This memorandum is respectfully submitted in reply to Michael Forde's opposition to Eugene Clarke's case-in-chief in support of his motion to enforce the Consent Decree. As shown below, Forde's opposition is long on invective and short on substance.

Preliminary statement

The opposition papers contain no sworn testimony from Forde denying that: (1) he falsified the referral request from Eurotech for the 111 8th Avenue job by adding the skills of laboratory furniture installer and foreman/layout, and (2) he tipped off Maudsley in order for the latter to add these two skills to his portfolio. As for this violation, Forde's primary argument appears to be that the evidence of his wrongdoing does not satisfy the applicable standard of proof, which, in his view, is "beyond a reasonable doubt." As explained below, however, this is not a criminal contempt case, so the applicable standard of proof is "clear and convincing," which has been met.

As for the aiding and abetting allegations, Forde does not dispute that: (1) Corrigan was riding the list when he received steward referrals on November 1, 1999 to Trump West and on March 21, 2001 to AOL and that Hearty was riding the list when he received steward referrals on July 13, 2000 to 22 River Terrace and on February 5, 2001 to 110-120 Church Street (Clarke Brief at 16-17, 21, 25, & 27-28; Forde Mem. at 19, 26, 29, & 31-32); (2) under the referral rules, carpenters who were working were not available for referral and were therefore ineligible to receive one (Clarke Brief at 5-6; Forde Mem. at 2-3), or, as explained by Scott Danielson, "[i]f his name was on the list and he was working, correct, he was not supposed to get a referral" (Ex. 12, Danielson Dep. at 126); (3) in October or November 2001, Forde learned of these four violations (Clarke Brief at 37; Forde Mem. at 45); (4) Forde failed to remove Corrigan and Hearty from their illegally obtained positions as stewards at AOL and 110-120 Church Street, respectively, and instead allowed them both to continue working until December 2002 (Clarke Brief at 37; Forde Mem. at 45-46); and (5) Corrigan and Hearty co-chaired the March 2001 fundraiser for his criminal defense fund. (Clarke Brief at 2; Forde Mem. at 2). These undisputed points establish that, as a matter of law, Forde aided and abetted the four violations; even under his version of the facts, then, he loses.

ARGUMENT

POINT I

this is not a criminal case

Forde's level of desperation is reflected in his argument that the standard of proof used in criminal cases should apply to the motion.[1] The case purportedly relied upon by Forde for this argument is UMW v. Bagwell, 512 U.S. 821 (1994).

Bagwell involved $52 million in contempt fines imposed on a union. The Court held that "the serious contempt fines imposed here were criminal and constitutionally could not be imposed absent a jury trial." Id. 838. The Court, however, limited the reach of its decision, stating that its holding "leaves unaltered the longstanding authority of judges to… enter broad compensatory awards for all contempts through civil proceedings." Id. 839. The Court also reaffirmed prior decisions that had held that "fixed fines may be considered purgable and civil when imposed and suspended pending future compliance." Id. 829. It then went on to conclude that the $52 million in fines were "more closely analogous to fixed, determinate, retrospective criminal fines [because] petitioners had no opportunity to purge [them] once imposed." Id. 837.

Forde does not dispute that the reimbursement order that Clarke seeks is compensatory in nature and therefore constitutes a civil remedy. (Clarke Brief at 52-54; Forde Mem. at 62-63).[2] Clarke's remedy also provides that "[p]ayment of the $25,000 sanction should therefore be suspended to provide Forde the opportunity to purge the contempt by taking action to curb further manipulation of the referral system." (Clarke Brief at 54-55). Forde does not contend that he cannot undertake the steps necessary to purge the contempt (i.e., firing Greaney and Danielson); instead, he argues, ironically, that a preferable purge provision would be to not allow him to "remain in office." (Forde Mem. at 64).[3] The sanctions sought by Clarke are therefore clearly not criminal in nature under the holding in Bagwell, so the "beyond a reasonable doubt" standard does not apply to the motion.

