also began the process of having PEF
Trustees review the audit results.
37. On March 12, 2014, the Division Assistant Council Leader, Santhosh Thomas, filed
ethics charges against Lee that were prepared by Defendant Jones.
38. On April 3, 2014, a Division member, Elizabeth Falco, filed ethics charges against
Lee.
39. On April 22, 2014, PEF Trustees submitted its audit report to Plaintiff Garcia.
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40. On June 18, 2014, the Division completed its audit for 2013-2014.
41. At the September, 2014, Executive Board meeting, the PEF Ethics Committee, with
Defendant Morgenstern as the Chair, recommended that the two ethics grievances against Lee
should be heard by a PEF Hearing Panel.
42. On October 6, 2014, Defendant Jones, an attorney, attempted to represent a grievant
against Lee.
43. Upon information and belief, in order to represent the grievant against Lee,
Defendant Jones would have had knowledge of the matters leading up to Lees charges as well as
the content of the written ethics charges against Lee.
44. The Ethics Hearing Panel held its hearing on November 5, 2014 to hear grievances
against Lee.
45. On November 5, 2014, the Ethics Hearing Panel issued its decision against Lee and
determined that although Lee had been negligent in record keeping, she had not misappropriated
funds.
46. The November 5, 2014, Ethics Hearing Panel determined that Lee would be required
to make PEF whole by restitution and that she not have access to any PEF monies until
restitution to PEF was complete.
47. On December 5, 2014, the PEF Executive Board met to hear the grievants appeal of
the November 5, 2014 Ethics Hearing Panel decision.
48. During the December 5, 2014, PEF Executive Board appeal meeting, Plaintiff Kent,
under advice of PEF Counsel, informed Defendant Morgenstern that he was violating the
LMRDA when he introduced new information regarding Lee.
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49. During the December 5, 2014, PEF Executive Board appeal, Defendant Morgenstern
resigned as Ethics Committee Chair and then continued to present new information against Lee
in violation of the LMRDA.
50. At the December 5, 2014, appeal of Lees hearing panel report, Executive Board
members heard new information against Lee from the grievants in violation of the LMRDA.
51. On December 5, 2014, Plaintiff Kent objected, under advice of PEF Counsel, to the
introduction of the new information by the grievants and Defendant Morgenstern.
52. On December 5, 2014, the Kent /Garcia administration secured the services of an
auditor from parent union, AFT, to perform a forensic audit of the Division 2007-2014 fiscal
years.
53. On April 22, 2015, the Kent/Garcia administration filed a civil lawsuit on behalf of
PEF in the Albany County Supreme Court against Lee for the recovery of monies not properly
accounted for or paid by Lee via restitution.
54. On July 28, 2015, the Kent/Garcia administration filed a motion for default
judgment against Lee in Albany County Supreme Court.
55. In December, 2015, the Albany County Supreme Court granted PEF's motion for
default judgement against Debbie Lee and PEF secured a judgment against Lee in the amount of
$64,104.88.
C. Ethics Violation Petition Against Plaintiffs
56. During 2014 and 2015, the Kent/Garcia administration was being challenged by
another political group with PEF known as The Coalition of Union Professionals (ny-CoUP)
for the upcoming 2015 PEF election.
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57. Upon information and belief, all of the Defendants named herein were members of
ny-CoUP.
58. Upon information and belief, the Defendants held different political beliefs than the
Kent/Garcia administration on how PEF should be run and, in fact, made allegations about the
Plaintiffs engaging in a criminal cover up of the Lee matter.
59. In an effort to quell and/or interfere with the PEF political process, the Defendants
engaged in a course of conduct that: (a) wrongfully used the PEF Constitution and Code of Ethics
to interfere with the democratic process of the union elections; (b) violated the LMRDA when it
disciplined the Defendants for the manner in which it handled the Lee matter; and (c) violated the
LMRDA when it retaliated against the Plaintiffs for enforcing and adhering to the LMRDA
during the Lee investigation and disciplinary process.
60. Specifically, on February 3, 2015, Defendant Jones, filed an ethics violation
grievance (ethics charges) against the Plaintiffs alleging violations of the PEF Code of Ethics
and the PEF Constitution surrounding their handling of the Lee matter.
61. PEFs Code of Ethics requires charges to include, among other things, a clear and
concise statement of the facts surrounding the charge, to include the date and place of occurrence
as well as the date of discovery of the alleged violation.
62. In addition, the PEF Code of Ethics requires the charge to include the names of
witnesses and their statements and documentation that substantiates the charge.
63. PEFs Code of Ethics specifically places the burden of producing evidence and
investigating the issues on the charging party.
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64. PEFs Code of Ethics has an express provision that requires the Secretary-Treasurer
to file ethics charges against a member when a member is convicted or settles regarding the
misuse of union funds.
65. There is no mandate in the PEF Code of Ethics that requires a PEF officer to file
criminal charges against a member for misuse or misappropriation of union monies.
66. PEFs Code of Ethics also sets forth that, [c]harges must be filed no later than 60
days after the charging party discovers the alleged violation.
67. The February 3, 2015, ethics charge filed by Defendant Jones was untimely in that it
was brought beyond the 60 days of discovery as required in the Code of Ethics.
68. The February 3, 2015, ethics charge sets forth citations to PEFs constitution and
Code of Ethics, but did not specify which Plaintiff violated which provision.
69. The February 3, 2015, ethics charge provides a chronology of events pertaining to the
Divisions finances and Lee with few alleged facts that pertain to the Plaintiffs.
70. The February 3, 2015, ethics charge did not provide the Plaintiffs with sufficient
notice as to the specific allegations and corresponding violations as pertained to them
individually.
71. Without proper notice of the charges and allegations, the Plaintiffs were unable to
properly defend against the broad and unspecified allegations in the February 3, 2015, charge.
72. On March 4, 2015, Plaintiff Johnson filed his response to Defendant Jones Ethics
charge.
73. On March 5, 2015, Plaintiff Kellman filed her response to Defendant Jones Ethics
charge.
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74. On March 9, 2015, Plaintiffs Kent and Garcia filed their response to Defendant
Jones Ethics charges which included, but was not limited to, an argument that the ethics charge
was untimely.
75. During the year 2015, the Defendants utilized the ethics charges in the PEF election.
76. Defendant Jones wrote to the public and members of the PEF about the ethics
charges against the Plaintiffs.
77. The Defendants engaged in actions which maligned and retaliated against the
Plaintiffs for requiring PEF to follow and adhere to the LMRDA.
