Dep t of Buildings v. Stamberger OATH Index No. 473/12 (Mar. 30, 2012), adopted, Comm r Dec. (Apr. 5, 2012), appended

Transcription

1 Dep t of Buildings v. Stamberger OATH Index No. 473/12 (Mar. 30, 2012), adopted, Comm r Dec. (Apr. 5, 2012), appended Licensed site safety manager pleaded guilty in 2011 to federal charges of conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative. Petitioner established that respondent s criminal conduct demonstrated poor moral character directly related to his business or trade. ALJ recommended revocation of the license. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - JOHN STAMBERGER Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge Petitioner, the Department of Buildings ( Department ), brought this action seeking to revoke the site safety manager license (License No. 1339) of respondent John Stamberger pursuant to Section (13) of the Administrative Code, alleging that respondent demonstrated poor moral character that adversely reflects on his fitness to carry his license by virtue of his conviction of crimes related to the business or trade for which he is licensed. A hearing was conducted before me on February 27, Petitioner relied upon the documentary evidence of the crimes for which respondent was convicted and the testimony of one Departmental witness. Respondent testified on his own behalf and offered the testimony of his current employer. For the reasons set forth below, I find that petitioner established that respondent violated Section (13) of the Administrative Code and, for his misconduct, recommend revocation of his site safety manager s license. ANALYSIS Pursuant to a cooperation agreement with the government, respondent pleaded guilty to the federal crimes of conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative, pursuant to counts three and nineteen of a federal Indictment. See 18

2 - 2 - U.S.C. 371; 29 U.S.C. 186(b)(1). Judgment was entered in the United States District Court, Southern District of New York, on January 24, 2011, under which respondent was sentenced to five years probation and 300 hours of community service (Pet. Exs. 1, 2). The record of respondent s allocution was not submitted in the trial record, because the plea minutes were sealed (Tr. 13). Instead, petitioner submitted the federal Indictment (Pet. Ex. 2). Respondent is a member of the United Brotherhood of Carpenters and Joiners, a national labor union (the union ), and its constituent Local 608 (Pet. Ex. 2 at 36). In and around 2002 and 2003, respondent was assigned by Local 608 to work as a shop steward on a job site operated by On Par, a contractor constructing a library at New York University. According to the Indictment, during this work assignment respondent participated in a scheme to enrich himself and others by helping the contractor violate its obligations under the collective bargaining agreement and defraud the union s Benefit Funds (Pet. Ex. 2 at 39 and pp ). Specifically, count three states that respondent signed and submitted to Local 608 shop steward reports that falsely underreported the number of union workers on the jobsite and the hours worked (Pet. Ex. 2 at pp ). Count nineteen states that respondent willfully and knowingly received payments from the contractor in exchange for his agreement to submit the false shop steward reports (Pet. Ex. 2 at p. 66). A shop steward s principal duty is to report contractor violations of the collective bargaining agreement ( CBA ) (Resp. Ex. 2 at pp. 3-4). Shop stewards must submit weekly reports to the local union office that accurately identify all carpentry-trade employees employed on the jobsite and the hours each employee worked, and they must observe the number of hours worked in order to accurately report them. The union relies upon the accuracy of the shop steward reports to ensure that all benefit payments are made to the Benefit Funds on behalf of employees covered by the CBA. The Department contends that rather than performing these acts as the union s eyes and ears, as he was obligated to do under the CBA and upon which the union relied, respondent committed crimes by which he personally benefitted that demonstrate poor moral character adversely reflecting on his fitness to be a site safety manager (Tr. 7-9). Respondent was issued his site safety manager license in 2001 (Tr ). He began working with On Par in 2002 and his illegal conduct commenced shortly thereafter (Tr. 98).