POINT II

forde rigged the request of april 19, 1999 for maudsley

Forde claims that "[t]here is no support" for this allegation. (Forde Mem. at 18). If such had been the case, Forde would not have needed to devote eight pages of his brief to discussing the evidence against him on it.

At his deposition, Eurotech's superintendent at the 111 8th Avenue job, Michael Purser, testified as follows:

Q. And Henegan was the general?

A. Yes.

Q. Did Eurotech have work involving lab furniture as part of its subcontract?

A. No.

(Ex. 29, at 12). In this context, there is nothing ambiguous or vague about Purser's answer to the following question:

Q. Let me ask you this: In terms of the skills you requested, did you request someone with the skill of lab furniture?

A. I wouldn't think so.

(Id. at 6).

Purser's testimony on this point was corroborated by the documentary evidence -- Henegan's subcontract with Eurotech does not call for the latter to install laboratory furniture at the project -- and by Henegan's general counsel, who confirmed in writing that Henegan "does not perform furniture installation on any of its projects." (Ex. 28, Bates # 2830).

As to the need for either a foreman or someone with layout skills alone, Purser's testimony was again crystal clear:

Q. Who normally does the layout work on one of these jobs?

A. The foreman.

Q. The foreman.

A. Yeah.

Q. Who was the foreman on that job?

A. If I'm not mistaken, it was Tommy McHugh. Yes.

Q. Is he someone who is skilled at layout work?

A. Yeah. Yes.

(Id. at 7-8).

Forde disputes that McHugh had been hired by April 23, 1999. (Forde Mem. at 17). Danielson's investigative file for Maudsley, however, contains the shop steward report for the week of April 13-19, 1999, showing that McHugh was working at least as early as April 13 (Ex. 13, Bates # 821), 10 days before Maudsley's referral. The evidence is therefore undisputed that Eurotech did not need a carpenter with layout or furniture installation skills or a foreman -- with or without layout skills -- for this job.

According to Forde's opposition, "Forde has told Rothman and Danielson during the course of their investigation into Clarke's July 24, 2001, complaint, that 'he had no particular recollection of this 1999 job...'" (Forde Mem. at 11). Purser's testimony that the Eurotech did not need a laboratory furniture installer, a layout carpenter, or a foreman for this job therefore stands unrebutted.

Forde also offered no sworn deposition testimony to deny that (1) adding the skill of laboratory furniture installer eliminated 95% of the certified stewards on the out-of-work list from consideration for the referral to 111 8th Avenue and (2) adding the skill of foreman/layout to the Eurotech request broke the tie with Lym and insured that Lym was not selected by the computer ahead of Maudsley. (Clarke Brief at 40; Forde Brief at 17).

The evidence is therefore undisputed that two skills were added improperly by Forde to the Eurotech request and that these two improper additions had the effect of both insuring that Maudsley got the referral and of bypassing 4 carpenters on the list who possessed the two skills -- ceilings and steward certification -- the job actually required.[4] In addition, it is also undisputed that on April 22, 1999, Maudsley added these exact two skills to his portfolio and that neither Forde nor Maudsley offered any explanation for the timing of these additions. The timing of these additions and the fact they exactly matched Forde's falsifications, without even an attempt to explain this alleged coincidence, allows for but a single inference: Forde tipped off Hearty.

Taken together, these undisputed facts clearly and convincingly establish that Forde, in violation of the Consent Decree's referral rules, rigged the referral for Maudsley and by doing so enabled him to jump over 4 carpenters who were out of work longer than he was and possessed the skills required for the job. [5]

POINT III

Forde Breached his fiduciary duty to disclose and remedy corrigan and hearty's violations

Clarke alleged that Forde had a fiduciary duty to disclose and remedy violations of the referral rules. (Clarke Brief at 50-51). Forde does not dispute this point. (Forde Mem. at 60).