78. The Defendants used the Lee matter to interfere with the democratic process of the
PEF election by unreasonably and maliciously asserting the Lee matter to the newspapers, blogs
and newsletters which were distributed all across New York.
79. In particular, Defendant Spence told others that the Plaintiffs were criminals and
that they were covering up the Lee matter and that the Plaintiffs were going to be arrested.
80. Defendant Jones took to engaging in additional malice against the Plaintiffs by
castigating them in his written newsletter entitled, The Union Bug.
81. Defendant Morgenstern engaged in additional malice against the Plaintiffs by
publicly castigating them on social media sites and continued in his posts on PEF Strong as
recently as February, 2017.
82. Defendant Spence was elected President of PEF in June, 2015.
83. On July 24, 2015, the Ethics Committee dismissed all charges against the Plaintiffs.
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84. On July 29, 2015, Defendant Jones wrote to the PEF Executive Board falsely
claiming that Lee owed PEF $83,000 and suggested that blame be cast on the Kent/Garcia
administration.
85. Defendants Spence, Morgenstern and Jones continued to engage in a malice-filled,
campaign against Plaintiffs using PEFs Constitution and Code of Ethics.
86. Defendants Spence, Morgenstern and Jones aided, abetted, instigated, or directed
wrongful use of union power to deprive the Plaintiffs of their union membership rights.
87. Defendants Spence, Morgenstern and/or Jones failed to follow PEF Constitution and
procedures relative to the ethics charges against the Plaintiffs in an effort to quell their voices as
union leaders and activists.
88. On August 3, 2015, the Defendant Spences administration took over the PEF
operations.
89. On August 13, 2015, Defendant Jones submitted his appeal of the Ethics Committee
decision which had dismissed all charges against the Plaintiffs.
90. On September 11, 2015, the re-appointed PEF Ethics Committee Chair, Defendant
Morgenstern, wrote to the Plaintiffs regarding Jones appeal.
91. On or about September 16, 2015, Defendant Spence appointed Defendant Jones to
the paid position of PEF Director of Organizing.
92. The PEF position entitled Director of Organizing is a full-time, paid position, making
Defendant Jones an employee of PEF.
93. Once Defendant Jones became an employee of PEF, he was no longer a member of
PEF.
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94. Pursuant to the PEF Constitution, the only PEF paid staff member that retained PEF
membership rights is the Assistant to the President.
95. Defendant Jones was not appointed to the position of Assistant to the President.
96. On October 20, 2015, Defendant Morgenstern sent out the notice of appeal hearing
scheduled for December 5, 2015.
97. On October 29, 2015, Defendant Morgenstern informed the Plaintiffs that Defendant
Jones did not have standing to file his ethics appeal since he was no longer a PEF member.
98. On November 13, 2015, Defendant Morgenstern recanted his prior statement about
Defendant Jones having standing because of new evidence provided.
99. The Plaintiffs were never provided with the new evidence that purported to give
Defendant Jones standing to file an appeal.
100. The appeal was held on December 3, 2015, leaving the Plaintiffs with only twenty
(20) days to prepare.
101. During the December 3, 2015, appeal, the Plaintiffs were treated collectively, as a
single respondent to the appeal and were provided with a total of 5 minutes to argue in support
of the Ethics Committees dismissal of charges against them.
102. At the December 3, 2015, appeal, the PEF Executive Board took two votes to
overturn the Ethics Committee decision to dismiss charges against the Plaintiffs.
103. Defendant Morgenstern made a motion to send the overturned matter to a Hearing
Panel.
104. Defendant Morgensterns motion was an invalid motion as the procedure was not
one provided for in the PEF Constitution or Code of Ethics.
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105. Pursuant to PEFs Code of Ethics, Defendant Jones December 3, 2015, overturned
ethics committee decision should have been determined by the Executive Board.
106. However, contrary to PEF procedure, the December 3, 2015, overturned ethics
decision was referred to a Hearing Panel.
107. The Executive Board was the entity to make the final decision of the charges against
the Plaintiffs since the Ethics Committee had dismissed the charges.
108. A Hearing Panel would have heard the ethics charge only if the Ethics Committee
sustained the charges and found them to be more than technical or minor infractions.
109. Upon information and belief, PEF Constitution sets forth that parliamentary
authority for a meeting like the December 3, 2015, if not governed by the Constitution, Special
Rules of Order or Convention rules shall be governed by Roberts Rules of Order.
110. PEFs Code of Ethics cannot supersede PEFs Constitution.
111. Upon information and belief, pursuant to Roberts Rules of Order, in order to
overturn the Ethics Committees decision, a two-thirds vote would have been required by the
Executive Board, just like PEFs Constitutional voting provisions for impeachment and recall.
112. The December 3, 2015, appeal of the Ethics Committee decision did not receive a
two-thirds vote.
113. Upon information and belief, Defendants Spence and Morgenstern were aware that
they would not have the 2/3 vote to discipline the Plaintiffs, so they deviated from the PEF
Constitution which sets forth the parliamentary authority for votes of this nature, in order to
ensure the Plaintiffs would be disciplined.
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114. At the December 3, 2015, appeal, Defendant Spence hand selected the members that
he wanted to sit in judgment of the Plaintiffs on the Hearing Panel.
115. The Hearing Panel selected by Defendant Spence contained: (a) members of
Defendant Spences election committee, ny-CoUP; and (b) all members who had previously sat
at the December 3, 2015, Executive Board meeting which had heard evidence and voted to
overturn the prior Ethics Committee decision against the Plaintiffs.
116. The Hearing Panel met on February 17, 2016, April 13, 2016 and April 14, 2016 to
take testimony pertaining to the charges contained in Defendant Jones ethics charge against the
Plaintiffs.
117. While PEF rules do not allow for representation of the parties by outside lawyers,
Defendant Jones is a lawyer, one member of the Spence-appointed Hearing Panel was an
attorney, the acting Ethics Chair is an attorney and PEF Counsel also provided legal guidance at
the Hearing Panel proceedings.
118. Throughout the Hearing Panel proceedings, the three lawyers continually referenced
legal proceedings to model how the hearing panel was to be conducted.
119. Plaintiffs objected repeatedly over the fact that such court-like proceedings were
inherently unfair to them, as non-lawyers.
120. The Plaintiffs voiced objections about not being able to have legal counsel during
the Hearing Panel proceedings.
121. Since Defendant Jones is an attorney, the Plaintiffs voiced their objections about
how the Ethics Chairperson and one of the hearing panel members are lawyers and, to the unfair
detriment of the Plaintiffs, they conducted the hearing like a court proceeding.