3 - 3 - Respondent testified that when he took the job with On Par he had been out of work for six months, despite his considerable efforts to find work (Tr. 59). In or about March 2002, he contacted Phil Nelson, a carpenter he met while taking the site safety course (Tr ). Nelson, who was working with On Par, sent respondent to meet John Greaney, president of Local 608 who assigned him to be shop steward on the On Par job, which was in the midst of a project to construct a new building (Tr ). Jobs on new construction are highly sought after because they guarantee a year or more of steady work, whereas lesser jobs may last only a few weeks and result in the worker returning to the bottom of the out-of-work list which has long wait times (Resp. Ex. A at 2; Tr. 58). After three months on the job, respondent was asked if he wanted a no-show position with full pay and benefits; he refused it (Tr. 63). He was subsequently asked, and agreed, to leave a couple guys off the books, meaning the shop steward report (Tr. 64). Since the three workers actually performed work on the project, excluding them from the shop steward report permitted On Par to pay them in cash, non-union wages, and to avoid paying the money it owed the union s Benefit Funds (Resp. Ex. A at 5; Tr. 66). Respondent said he had never been asked to do this before. He initially told Greaney that he could not do it, but he changed his mind when Greaney told him he would lose the assignment if he did not (Tr. 65). He said he was not offered anything in return and he did not ask (Tr. 67). He denied ever asking for payment other than the pay and benefits he earned. He eventually learned from other shop stewards that they were being paid $100 cash, per week, for each man they kept off the shop steward report (Tr. 76). He never received or requested such payments. Nevertheless, respondent admitted submitting shop steward reports to the union that were false in that they omitted three workers (Tr. 94). He submitted these false reports weekly for a period of six weeks even though he knew his conduct was illegal (Tr. 94, 96, 100). Although he denied receiving any quid pro quo for these acts, respondent admitted receiving payments from David Murray, president of On Par, though he disputed the amount (discussed in more detail below). In sum, respondent admitted participating in a scheme to defraud the union s Benefit Funds by submitting falsified lists that intentionally omitted the names of three workers who had worked but were instead paid in cash by the contractor, and receiving payments in return for his actions (Pet. Ex. 1; Pet. Ex. 2 at 45-46). Under the principles of collateral estoppel, his guilty plea and conviction conclusively establish the underlying elements of the crimes charged. See S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 305 (1973); Dep t of Buildings v. Benlevi,

4 - 4 - OATH Index No. 395/09 at 2 (Jan. 9, 2009). According to the elements of his crimes, respondent knowingly agreed to engage in conduct that violated federal law and received payments as a labor representative. See 18 U.S.C. 371 and 29 U.S.C. 186(b)(1); United States v. Carroll, 813 F. Supp. 698, 702 (E.D. Mo. 1993), citing United States v. Andrade, 788 F.2d 521, 525 (8th Cir.), cert. denied sub nom., Riley v. United States, 479 U.S. 963 (1986) (essential elements of a violation of 371 are that the defendant (a) agreed with another person (b) knowingly to engage in conduct which violates federal law and (c) that at least one of the parties to the agreement committed an act in furtherance of the unlawful objective of the agreement); United States v. Riccardi, 357 F.2d 91, (2d Cir. 1966), citing United States v. Ryan, 232 F.2d 481, 483 (2d Cir. 1956) (29 U.S.C. 186 is a criminal provision, malum prohibitum, that outlaws all payments, with stated exceptions, between employer and representative, thus avoiding the difficult task of ascertaining motive in each case). John Chiusano is Assistant Chief of Technical Review for the Department s Best ( Building Enforcement Safety Team ) Squad and a licensed architect (Tr ). In his work on the Best Squad, he provides technical assistance to his staff of inspectors for construction safety code enforcement and reviews all site safety plans (Tr. 19). He wrote the requirements for the course taken by applicants for the site safety manager license. A licensed site safety manager is required at all major projects that involve new buildings, or demolitions in buildings of at least 14 stories, or construction projects encompassing more than 100,000 square feet (Tr ). He testified that site safety managers must ensure the safety of workers and of the public, thus good moral character is a qualification the Department requires for such licensees. He said site safety managers are the Department s first line of defense against unsafe practices on a construction site, its eyes and ears, and are responsible for monitoring compliance with construction safety practices in accordance with the 2008 Building Code and for notifying the Department if the contractor commits violations. The license calls for a person who insists on safety first, who will not look the other way when he learns of improprieties on the job site (Tr. 26). The honesty, integrity and professionalism of these licensees are heavily relied upon, since the number of Department inspectors available to visit city construction sites is limited. The Administrative Code requires that all licensees have good moral character (Admin. Code (Lexis 2012)), which this tribunal has held is an integral qualifier for professional licensure under the New York City Construction Code ( Code ). See Dep t of

