In the Matter of Carmine Agnello
Laborers' International Union of North America
Independent Hearing Officer
Docket No. 98-67D
Decided: February 11, 1999
Order and Memorandum
Procedural HistoryThis matter comes before the Laborers' International Union of North America ("LIUNA") Independent Hearing Officer ("IHO") pursuant to the LIUNA Constitution and the Ethics and Disciplinary Procedure ("EDP").
On December 7, 1998, Disciplinary Charges were filed by the LIUNA General Executive Board Attorney ("GEB Attorney") against Carmine Agnello ("Agnello"). The charges allege Agnello committed barred conduct by obstructing the duties of the GEB Attorney in violation of the EDP. The charges allege specifically that Agnello failed to appear for a deposition scheduled by the GEB Attorney.
The IHO held a hearing in New York City, on January 8, 1999. Agnello did not appear but was represented by counsel, Mark Pergament (''Pergament'). The GEB Attorney and counsel for Agnello filed post-hearing briefs on January 25, 1999.
Based upon the evidence and the briefs of counsel, the IHO finds that the charges have been proved by a preponderance of the evidence.
Findings of Fact1. The charges allege that Agnello willfully failed to be deposed by the GEB Attorney. The charges allege as follows:
Respondent CARMINE AGENELLO has committed "barred conduct" under LIUNA's Ethics and Disciplinary Procedure; to wit, he has obstructed and interfered with the GEB Attorney by refusing to appear for a scheduled deposition on December 1, 1998.
254 In the Matter of Agnello 19992. In the fall of 1998, the LIUNA Inspector General ("IG") and the GEB Attorney were investigating possible disciplinary violations pertaining to Sand, Gravel, Crushed Stone, Ashes & Material Yard Workers, Local 1175 ("Local 1175") in New York. There were allegations that Local 1175, and its respective officers and employees, were under the influence of elements of organized crime.
4. As a premise for subpoenaing, Agnello the GEB Attorney stated that Agnello had posted a multi-million dollar property bond for John A. Gotti's release from detention pending his trial in federal court. Gotti, a known member of organized crime, and the son of the Boss of the Gambino family, is under indictment for RICO charges in federal court in New York. Under the circumstances the GEB Attorney has a reasonable interest in subpoenaing Agnello .
5. The IHO makes no finding as of Agnello's membership or association with organized crime. The present matter only concerns Agnello's failure to appear for the deposition by the GEB Attorney.
6. On October 21, 1998, the GEB Attorney Robert M. Thomas, Jr. (`"Thomas") sent Agnello a notice of deposition informing him he was to appear to be deposed on November 12, 1998. See GEB Attorney Exhibit ("GEB Ex.") 1.
7. The Notice of Deposition was served by IG Inspector Thomas A. Vinton ("Vinton") on October 27, 1998. Vinton testified that he personally served the notice on an individual who was standing in front of a building in the Bronx, which housed a business owned by Agnello. Vinton testified that the individual identified himself as Carmine Agnello. Vinton also recognized Agnello from photographs. The IHO credits Vinton's testimony.
8. The IHO finds that Agnello was properly served with a notice of deposition scheduled for November 12, 1998.
9. Shortly after Agnello was served, Agnello's attorney, Pergament, telephoned Thomas to indicate he was representing Agnello and that the November 12th date was inconvenient.
255 In the Matter of Agnello 199910. Pergament and Thomas discussed several dates and reached an oral agreement to continue the deposition until December 1, 1998.
11. The IHO finds that Pergament requested a delay until December 1, 1998. The IHO further finds that the December 1, 1998 deposition was properly set.
12. On November 24, 1998, Thomas sent Pergament a letter confirming the December 1st date, time, and location of the deposition. See GEB Ex. 2. In the federal process, "proper [deposition] notice is given by mailing to the party's attorney of record a copy of the notice to take deposition ... ." Chagas v. United States, 369 F.2d 643, 644 (5th Cir. 1996); See Peitzman v. City of Elmo, 141 F.2d 956, 960 (8th Cir. 1994) ("Service of the [deposition] notice upon the attorney for defendants was all that was required to make it incumbent upon the parties to appear."); Collins v. Wayland 139 F.2d 677, 678 (9th Cir. 1944) (proper service and notice found where deposition notice served on counsel); Cerami v. Robinson, 85 F.R.D. 371, 372 (S.D.N.Y. 1980) ("Under the federal rules, service of notice of a deposition upon party's attorney is sufficient."); See also Fed. R. Civ. P 5(b), 30(b). Furthermore, under New York law, service upon the attorney of a represented party is effective service unless another statute or a court order provides otherwise. N.Y. C.P.L.R. 2103(b) (McKinney 1998). The IHO finds that mailing notice to Pergament, as Agnello's representative, constituted proper service on Agnello.13. At 5:30 p.m. on November 25, 1998, the Wednesday before the Thanksgiving holiday, after the GEB Attorney office was closed for the holiday, Pergament's secretary phoned Thomas and left a voicemail message stating only that Pergament would not attend the deposition. Pergament's secretary gave no further explanation.