A. The Failure To Disclose

At his deposition, Forde testified as follows:

Q. After you directed Rothman and Danielson to conduct an investigation into Clarke's letter of July 24, 2001, what was the outcome of the investigation?

A. Well, the outcome was that it appeared that some people were riding lists while they were working. Many people… .

(Ex 55, Forde Dep. at 46). This admission was corroborated by Early, who testified that the Executive Committee was told that Corrigan was riding the list in October 1999 and in March 2001 and Hearty was doing the same in July 2000 and January 2001 (Clarke Brief. at 31-32; Forde Mem. at 40-45) and by Danielson, who testified that in his investigation into Clarke's complaint he discovered that (1) Corrigan was ineligible for the referrals of November 1, 1999 and March 21, 2001 and three others -- July 11, August 2, and August 25, 2000 -- between those two dates, and (2) Hearty was ineligible for the referrals of July 13, 2000 and February 5, 2001. (Clarke Brief at 34-36, 27-28 n. 17). Danielson further admitted that "[i]f his name was on the list and he was working, correct, he was not supposed to get a referral" (Ex. 12 at 126), which meant that Corrigan and Hearty received referrals that should have gone to other carpenters. In his affidavit, Rothman does not deny that he reported these violations to Forde and the Executive Committee. Forde also concedes in his brief (Forde Mem. at 45) that by October or November 2001 he had learned that the referrals of November 1, 1999 and March 21, 2001 to Corrigan and July 13, 2000 and February 5, 2001 to Hearty violated the rules.

In his affidavit, Rothman does not deny that in the report he wrote concerning Clarke's allegations, he did not disclose the violations of November 1, 1999, July 13, 2000, February 5, 2001, and March 21, 2001, despite the fact that in it he wrote that"[o]ur review of each of the referrals cited in the complaint have led us to conclude that the referrals were proper under the approved system… Where we found wrongdoing, we have reported it to you…" (Ex. 17, Bates # 779, 784). Instead he attempts to exonerate Forde by claiming that the latter did not direct him to conceal the four violations from the Court. [6] This claim is rendered irrelevant for two reasons. First, as he has already acknowledged, Forde, as an officer of the union, had an independent fiduciary obligation to disclose the riding the list violations once he learned of them. Second, Forde adopted the report in its entirety. Thus, the brief that Forde filed on January 28, 2002, Ex. 48, at 16, concluded with the representation that the "Investigation Report deals squarely with the challenged referrals… The Court is respectfully referred to the report for a complete treatment of each referral. No consent decree violations are raised by Clarke's complaints and accordingly his motion should be denied." [7] (Id.).

B. The Failure To Remedy

Rothman and Danielson contend that the policy of removing stewards who obtained their appointments while riding the list was not put in place until December 2002. This lack of a policy in their view absolved Forde of the obligation to remove Corrigan and Hearty a year earlier when he learned they were appointed as stewards for the AOL and 110-120 Church Street jobs while riding the list. This argument, too, is irrelevant.[8]

Both Corrigan and Hearty continued working at AOL and 110-120 Church Street until December 2002, long after Forde admitted he learned that their appointments were illegal. Permitting Corrigan and Hearty to remain in their steward positions for more than a year after he learned that they were ineligible for them enabled Corrigan and Hearty to earn at least another $75,000 [9] apiece in jobs that should have gone to other members.

The referrals of November 1, 1999 and March 21, 2001 were the first and last of five consecutive riding-the-list violations committed by Corrigan. The referrals of July 13, 2000 and February 5, 2001 were the second and third in a series of three consecutive riding-the-list violations committed by Hearty.[10] These consecutive violations reflect a steadfast commitment by both of them to violate the Consent Decree. Internal union charges that carried a maximum fine of $250 or $500 were simply not going to deter them from continuing their scheme when at least $75,000 was at stake for each of them. The only way to correct their wrongdoing was therefore to bring it to an immediate end. Conversely, permitting them to continue at AOL and 110-120 Church Street did not remedy -- but instead ratified -- their wrongdoing. See Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F. 2d 767, 773 (2d Cir. 1972). Any action that allowed them to continue in their positions then was no remedy at all.[11] In not removing them, Forde therefore failed to remedy their violations.