5 - 5 - Buildings v. (Louis) Inglese, OATH Index No. 929/10 at 6 (Feb. 4, 2010), modified on penalty, Comm r Dec. (Apr. 23, 2010), annulled and remanded sub nom., Inglese v. LiMandri, 29 Misc. 3d 1234A, 920 N.Y.S.2d 241 (Sup. Ct. N.Y. Co. 2010), rev d, 89 A.D.3d 604 (1st Dep t 2011), leave to appeal denied, 2012 N.Y. LEXIS 230, 2012 N.Y. Slip Op (Feb. 16, 2012) (conviction for conspiracy to commit extortion demonstrated poor moral character). Good moral character is not only a requirement for the granting of a license, but an implied requirement for its retention. See Dep t of Buildings v. Gabbidon, OATH Index No. 1073/03 at 4 (Aug. 4, 2003), adopted, Comm r Dec. (Aug. 28, 2003). Under Section of the Administrative Code, the Commissioner has the power to suspend or revoke a license for certain acts, including fraudulent dealings, criminal convictions arising out of professional dealings with a government entity, and/or poor moral character that adversely reflects on a licensee s fitness to conduct work regulated by the Code. Admin. Code (5), (12), and (13) (Lexis 2012). Although good moral character is not defined in these provisions, New York courts and this tribunal have found that poor moral conduct is evidenced by the commission of crimes involving deliberate deception such as fraud, larceny or enterprise corruption. See, e.g., (Louis) Inglese, 89 A.D.3d 604 (conviction for conspiracy to commit extortion demonstrated HMO s poor moral character); Dep t of Buildings v. (Pasquale) Inglese, OATH Index No. 2575/10 at 6 (Dec. 1, 2010), adopted, Comm r Dec. (Dec. 3, 2010), aff d, 2011 N.Y. Misc. LEXIS 2393, 2011 N.Y. Slip Op U (Sup. Ct. N.Y. Co. 2011) (conviction for conspiracy to commit extortion demonstrated poor moral character); Dep t of Buildings v. Persico, OATH Index No. 994/10 at 3 (Apr. 9, 2010), adopted, Comm r Dec. (Apr. 23, 2010), aff d sub nom. Persico v. LiMandri, 34 Misc. 3d 1204A, 2011 N.Y. Misc. LEXIS 6374 (Sup. Ct. N.Y. 2011) (federal racketeering conviction demonstrated HMO s poor moral character); Dep t of Buildings v. Roemer, OATH Index No. 222/12 (Feb. 17, 2012), adopted, Comm r Dec. (Feb. 22, 2010) (conspiracy conviction involving receipt of fraudulent monies, among other crimes); Dep t of Buildings v. Kilcullen, OATH Index No. 997/10 at 4 (Aug. 19, 2010), modified on penalty, Comm r Dec. (Aug. 26, 2010) (mail fraud conviction was directly related to hoist machine operator s ( HMO ) business or trade and demonstrated poor moral character); Dep t of Buildings v. Taylor, OATH Index No. 1501/07 (June 20, 2007), adopted, Comm r Dec. (Aug. 24, 2007) (plumber s conviction for failure to file IRS forms for disbursements to a contractor whom he engaged, directly related to his business or trade and demonstrated poor moral character); Dep t of Buildings v. Borrazzo,