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122. Running the hearing like a court proceeding was unfair to the Plaintiffs because the
grievant, Defendant Jones, is also an attorney and was able to follow the court-like proceedings.
123. The hearing panel proceedings were unfair to the Plaintiffs because Plaintiffs were
not allowed to be present for all dates of the hearing.
124. Specifically, the Hearing Panel met without the Plaintiffs present on April 20, 2016;
May 17, 2016; and August 4, 2016.
125. According to the PEF Code of Ethics, [t]he Hearing Panel shall render its decision
within thirty (30) calendar days of the end of the hearing or trial.
126. The Hearing Panel was untimely in rendering its decision when it did so on
September 2, 2016, which was almost five months after the last hearing date with Plaintiffs
present.
127. On September 2, 2016, the Ethics Hearing Panel issued its Report and Decision and
sent a hard copy by mail to the Plaintiffs and to Defendant Jones with a CONFIDENTIAL
watermark contained on all pages of the Report and Decision.
128. On October 9, 2016, with the knowledge of Defendant Spence and two Hearing
Panel members, Defendant Jones circulated an email to members of the Executive Board which
included: (a) a report of an executive session hearing that under PEF policy should have been
kept confidential; and (b) a copy of the Ethics Hearing Panel report that did not have the
CONFIDENTIAL watermark.
129. In his October 9, 2016, email to members of the PEF Executive Board, Defendant
Jones advocated for widespread distribution to all Executive Board members.
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130. Upon information and belief, the information contained in Defendant Jones
October 9, 2016, email was distributed to the ny-CoUP supporters, which included all Ethics
Hearing Panel members.
131. Upon information and belief, Defendant Jones had received a draft version of the
Hearing Panel Report before it was sent to the Plaintiffs.
132. Upon information and belief, PEF members, other than those on the Hearing Panel,
were provided with a copy of the Hearing Panels Report and Decision before it was officially
disseminated to all of the parties named in the ethics charge.
133. The October 9, 2016, email from Defendant Jones urged members of the PEF
Executive Board to find the Plaintiffs guilty and encouraged others to do so as well.
134. Once the Plaintiffs learned that Defendant Jones and his supporters were using the
PEF email system to garner support against them at the upcoming Executive Board appeal, they
prepared their own written summary of their arguments and sought permission from PEF to have
their arguments disseminated to the PEF Executive Board as well.
135. On November 15, 2016, the Plaintiffs were advised that their written summary
which refuted Defendant Jones transmission to the Executive Board would not be provided to the
PEF Executive Board as requested.
136. On November 17, 2016, the PEF Executive Board met to hear the Plaintiffs appeal
of the September 2, 2016, Hearing Panel decision and voted 58 to 51 to uphold the decision of
the Ethics Hearing Panel and the penalties against the Plaintiffs.
137. Upon information and belief, members of the Hearing Panel that rendered the
September 2, 2016, decision also voted at the November 17, 2016, PEF Executive Board appeal.
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138. As a result of the affirmed Hearing Panel Decision, Plaintiff Kent was unfairly
disciplined as follows: (a) Letter of reprimand; and (b) a 4-year revocation of her right to
participate in the internal affairs of the union, such as running for any union office, serving on
any PEF committees, local or statewide, voting in union elections or participating in the union's
internal processes for supporting political candidates, or represent any PEF member or
jurisdiction before the annual PEF convention, or any union affiliated conventions.
139. As a result of the affirmed Hearing Panel Decision, Plaintiff Garcia was unfairly
disciplined as follows: (a) Letter of reprimand was issued; and (b) 5-year revocation of the right
to participate in the internal affairs of the union, such as running for any union office, serving on
any PEF committees, local or statewide, voting in union elections or participating in the union's
internal processes for supporting political candidates, or represent any PEF member or
jurisdiction before the annual PEF convention, or any union affiliated conventions.
140. As a result of the affirmed Hearing Panel Decision, Plaintiff Kellman was unfairly
disciplined with a letter of reprimand.
141. As a result of the affirmed Hearing Panel Decision, Plaintiff Johnson was unfairly
disciplined with a letter of reprimand.
142. Upon information and belief, the Defendants used the PEF Constitution and Code
of Ethics to quell the democratic process of the union by ensuring that Plaintiffs Kent and Garcia
would be unable to run for elected office or offering a voice of opposition during the Spence
administration.
143. The discipline against Plaintiffs Kent and Garcia was more harsh that the discipline
rendered against Lee.
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144. The Plaintiffs have exhausted their internal union procedures to address these
matters.
FIRST COUNT
Violation of 29 USCA 411(a)(5)
145. The Plaintiffs repeat each and every allegation set forth in paragraphs "l through
144 above as if each were more fully set forth herein.
146. For the reasons more fully specified below, PEF violated 29 USCA 411(a)(5)
when it: (a) failed to serve Plaintiffs with written specific charges; (b) failed to give a reasonable
time to Plaintiffs in order to prepare their defense; and (c) failed to afford the Plaintiffs a full and
fair hearing.
Plaintiffs Not Provided with Written Specific Charges
147. Specifically, Defendant Jones February 3, 2015, ethics charge fails to meet 29
USCA 411(a)(5) as follows:
a. The ethics charge named all of the Plaintiffs on the single charge and provided
three (3) PEF Constitution violations and four (4) PEF Code of Ethics violations without any
specificity as to which violation pertained to the individuals being charged or even a description
of what the Plaintiffs did which was a violation of that particular provision;
b. Facts were brought up at the hearing panel and cites to other (not named in the
charge) Constitution violations were referred to in the Hearing Panel decision, but such
information was not contained in the ethics charge served on the Plaintiffs;
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c. The allegations of fact contained in the ethics charge do not relate to the
specified Constitution or Code of Ethics provisions contained therein, thereby giving the
Plaintiffs no reasonable notice of the charges against them;
d. Defendant Jones ethics charge failed to specify how the plaintiffs violated the
enumerated PEF constitution and/or code of ethics violations.
148. The Plaintiffs learned about the specifics of Jones allegations, for the first time,
during the hearing in April, 2016.
149. Moreover, the Plaintiffs learned, for the first time, about the charges that pertained
to them individually, in September, 2016, when the Hearing Panel Report was provided to them -
