1998.09.17: Executive Committee Bulletin #63

Executive Committee Bulletin #63 — OCR

Executive Committee Bulletin #63

Association of Legal Aid Attorneys/UAW Local 2325 (AFL-CIO)
568 Broadway, Rm. 702A, NY, NY 10012-3225  212.343.0708 FAX 212.343.0966
September 17, 1998

Executive Committee Agenda:  Wednesday, September 23, 1998, 6:30 P.M.

All Members Welcome/Pizza Served.  Estimated length:  1.75 hours.  Begins promptly.

May 28, 1998 EC Minutes.

Outside Counsel Fees for Theodora Saal (Bx CDD)(15 minutes).

Political Action (10 minutes).

LAS Budget (5 minutes).

Criminal (including First Department report).

Civil.

Contract Negotiations (30 minutes).

Membership feedback.

Subcommittees.

Internal Business  (45 minutes).

Joint Affirmative Action Committee.

Elections.  Nomination and election of 8 ALAA representatives to represent the constituencies reflected in the Union’s vice presidential structure, i.e., one each for Civil, CAB/CDU/Federal, CDD/Bx, CDD/Bk, CDD/M, CDD/Q, JRD, Volunteer/CLO.

1199 participation.  The Civil Division Affirmative Action Committee proposes that ALAA call for exclusion of 1199 and exempt staff from the Joint Union-Management Affirmative Action Committee.  On September 16, the Bargaining Committee voted 8-2 to recommend that the Executive Committee reaffirm  our traditional support for 1199 participation, supplemented by such bi-lateral ALAA-LAS subcommittees of the Joint Committee as may be necessary.  EC members, therefore, should come prepared to discuss and resolve this issue.

By-Laws revision proposed schedule.

October 1 ALAA reception.

New members.

NLG March 26 dinner honoring ALAA 30^th anniversary.

Citizen Action Fundraiser (2 minutes).

Executive Committee:  May 28, 1998

Attendance
Position	Name	Alt
Union-Wide Officers
President	Michael Letwin
Secretary-Treasurer	George Albro
Civil Division
Vice President	Adriene Holder
Aging
Appeals/HFRP	Helen Lee
Bronx	Esperanza Colon Heidi Bota	X
Brooklyn
Chelsea
Far Rockaway
Harlem
Queens
Staten Island
Criminal Appeals Bureau & Federal Defender Division
Vice President	Sandra Engle*
CAB Proper	Peter Blum
	Nancy Little
	Laura Cohen
	Edlyn Willer	X
Parole Revocation
Prisoners Rights	Milton Zelermyer
CDU
Bronx Criminal Defense Division
Vice President	Phyllis Cherebin	X
Complex A	Jim Rogers	X
Complex B
Complex C
Complex D
Brooklyn Criminal Defense Division
Vice President
Complex 1
Complex 2
Complex 3	Azalia Torres
Complex 4	Daniel Ashworth
Complex 5
Manhattan CDD & Special Litigation Unit
Vice President
Complex 1
Complex 2
Complex 3	Adam Merhfar
Complex 4
Complex 5
Complex 6
Special Litigation
Queens Criminal Defense Division
Vice President	Alan Gordon
Complex 1
Complex 3
Complex 4
Juvenile Rights Division
Vice President
Appeals
Bronx
Brooklyn
Manhattan	Brad Martin
Queens	Crystal Screen
Special Lit./Appeals
Staten Island
Volunteer Division (Community Law Office)
Vice President	Lisa Edwards
Delegate	Christine Bella

*Engle has taken a leave from the Society in order to join the AFL-CIO as an union organizing campaign coordinator in San Antonio, TX.

Minutes
Report & Discussion	Motion (Mover/2d)
Prior Minutes
None.	Adopt EC Minutes of 4/30/98 (Torres/Engle). Passed unanimous by voice.
CDD Budget & Workload
Letwin & Albro reported on:  (1)  ALAA/1199 Committee to Defend Legal Aid lobbying at City Council for restoration of criminal funding. Including joint membership meeting at 1199 and LAS with 1199 president Dennis Rivera; (2) CDD Staffing shortages; and (3) Union-Management committee to select new CDD attorney-in-charge.	None.
Civil Funding
Ricky Blum reported on lobbying and other action against Pataki budget veto.	None.
Civil Affirmative Action Committee
Helen Lee reported on the Civil Division Affirmative Action Committee.	None.
Daniel O’Donnell State Senate Candidacy
Letwin reported on ALAA leadership efforts to publicly expose and criticize state senate candidate Daniel O’Donnell (30th District) for having bid for Legal Aid funds in response to Giuliani RFPs.	ALAA reaffirms longstanding opposition to RFPs as Giuliani retaliation for the 1994 strike and to weaken indigent criminal representation, and to  bidding on RFPs; endorses ALAA leadership action applying these principles to O’Donnell’s complicity in bid for LAS Bronx work; and directs the president to articulate this position on the Union’s in a public statement [attached] (Blum/Rogers).  Passed: 14-0-2.
Political Action
Albro reported on the campaign for Clean Money Clean Election and on the Pataki budget vetoes.	None.
Next Meeting: June 30, 1998, 6:30 p.m.*

*Due to an unexpected, extended illness of the president and to the summer lull, no EC meetings were held from June-August.