6 - 6 - OATH Index No. 128/06 (Oct. 28, 2005), adopted, Comm r Dec. (Jan. 24, 2006) (bribery conviction was directly related to plumbing business and reflected licensed master plumber s poor moral character); Dep t of Buildings v. Figliolia, OATH Index No. 1520/05 (Apr. 6, 2005), adopted, Comm r Dec. (Apr. 21, 2005) (plumber s conviction for enterprise corruption evidenced poor moral character); Gabbidon, OATH 1073/03, adopted, Comm r Dec. (Aug. 28, 2003) (master electrician s submission of false payroll records to conceal illegal underpayments was evidence of poor moral character). I find respondent s convictions for conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative to be proof of poor moral character. See (Louis) Inglese, 89 A.D.3d at 605 (HMO s conviction of a crime directly related to the use of the subject license demonstrates poor moral character that adversely reflects on his fitness to hold a licensed position in the construction industry ; appellate court reversed lower court ruling and dismissed Article 78 challenge to Commissioner s determination revoking HMO license); see also Dep t of Buildings v. Mineo, OATH Index No. 1283/04 (June 7, 2004), adopted, Comm r Dec. (June 28, 2004) (conduct of site safety manager convicted of attempted bribe receiving was serious enough to warrant license revocation); Dep t of Buildings v. Potestio, OATH Index No. 454/92 (Jan. 27, 1992) (prior misconduct that included solicitation of and/or agreement to accept gratuities demonstrated lack of good moral character and was proper basis for denying respondent registration as an expediter, and for disqualifying him for a site safety position, despite his recent untarnished work record). On the question of whether there is a direct relationship between his criminal acts and his fitness to hold a site safety manager s license, respondent contends there is some distinction to be found in the fact that he was not performing site safety work at the time of his crimes (Tr. 124). Rather, he was working as a shop steward. I find no legal distinction. Section (13) of the Administrative Code permits the Commissioner to penalize a licensee for [p]oor moral character that adversely reflects on his or her fitness to conduct work regulated by this [construction] code. This tribunal has found that the phrase work regulated by this code refers to the fact that the poor moral character must be related to construction work, and that Section (13) does not by its own terms require misuse of the license by the licensee. See Roemer, OATH 222/12 at 8-9. Thus, the requisite relationship between the criminal act and fitness to hold the license exists even where the license was not used in the commission of the

7 - 7 - crime, as here. See, e.g., Roemer, OATH 222/12 at 10 (HMO s convictions were related to his actions at a construction site ); (Pasquale) Inglese, OATH 2575/10 (HMO license revoked after guilty plea to conspiracy to commit extortion even though the conviction predated his licensure, and his job at the time did not require licensing). New York courts are in accord, finding a sufficient nexus where the crime is related to the construction industry. Duffy v. LiMandri, 938 N.Y.S.2d 889, 2012 N.Y. Slip Op (1st Dep t 2012) (dismissing Article 78 challenge to revocation of HMO license where substantial evidence supported agency s determination that licensee s crime demonstrated poor moral character reflecting upon his fitness to hold the license, particularly because his crime related to the construction industry ). I find there is a direct relationship between respondent s criminal acts and his fitness to hold a site safety manager s license. See Dep t of Buildings v. Duffy, OATH Index No. 2758/10 (Dec. 16, 2010), modified on penalty, Comm r Dec. (Dec. 29, 2010), aff d sub nom. Duffy, 938 N.Y.S.2d 889, 2012 N.Y. Slip Op (HMO s conviction of conspiracy to commit extortion was directly related to his business or trade). All of respondent s criminal acts were conducted while working on a construction site and while carrying the site safety manager license, even though he was not conducting site safety work at the time. While the safety or quality of respondent s performance on the On Par job was not put in issue by petitioner, there was no evidence on this record attesting to it, contrary to his counsel s arguments (Tr. 116, 120). In any event, the central issue here is integrity, not technical competence, and the harm that a lack of integrity can create on a construction site which holds a myriad of hazards, seen and unseen. Mr. Chiusano credibly testified about the degree to which the Department relies upon the honesty and integrity of its licensees to help insure the safety of city construction sites. As this tribunal has stated previously, it is the Department s duty to ensure... competence and integrity largely by reliance on the licensees themselves, and [it] cannot hope to do so unless it denies licenses to all but the demonstrably competent and unimpeachably scrupulous. For the honor system to work, each and every licensee must be honorable. Dep t of Buildings v. (Michael) Gelb, OATH Index No. 2155/96 at (Mar. 3, 1997), adopted, Comm r Dec. (Mar. 31, 1997), aff d, Sup. Ct. N.Y. Co. Index No /97, Dec. and Order (Dec. 11, 1998). In fact, the Department has made the facilitation of compliant development with integrity, efficiency and professionalism the central tenet of its mission. See Respondent s agreement to falsify his shop steward s reports was integral to the larger corruption