more than 17 months after the ethics charge was filed by Defendant Jones.
150. The Hearing Panel Report sets forth that Defendant Jones alleged that Kent had
violated two (2) provisions of the Constitution and four (4) provisions of the Code of Ethics.
151. The Hearing Panel unfairly sustained the charges against Kent, Kellman and
Johnson by determining that they violated the following:
a. PEF Constitution , Article II, Section H: Strengthening and safeguarding this
union by every means so that it may carry out its purposes, objectives and obligations;
b. PEF Constitution , Article XXII, Section K: When acting in their official
capacity all officials of PEF shall act only in the best interests of PEF and its members;
c. Code of Ethics, par. 5: All members shall conduct themselves in a manner that
is conducive to fairness and fair play working only for the good and welfare of the membership;
and
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d. Code of Ethics, par. 11: No officer or member shall abridge the rules and
procedures adopted by the PEF Convention or Executive Board, nor violate an oath of office.
152. The Hearing Panel unfairly sustained the charges against Garcia by determining that
he violated the following:
a. PEF Constitution , Article II, Section H: Strengthening and safeguarding this
union by every means so that it may carry out its purposes, objectives and obligations;
b. PEF Constitution , Article XXII, Section K: When acting in their official
capacity all officials of PEF shall act only in the best interests of PEF and its members;
c. PEF Constitution , Article XXIII, Section K: Conducting his/her PEF activities
with honesty and integrity1;
d. Code of Ethics, par. 5: All members shall conduct themselves in a manner that
is conducive to fairness and fair play working only for the good and welfare of the membership;
e. Code of Ethics, par. 11: No officer or member shall abridge the rules and
procedures adopted by the PEF Convention or Executive Board, nor violate an oath of office; and
f. Code of Ethics, par. 12: No member or officer shall engage in corrupt practices
or racketeering.
153. With respect to Kellman and Johnson, the Hearing Panel actually found that
Kellman and Johnson had violated PEF Constitution, Article VIII and the legal definition of
duty of care as proscribed to officers in nonprofit organizations even though such charges were
not contained in Defendant Jones ethics charge.
1
The Hearing Panel Report sets forth the Constitution cite as XXII, Section K, but then
provides the description of the provision for XXIII, Section K.
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154. The Hearing Panel affirmed the charges against Kellman and Johnson based upon
its determination that they violated PEF Constitution, Article VIII and the legal definition of
"duty of care," but did not delineate that same provision in its final decision. Instead, the Hearing
Panel used the provisions set forth in Defendant Jones ethics charge.
155. Defendant Jones February 3, 2015, ethics charge against the Plaintiffs provides
insufficient notice of the charges lodged against each of the individual Plaintiffs.
156. Specifically, the February 3, 2015, ethics charge named the Plaintiffs herein, but
failed to delineate what is being charged against each individual.
157. The February 3, 2015, ethics charge failed to provide adequate notice of the charges
lodged against the Plaintiffs in that it was not specific enough to inform the Plaintiffs of the
offenses that he or she had allegedly committed.
158. The inclusion of charges not specified or discussed in the written ethics charge
violates 29 USCA 411(a)(5).
159. The content of Jones ethics charge and the specified constitution and code of ethics
provisions he provided in the charge are not reasonably related to the facts and/or evidence
provided at the Hearing Panel.
160. Specifically, Defendant Jones ethics charge alleged a violation of Code of Ethics
par. 12 which sets forth that, no member or officer shall engage in corrupt practices or
racketeering, yet there are no allegations, facts or other information in the charge that relates to
this charge.
161. Additionally, Defendant Jones ethics charge alleged a violation of Code of Ethics
par. 10 which sets forth, in sum, that no elected official shall engage in corrupt practices by
-22-
taking money, books, records or other property belonging to PEF or its divisions, yet there are no
allegations, facts or other information in the ethics charge that relates to this provision.
162. Defendant Jones ethics charge alleged a violation of PEF Constitution, Article
XXIII, Section K, which sets forth that members must conduct his/her PEF activities with
honesty and integrity, yet there are no allegations, facts or other information in the charge that
relates to this charge.
163. In fact, none of the specified PEF Constitution and Code of Ethics cited in Jones
ethics charge are backed up by any specific allegation and they do not delineate the violations
allegedly committed by each specific Plaintiff.
164. The vague charges leveled against the Plaintiffs as described above denied the
Plaintiffs due process and the benefit of the other rights afforded to them under 41l(a)(5) of the
LMRDA.
Plaintiffs not Afforded Reasonable Time to Prepare
165. Following the July 24, 2015, decision by the Ethics Committee which dismissed all
of Defendant Jones ethics charges against all Plaintiffs, Defendant Jones wrote to the
Spence/Hintz administration seeking an appeal.
166. Shortly thereafter, on or about September 16, 2015, Defendant Spence appointed
Defendant Jones as PEF Director of Organizing, thereby making Defendant Jones an employee
of PEF and no longer a PEF member.
167. On October 20, 2015, PEF Ethics Committee Chair sent a notice advising that the
appeal hearing was scheduled for December 5, 2015.
-23-
168. Thereafter, on October 29, 2015, PEF Ethics Committee Chair informed the
Plaintiffs that Defendant Jones no longer had standing to maintain his appeal since he was no
longer a PEF member which, in effect, canceled the appeal.
169. On November 13, 2015, PEF Ethics Committee Chair then rescinded his notice
about Defendant Jones ability to maintain the appeal based upon what he described as new
evidence.
170. Plaintiffs were never provided with the "new evidence" that purported to give
Defendant Jones standing to file an appeal.
171. After receiving PEF Ethics Committee Chair's November 13, 2015, email, the
Plaintiffs were left with only twenty (20) days to prepare for the Executive Board appeal of the
Ethics Committee decision which had dismissed the ethics charges against them.
172. As a result of the foregoing, the Plaintiffs were not afforded a reasonable time to
prepare for the appeal hearing.
Plaintiffs were not afforded a full and fair hearing
173. The Plaintiffs were not afforded a full and fair hearing at either the Executive
Board appeal held on December 3, 2015 or during the Hearing Panel hearings which began in
February, 2016.
174. First, the person chairing Defendant Jones appeal at the December, 2015 Executive
Board meeting was Defendant Morgenstern who had exhibited his own bias by advising the
Executive Board that he believed the Kent/Garcia administration should have filed criminal
charges against Lee before they had completed their audit investigation.
