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Sunday, December 28, 2008

David Pakter, a NYC Teacher and Whistleblower of the NYC Board of Education's Corrupt Practices, Sues in Federal Court

Four years and four New York City Board of Education re-assignment centers ("rubber rooms") later, David Pakter (pictured at right with Mayor Rudy Giuliani, 1997) completes his journey to hold the New York City Board of Education accountable for taking him away from his very successful career in the New York City public school system as an excellent teacher, and dumping him into the dungeons of the NYC rubber rooms. For what? For trying to expose racial discrimination at one school, and buying plants for the lobby at another. I've been lucky to see it all, and it's quite a story! There's something to please everyone - retaliation and vindictiveness by the NYC BOE against a teacher who did the right thing, a medical evaluation that was false and overturned, and the ridiculous "rubberization" process that good teachers in NYC have to be subjected to when he or she puts the students first. David refuses to be silenced, and we salute him for this as he proceeds in his quest for justice. by Betsy Combier

David Pakter is a teacher who will teach again. His lesson will be perhaps not for the children he taught at the High School of Art and Design (picture below) in New York City, but for adult learners who need to know how to stop the abuse by the New York City Department of Education of teachers who whistleblow what is happening in the City Schools.

I dont think there are many people who know David Pakter's story who would say that he was placed in four re-assignment centers ("rubber rooms") in New York City by the New York City Board of Education for good reason - or any reason. His first round of rubber room sitting occurred after he refused, in September 2004, to stand by and allow the Principal of Art and Design to remove music from the multi-ethnic students at this high school, while an elementary class from PS 59 moved into the high school music rooms.(The school has since moved to East 63rd Street - Editor). Pakter asserts that he was viciously retaliated against and harassed because he reported evidence of criminal wrongdoing, including ongoing violations of Federal Civil Rights statutes (as well as unnecessary window construction work and repairs at his school), to the Office of the Special Commissioner of Investigation for the New York City School District.

Specifically, David contacted both the Office of the Special Commissioner of Investigation and wrote the Chancellor directly because he believed the school Principal Madeleine Appell had determined that the only foreign language that the students at At & Design were to be exposed to was Spanish -- the language which most of the school's students spoke before they learned English, and was retaliating against him because he offered 10 minutes enrichment in his elite medical illustration class, for a short lesson in french. David had ordered enrichment materials and books on countless occasions, during his 37-year-career, (and been praised for doing so), and had ordered a set of books for his gifted Medical Illustration students titled "French in 10 Minutes a Day". On Friday afternoon, Sept. 26, 2003, an Assistant Principal named Harold Mason (pictured at left, and who, by the way, was videotaped saying Pakter was engaging in “mental masturbation” at a disciplinary hearing. Mason was severely criticized by an independent hearing

officer who called it “an outrageous comment.”- Editor) entered Pakter's locked Medical room, at close to 5 PM to present Pakter with a letter formally charging Pakter with ordering and distributing books to his students. The letter cited an enclosed Chancellor's Regulation A-610, entitled "Fund Raising Activities and Collection of Money from Students", said regulation having no relationship to the ordering of books.

David says he was ludicrously charged with ordering the set of French books because the school was determined not to allow the teaching of any language other than Spanish in the school, even to students for whom Spanish was their birth language and that both the Principal as well as the Assistant Principal were fully aware and informed that he had violated no rule or regulation in ordering books for his students.

David videotaped the PS 59 children because he wanted to do the right thing, and expose what he believed to be racial discrimination at the High School of Art and Design. David is a NYC public school teacher, after all, and a mandated reporter of the NYC public school system. The kids from PS 59 were mostly white. In fact, David says, Madeleine Appell, the Principal of A & D High School, had accepted, under a Special Budget line (Blue Print for the Arts), almost $ 75,000 to guarantee Music to the High School students but had in fact, gotten rid of Music at the school. Ms. Appell was a contributor to the writing of "Blueprints For the Visual Arts" - see page. 2, which many people wondered about. Did she give heself a grant? David wanted to know where that money went. He asked the music teacher if he could video the kids from PS 59 for his own use, and she said yes. Approximately one hour after the videotaping, David says that Principal Madeleine Appell entered his classroom and interrupted him while he was teaching, to demand the videotape he had made of the music class -- a demand David refused. He was ordered to attend a meeting after school later that day at which time Principal Appell again repeatedly demanded the music videotape and which demand was again refused by David.

The following day, Sept. 23, 2004, Principal Madeleine Appell called a special faculty conference after normal school hours to announce that she had decided to retire forthwith as Principal of the school. We hear that she was hired by CUNY - Kingsborough Community College.

David adds: "The New York Dept of Education made an offer on or about Sept. 27. 2004 to the effect that if I would surrender a video tape in my possession that documented a serious, unacceptable and illegal form of discrimination taking place at the High School of Art and Design, I would be returned to my former position as Instructor of Medical Illustration."

He again refused, and was quickly removed from the school and assigned to a rubber room. Later, new Principal John Lachky only allowed him one single day, a Saturday, to pack and remove twenty five years of books, personal records and personally owned Medical items from the school premises. In the weeks previous to the single afternoon he was allowed to return to the building, his metal storage cabinets had been entered and rifled through by his immediate supervisor at the school, Mary Ann Geist-Deninno. A police report documents that thousands of dollars of Pakter's property was stolen, removed or destroyed.

David reports that a full half-year after he was removed from the school, he received telephone calls from two different teachers from the school that his former Supervisor, Mary Ann Geist-Deninno entered his former Medical Illustration room accompanied by a computer expert named Amir Faroun and claimed later the same day that she had found "pornographic material" on one of the open access computers that students used on a daily basis. When Ms. Geist-Deninno reported this "discovery" to the Office of Special Investigations, investigators arrived at the school and were stunned to learn the computer Ms. Geist-Deninno wished them to examine was a computer that everyone in the school had access to day and night. Including Ms. Geist-Deninno. The investigators recommended she store the computer in a closet. Four weeks after mailing his letter to the Medical Office, Mr. Lachky, like the previous Principal, chose to retire.

Despite the information stated immediately above, a full five months after Ms. Geist-Deninno reported her "discovery", the former Principal John Lachky wrote and personally signed a letter memorializing Geist-Deninno's "discovery" to the Director of the Medical Office of the New York Department of Education, Dr. Audrey Jacobson, M.D. Mr. Lachky, in reporting Geist-Deninno's "discovery" made 5 months earlier, suggested that Pakter be interviewed by the Medical Office.

David was the teacher for the only medical illustration course in New York City, at the High School for Art and Design. He was cited by Mayor Rudy Giuliani as the 'Teacher of the Year' in 1997. To understand David's case, click here to read a letter he wrote to Chancellor Klein on October 2, 2003 about the racial discrimination in New York public schools, and former NYCBOE Counsel Chad Vignola's response. Chad Vignola was fired by Joel Klein when he allowed Deputy Chancellor Diana Lam to hire her husband for a position in the NYC BOE without getting a clearance from the Conflict of Interest Board. Or so the story goes...(there is always more that the public never hears about).