8 - 8 - being carried out on the work site by David Murray and others. For example, respondent s crimes permitted Murray and On Par to collect illegal benefits totaling $123,000 (Resp. Ex. A at 8, Tr. 126). The fact that his current employer, Mr. Albunio, and Mr. Chiusano of the Best Squad can attest to his clean safety record for the past three to five years (Tr. 27, ) does not compensate a lack of integrity exhibited by his criminal acts on an earlier construction job. I find respondent s actions on the On Par job site are related to the business or trade for which he is licensed. FINDING AND CONCLUSION Respondent s conviction of conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative demonstrates poor moral character and establishes misconduct directly related to the trade for which he is licensed, in violation of Sections and (13) of the Administrative Code. RECOMMENDATION For the proven misconduct, the Commissioner may revoke or suspend the license or impose a fine. Admin. Code (13). Here, the Department seeks a revocation of respondent s site safety manager license. Respondent seeks to distinguish his conduct from prior cases resulting in license revocation on the basis that he did not commit criminal acts in exchange for a financial benefit but rather solely to keep his job (Tr. 10). Though I do not dismiss his contention that his primary consideration was to keep his job, for the reasons set forth below, I recommend that respondent s license be revoked. License revocation is an appropriate penalty for the commission of serious crimes involving dishonesty or corruption in the construction industry, such as extortion, fraud or bribery, and conspiracies to commit the same. See Dep t of Buildings v. Carrara, OATH Index No. 2613/10 (Dec. 14, 2010), adopted, Comm n Dec. (Dec. 15, 2010), aff d, Carrera v. LiMandri, Index No /10 (Sup. Ct. N.Y. Co. Apr. 7, 2011) (HMO license revoked where licensee convicted of conspiracy to commit extortion); Persico, OATH 994/10, adopted, Comm r Dec. (Apr. 23, 2010) (HMO license revoked after federal racketeering conviction); Roemer, OATH 222/12, adopted, Comm r Dec. (Feb. 22, 2010) (HMO license revoked for conviction of six federal crimes and one state crime including conspiracy to receive fraudulent

9 - 9 - monies); Borrazzo, OATH 128/06, adopted, Comm r Dec. (Jan. 24, 2006) (master plumber s license revoked after bribery conviction); Figliolia, OATH 1520/05, adopted, Comm r Dec. (Apr. 21, 2005) (master plumber s license revoked after conviction for enterprise corruption); Dep t of Buildings v. Mineo, OATH 1283/04, adopted, Comm r Dec. (June 28, 2004) (site safety manager s license revoked following conviction for attempted bribe receiving); Gabbidon, OATH 1073/03 at 12-13, adopted, Comm r Dec. (Aug. 28, 2003) (electrician s license revoked for prevailing wage violation and submission of false documents); Dep t of Buildings v. Lara, OATH Index No. 1446/03 (May 6, 2003), adopted, Comm r Dec. (June 10, 2003) (master plumber s license revoked after conviction for extortion); Dep t of Buildings v. Lee, OATH Index No. 1412/02 (May 30, 2002), adopted, Comm r Dec. (July 25, 2002) (expediter s license revoked due to submission of false receipt); Dep t of Buildings v. Robinson, OATH Index No. 1117/02 (Mar. 11, 2002), adopted, Comm r Dec. (Mar. 28, 2002) (expediter s license revoked where licensee failed to disclose on his license application that he had been convicted of a felony involving drug sales); Dep t of Buildings v. Troiano, OATH Index No. 1013/97 (Apr. 14, 1997), adopted, Comm r Dec. (Sept. 24, 1997) (master plumber s license revoked after conviction for receipt of unlawful gratuities). The Department has revoked such licenses even in cases where the tribunal found a lesser penalty more appropriate. See Dep t of Buildings v. Panessa, Comm r Dec. (Jan. 5, 2011), modifying, OATH Index No. 2759/10 (Dec. 17, 2010) (Commissioner revoked HMO license based on conviction for mail fraud over ALJ s recommendation of suspension), vacated and remanded sub nom Panessa v. LiMandri, 2011 N.Y. Slip Op U, 2011 N.Y. Misc. LEXIS 4329 (S. Ct. N.Y. Co. 2011) (remanding for new determination on penalty because Commissioner did not consider Correction Law 753 factors); Dep t of Buildings v. Gallo, Comm r Dec. (Oct. 14, 2010), modifying, OATH Index No. 2847/10 (Oct. 1, 2010) (Commissioner revoked HMO license based on conviction for mail fraud over ALJ s recommendation of suspension); Kilcullen, Comm r Dec. (Aug. 26, 2010) (same); (Louis) Inglese, Comm r Dec. (Apr. 23, 2010) (Commissioner revoked HMO license based on conviction for conspiracy to commit extortion over ALJ s recommendation of suspension; revocation was subsequently reversed by Supreme Court but reinstated by the Appellate Division).