-24-
175. Defendant Morgenstern had also been previously admonished by Plaintiff Kent,
upon advice of PEF counsel, at a prior Executive Board appeal hearing pertaining to his
violations of the LMRDA for introducing new evidence at the December, 2014 Executive Board
meeting.
176. During Defendant Jones' Ethics appeal at the December 3, 2015 Executive Board
meeting, Defendant Morgenstern had then returned as Ethics Committee chair and unilaterally
determined that the Plaintiffs would be treated as one and were allowed only 5 minutes total to
argue their case.
177. Despite the fact that PEF Policy states that the Executive Board makes the final
determination on appeals, Defendant Morgenstern did not have the Executive Board state the
basis for overturning the Ethics Committee decision.
178. Defendant Morgenstern also stated verbally to the Executive Board that neither he
nor any current members of the Ethics Committee had made the decision to rule in favor of
dismissing the charges against the Plaintiffs.
179. At the December 3, 2015, Executive Board appeal, a second motion was made to
refer the matter back to the Hearing Panel when in fact this matter was never referred to a
Hearing Panel. Instead of clarifying that the matter had never gone to a Hearing Panel and
advising the Executive Board that it was their responsibility to make a final determination on an
appeal, Defendant Morgenstern repeated the motion incorrectly by removing the word, "back"
prior to the Executive Board voting.
180. Defendant Morgenstern (who had been the chair of the Ethics Committee,
exhibited bias against the Plaintiffs and had indicated that he did not want the charges against the
-25-
Plaintiffs dismissed) was then called and allowed to be a witness for Defendant Jones at the
Hearing Panel that commenced in April, 2016.
181. Morgenstern, as the former chair of the Ethics Committee, was privy to information
provided to him in Executive Session, and was biased against the Plaintiffs.
182. The Plaintiffs objected to the Hearing Panel about Defendant Morgensterns
presence at the Hearing Panel, but were overruled.
183. PEF refused to make a decision or even address the Plaintiffs procedural arguments
at the December 3, 2015, Executive Board appeal, in the September, 2016, Ethics Hearing Panel
decision or at the November 17, 2016, Executive Board appeal thereby depriving the Plaintiffs
from having a full and fair hearing.
184. Specifically, the procedural arguments provided by the Plaintiffs set forth: (a) PEF
Code of Ethics requires that all ethics charges be made within 60 days of notice of violation and
Defendant Jones brought his ethic s charge well beyond the 60 days notice; (b) Defendant Jones
did not have standing to maintain his appeal of the Ethics Committee decision which had
dismissed the ethics charges against the Plaintiffs; and (c) during the December 5, 2015, ethics
appeal with the PEF executive board, the Plaintiffs were treated as a single individual and was
allotted only 5 minutes to present its response with the charging party, Defendant Jones, being
provided with the same allotment to present his arguments in support of his appeal.
185. In addition, the Plaintiffs were not afforded a full and fair hearing because the
hearing panel itself was biased.
-26-
186. Specifically, the Kent/Garcia administration and Defendant Spence and his
supporters ( which includes Defendants Morgenstern and Jones) had been involved in a heated
and controversial election with Defendant Spence winning by a very close vote.
187. The Divisions misuse of funds by Lee was a topic frequently brought up by the
Defendants during the campaign.
188. The Hearing Panel was made up of five individuals all appointed by Defendant
Spence.
189. Defendant Spence had supported Defendant Jones grievance against the Plaintiffs
and, in fact, appointed Defendant Jones to a paid position at PEF.
190. In further support of Defendant Jones, Defendant Spence appointed members to the
Hearing Panel that also supported the opinions expressed by Jones in the ethics charge.
191. As a result of the relationship between Defendant Jones and Defendant Spence and
the subsequent appointment of the biased members to the Hearing Panel, the Plaintiffs were not
afforded a fair hearing.
192. In addition, Hearing Panel members were all PEF Executive Board members who
had been present and voted against the Plaintiffs at the December 3, 2015 Executive Board
meeting evidencing bias against the Plaintiffs.
193. In addition, all five Hearing Panel members (and the alternate) had openly spoken
out against the Plaintiffs during the prior election, and were political opponents of the Plaintiffs.
194. As a result of the participation of the Panel members at the prior appeal
proceedings, the high probability of bias encroached on the full and fair hearing requirements of
411(a)(5).
-27-
195. Examples of the bias that occurred during the Hearing Panel hearings include the
following:
a. The Hearing Panel allowed Defendant Jones to present exhibits at the hearing
which were not shared with the Plaintiffs prior to the hearing and were not included as part of his
Ethics charge. Defendant Jones should not have been allowed to introduce new evidence that
had not been part of his initial filing or his appeal to the Executive Board. By allowing
Defendant Jones to include such new information, the Plaintiffs were blindsided and not afforded
a fair hearing;
b. Biased decisions against the Plaintiffs continued as the Hearing Panel refused
to acknowledge the Plaintiffs own documents and statements as they did for Defendant Jones.
The Hearing Panel received the entire packet from the Plaintiffs as Executive Board members,
but yet they claimed they had never received the documents and would not allow the Plaintiffs to
use the same at the hearing.
c. Upon information and belief, the Hearing Panel members were selected with a
pre-determined, demonstrated position that Plaintiffs were guilty and, as such, conducted the
Hearing and issued a Report to support this position;
d. Upon information and belief, the Hearing Panels report included altered
witness testimony from PEFs Finance Director who had testified that the Plaintiffs fulfilled their
fiduciary responsibilities. The Hearing Panels report also disregarded the Plaintiffs evidence,
including PEF's own Counsel, Lisa King, Esq.s memo which expressly set forth that the
Kent/Garcia administrations responsibility was to recover moneys due to PEF and that it was not
PEF's obligation to pursue criminal charges.
-28-
e. During the first Hearing Panel meeting, all participants were informed that the
hearing was being held in executive session. During the first break, Defendant Jones told two of
his witnesses what had occurred in the hearing. When the Hearing Panel was informed of this
violation, Defendant Jones was simply told not to do it again and his two witnesses were still
allowed to testify;
f. The Hearing Panel met in executive session on six different dates ( February
17, 2016; April 13 - 14, 2016; April 20, 2016, and May 17,2016). However, the Plaintiffs were
only made aware of and were only allowed to attend on February 17, 2016; April 13, 2016; and
April 14, 2016.
g. Defendant Morgenstern was reinstated by Defendant Spence as the Chair of the