David explained:
"Sadly, rather than respond to my letter, Chancellor Klein delegated that responsibility to his former General Counsel, Chad Vignola, Esq. who only months after I wrote the Chancellor, was forced to resign in disgrace for his part in the Diana Lam cover up scandal in which Deputy Chancellor Lam attempted to illegally place her husband in a high paying DOE job in a manner contrary to State and
City law.

Any person reading Chad Vignola's letter to me on behalf of Mr. Klein cannot fail to observe that Mr. Vignola fails to address a single issue that was raised in my letter to the Chancellor."

David was ordered to undergo a psychiatric examination by the New York City Department of Education: "The Medical Office has set up an appointment for me to meet with a Psychologist by the name of Dr. Richard Schuster, Ph.D., Panel Psychologist, at "Comprehensive Rehabilitation Consultants", at 275 Madison Avenue, New York, NY 10016, on Friday, August 19, 2005." Although he was informed he would be interviewed by Schuster for about five hours, David in fact was asked to spend two full consecutive days at Schuster's office taking over fifty pages of examinations.

On the second day, July 27, 2005, Schuster administered a version of the 567 question MMPI-2 Minnesota Multiphasic Personality Inventory, which had just been declared an illegal employee Medical Examination in a Unanimous Seventh Circuit panel decision, six weeks earlier. (See: Unanimous Seventh Circuit panel, Karraker v. Rent-A-Center, Inc., 2005 U.S. App. LEXIS 11142 ,June 14, 2005). Then on August 16, 2005, he received a letter from the Medical Office, signed by the Medical Director, Dr. Audrey Jacobson, M.D., stating that based on the examinations Schuster had administered, David was "not currently fit for duty".

David says that Dr. Jacobson signed that letter, which effectively ended his employment with the New York City Dept. of Education, despite the fact that he was later informed that Dr. Jacobson had never bothered to read the complete official version of the results of the MMPI Examination administered on her orders, which stated on several different pages, in particular page 3:

"His MMPI-2 clinical and content scales are within normal limits. No clinical symptoms were reported".

Immediately on being notified of the claim of the Medical Office Director Dr. Audrey Jacobson that Pakter was not "fit for duty", David attempted to avail himself of the remedy specified in Dr. Jacobson's letter: that he "may request an independent evaluation by a medical arbitrator." His NYSUT attorney sent a certified letter to Dr. Jacobson memorializing Pakter's demand for medical arbitration and the United Federation of Teachers simultaneously filed in a timely manner. To obtain another opinion on his fitness to teach, David and his NYSUT attorney sought and obtained the services of the handsome and eminent Forensic Psychiatrist, Dr. Alberto M. Goldwaser, M.D., D.F.A.P.A. After a lengthy and expert evaluation, and also careful study of hundreds of pages of documents including the documents and reports utilized by Dr. Jacobson in making her own evaluation, Dr. Alberto Goldwaser (pictured at right) concluded that there was no scientific evidence whatsoever to substantiate the claim of the Medical Office that Pakter was not "fit for duty".

But David also wanted another opinion from the Medical Office, and asked the UFT for help in getting another evaluation. He finally received notice from the Medical Office that they had arranged an appointment with their "independent medical arbitrator," Dr. Charles E. Schwartz, M.D., to take place at Montefiore Hospital on Dec. 21, 2005 at 5:15 PM. Due to a transportation strike, the appointment was delayed until Jan. 11, 2006, with the physician named above. David was accompanied at the medical arbitration by Dr. Alberto Goldwaser, as well as a reporter and journalist (Betsy Combier). Near the end of the two-and-a-half-hour medical arbitration meeting, Dr. Schwartz agreed and concurred with Dr. Goldwaser that there was no scientific evidence to support the claim of Dr. Audrey Jacobson, Director of the Medical Office, that Pakter was not "fit for duty".

Six months later, David sent me this email:
"The Director of The New York City Dept of Education Medical Office, Dr. Audrey Jacobson, has admitted in a signed letter sent to David Pakter, that her office made a mistake in claiming Mr. Pakter was not "fit for duty" on August 16, 2005.

In a tersely worded letter dated June 5, 2006, DOE Medical Office director, Dr. Jacobson stated:

"The independent medical arbitrator has upheld your appeal, and has declared that the Medical, Leaves & Benefits Office was incorrect in deeming you unfit for duty as of August 16, 2005. The findings of the medical arbitrator are equally binding on you and the Department of Education. A copy of the arbitrator's decision has been sent to your physician."

This is believed to be the first instance in more than a quarter of a century that a New York City teacher, having been found "unfit" by the Department of Education Medical Office, was able to have such a charge overturned."

I filed a freedom of information request to obtain information on charges against David:

From: Betsy []
Sent: Tuesday, September 05, 2006 12:25 AM
To: Holtzman Susan
Cc: Arons Elizabeth Dr.; Best Michael (Legal Services); Cantor David; Caputo Virginia;; Longoria Carragher Arlene;;;; Feinberg Marge;;;; Greenfield Robin; Kicinski Christine J; Klein Joel I.;; Onek Matthew;
Subject: Press FOIL Request from The E-Accountability Foundation

The E-Accountability Foundation
Betsy Combier, President and Campaign Sponsor September 5, 2006
Ms. Susan W. Holtzman
Central Records Access Officer
Office of Legal Services
New York City Department of Education
52 Chambers Street
New York, NY 10007

Dear Ms. Holtzman:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request to purchase records or portions thereof pertaining to:

1) all Technical Assistance Conference memoranda ("TAC memos") that were authored by personnel assigned to the Office of Legal Services, and which mention David Pakter

2) all Technical Assistance Conference memoranda ("TAC memos") that were authored by personnel assigned to the Office of Appeals and Reviews, and which mention David Pakter.

If any record has been redacted or denied, please identify which categories of information have been redacted or denied, and cite the relevant statutory exemption.

I would prefer to receive the requested records by E-mail.

If you have any questions relating to the specific records or portion(s) being sought, please phone me so that we may discuss them.

You may not deny access to inter-agency or intra-agency records that are not "final agency policy or determinations" if they contain "statistical or factual tabulations or data" (or other material subject to production) within them, unless statutory exemptions different from FOIL §87(2)(g) are applicable. Both you and Mr. Best were previously in error for denying access to records on the sole ground that they were not "final agency policy or determinations."


Xerox Corporation v. Town of Webster (65 NY2d 131)

New York 1 News v. Office of the Borough President of Staten Island (647 NYS2d 270, affirmed 231 AD2d 524)

Gould v. New York City Police Department (89 NY2d 267)


As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

Betsy Combier

David's first 3020a hearing began Nov. 30, 2005, and lasted many months. Then he waited for the decision another several months. Hearing Officer Martin Scheinman heard witnesses at David's 3020a that David was an excellent teacher...he fined David $15,000 for "insubordination".