10 The Department asserts its significant and legitimate interest in public safety, emphasizing its reliance upon the honesty and trustworthiness of its licensed professionals due to the limitations on its ability to deploy inspectors to oversee each active construction site. Importantly, the Department also seeks to guard against the insidious influence of corruption in the construction industry, which is evident in respondent s conviction. Persico, OATH 994/10 at 5; see also Cibao Meat Products v. NLRB, 547 F.3d 336, 341 (2d Cir. 2008) (The restrictions on financial transactions set forth in the Labor Law (29 U.S.C. 186) are principally intended to protect the collective bargaining process by eliminating the corruptive influence of side payments by employers to union representatives. ). Respondent s criminal activity was dishonest, defrauded his union, and contributed to corruption at the construction site all of which undermines the Department s interest in public safety and the safety of those who work on the site. Under Section 753 of the Correction Law, licensing bodies and employers must consider the following factors when evaluating a convicted person for licensing or employment: (1) the public policy of the state to encourage the licensure and employment of persons previously convicted of one or more criminal offenses; (2) the duties and responsibilities related to the license or employment sought or held by the person; (3) the bearing, if any, the criminal offense for which the person was convicted will have on his fitness or ability to perform such duties or responsibilities; (4) the time elapsed since the occurrence of the criminal offense; (5) the age of the person at the time the criminal offense occurred; (6) the seriousness of the offense; (7) any information produced by the person or on his behalf in regard to his rehabilitation and good conduct; and (8) the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. Corr. Law 753(1). The factors are instructive but not controlling. Dep t of Buildings v. Casa, OATH Index No. 975/97 (May 14, 1997), adopted, Comm r Dec. (Sept. 30, 1997). Weighing against respondent are the brief one-year period since his conviction, the relatedness between the offense and his license, the bearing his crime could have on his fitness, and the risk of harm to the public. Also, at age 43, respondent was beyond the age of youthful indiscretion at the time he committed these crimes. In respondent s favor is the state s public policy in favor of employing those previously convicted of crimes, in addition to his honorable service for four years in the United States Marine Corps in the 1970s (Tr. 46). To bolster his

11 good reputation, respondent also provided the tribunal with several letters of support, which were attached to his presentencing submission to the federal court (Resp. Ex. B). There are 12 letters written by his employer, doctors, friends and family members, including one written by respondent himself. In respondent s letter to the court, he expresses the importance of his livelihood to providing for his family and claims a record devoid of complaints or accidents. The letters of support appear to be sincere expressions of support for him as a family man and a hard worker who is otherwise known for demonstrating integrity on the job. Notable among the stories is respondent s participation for the past 15 years in the Challenger Program, an athletic program for children with special needs and disabilities (See Attachments to Resp. Ex. B, Letters of Santaniello, Reinhold, and Theresa Stamberger; Tr. 51). Strong support for his rehabilitation was submitted in the Government s Sentencing Memorandum ( Sentencing Memorandum ) (Resp. Ex. A), the memorandum written by federal prosecutors offering their recommendations to the United States District Judge who presided in the criminal case. In it, prosecutors issued an endorsement for leniency due to a number of factors, including respondent s valuable cooperation in the prosecution of more prominent members of the criminal enterprise. Prosecutors distinguished respondent from those individuals based on the following: (i) of all the corrupt shop stewards prosecuted in the case, he accepted the smallest amount in improper payments; (ii) he refused encouragement by other corrupt shop stewards to extract more cash payments from the contractor; (iii) he was candid with government investigators, immediately admitting the truth about his conduct, and did not obstruct their investigation; (iv) of the ten criminal defendants in the case, he was the only one who neither tested positive for drugs at presentment nor had a history of drug or alcohol abuse; and (v) his offense was defined by his desire to obtain and retain employment, rather than to extract bribes or no-show work from the contractor (Resp. Ex. A at 5-7). Prosecutors considered respondent the least culpable of the ten defendants charged in the case, and they expressed confidence that his conduct was an aberration in an otherwise law-abiding life (Resp. Ex. A at 10-11). Notably, respondent s sentence was light, five years probation and community service, suggesting lesser involvement in the crimes. See Taylor, OATH 1501/07 (minor criminal sentence a factor in suspension recommendation that was later adopted by the agency). Prosecutors summed up this way: John Stamberger s case is emblematic of how corruption in the referral of shop stewards led, at times, to decent shop stewards being pressured