C. Conclusion

As set forth above, Forde breached his fiduciary obligation both to disclose and remedy Corrigan's and Hearty's riding-the-list violations.

POINT IV

Forde aided and abetted corrigan's and hearty's violations

The four elements of aiding and abetting have therefore been satisfied:

(1) Commission of the underlying violation:

It is undisputed that referrals violated the Consent Decree's rules;

(2) The violation was committed by a person other than defendant:

It is undisputed that Corrigan and Hearty obtained the referrals by riding the list illegally;

(3) A voluntary act or omission by the person charged:

It is undisputed that Forde had a fiduciary obligation to remedy the violations and failed to do so as a matter of law when he permitted them to continue in their jobs;

(4) Specific intent that the act or omission bring about the underlying crime:

By breaching his fiduciary obligations, Forde evidenced a clear intent to ratify their steward appointments, which he knew were illegal, and did so for bad faith reasons, as he obviously had no intention of enforcing the Consent Decree at the expense of the two cronies who had run the fundraiser for his criminal defense fund. He thereby made himself the key player in the ongoing success of their scheme, because at the critical juncture when he should have shut it down, he refrained from doing so, and instead let it continue for another 14 months. See United States v. Wiley, 846 F. 2d 150, 154 (2d Cir. 1988) (Specific intent is shown where respondent "joined the venture, shared in it, and that his efforts contributed towards its success.")

For these reasons, the evidence establishes that Forde aided and abetted Corrigan's and Hearty's riding-the-list violations. See United States v. Best, 219 F. 3d 192, 199-200 (2d Cir. 2000).[12]

CONCLUSION

For the reasons set forth above and in Clarke's initial brief, the Court should order Forde to pay a sanction of $25,000, subject to the purge provisions described in the latter. The Court should also order Forde to pay Clarke's attorneys' fees and to reimburse the District Council for (1) the cost of the "Report to the Executive Committee of the Investigation Committee Into the Complaint of Eugene Clarke," dated January 2002, and (2) the cost the legal defense provided him herein by the District Council's law firm between January 2, 2002 and February 25, 2004.

Dated: April 24, 2006

VLADECK, WALDMAN, ELIAS &

ENGELHARD, P.C.

By: ____________________________

James Wasserman (JW-3717)

Attorneys for Eugene Clarke

1501 Broadway, Suite 800

New York, New York 10036

(212) 403-7300

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

Preliminary statement 1

ARGUMENT 3

POINT I this is not a criminal case 3

POINT II forde rigged the request of april 19, 1999 for
maudsley 6

POINT III Forde Breached his fiduciary duty to disclose
and remedy corrigan and hearty's violations 10

A. The Failure To Disclose 10

B. The Failure To Remedy 13

C. Conclusion 16

POINT IV Forde aided and abetted corrigan's and hearty's violations 16

CONCLUSION 18

TABLE OF AUTHORITIES

CASES

Breen Air Freight, Ltd. v. Air Cargo, Inc.,

470 F.2d 767 (2d Cir. 1972)............................ 15

UMW v. Bagwell,

512 U.S. 821 (1994).................................. 3, 5

United States v. Best,

219 F.3d 192 (2d Cir. 2000)............................ 17

United States v. District Council,

778 F. Supp. 738 (S.D.N.Y. 1991)........................ 4

United States v. District Council,

2002 WL 31873460 (Dec. 24, 2002).................... 4, 17

United States v. Wiley,

846 F.2d 150 (2d Cir. 1988)............................ 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - X

UNITED STATES OF AMERICA,

Plaintiff,

- against -

DISTRICT COUNCIL OF NEW YORK CITY

AND VICINITY OF THE UNITED

BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, et al.,

Defendants.