Statement of ALAA Executive Committee
Concerning RFP Bidding and Daniel O’Donnell’s State Senate Candidacy

June 16, 1998

On May 13, 1998, the Association of Legal Aid Attorneys/UAW Local 2325 (ALAA) issued a statement which warned that State Senate candidate and former Brooklyn CDD attorney Daniel O’Donnell had “betrayed his Legal Aid colleagues, his clients and his Union by bidding for an indigent defense contract .  .  .  designed by the Giuliani Administration and the far-right Manhattan Institute .  .  .  in retaliation for a lawful two-day [ALAA and 1199] strike in October 1994.”

Although the impetus for this statement was O’Donnell’s pursuit of votes on the basis of his former Legal Aid employment and purported pro-labor sympathies, joint responses written by O’Donnell and former Union member Bob Massi have mischaracterized ALAA’s statement as a “personal attack,” thereby obscuring the only genuine issue:  is it right to collaborate with the Giuliani administration’s attack on the Society and our Unions by bidding for Legal Aid’s work?

Time and again, ALAA and 1199 have answered with a resounding “no,” the reasons for which are clear from the severe damage inflicted for the past two years by the seven runaway defenders on the high quality indigent defense for which our Unions stand.

Most obviously, every penny of the millions funneled to nonunion contractors has been at the expense of the Society’s clients and staff.  By decimating our ranks, this ever-tightening noose has choked us with intolerable caseloads and institutional assignments.  An important consequence has been to make it increasingly difficult for Legal Aid attorneys to maintain vertical continuity of representation, a bedrock ALAA principal that Giuliani – no friend of poor people in general and indigent criminal defendants in particular – has set out to destroy. In 1991, ALAA rejected the City’s offer of raises in exchange for an “arraignment bureau” designed to break continuity.  In fall 1995, Giuliani, went ahead with the threatened RFPs in part because the Union continued to reject this demand.     

This two-prong strategy of strangling us with an unlimited number of cases and low salaries, while showering the nonunion contractors with (formerly Legal Aid) funds to handle a capped caseload at higher average pay (particularly at the trial-level), is designed to turn the Society into a high-volume misdemeanor recruiting ground for the runaway defenders.

The nonunion contractors have compounded this asphyxiation of Legal Aid by cheerfully implementing the wish-list that Giuliani has sought to impose on the Unions ever since the 1994 strike:  abandonment of vertical continuity; promotion of arraignment body counts; pandering to judges, court administration and even district attorneys; replacement of seniority-based pay by “merit”-based salaries unilaterally set by management; and/or other policies, including part-time private practice, equally inimical to high quality public defense. Id.  To overcome ALAA’s continued resistance, Giuliani established nonunion runaway defenders that would not – or could not – refuse him.  It is no accident, therefore, that – unlike attorneys at the unionized Legal Aid Society – nonunion RFP lawyers have absolutely no rights in relation to the rules governing their practice, workload, hiring, promotion, affirmative action, office space, health and safety or any other condition of employment.  As at-will employees, they are at the mercy of employer favoritism, arbitrary discipline and firing.  It goes without saying that they have no right to strike.  And as in any other runaway industry, if ALAA disappeared tomorrow, inflated RFP salaries designed solely to undermine the Union would drop through the floor, while any remaining RFP pretense of continuity or training would quickly evaporate.

By thus recreating the very conditions that gave birth to ALAA, runaway defenders hurt not only their own clients and staff, but serve the administration’s goal of unleashing a “race to the bottom” designed to compromise ours.  This explains the comment accompanying Giuliani’s current veto of $10 million in Legal Aid criminal funds that “[r]estoration [of additional funds] . . . will not encourage competition.”

O’Donnell protests that he intended none of these consequences, but bid only to ensure “that indigent defendants still have access to the best possible defense” after “the Mayor had already made the decision to take away arraignment shifts from Legal Aid.”