12 to go along with corrupt practices, in order to secure work. (Resp. Ex. A at 2). They noted the pressure he experienced from many months of unemployment and the need to provide for his family, which includes four children, all of whom still reside with him (Attachment to Resp. Ex. B, Letter of John Stamberger at 2). In seeking mitigation, respondent also cites financial hardship. He testified that, after leaving the On Par job, he decided to leave union work altogether and pursue site safety work instead, even though it pays less and offers fewer benefits (Resp. Ex. B at 3). For the last five years he has worked at a site safety management company, Homeland Safety Consultants, Inc. (Tr , 104). He estimates the difference in salary from his work for Local 608 is $700 per week (Tr. 89). 1 In addition, his wife recently lost her job when her position was eliminated, resulting in a drastic reduction in her biweekly pay from $1,600 to $275 (Tr. 90). Respondent also testified that two of his sons have special needs that have required special education and counseling, and they will likely require lifetime financial support (Resp. Ex. B at 2-3; Tr. 46). One of his children is in community college and one is in a high school for which respondent pays tuition (Tr. 92). His adult daughter is ill and is not working. Respondent also suffers with illness that affects his liver, sarcoidosis which presents as an asthmatic condition, herniated disks in his back, and a chronic foot condition. Though financial hardship is often visited upon licensees in this situation, the tribunal has not found financial hardship to be a compelling basis for mitigation in these cases, because there is more at stake than respondent s personal financial situation, including the harm to the public of corrupt activities as well as the deterrent effect that a stern penalty may have on others similarly situated. Mineo, OATH 1283/04 at 4, citing Gabbidon, OATH 1073/03 at 12. Respondent s plea for mitigation struck an unfortunate chord when he began to dispute, at the hearing, the criminal acts for which he was convicted, which are set forth by prosecutors in detail in the Sentencing Memorandum. For example, of the $8,500 prosecutors identified as illegal payments to respondent (Resp. Ex. A at 5, Resp. Ex. B at 2 n.1), respondent conceded only one: a $1,000 cash payment he received from David Murray at Christmas. Respondent 1 The differential between legal wages earned performing site safety work and illegal union work is a false choice that cannot be counted as mitigation. Moreover, contrary to his counsel s claim that respondent quit the job and [gave] up the money (Tr ), respondent left the On Par job when it ended not before and still sought work from Murray after that, instead of abandoning all contact with the members of the criminal conspiracy (Tr ). He received an assignment from Murray after calling him numerous times (Tr. 77) and claimed surprise when, after a couple days on the project, Greaney approached him with problems to discuss (Tr ). After that encounter, respondent decided to leave the project and union work altogether.