90 Civ. 5722 (CSH)

- - - - - - - - - - - - - - - - - X

REPLY MEMORANDUM OF EUGENE CLARKE IN SUPPORT
OF MOTION TO ENFORCE CONSENT DECREE

VLADECK, WALDMAN, ELIAS,

& ENGELHARD, P.C.

Attorneys for Eugene Clarke

1501 Broadway, Suite 800

New York, New York 10036

(212) 403-7300

Of Counsel:

James Wasserman

[1] While on the subject of desperation, it is noted that Forde's counsel made ad hominem attacks on opposing counsel on 35 of the 65 pages in his brief. These attacks stem mostly from the fact that Forde's counsel does not like the way the deposition transcripts read; in his view, they are misleading (which is not the case). Forde's counsel was present at all the depositions, however, and made no effort to clarify the testimony he now claims is misleading; he has apparently not thought through the implications of his attacks.

[2] Forde opposes the reimbursement remedy on the following basis:

Had Clarke and Wasserman sought from the outset to proceed against Forde, they should have done so. Instead, they named the District Council as a defendant thereby understandably triggering O'Dwyer & Bernstien's response to the motion. Only as an afterthought did Wasserman conceive of seeking reimbursement to the District Council for O'Dwyer & Bernstien's fees by re-characterizing the motion as one directed at Forde in his individual capacity.

(Forde Mem. at 64-65). Forde's counsel is sadly and seriously confused.

As the Court noted in Clarke I, 2002 WL 31873460 (Dec. 24, 2002), *5, the Notice of Motion, filed January 2, 2002, prayed for the Court to enter an order

imposing upon Michael Forde, the District Council's Executive Secretary-Treasurer, a sanction of $50,000.00 for violating the Consent Decree's referral rules, and for such other relief as is just and proper, including but not limited to, reimbursing (1) the District Council for the cost of its investigation of Forde's violations and (2) Mr. Clarke for attorneys' fees and costs incurred in bringing this motion.

The notice from the outset therefore named only one respondent, Forde, and sought no relief from the District Council. The only way for Clarke to enforce the Consent Decree's referral rules against Forde was to intervene in the case, 90 Civ. 5722, in which the rules had been promulgated. The caption of the case bore the name of the District Council, albeit always as a nominal defendant. United States v. District Council, 778 F. Supp. 738, 756-57 n. 10. As the motion sought no relief from the District Council, the O'Dwyer firm could not have harbored a good faith belief that the District Council was a respondent in the motion. Indeed, at the oral argument of June 12, 2003, Mr. Rothman implicitly recognized that there was no confusion about this point, stating that "[w]ith respect to the merits, we believe that, and we submit that, Clarke has not submitted adequate proof to demonstrate that Michael Forde had violated the out of work list referral rules." (Transcript at 11). At no time during the argument did he seek to defend the District Council on the merits of Clarke's charges, for the obvious reason that there were no charges for the latter to defend against.

The motion all along sought relief against Forde alone for violating the referral rules that the District Council was obligated to abide by under the Consent Decree. Thus, from the outset of the motion, Forde was charged with acting contrary to the interests of the District Council. It was therefore completely inappropriate for the District Council's law firm to have defended Forde in the motion for two years, until February 25, 2004. It is for this reason that the motion later sought to have Forde also reimburse the District Council for the fees that it was charged by the O'Dwyer firm for these two years of representation.

[3] Clarke has no objection to considering Forde's preferred purge provision as an alternative proposal to his own.