In September 2006 David was assigned to the High School of Fashion Industries. He wrote "The AP of Supervision, Giovanni Raschilla, admitted to a reporter that even before I was reassigned to that school, following my first 3020-a trial, the school Principal, Hilda Nieto, had received specific marching orders from the NYC DOE to target me as soon as I arrived at the school and 'get something on Pakter'. An outrageous state of affairs in which I had literally been ordered into a hostile work place environment where I was already targeted as "guilty" before I even walked in the schoolhouse door. And I fully suspected this would be the case but had I not reported to the new assignment the DOE would have charged me with being AWOL. Thus it was a catch-22, no win situation for me."

He was there only a few weeks when removed once again to the rubber room, this time at West 125th Street.

Here is the re-assignment letter:

November 22, 2006

David Pakter
C/o 02M600

Dear Mr. Pakter:

Please be advised that an allegation has been made against you and pending the outcome of this investigation you are being reassigned to 388 125th Street, 6th floor. Effective Monday,November 27, 2006, you are to report to 388 125th Street,
6th floor and continue to report to the location until further notice.


Philip Crowe
Human Resources Director (Manhattan)

C: Michael LaForgia
Local Instructional Superintendent

Hilda Nieto

David's explanation: "For the record it should be noted that the two specific issues that arose with the principal in the short time I had been assigned to HS Fashion Industries are as follows:

1) The school attempted to place a letter in my file that I had purchased two plants for the lobby of the school without Principal Nieto's written permission. This is obvious harassment as I have been decorating school lobbies for over 30 years and never needed permission.

2) As an incentive to improve student achievement I offered to allow students with a 90 % average or higher on their report card to select a fashion accessory watch from my corporate website www.DAVIDPAKTERWATCHES.COM that showcases watches from my sold out 2004-2005 fashion collection which are no longer available for sale so there is no conflict of interest issues. The students were all well aware that the only way to obtain a watch from my last collection was to earn it by attaining a 90 or higher average on the official school report card. (See his collection at store.davidpakterwatches - Editor)

For the first time in my long career as a teacher, the principal claimed I needed approval from the DOE/ Regional Office to distribute incentive awards. I thereupon emailed a formal request to Mariano Guzman, the Deputy Superintendent for Region Nine, fully describing in detail the full particulars of my company's offer to underwrite an incentive campaign.

It should be noted that the HS of Fashion Industries has for many years maintained their own student incentive program consisting of rewarding students with financial "vouchers" to acquire free art supplies from the official school store.

In addition, on page 6 of the most recent Parents Association Newsletter, the entire page is plastered with the names of stores, companies and neighborhood movie theatres that support the HS of Fashion Industries.

Thus once again the entire issue of my awarding students fashion accessories for high achievement is really a non-issue. But the attempted letter in my file re the above (which the UFT Rep challenged) is simply one more example of the never ending vendetta on the part of the DOE to try to harass me out of the system. Especially since I won the Medical Arbitration Decision last June which forced the Director of the DOE Medical Office, Dr. Audrey Jacobson to formally recant in writing a knowingly false claim she made one year ago, much to her embarrassment, and at great cost to the City."

Specification 6 of David's new charges as he awaits his second 3020a hearing was that he made the New York City Board of Education 'look bad' in the NY Teacher article written about his case and published on March 15, 2007. Spec #6 says: "caused widespread negative publicity and notoriety to the HS of Fashion Industries and the New York City Department of Education in general when his "unprofessional behavior" was referenced in a UFT newspaper".

"Thus I was not only set up and victimized but later charged in the 3020-a Specifications for my new, second, 3020-a Trial with the crime of letting the UFT publish the facts of my first 3020-a Railroading," David said. The NYC BOE re-considered, and withdrew this charge. David awaits his second 3020a hearing.

In September 2008 Pakter sued the NYC Board of Education in Federal Court:
U.S. District Court
United States District Court for the Southern District of New York (Foley Square), CIVIL DOCKET FOR CASE #: 1:08-cv-07673-DAB

David Pakter's Complaint
New York City's Notice to Dismiss
New York City's Memorandum of Law in Support of the Motion to Dismiss

NYC Chancellor Joel Klein, Esq.'s Dirty Secret For Purging Teachers

How Long 'Til Mayoral Control of our Public Schools Falls Out of Favor

December 5, 2001
School's Alumni and Staff Feel Its Art Emphasis Is Neglected

For decades after it was founded, the High School of Art and Design on East 57th Street in Manhattan funneled generations of students into commercial art careers.

It did so by immersing its students in four or more art classes a day, in a choice of 13 majors from architecture to fashion design. Graduates include the designer Calvin Klein, the singer Tony Bennett, the playwright Harvey Fierstein and the filmmaker Ralph Bakshi.

But as the school celebrates its 65th anniversary this month, alumni, teachers and students are worried that a focus on bread-and-butter academic subjects like science and history is watering down the school's commercial art mission, even as money has not been made available to keep the number of art offerings at their traditional level.

Critics say that the 1,500 students at A.& D., as the school is known, are now more likely to have two periods of art a day than four. Years ago, state and city budget cuts began stripping away financing for art classes, and even in recent years when the budget has been robust, the money has been diverted to support increased instruction in subjects like science and history needed to pass the state Regents tests required of both vocational and academic students.

''The Board of Education has a one-size-fits-all policy,'' said an assistant principal, John Lachky. ''We have to conform to the same requirements as any other school even though we have special needs.''

State officials, including Roseanne DeFabio, an assistant commissioner for curriculum, instruction and assessment, say that higher academic standards, properly applied, should improve the school. ''There was pretty universal agreement that those academic requirements should be the same for everybody,'' she said.

W. L. Sawyer, the Board of Education's superintendent for Manhattan high schools, speculated that the decline in art classes was a result of an increased need for remedial classes. But staff members at the school say that only about 60 of 360 incoming ninth graders needed math remediation, the most prevalent remedial subject, and that such classes were usually given after school.

The school still offers career preparation in 13 art majors: animation, advertising, illustration, fashion design, fine arts, architecture, photography, theater arts, medical illustration, cartooning, computer graphics, industrial arts and film and video production. So well regarded are the school's commercial art graduates that companies like Disney visit the school to recruit.

''The concentration of art training that I got,'' said Calvin Klein, a 1959 alumnus, ''gave me a very strong foundation. I spent a good four hours a day. I couldn't have gotten that from half the amount of time.''

Since its inception, the school has trained a diverse group of students, mostly from working-class and lower-middle-class homes. Today, roughly a third of the students are black, a third are Hispanic and the rest are white or Asian.

Throughout the years, there have been letter-writing campaigns and walkouts to protest systematic arts cuts. Hope Eisman, the school's principal, says that ever-increasing academic requirements have not only pushed out art classes but have also given the students a heavier burden than other high school students have.