Ethics Committee that had, against his wishes, dismissed Jones ethics charge against the
Plaintiffs. However, the Hearing Panel allowed Defendant Morgenstern to be a witness at the
Hearing Panel. Allowing Defendant Morgenstern to testify was patently unfair since he was
privy to information provided during executive session of the ethics committee.
h. The Hearing Panel members were included in an email to ny-coUP supporters
advocating a vote to find the Plaintiffs guilty prior to the release of the Hearing Panel decision to
the PEF Executive Board.
i. Assistance was provided by PEF General Counsel, Lisa King, Esq., to
Defendant Jones, Defendant Spence and his administration and the Ethics Hearing Panel even
though Attorney King had provided the Plaintiffs with legal assistance during the Kent/Garcia
administration and, in particular, on the Lee matter.
-29-
j. At the December, 2016 appeal meeting, where the Plaintiffs asked the
Executive Board to overturn the Hearing Panel decision, members of the Hearing Panel were
allowed to vote on whether or not their decision should be overturned.
196. Plaintiffs were not afforded a fair hearing when the Hearing Panel found against
them and subjected them to discipline despite the fact that Defendant Jones did not offer any
evidence at the hearing to support his ethics charges.
197. Moreover, the discipline imposed was unprecedented and crafted solely to silence
the Plaintiff Kent and Garcias political voices by: (a) removing Kent from the March 2018
triennial election cycle; and (b) removing Garcia from both the March 2018 and March 2021
Triennial election cycles.
198. The unprecedented discipline also further silences Kent and Garcias political
voices by barring them from participating in all PEF, AFL-CIO, AFT and SEIU local and
statewide labor affiliated work, including political action, labor-management, health and safety,
labor councils, constituency groups and Annual, Biennial and Quadrennial conventions until
2020 and 2021 respectively.
199. Kent and Garcia, both longtime union leaders and activists, have been severely
damaged by the unlawful charges.
200. The Defendants have damaged the reputation of both Kent and Garcia within local,
state and national union and community affiliations.
201. Upon information and belief, in an effort to damage the Plaintiffs reputations so as
to quell their political voices, both at the upcoming election and in future elections, the
Defendants used newspapers to damage the Plaintiffs reputation.
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202. Upon information and belief, in an effort to damage the Plaintiffs reputations so as
to quell their political voices, both at the upcoming election and in future elections, the
Defendants used the Internet and written publications, including the Times Union and The Chief
Leader to damage the Plaintiffs reputation with headlines that erroneously alluded that the
Plaintiffs were corrupt.
203. Plaintiff Kellman, the only Plaintiff that continues to preside as an officer following
the 2016 election, continues to endure slander and being falsely identified as a person without
integrity. Specifically, the letter of reprimand discipline that she unlawfully received continues
to be brought up during PEF business to discount her credibility as a Trustee. Following the
discipline, at the Executive Board appeal in November, 2016, Defendant Jones brother made a
motion which was seconded and then debated, attempting to bar Plaintiff Kellman for one year
from being able to run in PEF elections and to stop her from continuing in her Trustee position.
As a direct and proximate result of the continued acts against Plaintiff Kellman and the attacks to
her reputation she continues to be damaged.
204. Plaintiff Johnson has also been damaged as a result of the foregoing unlawful ethics
charge in that his reputation has been damaged and he has incurred damages as a result.
Specifically, Plaintiff Johnson, who had been Council Leader for the State Insurance Fund for
over 8 years, was not re-elected in 2016. The election followed the 2016 PEF Convention where
900 statewide delegates met in executive session and discussed the September 2, 2016, PEF
Ethics Hearing Panel Report that unlawfully disciplined Plaintiff Johnson and the other
Plaintiffs.
-31-
205. The aforementioned LMRDA violations affect all PEF members in that willful and
malicious violations of the LMRDA have a quelling affect on the democratic processes
guaranteed to members of unions including PEF.
206. As a direct and proximate result of PEFs malicious violation of the LMRDA, the
Plaintiffs have been damaged and are entitled to: (a) dismissal of all ethics charges against the
Plaintiffs; (b) dismissal of all discipline against the Plaintiffs and reinstatement of all rights and
privileges of PEF membership; and (c) punitive damages, specific to each Plaintiff, in an amount
of money which shall be no less than $250,000.00 for each individual Plaintiff.
SECOND COUNT
Retaliation
207. The Plaintiffs repeat, reiterate and reallege each and every allegation set forth above
as if each were set forth herein at length.
208. The Plaintiffs, as union officers, had a duty to ensure that PEF complied with the
LMRDA when confronted with allegations that Lee was misusing division funds.
209. In October, 2013, the Plaintiffs acted reasonably and expeditiously when it required
the Division to first perform its own annual audit when it came forth with concerns about
undocumented expenses paid by Lee.
210. The Plaintiffs followed the PEF Constitution and Code of Ethics by properly
investigating and pursuing civil action against Lee.
211. During the time that the Divisions misuse of funds allegations was being discussed
and investigated, the Kent/Garcia Administration was in contact with PEF counsel to discuss
how to protect PEF assets and safeguard PEF members rights.
-32-
212. The Kent/Garcia Administration followed its counsels advice and commenced a
civil action against Lee in order to obtain a return of all monies alleged to have been misused or
not properly documented.
213. Pursuant to the PEF Constitution, Plaintiff Garcia was mandated to proceed civilly
against Lee in an effort to obtain monies alleged to have been misused.
214. Conversely, there is no mandate in the PEF Constitution that required PEF to
commence a criminal action against Lee.
215. Defendant Spence and Defendant Morgenstern demanded that the Kent/Garcia
administration file criminal charges against Lee even before the Division had begun an actual
audit.
216. The Kent/Garcia Administration followed legal advice from counsel, followed the
PEF Constitution and followed the LMRDA relative to the misuse of funds allegations against
Lee.
217. The sum and substance of the ethics charges against Plaintiffs appears to charge the
Plaintiffs for following the LMRDA.
218. Plaintiffs allege that such ethics charges against them were wholly spurious and
were instigated by the Defendants in reprisal for statements made by Plaintiffs that enforced the
terms of the LMRDA and/or held that the Defendant(s) were violating same.
219. Plaintiffs allege that in filing the charges against them as well as aiding and abetting
the maintaining of the ethics charges, Defendants were motivated by a desire to retaliate against
the Plaintiffs for exercising their rights under the LMRDA and to prevent them from supporting