[4] Ex. 19, the out-of-work list for the week beginning April 19, 1999, lists more than 2,000 names in numerical order. The names are ordered according to when the carpenters first registered on the list claiming to be unemployed, following the concept that those with lower numbers should be out of work longer and have priority over those with higher numbers. (Ex. 25, Greaney Dep. at 84-85). To confuse the Court, Forde claims that list is ordered according to when a registrant last called the OWL. (Forde Mem. at 18). Perusal of just the first two pages of the list shows this claim to be utterly false (Ex. 19, Bates # 1205 & 1206), leaving Clarke's allegation that Maudsley bypassed four qualified and available stewards (Clarke Brief at 16) unrebutted. His objections to Clarke's assertions that Corrigan and Hearty bypassed available, qualified carpenters by riding the list are based on the same falsehood and so are meritless as well.

[5] Forde's other defense to the Maudsley allegation is based upon Danielson's claim that Forde did not see the out-of-work list that included the skills portfolio of each registrant. Forde himself, however, does not deny that he saw such a list. The unrebutted evidence that he rigged the referral is therefore overwhelming.

Moreover, Exhibits 1 and 2 to Danielson's affidavit are lists from 2006 and so do not prove what existed in April 1999. Danielson is attempting to prove that a second version of the weekly OWL for 4/19/99 did not list each registrant's skills. This is therefore an attempt to prove the contents of a specific document without producing the original or a copy thereof and without establishing that the original or copy has been destroyed, a result prohibited by Rule 1004 of the Fed. Rules of Evidence.

Finally, Item #16 of Clarke's deposition subpoena to Danielson, Ex. A attached hereto, requested him to produce the out-of-work lists for the weeks before and after the five referrals that are the subject of the motion. Danielson produced only one version for each week requested. (Ex. 12 at 7 & 24). Under Local Rule 23.3(c)(2), any non-identical copies of the list should have also been produced. Forde is effectively attempting to produce a non-identical copy months after discovery was completed. The attempt is untimely.

[6] Rothman suggests that the failure to disclose these four violations is attributable to the fact that the focus of the report was on the falsified request scam and the tip-off scam. This argument is rendered irrelevant by the representation made by Rothman and Danielson at the end of the report that "[o]ur review of each of the referrals cited in the complaint have led us to conclude that the referrals were proper under the approved system… Where we found wrongdoing, we have reported it to you…" (Ex. 17, Bates # 779, 784). Because, as Danielson admitted, they discovered at least seven unlawful referrals that they did not report, this representation was one that was indisputably false.

This assertion is also contradicted by both Forde, who testified that "the outcome [of the investigation by Rothman and Danielson] was that it appeared that some people were riding lists while they were working. Many members." (Ex. 55, Forde Dep. at 46) and Danielson, who testified that they got payroll records from certain companies to check whether members were working with their names on the out-of-work list. (Ex. 12, Danielson Dep. at 50-51). These payroll records showed that Corrigan and Hearty were working on dates they received referrals. (Ex. 15, Bates # 1017 & 1024; Ex. 14, Bates # 906 & 912-913).

[7] Rothman suggests that the Report did disclose one of the four violations.

At 18, the report discloses that Hearty "was working in the month of January 2001 while he remained on the out of work list." Despite this, the Report concludes that Hearty "was lawfully eligible for the dispatch on February 5, 2001 and this claim has no merit." However, according to Danielson,

Q. So you had those payroll records in front of you when you and Rothman prepared the report, correct?

A. Right.

Q. So the payroll records show that he was working at the time and he shouldn't have been on the list, correct?

A. Right.

Q. So the statements that you have there at the bottom - the middle paragraph where you say Hearty was lawfully eligible for the dispatch on February 5, 2001, that's not correct; am I right or am I wrong?

A. I'm getting confused. Based on these records that he has payroll and he's on the list at the same time, that's correct.

(Id. at 84-85). Even though the referral rules unambiguously required a carpenter on the list to be "available,' i.e., unemployed, in order to be referred, Rothman, in the report, at 8, 14, and 18, repeatedly fails to make that connection and instead disconnects "riding-the-list" from its consequences, by pretending that the actual referral of someone riding the list is not a violation.