Ms. Eisman emphasized that she was an advocate of strong academic subjects. But she added: ''You've got kids here who don't want to go to Harvard. My kids want to go to Pratt, Cooper Union, F.I.T. and Rhode Island School of Design. We're asking a kid who doesn't need it to take physics.''

Karines Reyes, a senior who edited the yearbook and wants to work in advertising, said, ''I like math, I like physics, but they are completely useless to me in terms of my career goals.''

The school, which has historically been classified as a vocational school, is included in the schools affected by a new state policy that will allow courses in math, science and English to be blended with art by including, say, more calculation and writing in an art class. But Mr. Lachky said it was hard to find art teachers also qualified to teach science and math courses on a Regents level.

The extra academic requirements have also strained the school's budget, Mr. Lachky said. ''Now you have to add a lab to every science class,'' he said. ''Where do you get that one period to give the lab and where do you put the lab?''

With budget cuts, teachers complain, comes an increasing lack of technology. ''We've been operating in the Dark Ages,'' said an assistant principal, MaryAnn Geist-Deninno. ''Animation was done with flip books until recently, and you end up with a whole class using one digital camera that I bought at Radio Shack.''

At the Fiorello H. La Guardia School of Music and Art and Performing Arts, on the Upper West Side, the Web site displays a comprehensive art curriculum that includes three periods of studio art a day. But there is a reason for the disparity, Mr. Sawyer says.

La Guardia, he said, is a specialized school, backed by state legislation enabling a distinct difference in budget allotment. La Guardia also looks at both academics and artistic ability in its entrance requirements. Art and Design weighs only a student's artistic ability, thereby admitting students who need remediation.

The original School of Industrial Arts was started in a dilapidated warehouse on West 40th Street in 1936 by four young art teachers. They made their own desks and storage from orange crates and plywood. After two decades at a former Civil War hospital, the school was renamed Art and Design and moved in 1961 to a new, modernistic building at 1075 Second Avenue.

The terror attack of Sept. 11 has also hurt the school. In past years, 500 applicants have turned up on each of four days to take a two-and-a-half-hour art test and submit their portfolios. Now teachers say the number of applicants showing up has been cut in half, and they cite parents' fears of having their children far from home.

As a result of the slippage in courses and equipment, alumni like Mr. Bakshi feel the school has changed for the worse.

''It's madness what they did,'' he said. ''Why did they take a perfectly good art school that put hundreds, thousands in the business and change its format?''

Related story: Diana Lam's ouster:
On the Lam
New York Magazine

The mayor wanted basic change in the schools, and Diana Lam provided it—until unsavory tactics proved her undoing. Where does the chancellor turn now?By Robert Kolker, Published Mar 15, 2004

Joel Klein is not the man he was two years ago when Mike Bloomberg asked him to head the nation’s largest public-school system, and much of his evolution—especially his belief that children learn as much reading alone as they do from being taught by teachers—took place at the knee of Diana Lam. In a cabinet of private-sector and think-tank émigrés, Lam, Klein’s deputy for instruction, was the only career educator; while most of his team focused on rejiggering the bureaucracy, Lam introduced the one piece of reform that actually had to do with the way kids are taught. But now that she has left in disgrace—forced out for nepotism, igniting the mayor’s first major personnel scandal—Klein finds himself in an awkward position: He feels the need to defend her as an educator while condemning her sin. And yet, even as the scandal grows, Klein’s condemnation seems halfhearted.

“Some people for ideological reasons disagreed with her about the curriculum,” Klein says. “That became an issue. And in this business, people get polarized. That’s unfortunate. But I think that she was a sound educator, and I have confidence in her educational judgments.”

Klein defended Lam to Bloomberg, too, before the mayor finally persuaded him to get her resignation, which suggests either a certain political myopia or a devotedness to the deputy who became his mentor. In the beginning, Klein had hired her to be a change agent, offering her the job after just a few meetings not because of her educational philosophy but because they clicked. “I liked her style,” he told me last year. Did he know anything about the educational programs she used? “No,” he admitted. But he did know this: Four times, in four different cities, Lam would start up a campaign of parental engagement, introduce a new curriculum, and see test scores bump up a tick or two. And for an education novice whose boss needed the scores to go up before the next election, that seemed like a good deal.

In Lam, Klein had found a fellow anti-incrementalist; in a pedagogical culture of marathoners, she was a sprinter. Revamp the middle schools? No problem. Cut out social promotion in the third grade? Done. Devise a special-ed plan and break up the big high schools? You got it. She was dynamic and uncompromising at a time when managing the educational bureaucracy was at the forefront of the mayor’s thinking about education.

She was also impolitic, a lousy listener. She didn’t mind whom she provoked. The $800,000 buyout in San Antonio. The wacky three-day campaign for mayor in Boston. The bad blood in Dubuque. And the last few months in Providence, where she rigged a bidding war with Portland, Oregon, to boost her salary and then abruptly accepted the job in New York, giving notice by e-mail. In the end, Lam didn’t need any help imploding.

Last summer, newspapers were tipped off that her husband, Peter Plattes, was working in a department that reports directly to her. Lam claimed that Plattes never formally accepted the job, but another tipster revealed this to be a lie. Guessing who whispered to investigators about Lam’s indiscretions has become a parlor game at Tweed Courthouse. “She was done in by people inside the system who work for her,” says one source who sat on a board with Lam. “Not by reporters or teachers.”

In the final act last week, when a report by the schools investigator forced Bloomberg’s hand, Lam made sure she wouldn’t flame out alone: She said she’d been given the blessing of general counsel Chad Vignola, who resigned a few days later. For a mayor who has staked his reelection on cleaning up the schools, this is no time for an accountability crisis. But Klein, claiming all is well, continues to cast himself as a reformer—and Lam as a target of those who opposed reform.

“She didn’t mind whom she provoked. In the end, Lam didn’t need any help imploding.”

Lam’s enemies were ideological and political as well as personal. Phonics fans like Diane Ravitch were appalled by her philosophy of allowing long blocks of unstructured time for children to simply read and write on their own. Liberals hated the pressure the program put on teachers. The joke around Tweed was that for the first time, teachers-union chief Randi Weingarten and Manhattan Institute pundit Sol Stern agreed on something—that Diana Lam was a disaster.

“Wherever she went, the teachers hated her,” says Stern. “Her forte is a tremendous emphasis on top-down staff development. You haul all of the teachers and principals out of the classrooms constantly and pound into them what it is you want done.” Those headlines about how teachers are shocked that they have to keep lessons to less than eleven minutes—Lam took the blame for that. Which is why Weingarten felt comfortable sending Lam off last week with the hope that “we can start making educational decisions based on what works for children rather than on one administrator’s personal ideology.”