This rationalization, which translates “if I didn’t, someone else would,” fails to acknowledge the responsibility of RFP bidders – successful and unsuccessful alike – for the success of Giuliani’s attack.  Indeed, they have played a critical role by blessing lower standards of indigent representation and union-busting; by defaming Society staff for “inefficiency”; by denouncing ALAA for playing the very same role (and in O’Donnell’s case, for the very same strike) as when they were Union members Would O’Donnell have refrained from this explicitly antiunion argument – upon which RFP contracts depend – had he gotten an award? (or even leaders); and for giving momentum to the administration’s subsequent campaign to replace unionized municipal employees, from the subways to the city hospitals, and to bully into silence any and all opponents.  Above all, however, their complicity has served to disorient the loyalties and perceptions of many who would otherwise have innately understood the need to oppose the administration’s attack.

O’Donnell’s December 20, 1996 RFP clearly conforms to this pattern.  Like successful bidders at the “Bronx Defenders,” O’Donnell threw his hat into the RFP ring by offering Giuliani the felony arraignment bureau refused him by ALAA, opportunistically surrendering continuity with the assertion that “blind commitment to a vertical representation of clients is no longer effective or useful where there are so many clients and most attorneys don’t have the time to devote as much time as is needed to effectively aid the client” – the same argument made by continuity’s opponents for the past thirty years.  In the same vein, he proposed mass plea bargaining negotiated by a supervisor with “a very good rapport with the District Attorneys [sic] office,” and part-time private practice for would-be attorney staff.  Nothing in O’Donnell’s bid supports his present assertion to have demanded “that if our RFP was selected, any and all lawyers we subsequently hired would have the absolute right to organize a union or join any existing union” – a true legal fiction given the RFP’s expressly antiunion origins and design.

The indispensable service thus rendered Giuliani is crystal clear.  Notwithstanding its Fall 1995 RFP, the administration had to leave Legal Aid’s Bronx funds intact until Spring 1997, when enough “legitimate” (i.e., ex-Legal Aid) bidders such as O’Donnell provided sufficient political cover for Giuliani’s award of those same funds to two other credentialed bidders, Daniel Arshack and Robin Steinberg.  In the same way, complicity of credentialed bidders made it possible for Giuliani to transfer Society funds to runaway defenders in Manhattan and First Department appeals.

In the end, therefore, it is quite irrelevant whether O’Donnell was motivated by a multimillion dollar contract or “soley [by his] desire to provide .  .  .  continued, quality legal services” for indigent clients.  From the moment we struck, Giuliani has needed the collaboration of “good people” like O’Donnell with real or imagined grievances against the Society and the Unions, with a nose for economic opportunity, and/or with a genuine – but ill-conceived – concern for indigent defendants.  The greatest damage has been wrought by such collaborators – particularly those with former Legal Aid and/or ALAA credentials – willing to dress up Giuliani’s destructive assault in respectable clothing in exchange for a contract.

Contrary to myth, no bidder was driven to RFPs due to termination by the Society.  In reality, a few had left prior to the strike, a few afterwards; most bid secretly while still drawing a Society paycheck.  Not one, however, was forced to collaborate.  O’Donnell’s complicity is particularly repugnant since he participated in the democratic decision to strike in defiance of Giuliani’s threat to our work.  His self-serving rationalizations, therefore, insult the overwhelming majority of Staff Attorneys who – on principle – have taken responsibility for the strike by refusing enticements of dirty money and lighter caseloads, thus remaining true to their colleagues, their clients, and their Union.

These opposite choices remain very relevant to the future of indigent defense in New York City.  On one hand, the Society and the Unions fight to stop the RFPs and restore our funding.  On the other, the runaway defenders seek to expand their beachhead on Legal Aid soil by taking even more Society funds – none of which is possible without the initial “legitimacy” conferred by former Legal Aid bidders and awardees.

How different the situation would be if the runaway defenders acted less like strike-breakers (scabs) and union-busters, and more like livery drivers who in 1998 refused to steal striking cabbies’ fares; if they defended the Society and the high quality indigent defense for which our Unions stand by declaring the RFPs to be morally off-limits; if they observed the most elementary labor principle that there is no excuse for complicity in Rudolph Giuliani’s union-busting.  What is solidarity, if not that?

Because it is never too late to do the right thing, we invite O’Donnell to fulfill Massi’s assurance that he “would never abandon . . . the interests of working people and the poor or the ideals of the labor movement” by publicly renouncing his RFP collaboration and by joining our ongoing battle against the administration’s destructive and illegal policies.  Until then, however, we have an obligation to speak out against his unrepentant complicity and the hypocrisy with which he seeks to excuse it.