14. Seeking further explanation, Thomas phoned Pergament's office and spoke with Pergament's secretary. The secretary stated only that Pergament was unavailable and could not be reached. Thomas told the secretary he urgently needed to speak with Pergament and gave her telephone numbers where he could be reached during the weekend, including a number in New York City for Monday, November 30, 1998.
15. Thomas did not hear from Pergament over the Thanksgiving weekend.16. On November 30, 1998, Thomas spoke with Pergament by phone from New York at approximately 3:30 p.m. The purpose for the phone call was to determine whether Agnello would be attending the deposition, and if not, if there was legitimate reason for his absence which could possibly be accommodated or if Agnello simply sought to avoid deposition.
256 In the Matter ofAgnello 199917. During the November 30th conversation, Pergament made it clear that neither he nor his client would be attending the December 1 st scheduled deposition. Pergament stated for the first time that Agnello wished to consult with separate counsel and that Agnello had concerns about the possible scope of the deposition.
18. Thomas told Pergament that Agnello's reasons for not appearing, announced the day before the rescheduled deposition, were unacceptable, considering that Agnello had a month to seek advice from counsel and that such concerns should have been raised earlier.
19. Due to Pergament's assurances that neither he nor Agnello would appear the next day, Thomas cancelled the December 1st deposition. Pergament does not contest that neither he nor his client would not have appeared at the December 1st deposition.
20. Pergament told Thomas that he would contact him "within the next couple of days" regarding the dates that would be acceptable for his client's deposition.
21. On December 1, 1998, Thomas mailed Pergament a letter outlining the events described in paragraphs 6-20, supra . Thomas's letter indicated to Pergament that it was unacceptable to the GEB Attorney for a LIUNA member to arbitrarily choose whether to appear at a scheduled deposition. Thomas warned Pergament that Agnello's failure to appear on December 1st constituted grounds for discipline in the reform process and further delays could result in obstruction charges.
22. The December 1 st letter informed Pergament that if Agnello wished to avoid obstruction charges he was required to be deposed on or before December 7, 1998. Thomas requested that Pergament contact him by 5:00 p.m. on December 2, 1998, regarding his client's preference of dates on or before December 7th.
23. Thomas received no communication from Pergament by December 2nd, Thomas would chose December 7th at 11:00 a.m. as the date and time for deposition and Agnello would be subjected to appropriate action if he did not appear.
24. Thomas received no communication from Pergament or Agnello by December 2, 1998 at 5:00 p.m.
25. On December 2, 1998, Thomas sent Agnello a notice by overnight courier requiring him to appear for deposition on December 7, 1998. See GEB Ex. 4. The GEB Attorney also mailed Pergament a copy of the notice. The IHO finds that Agnello was properly served with notice for deposition on December 7th.
257 In the Matter of Agnello 199926. Thomas and a court reporter appeared at the designated location on December 7, 1998, and waited for forty-five (45) minutes. Neither Agnello nor his attorney appeared or left any phone messages stating a reason for their nonappearance. Thomas placed a statement to that effect on the record. See GEB Ex. 5.
27. The IHO finds that Agnello failed to appear at the scheduled depositions of December 1, 1998 and December 7, 1998, without adequate excuse.
28. During the hearing in this matter on January 8, 1999, the GEB Attorney called Vinton to the stand after the GEB Attorney had rested his case, over the objection of Pergament. The accepted procedure in labor arbitrations permits reopening both the plaintiff and defense cases to allow the receipt of relevant evidence while the hearing is in progress. See generally, Frank Elkouri and Edna Asper Elkouri, How Arbitration Works 279 (4th ed. 1985) ("Under accepted practice the arbitrator on his own motion, or upon request of a party for good cause shown, may reopen the hearing at any time before the award is rendered."), id. at 279, and ("[U]nless some deliberate attempt to mislead the other party is disclosed, and particularly if the `new' evidence or argument appears substantially material, most arbitrators will be disinclined to rule the matter out of the proceedings."), id. at 302. Counsel for Agnello argues that it was improper for the IHO to hear the testimony of Vinton after the GEB Attorney had rested. The hearing had not yet concluded. Opposing counsel was given the right to cross-examination. Furthermore, had the IHO found appropriate, the IHO would have had the power to reopen the proceedings and call Vinton on my own motion to testify. The IHO finds there was no violation of accepted procedure in allowing Vinton to testify as part of the GEB Attorney's case.