In recasting the system in Lam’s image, Klein embraced a curriculum already used in wealthier parts of town like the Upper West and Upper East sides—alarming conservatives who believe poor kids need something more structured, like phonics. Klein and Lam capitulated, making a phonics program available to qualify for federal money, but it’s clear Klein still believes in Lam’s approach. “People want to put adjectives on it instead of understanding the texture and nuance,” Klein says, “which is a much more complicated set of issues about how you not only teach children how to read words but to have an excitement for reading—to share ideas. So I think this is the right solution, and I think people are giving this a bad rap.”

in the last several months, lam had become so disliked that Klein was shielding her from public exposure. “Clearly, she was the lead educational thinker,” says Eva Moskowitz, chair of the City Council’s education committee. “But there was a vacuum when it came to who would be allowed to publicly defend the rationale. I don’t think either Klein or Lam really took seriously the level of dissatisfaction in the system.”

Now that she’s gone, there’s not much of a chance for Klein to exhale. “I think we have the right mix of talent,” he says. “Let’s wait and see if we bring in somebody else to fill that role on a permanent basis.”


“Well, it’ll depend, obviously, on whether we find the right person,” he says.

Much of what people found provocative about Diana Lam—the new curricula, the speed of the reforms—remains in place. But from here on out, Klein will be taking the heat alone. He’s graduated.

Mitchell Rubenstein: New FMLA Regulations

Summary of New FMLA Regulations

The law firm of Mcguire Woods sent out an email newsletter that provides an excellent summary of the new FMLA regulations. The editorial comments contained herein are not mine. This firm summarizes the regs as follows:

Effective Date

The new regulations take effect on January 16, 2009, which is sixty (60) days from the date they were published. . .


* Eligible Employees. As before, an eligible employee is an employee of a covered employer who: (1) has been employed by the employer for at least twelve months, (2) has been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the start of leave, and (3) is employed at a work site that has fifty or more employees within a seventy-five mile radius. Under the new regulations, if an employee has a break in service that lasts seven years or less, the employee's service prior to the break must be counted when determining if the employee has been employed for at least twelve months. Moreover, employment periods preceding a break in service of more than seven years must also be counted when the break is caused by the fulfillment of National Guard or Reserve military service obligations or "a written agreement, including a collective bargaining agreement, exists concerning the employer's intention to re-hire the employee after the break."
* Serious Health Condition. Although the six individual definitions of a "serious health condition" remain with no significant revisions, additional guidance is provided as to three. With respect to conditions involving more than three consecutive, full calendar days of incapacity plus two or more treatment visits to a healthcare provider, the new regulations provide that the two visits must occur in-person within 30 days of the first day of incapacity (unless extenuating circumstances exist), and the first in-person visit must take place within 7 days of incapacity. With respect to serious health conditions involving three consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new regulations likewise require that the first visit to the healthcare provider take place in-person within 7 days of the first day of incapacity. In addition, serious health conditions involving "chronic conditions" must require at least two visits for treatment by a healthcare provider per year.

Leave Entitlement

* Minimum Leave Increment. Unfortunately, the new regulations do not provide any significant relief to employers struggling to address practical intermittent or reduced schedule FMLA leave problems. However, the new regulations make a slight change to the language involving the counting of intermittent or reduced schedule leave, such that an employer must account for leave "using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave," provided it is not greater than one hour. By deleting the modifier "shortest period of time that the employer's payroll system uses," this allows employers to calculate intermittent and reduced schedule leave on the same basis as that calculated for other employee absences (i.e., regardless of lesser potential increments that a payroll system might be able to count).
* Minimal Leave Increment Exception. Where it is "physically impossible" for an employee on intermittent or reduced schedule leave to start or end work mid-way through a shift, the entire shift may be designated and counted as FMLA leave. This exception, however, appears to be narrow, with the DOL citing examples "such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed clean room."
* Compliance With Employer Policy. Under the new regulations, an employer may require an employee to comply with the employer's "usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances" (e.g., leave requests directed to a particular individual).
* Concurrent Use of Paid Leave. Prior to amendment, the current FMLA regulations applied different rules to the concurrent use of paid vacation and personal leave versus sick leave. However, according to the DOL, under the new regulations, "all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic paid time off)."
* Light Duty Work. One of the more significant changes in the new regulations involves the treatment of employees placed on light duty work. As before, if a healthcare provider treating an employee for a workers' compensation injury certifies that the employee is able to return to light duty work but is unable to return to the same or an equivalent position that the employee left, the employee may decline the employer's light duty offer and continue on FMLA leave until his or her leave entitlement is exhausted. However, consistent with the DOL's prior Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995), under the new regulations, if an employee accepts such light duty work, the time spent performing such duties does not count against an employee's FMLA leave entitlement. Further, according to the DOL, an employee's right to job restoration to his or her original position is "effectively held in abeyance" during the period of time that the employee works in the light duty role. However, the right to job restoration in such circumstances "ceases at the end of the applicable twelve-month FMLA leave year" used by the employer to calculate leave. In short, according to the DOL, "if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave" but may have FMLA job restoration protection (in some cases well beyond the normal twelve-week period from the employee's original FMLA leave date).
* Overtime. In response to employer concerns, if an employee would normally be required to work overtime but is unable to do so because of FMLA-qualifying reasons, "the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement" (i.e., counted as intermittent or reduced schedule leave, as applicable). However, an employee's inability to perform voluntary overtime hours may not be counted against an employee's FMLA leave entitlement.

Employer Notice Obligations

According to the DOL, the new regulations consolidate all FMLA employer notice requirements "into a one-stop section of the regulations." These notice requirements are divided into four categories.

* General Notice. As before, covered employers are required to post a notice explaining the FMLA's provisions and providing information concerning procedures for filing complaints. However, the new regulations state that electronic posting is sufficient, provided employees and applicants can access such materials. In addition, the new regulations clarify that general notice must be supplied to employees in employee handbooks or other written guidance if such materials exist or "by distributing a copy of the general notice to each new employee upon hiring."
* Eligibility Notice. Under the new regulations, when an employee requests FMLA leave or the employer acquires knowledge that an employee's absence may be for an FMLA-qualifying reason, "the employer must notify the employee of the employee's eligibility to take FMLA leave within five (5) business days, absent extenuating circumstances." If the employee is ineligible, "the notice must state at least one reason why." Once such eligibility is confirmed, "all FMLA absences for the same qualifying reason are considered a single leave," and the employee's eligibility for that reason continues and "does not change during the applicable twelve-month period."
* Rights and Responsibilities Notice. In addition to the eligibility notice discussed above, employers must also provide written notice to an employee "each time the eligibility notice is provided" regarding specific FMLA expectations and obligations and the consequences for failure to meet the same. This notice may be accompanied by the applicable FMLA medical certification form, if required by an employer for FMLA leave authorization.
* Designation Notice. Lastly, if requested FMLA leave is approved, employers are further required to provide notice to employees "designating leave as FMLA-qualifying." Such notice must be provided within five (5) business days after an employer "has enough information to determine whether leave is being taken for a FMLA-qualifying reason," absent extenuating circumstances. Thus, unlike the current regulations that require "provisional" FMLA leave designations in some circumstances, employers may now delay final leave designation until a required medical certification form has been returned.