and voting for opposition candidates and/or participating in union elections.
-33-
220. As a direct and proximate result of the fact that the Plaintiffs exercised rights under,
adhered to and enforced the LMRDA against the opposition and demands of the Defendants, they
were the subject of unprecedented discipline and retaliated against as follows: (a) Defendant
Jones filed his ethics charge and subsequent appeal of the Ethics Committees decision; (b) PEF
failed and/or refused to acknowledge any of the Plaintiffs procedural arguments regarding
Defendant Jones standing or his late filing of the ethics charges and allowed the charges to be
leveled against the Plaintiffs; (c) Defendant Jones and/or other PEF members allowed false
statements about the Kent/Garcia administration to be published in the newspapers; (d) PEF
overturned the Ethics Committee decision which had dismissed the ethics charges against the
Plaintiffs; (e) Defendant Spence appointed a biased Hearing Panel following the Executive Board
appeal in which the same panel members had voted in favor of overturning the dismissal against
the Plaintiffs; (f) PEFs Hearing Panel set forth the harsh and unprecedented discipline to be
lodged against the Plaintiffs for enforcing the LMRDA; and (g) used PEFs discipline policy in
such a way to quell the Kent/Garcia administration and the political views it has expressed by
besmirching their reputation in the union and community at large as well as expressly preventing
them from engaging in the next PEF election.
221. As a result of the foregoing retaliation, the Defendants have maliciously violated the
LMRDA, retaliated against the Plaintiffs for adhering to the LMRDA and the Plaintiffs have
been damaged as a result.
222. As a direct and proximate result of the foregoing retaliation by Defendants and
subsequent damage to the Plaintiffs, the Plaintiffs are entitled to: (a) dismissal of all ethics
-34-
charges against them; (b) dismissal of all discipline against them and reinstatement of all rights
and privileges of PEF membership; and (c) punitive damages.
THIRD COUNT
Breach of Contract
223. The Plaintiffs repeat, reiterate and reallege each and every allegation set forth
above as if each were set forth herein at length.
224. The PEF Constitution constitutes a contract between PEF and its members.
225. PEF breached the Constitution when it failed to adhere to Article XIX(A) when it
heard the Defendant Jones appeal of the July 24, 2015, Ethics Committee decision that had
dismissed Jones charges against the Plaintiffs.
226. Pursuant to the PEF Constitution, unless set forth in the Constitution, voting rules
would be based upon Roberts Rules.
227. The voting rules for an Ethics Committee decision appeal was not set forth in the
PEF Constitution, the Special Rules of Order, or any other provision expressly set forth therein.
228. PEF breached the Constitution when it followed voting rules established by its Code
of Ethics at the Executive Board meeting instead of followings its parliamentary authority as
contained in the Constitution.
229. PEF breached the Constitution when it required only a majority vote to overturn the
July 24, 2015, Ethics Committee decision.
230. As a result of the aforementioned breach of the PEF Constitution, the Plaintiffs
were damaged. Specifically, the charges which had been dismissed against them were turned
-35-
over to a Hearing Panel which then resulted in unlawful discipline affecting the Plaintiffs
professionally and personally.
231. As a direct and proximate result of the aforementioned breach, the Plaintiffs were
damaged in an amount of money still to be determined.
FOURTH COUNT
Breach of Contract
232. The Plaintiffs repeat, reiterate and reallege each and every allegation set forth
above as if each were set forth herein at length.
233. The PEF Code of Ethics constitutes a contract between PEF and its members.
234. PEF breached the Code of Ethics when: (a) it accepted Defendant Jones ethics
charges against the Plaintiffs in violation of the 60 days from discovery filing deadline; and (b) it
referred the overturned July 24, 2015 Ethics Committee decision to a hearing panel when the
decision of the Executive Board is the final decision; and (c) it allowed Defendant Jones to
maintain his appeal of the July 24, 2015, Ethics Committee decision when he did not have
standing to maintain same.
235. Pursuant to the PEFs Code of Ethics, ethics charges must be filed within sixty (60)
days after discovering the alleged violation.
236. Defendant Jones had discovered the alleged violations more than 60 days before the
February 3, 2015, ethics charges against the Plaintiffs were filed.
237. Plaintiffs argued to PEF that Defendant Jones charges were not timely.
238. None of the decisions rendered by PEF in the instant matter ever addressed the late
filing of the ethics charges against the Plaintiffs.
-36-
239. Pursuant to PEFs Code of Ethics, appeals of Ethics Committee decisions
dismissing charges may be brought to the Executive Board and the Executive Board votes to
determine whether or not to hear the appeal. If the Executive Board votes to hear the appeal, the
decision by the Executive Board is considered final. Referrals to the hearing panel only occur
when the ethics committee determines that more than a technical violation occurred and then
refers the matter to the President.
240. PEF violated its Code of Ethics when it referred the February 3, 2015, dismissed
ethics charge to a hearing panel instead of having the Executive Board make the final decision.
241. Pursuant to PEFs Code of Ethics, only members may maintain an ethics charge.
242. On or about September 16, 2015, Defendant Spence appointed Defendant Jones as
PEF Director of Organizing, thereby making Defendant Jones an employee of PEF and no longer
a PEF member.
243. On October 29, 2015, PEF properly informed the Plaintiffs that Defendant Jones no
longer had standing to maintain his appeal since he was no longer a PEF member.
244. However, on November 13, 2015, PEF violated the Code of Ethics when it
rescinded its October 28, 2015 decision and determined that Defendant Jones did have standing
even though he was no longer a PEF member.
245. As a direct and proximate result of the aforementioned breaches, the Plaintiffs were
damaged in that an unlawful ethics charge was allowed to be continued against them, they
suffered unlawful discipline, incurred loss of reputation, emotional distress damages, costs, and
other damages yet to be determined.
-37-
246. For each of the foregoing causes of action, Plaintiff has no adequate legal remedy.
247. For these reasons, the Plaintiffs request:
a. The court declare that the proceedings taken by PEF in connection with
and during plaintiffs hearing and appeal infringed on plaintiffs rights
under the provisions of the LMRDA, and that the sentence of suspension
and letter of reprimand imposed on plaintiffs by the hearing panel were
null and void;
b. Pending trial of the cause and on rendition of final judgment, the court
enjoin any interference by PEF and its officers, agents and employees,
with the exercise by plaintiffs of plaintiffs rights as a member of PEF,
and from violating plaintiffs rights under section 101(a)(5) of the
LMRDA (29 U.S.C.A. 411(a)(5));
c. Plaintiffs each be awarded compensatory damages in a minimum amount