13 disputed the car loan from Murray, testifying that it was only $1,000 and that he had repaid all of it (Tr. 96). 2 Prosecutors said the car loan was $4,000, and respondent had intended to repay [it] but ultimately did not (Resp. Ex. A at 5). Prosecutors identified an additional $3,500 in overtime payments that respondent received for hours he did not work, which respondent disputed (Tr ). Testifying at the hearing that he might have worked a half hour of overtime and been paid for a full hour, he denied such payments could have amounted to $3,500. Respondent s denials were inexplicable in light of the guilty plea, as was his refutation of part of the government s Sentencing Memorandum, which in general was quite favorable to him. In particular, it was surprising that he would contradict the Sentencing Memorandum while generously citing the portions that bolstered his reputation. Moreover, his denial of crimes he admitted committing in his plea is not only futile, because he is collaterally estopped from doing so, but doing so significantly damaged his credibility before this tribunal. 3 While it is true that respondent refused a no-show job and did not ask for the kinds of payments received by other shop stewards, who collected $100 per employee left off the shop stewards reports (Tr. 76), it is not true that respondent received no payments in exchange for his actions. He received $8,500 in payments to which he had no entitlement. This tribunal has often noted the compelling nature of contrition as an attribute that contributes to mitigation. See Persico, OATH 994/10 at 6 (ALJ considers failure to express personal remorse in reviewing penalty recommendation); Dep t of Buildings v. (Thomas) Gelb, OATH Index No. 1298/97 (Nov. 12, 1997), adopted, Comm r Dec. (Apr. 21, 1998) (suspension recommended, rather than revocation, where licensee appeared genuinely contrite, along with other factors); (Michael) Gelb, OATH 2155/96 at (respondent s failure to accept full responsibility considered in recommendation for revocation). Rather than offering a clear expression of contrition, respondent primarily sought to depict his actions as naïve while also denying some of the crimes he pled guilty to. His misconduct occurred nine years ago, but it was 2 Respondent said he told Murray that he had saved $4,000 to buy his wife a used car for her birthday but he need[ed] another thousand (Tr. 68). When Murray offered him a loan for that amount, he agreed to it, along with a repayment schedule of $100 a week, he said. He also stated that he signed a notarized document evidencing the loan which he received in cash, and he repaid the loan in cash, through weekly payments (Tr ). 3 Denials of responsibility were offered by respondent s counsel, as well, in his opening statement and closing argument, where he too asserted that respondent had repaid the Murray loan (Tr. 124) and contended that respondent s conduct could be distinguished from criminal conduct proved in prior cases, such as (Louis) Inglese, because respondent received no payment in return for the acts he committed -- he only received the benefit of continued employment (Tr ), which is objectively untrue.

14 only a year after respondent first received his site safety license. Despite the fact that his minor role in this criminal enterprise and cooperation with the federal investigation should afford him mitigation, respondent s denial of responsibility for his crimes showed a lack of contrition and amounted to dishonesty before this tribunal, all of which upended the notion that he has learned from past mistakes. Under the circumstances, I find revocation to be appropriate and I so recommend. March 30, 2012 Tynia D. Richard Administrative Law Judge SUBMITTED TO: ROBERT D. LiMANDRI Commissioner APPEARANCES: CAMIE TOBIAS, ESQ. Attorney for Petitioner STEVEN FRANKEL, ESQ. Attorney for Respondent

15 Comm r Decision (Apr. 5, 2012) I have completed my review of Administrative Law Judge Tynia D. Richard s Report and recommendation in this matter (OATH Index No. 473/12, Mar. 30, 2012), along with the record and transcript of the proceedings. In her March 30, 2012 Report and Recommendation, Judge Richard found that respondent s federal convictions of conspiracy to commit wire fraud and unlawful acceptance of payments as a labor representative demonstrate poor moral character and are directly related to his business or trade. Judge Richard also recommended revocation of respondent s Site Safety Manager license (Report and Recommendation at 1). In particular, Judge Richard stated in her Report and Recommendation that this tribunal has often noted the compelling nature of contrition as an attribute that contributes to mitigation (Report and Recommendation at 13). Judge Richard found that, rather than offering a clear expression of contrition, respondent primarily sought to depict his actions as naive while also denying some of the crimes he pleaded guilty to (Report and Recommendation at 13). Additionally, Judge Richard stated that the Department asserts its significant and legitimate interest in public safety, emphasizing its reliance upon honesty and trustworthiness of its licensed professionals due to the limitations on its ability to deploy inspectors to oversee each active construction site (Report and Recommendation at 10). Judge Richard found that respondent s criminal activity was dishonest, defrauded [respondent s] union, and contributed to corruption at the construction site - all of which undermines the Department s interest in public safety and the safety of those who work on the site (Report and Recommendation at 10). I hereby adopt Judge Richard s March 30, 2012 Report and Recommendation in its entirety, including her findings of fact and penalty recommendation, and find respondent in violation of the provisions of law cited in such Report and Recommendation. THEREFORE, effective immediately, the sanction imposed upon respondent is revocation of his Site Safety Manager license. Respondent must surrender his license immediately to the Department. SO ORDERED Robert D. Limandri, Commissioner