Employee Notice Obligations

* Foreseeable Leave. As before, employees must provide employers with at least thirty (30) days advance notice before FMLA is to begin if the need for leave is foreseeable. For cases where such notice is not practicable (e.g., because of lack of knowledge of approximately when leave will begin), notice must be given "as soon as practicable." According to the DOL, it should be "practicable" to provide notice "either the same day or the next business day" of when the employee becomes aware of the need for foreseeable leave less than thirty (30) days in advance.
* Unforeseeable Leave. When the need for leave is unforeseeable, as before, employees must provide notice to the employer "as soon as practicable." However, the new regulations clarify that "it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave" (e.g., calling in to a specified number or contact individual).
* Notice Content. Under the new regulations, for foreseeable leave, employees must provide sufficient information for an employer to be "aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." For unforeseeable leave, employees must provide "sufficient information for an employer to reasonably determine whether the FMLA will apply to the leave request." As before, when seeking leave for the first time for a FMLA-qualifying reason, employees need not expressly assert or reference their rights under the FMLA. However, the regulations clarify that employees seeking leave due to a qualifying reason for which the employer has granted FMLA leave to the employee in the past "must specifically reference either the qualifying reason for leave or the need for FMLA leave." (Emphasis added). The new regulations further provide that "calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act."

Medical Certification

* Timing. Under the new regulations, employers now have 5 (versus 2) days after the employee gives notice of the need for leave (or the date that leave begins in the event of unforeseeable leave) to request that an employee furnish medical certification.
* Separate Employee and Family Member Forms. Employers will recall that the current medical certification form recommended by the DOL is confusing, given that it is designed for leave involving both an employee's own serious health condition and that of an employee's family member. With the new regulations, the DOL includes two separate medical certification forms under - one for an employee's own serious health condition, and one for that of a family member.
* Incomplete / Vague Certification. If an employer receives an incomplete or "vague, ambiguous or non-responsive" medical certification, the employer must provide the employee seven (7) calendar days to cure any deficiency (unless "not practicable under the particular circumstances despite the employee's diligent good faith efforts"). If the deficiencies specified by the employer are not cured within the time frame required, FMLA leave may be denied. Moreover, according to the DOL in a government-speak acknowledgment of the obvious, a certification that is not returned is not considered incomplete or insufficient, but "constitutes a failure to provide certification."
* Healthcare Provider Follow-Up. A significant change in the new regulations provides that employer representatives may contact a healthcare provider directly for purposes of clarification and authentication of medical certification forms after giving an employee the opportunity to cure any deficiencies. Such contact must be made using a healthcare provider, a human resources professional, a leave administrator or some other management official of the employer. However, the regulations further provide that "under no circumstances" may an employee's "direct supervisor" contact the healthcare provider.
* Extended / Chronic Conditions. Where a serious health condition (for an employee's own condition or that of a family member) lasts beyond a single leave year, employers may now require employees to provide a new medical certification each subsequent leave year.
* ADA / Workers' Compensation Data. In a helpful clarification designed to address concern for HIPAA privacy rules, the new regulations state that employers may consider information provided by employees and their healthcare providers in connection with Americans With Disabilities Act (ADA) disability or reasonable accommodation requests and/or workers' compensation claims. Such information may be used to evaluate medical certifications provided and determine an employee's entitlement to FMLA-qualifying leave.

Fitness for Duty Certification

* Essential Job Functions. In a change from current regulations, the new regulations allow employers to "require that the [fitness for duty] certifications specifically address the employee's ability to perform the essential functions of the employee's job."
* Job Safety Exception. Unfortunately, the current prohibition remains against employers requesting fitness to return to duty certificates for employees on intermittent or reduced leave schedules. However, under the new regulations, employers may request a fitness to return to duty certificate for such absences up to once every 30 days "if reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took such leave."

Retaliation / Enforcement

* Achievement and Incentive Awards. As before, the new regulations provide that with some limited exceptions, employees have a right to reinstatement to the same or an equivalent position that the employee held when leave began upon return from authorized FMLA leave. This includes the right to the same or equivalent pay, benefits and working conditions. However, the new regulations provide that if an employer award or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance which the employee has not met due to FMLA leave, "then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave."
* Liability Waivers. In a significant departure from a prior 4th Circuit court ruling, the new regulations provide that employees may voluntarily settle or release any actual or potential FMLA claims against an employer without the requirement of court or DOL approval. However, prospective waivers of FMLA rights continue to be prohibited.

Military Family Leave

* Military Caregiver Leave. Under the new regulations, eligible employees who are family members of covered service members are able to take up to 26 workweeks of leave in a "single twelve-month period" to care for a covered service member who: (1) is on the temporary disability retired list; (2) has a serious injury or illness "incurred in the line of duty on active duty" for which he or she is undergoing medical treatment, recuperation or therapy; or (3) is otherwise on outpatient status. For purposes of calculating leave entitlement, the regulation provides that the single twelve-month period "begins on the first day the eligible employee takes FMLA leave to care for a covered service member," regardless of the method used by the employer to determine the employee's twelve workweeks of leave entitlement for other FMLA-qualifying reasons."
* Qualifying Exigency Leave. The new regulations also address the second type of new military family leave entitlement. Specifically, the regulations provide the normal twelve workweeks of FMLA job-protected leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for any "qualifying exigency" arising out of the fact that such member is on active duty or called to active duty status. The regulations define "qualifying exigencies" to include the following eight items (with various caveats): (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) "additional activities" not addressed in the other categories, provided that both the employer and the employee agree to the timing and duration of such leave.

A copy of the new regs are available here.

Mitchell H. Rubinstein

Edward D. Fagan is Disbarred in New York State

Below is the decision of the New York State Appellate Division, First Department, to end the career of Mr. Fagan:

Angela M. Mazzarelli, Justice Presiding,
Richard T. Andrias
John W. Sweeny, Jr.
James M. McGuire
Dianne T. Renwick, Justices.
In the Matter of Edward D. Fagan,
(admitted as Edward Davis Fagan),
an attorney and counselor-at-law:
Departmental Disciplinary Committee M-3148
for the First Judicial Department, M-3193
Edward D. Fagan,
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Edward D. Fagan, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on February 23, 1988.
Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York
(Mady J. Edelstein, of counsel), for petitioner.
Respondent pro se.
M-2732 (July 14, 2008)
M-3148 (August 11, 2008)
M-3193 (July 14, 2008)

Respondent Edward Fagan was admitted to the practice of law in the State of New York by the Third Judicial Department on February 23, 1988, under the name Edward Davis Fagan. At all times relevant to this proceeding, he has maintained an office for the practice of law within the First Judicial Department.