of at least $250,000.00 in compensatory damages;
d. Plaintiffs each be awarded punitive damages in the sum of at least

$250,000.00.
e. The court award Plaintiffs reasonable attorney's fee and costs of this action
since the claims contained herein are based upon malice by defendants and
the overall determination of the case will benefit the union membership as
a whole; and
f. The court grant plaintiffs such other and further relief as the court deems
just and proper.
Dated: March 7, 2017

DUCHARME, CLARK & SOVERN, LLP
S/Cheryl L. Sovern
Cheryl L. Sovern, Esq.
Bar Roll No.: 514556
Attorney for the Plaintiffs
10 Maxwell Drive - Suite 205
Clifton Park, New York 12065
Office: (518) 373-1482
Fax: (518) 373-8758
Email: csovern@nycap.rr.com
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Case 1:17-cv-00268-GTS-CFH Document 1-1 Filed 03/07/17 Page 1 of 1
0206-3947723 CFH
GTS
Case No.: 1:17-CV-0268

Kent V PEF Complaint

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Kent V PEF Complaint

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Case 1:17-cv-00268-GTS-CFH Document 1 Filed 03/07/17 Page 1 of 38

UNITED STATES DISTRICT COURT

SUSAN KENT; CARLOS GARCIA; MAUREEN

Plaintiffs, SUSAN KENT; CARLOS GARCIA; MAUREEN KELLMAN; and

(DuCharme, Clark & Sovern, LLP.), allege as follows:

NATURE OF THE CLAIMS

the right to receive a full and fair hearing.

the unions internal processes.

8. Plaintiff, Carlos Garcia, (Garcia) is the former Secretary-Treasurer of PEF and is a

Saratoga County, New York.

represented by PEF. Plaintiff Kellman resides in Nassau County, New York.

represented by PEF. Plaintiff Johnson resides in Bergen County, New Jersey.

12. Defendant PEF is a labor organization as defined in 3(I) of the Labor-Management

Recording and Disclosure Act of 1959 (LMRDA) (29 U.S.C.A. 402(I)).

2015, when he retired from New York State.

when he was appointed to the PEF position known as Director of Organizing.

17. As of September, 2015, Defendant Jones was an employee of PEF.

A. Initial Background Facts

(hereinafter collectively referred to as the Kent/Garcia administration).

representation as defined by the PEF Constitution as well as Officers and a Retiree

Representative appointed by the President.

administration arranged financial training to the PEF Executive Board.

B. Division 235/Debbie Lee Misuse of Union Funds

in the disbursement of its funds.

27. Notwithstanding its concerns as expressed to PEFs Director of Finance, in August

2013, the Division re-elected Lee as its Council Leader.

Divisions ledger for 2012-2013.

guidance and technical assistance throughout the audit process.

Division 235 about Lees undocumented expenditures.

concerning Lee and what PEFs course of action should be.

obligation to pursue criminal charges.

34. In January, 2014, the Division appointed its audit committee.

questioned $2,412 in charges made by Lee.

Trustees review the audit results.

ethics charges against Lee that were prepared by Defendant Jones.

should be heard by a PEF Hearing Panel.

42. On October 6, 2014, Defendant Jones, an attorney, attempted to represent a grievant

the content of the written ethics charges against Lee.

restitution to PEF was complete.

the November 5, 2014 Ethics Hearing Panel decision.

LMRDA when he introduced new information regarding Lee.

in violation of the LMRDA.

introduction of the new information by the grievants and Defendant Morgenstern.

accounted for or paid by Lee via restitution.

judgment against Lee in Albany County Supreme Court.

C. Ethics Violation Petition Against Plaintiffs

for the upcoming 2015 PEF election.

Plaintiffs engaging in a criminal cover up of the Lee matter.

during the Lee investigation and disciplinary process.

60. Specifically, on February 3, 2015, Defendant Jones, filed an ethics violation

as well as the date of discovery of the alleged violation.

investigating the issues on the charging party.

misuse of union funds.

criminal charges against a member for misuse or misappropriation of union monies.

days after the charging party discovers the alleged violation.

notice as to the specific allegations and corresponding violations as pertained to them

charges against the Plaintiffs.

Plaintiffs for requiring PEF to follow and adhere to the LMRDA.

and newsletters which were distributed all across New York.

castigating them in his written newsletter entitled, The Union Bug.

81. Defendant Morgenstern engaged in additional malice against the Plaintiffs by

recently as February, 2017.

82. Defendant Spence was elected President of PEF in June, 2015.