DiscussionBarred conduct is defined to include "obstructing or interfering with the LIUNA Inspector General, the General Executive Board Attorney, or the Independent Hearing Officer, as these parties are described in the LIUNA Ethics and Disciplinary Procedure." EDP, Section 1.
The IHO has previously made it clear that refusal to be deposed by the GEB Attorney constitutes barred conduct. In the Matter of Paul Panepinto, IHO Order and Memorandum, 97-IOD (July 3, 1997); In the Matter of Everett Caci, IHO Order and Memorandum, 97-31D (January 26, 1998), aff d, 1998 A.O. 55 (97-016-IHO, 98-0091110, 98-012-IHO).
The factual situation presented here is not new. The tactic of attempting to delay a deposition at the last minute has been litigated in LIUNA disciplinary proceedings on previous occasions. The IHO has stressed the responsibility of LIUNA members to cooperate with the GEB Attorney and the IG. See In the Matter of Everett Caci, IHO Order and Memorandum, 97-31D (September 29,
258 In the Matter of Agnello 19991997); In the Matter of Catania, IHO Order and Memorandum 96-86D, (September 25, 1997).
In Caci, the Respondent was a defendant in a case pending in federal district court when he was requested to attend a deposition by the GEB Attorney. Caci objected to the deposition stating initially that the same subject matter as the federal case was to be covered by the deposition. Caci later sent a letter to the IHO the day before his scheduled deposition stating that he could not afford an attorney and would not attend. The IHO discussed the duty of all LIUNA members to comply with the requests of the GEB and IG:
The assistance of counsel is recognized as a member's right; however, assistance of a particular counsel of choice at the preliminary stages of the investigation is not an absolute right, and unavailability of counsel for a continued period of time will not be deemed a reason to delay the investigative process.
In Catania, the Respondent was found guilty of obstructing a GEB investigation for failure to appear at an interview. The member was found at fault for not relaying notices regarding scheduling to his attorney. The IHO found that Catania and his attorney failed to follow up on the IG's requests in scheduling an interview and that Catania had embarked upon a course to deliberately avoid an interview. Catania, IHO 96-86D.
Agnello's reasons for delaying the December 1st meeting were not valid, notwithstanding his stated desire to consult with other counsel. Agnello was adequately represented by counsel at the time and had had well over a month to consult other counsel.
259 In the Matter of Agnello 1999Counsel for Agnello argues that he did not have adequate notice as to the December 7th deposition because the GEB Attorney selected the date without confirmation from Agnello, and because the notice was only issued five days in advance. Under normal circumstances, a five-day advance notice of deposition would be considered unreasonable. The GEB Attorney also may not arbitrarily schedule a deposition of an individual over the objection of witness's counsel, where the request for delay is reasonable and for good cause. In the present case, however, Agnello himself caused the situation which led to the GEB Attorney being forced to select a date in the immediate future. Agnello ignored the GEB Attorney's warning that he needed to appear for deposition. The GEB Attorney had already extended the date of deposition for approximately one month past the original date to accommodate Agnello's request. Agnello then informed the GEB Attorney just days before the deposition that he would not be attending. The GEB Attorney gave Agnello one additional chance to avoid obstruction charges and select an alternate date for deposition. Agnello ignored the GEB Attorney thereby forcing him to select the date.
The Appellate Officer has previously discussed the different rights between LIUNA members in the reform process and persons within the criminal justice system:
Matter of Caci, 1998 A.O. 67 (98-012-IHO). Agnello breached his duty of cooperation with the GEB Attorney under the LIUNA reform process.
260 In the Matter of Agnello 1999Conclusions
1. Agnello was properly served with notice for deposition on November 12, 1998.
2. Agnello's deposition was properly rescheduled to December 1, 1998.
3. Agnello was properly notified of the December 1, 1998 deposition date.
5. The GEB Attorney's act of scheduling a deposition on December 7, 1998, was reasonable.
6. Agnello did appear for a scheduled deposition on December 7, 1998 and offered no valid excuse for not appearing.
The charges against Angello have been proved by a preponderance of the evidence. Penalty
Agnello's membership in LIUNA is revoked. Agnello may not appear at LIUNA meetings or hold office in any LIUNA related entity. Agnello is fined $3000.
Agnello may petition for readmission to LIUNA; however, the readmission is conditioned upon his paying the $3000 fine and being deposed in good faith by the GEB Attorney.
Agnello has a right to appeal this Order to the LIUNA Appellate Officer by filing a Notice of Appeal with the Appellate Officer within 10 days of the date of this Order.
This Order does not take effect until 10 days after the date of this Order, and if appealed, upon the decision of the Appellate Officer.