The Departmental Disciplinary Committee now seeks an order pursuant to 22 NYCRR 603.4(d) and 605.15(e)(1) confirming the report of the Hearing Panel and disbarring the respondent from the practice of law in the State of New York. Respondent has filed a cross motion to compel the Committee to produce the record of the disciplinary proceedings, and a separate motion seeking, inter alia, to disqualify the Hearing Panel. This disciplinary proceeding arises out of respondent’s representation of the plaintiffs in a lawsuit filed in the United States District Court for the Southern District of New York entitled Association of Holocaust Victims for Restitution of
Artwork & Masterpieces, a/k/a “AHVRAM”, et al v Bank Austria Creditanstalt AG, et al, No. 04 Civ. 3600. Respondent filed that $6.8 billion action in 2004 against various corporations, governmental entities and financial institutions alleging theft, retention, and sale of artwork looted during the Holocaust.

On August 19, 2005, Judge Shirley Wohl Kram dismissed the amended complaint in the case on the basis that it failed to assert any basis for federal court jurisdiction and that it constituted “little more than an end run” around a separate action which ended in a comprehensive settlement against defendant Bank Austria (Assoc. of Holocaust Victims for Restitution of Artwork & Masterpieces v Bank Austria
Creditanstalt AG, 2005 US Dist LEXIS 17411, *6 [SDNY 2005]). Judge Kram also noted that the plaintiff organization AHVRAM did not exist.

Judge Kram granted Bank Austria’s motion to sanction respondent, finding that the lawsuit, being “entirely without color”, was frivolous and in bad faith in violation of Rule 11. Judge Kram commented on, among other things, respondent’s lack of
preparation and professionalism, his “glaringly inadequate filings,” and the fact that he deceived the court of “critical facts” concerning the previous class action settlement against Bank Austria in which he had substantially participated (2005 US
Dist LEXIS 17411, *12). Judge Kram stated that the pleadings contained flagrant misrepresentations, that respondent falsely claimed that he was a member of the plaintiff organization AHVRAM, and that respondent attempted to circumvent the Bank
Austria settlement. Judge Kram further noted that respondent, through AHVRAM, was prosecuting actions against at least six governments or entities, and stated that the findings were “bolstered by the fact that this case appears to be part of a
pervasive and disturbing trend.” (2005 US Dist LEXIS 17411, *18).

Finally, Judge Kram stated that respondent engaged in champerty in violation of Judiciary Law § 488 and DR 5-103, based on her conclusion that respondent purchased interests in stolen artwork solely for the purpose of bringing lawsuits involving that artwork (2005 US Dist LEXIS 17411, *17). Judge Kram fined respondent $5,000 to be paid immediately to the court, and ordered him to pay his adversary’s litigation costs and fees.

Respondent moved for reconsideration of and a stay of the court’s rulings, which the court denied on November 17, 2005. The court further determined that respondent owed Bank Austria a total of $345,520.64 in litigation costs and expenses, and ordered him to immediately pay the $5,000 fine or post a bond. On December 1, 2005, judgment was entered against respondent and in favor of the defendant in the amount of $345,520.64. On January 13, 2006, the U.S. Court of Appeals issued a mandate dismissing respondent’s appeal of Judge Kram’s August 19, 2005 sanction order and deemed any pending motions moot. In her November 17, 2005 decision denying reconsideration, Judge Kram commented further on respondent’s “flagrant,repetitive, and blatant” conduct and “careless abdication of his duties as a lawyer” (2005 US Dist LEXIS 28880, *27).

The court believed the only way to deter respondent from “bringing baseless suits in the future” was to hold him liable for the litigation fees and costs of his adversary. On April 2, 2007, this Court granted the Disciplinary Committee’s unopposed petition giving collateral estoppel effect to the findings of Judge Kram and concluded that respondent engaged in conduct that violated DR 1-102(A)(4)(conduct involving dishonesty, fraud, misrepresentation or deceit), DR 1-102(A)(5)(conduct prejudicial to the administration of justice),DR 1-102(A)(7)(conduct that adversely reflects on fitness to practice), DR 5-103 (acquiring a proprietary interest in the subject of the litigation), DR 7-106(A)(conduct in disregard of
rulings of the court), and DR 7-106(C)(7)(violating established rules of procedure).

A Hearing Panel held hearings on December 7 and 17, 2007, and January 9, 2008, to determine the appropriate sanction for respondent’s misconduct. After several applications by respondent for adjournments and for recusal of Panel members were
rejected, respondent appeared before the Panel pro se, testified on his own behalf and called one witness. The Committee argued that respondent had produced no proof
that he had paid the $5,000 sanction imposed by Judge Kram or any part of the attorney’s fees and costs.

The Committee also offered respondent’s disciplinary history as evidence in aggravation: 1) in 2002, respondent received a public reprimand in New Jersey (the equivalent of a censure in New York) for making misrepresentations to a client regarding the status of her case; 2) in 1994, Judge Michael Mukasey of the United States District Court, Southern District of New York, sanctioned respondent, also under Rule 11, for filing frivolous counterclaims and fined him $500 plus the opposing party’s attorney’s fees and costs; 3) in February 2007, Judge Viktor
Pohorelsky of the United States District Court, Eastern District of New York, sanctioned respondent under FRCP 45(c)(1) for improperly issuing an unduly burdensome subpoena to a non-party witness and ordered him to pay more than $14,000 in attorney’s fees and costs; 4) in August 2007, Judge Shira Scheindlin of the
United States District Court, Southern District of New York, disqualified respondent from representing the plaintiffs in an action in part because of his personal bankruptcy and his admission that his financial future was related to the outcome of
the litigation, and found that he had made false representations to the court, obtained an order of confidentiality from the court under false pretenses, and fined him $5,000. In that case, In re Ski Train Fire in Kaprun Austria, 2007 U.S. Dist. LEXIS 60229, *11, *20 n39, Judge Scheindlin noted that respondent had testified during a May 2007 deposition that in addition to his personal bankruptcy, up until April 2007 he failed to file any tax returns from 2000 through 2006, and stated that she intended to refer the matter to the Southern District’s Disciplinary Committee.

Although respondent objected and stated that at least two of the sanction rulings were on appeal, he failed to provide the Hearing Panel any evidence to corroborate these assertions or explain their status. In testifying about his efforts to comply with the sanctions previously imposed upon him respondent conceded that he owed over
$3,000 for administrative costs involving the 2002 New Jersey disciplinary proceeding; that in the AHVRAM matter he had paid only $250 towards the $5,000 fine and that he had not paid any of the $345,520 in attorney’s fees. Respondent has not paid any of the sanctions and/or fees imposed by the federal courts in 1994
($500), in February 2007 ($14,773) and in August 2007 ($5,000).

While respondent has appealed Judge Scheindlin’s August 2007 decision, he did not obtain a stay of his obligation to pay the sanction. In addition, the Committee proffered a letter written by respondent to Judge Scheindlin in December 2007 (while the hearings were taking place before the Hearing Panel), in support of her recusal, wherein he accuses her of, inter alia, bias and conducting ex parte communications with witnesses. Respondent testified before the Panel that he stood by those statements. The Committee also produced a Daily News article quoting respondent as having made similar statements publicly. At the conclusion of its case, the Committee suggested that respondent be disbarred.