[8] Danielson insists that he "filed" two charges against Corrigan and three charges against Hearty. Danielson's affidavit, however, attaches charges against Corrigan for riding the list in March 1999 and August 2000 only; he therefore unwittingly concedes that no charges were filed for the referrals of November 1, 1999 and March 21, 2001. Where he "filed" the five draft charges against Hearty and Corrigan and what happened to them after he did so are questions that neither he nor Rothman attempt to answer.

There is no dispute that under the Constitution of the United Brotherhood of Carpenters & Joiners of America, charges "must be read at the [monthly membership] meeting… and the member must be notified by registered or certified mail [of the meeting], and at the same time shall be furnished… with a copy of the charges specified." (Ex. 58 at 69). However, no correspondence showing service of the charges Danielson drafted or minutes showing they were read aloud at membership meetings were produced by Danielson and Rothman.

Rothman and Danielson do not address the issue of why nothing became of the charges that Danielson claims he drafted. The reason they cannot do so is obvious: Processing the charges would have involved public disclosure. Forde obviously could not allow charges to be read aloud at a membership meeting alleging that Corrigan and Hearty received improper referrals while taking the position in Court that the same referrals did not violate the rules.

Rothman claims that Clarke can only speculate about what he told the government concerning Corrigan and Hearty's violations. Nowhere does he affirmatively state, however, that he in fact told the government about Corrigan's and Hearty's consecutive riding-the-list violations.

[9] The payroll records show the weekly rate in effect in 2001 was $1322. (Ex. 14, Bates # 906-908). Fourteen months or 60 weeks pay amounts to $79, 320.

[10] The first violation is reflected in the draft charge Danielson attached to his affidavit under Ex. 3 for June 1999.

[11] Section 16 of the District Council's By-Laws provides that

Appointment of Stewards

All stewards will be appointed by the Executive Secretary-Treasurer in a fair and equitable manner consistent with job referral rules and the Consent Decree in United States v. District Council, et al., 90 Civ. 5722. Stewards shall be appointed according to their skills and position on the out-of-work list… No worker shall be referred from the out-of-work list out of turn to fill a steward position.

(Ex. 3, Bates #50). Forde was therefore made specifically responsible for the management of the out-of-work list where steward appointments were concerned and for directing that they comply with the referral rules. In letting Corrigan and Hearty continue in their positions, Forde did the exact opposite of what Section 16 required of him: run the OWL in a way that insured compliance with the rules.

[12] Forde's brief, at 60, claims that Forde "has run an administration committed to ongoing efforts to eliminate corruption from the Carpenters' Union," citing for support paragraph 12 of Danielson's affidavit. In that paragraph, Danielson proffers as evidence of these efforts (1) his assistance to the Independent Investigator, Walter Mack, which "would not be possible without the support and approval of Michael Forde" and (2) the report.

First, as the Court, in Clarke I, has already noted, however, Mr. Mack's appointment came about "'in response to the concerns raised by Government regarding the adequacy and thoroughness of the District Council's internal investigation of Clarke's allegations.'" 2002 WL 31873460, *5 (Dec. 24, 2002). As a result, Clarke, not Forde, deserves credit the for results that Mack was able to achieve. Moreover, Mack's reports have been highly critical of the District Council's lax and non-existent efforts at complying with the Consent Decree, the blame for which lies with Forde, who, as Danielson noted, "run[s]" the Council.

Second, the Report's representation that "[o]ur review of each of the referrals cited in the complaint have led us to conclude that the referrals were proper under the approved system… Where we found wrongdoing, we have reported it to you…" (Ex. 17, Bates # 779, 784), was, as the Government initially suspected, a blatant misrepresentation.

Unwittingly, Danielson's affidavit leaves Forde with nothing to show for himself in terms of his purported diligence in running the Council in compliance with the Consent Decree's referral rules.