Respondent’s testimony in support of mitigation sought to minimize his behavior before Judge Kram by characterizing it as “procedural” violations of her orders for which he blamed his clients and for which the sanctions imposed by Judge Kram were
sufficient punishment without need for further action by the Panel. He also stated that he failed to pay the sanction imposed by Judge Kram because he could not afford to, and that he had communicated with the court about his personal financial
situation. Respondent also testified that his behavior was due to a difficult divorce that he was going through during the period in which the AHVRAM matter was being litigated. He acknowledged that he had overburdened himself by taking on too many cases at one time, but explained that he was reluctant to withdraw from any of the matters because in the past when he had given up control of cases, those cases had been compromised. He admitted that in retrospect he should not have taken on the AHVRAM case. His sole witness was Kenneth Torres, a private investigator who
worked for respondent on some Holocaust cases. He elicited testimony from Mr. Torres that sanctioning respondent would “impact the victims” whom respondent represented because he did not think anyone could become familiar with the cases to the same
extent as respondent.

At the close of his presentation respondent requested a short period of time to submit documents in support of his position, including an affidavit from one of his clients. The Panel granted his request, giving him until January 25, 2008, and
set a briefing schedule. Respondent submitted one character letter and was given a one-week extension to submit supporting documents. When respondent asked for a second extension, because his computer had been stolen, the briefing schedule was
readjusted. However, despite the extensions, respondent never submitted any new evidentiary materials in support of his position. Nor did he submit a brief on mitigation. Instead, on March 12, the latest deadline set, respondent wrote the Hearing Panel claiming that he was never properly served with the Committee’s brief, and requested reconsideration of the Panel’s rulings on his motion to disqualify two Panel members and his request to subpoena a witness. He also requested another filing
extension to April 1. The Committee provided a copy of the fax confirmation sheet evidencing service of its brief on respondent.

The Panel denied respondent’s requests and the record was closed. Only at that point did respondent apply to this Court for vacatur of this Court’s April 2007 collateral estoppel order and to enjoin the Hearing Panel from issuing its sanction report. This
Court denied that motion on June 17, 2008. On May 14, 2008, the Hearing Panel issued its report concluding that respondent’s false submissions to the court and “knowing misrepresentations” were sufficiently serious when coupled with the other violations found by this Court, to warrant disbarment. The Panel found there to be significant aggravating factors including respondent’s “pattern” of misconduct, his failure to pay sanctions imposed by Judge Kram, his lack of contrition and disruptive and dilatory conduct before the Panel.

It found his “sparse” mitigation evidence “insufficient to overcome the seriousness of his violations and the overwhelming aggravating evidence.” It noted that respondent’s testimony that his clients would suffer if he were sanctioned because no one would take over his victims’ rights cases was unpersuasive. The Panel noted in the report that out of the four cases he was working on at the time, he had been disqualified as counsel from one of them and in another, the AHVRAM matter, the action had been dismissed.

We find that the Hearing Panel’s recommendation of the sanction of disbarment has ample support in the record. Respondent’s conduct before Judge Kram was dishonest and
prejudicial to the administration of justice. Respondent knew that the plaintiff AHVRAM did not exist and that the relief he sought had already been obtained by settlement in another action.

Disbarment is an appropriate sanction for attorneys who, like respondent, have made deliberate misrepresentations to a court (see e.g. Matter of Friedman, 196 AD2d 280
[1994], appeal dismissed 83 NY2d 888 [1994], cert denied 513 US 820 [1994]; Matter of Truong, 22 AD3d 62 [2005], appeal dismissed 6 NY3d 799 [2006]). Disbarment is similarly appropriate where an attorney has repeatedly violated court rulings and procedures and failed to pay a judgment (see Matter of Heller, 9 AD3d 221 [2004], lv
denied 3 NY3d 607 [2004]; Matter of Klapper, 253 AD2d 72 [1999]; Matter of Pollack, 238 AD2d 1 [1997].

In light of the significant aggravating factors, including respondent’s pattern of prior sanctions for unprofessional conduct (see e.g. Matter of Gadye, 283 AD2d 1
[2001]), his failure to pay sanctions and fees imposed, and lack of contrition
or acknowledgment of wrongdoing (see Matter of Robson, 31 AD3d 163 [2006], lv denied 7 NY3d 830 [2006]), and the absence of little if any mitigation, respondent is unfit to practice law.

Accordingly, the Committee’s petition should be granted, the Hearing Panel’s determination as to sanction confirmed, respondent disbarred and his name is stricken from the roll of attorneys and counselors-at-law in the State of New York.
Respondent’s cross motions should be denied.
All concur. Order filed. [December 11, 2008]

Con Man and Snake Oil Salesman Ed Fagan Tries To Shut Down, Lewenstein Serves Subpoena on Gizella Weisshaus

Lawyer Disbarred for Failing to Pay Sanctions, Fees in Holocaust caseNoeleen G. Walder,, 12-12-2008

An attorney well known for representing Holocaust survivors has been disbarred after he neglected to pay sanctions imposed by a federal judge in a multibillion-dollar lawsuit against Bank Austria Creditanstalt and other entities.

In an August 2005 decision excoriating Edward Davis Fagan, Southern District of New York Judge Shirley Wohl Kram fined the lawyer for having a financial interest in the outcome of the $6.8 billion action and trying to circumvent a $40 million payment made by Bank Austria to Holocaust survivors and their heirs. Several months later, the judge denied Fagan's bid to reargue Association of Holocaust Victims for Restitution of Artwork & Masterpieces, a/k/a "AHVRAM" v. Bank Austria Creditanstalt, No. 04 Civ. 3600, and ordered the attorney to pay Bank Austria nearly $350,000 in attorney fees.

Thursday, in Matter of Edward D. Fagan, M-2732, M-3148, M-3193, a unanimous panel of the Appellate Division, 1st Department, held that Fagan's failure to pay the bulk of the $5,000 sanction and all of the money owed to Bank Austria, his "pattern of prior sanctions for unprofessional conduct" and his "lack of contrition" made him unfit to practice law.

In addition to the money Fagan owes as a result of the case before Kram, he has failed to pay more than $20,000 in sanctions and fees imposed by three other federal judges, the panel said.

Fagan said in an interview Thursday that he plans to immediately move for a rehearing and reargument and will take the case to the state Court of Appeals, if necessary.

Fagan claimed that he had new evidence that Bank Austria and its counsel, Charles G. Moerdler of Stroock & Stroock & Lavan, had lied to Kram. Among other things, he said, they "failed to fully disclose" that two stipulations made subsequent to the settlement with Bank Austria permitted him to go forward with his suit.

Moerdler vehemently denied making any misrepresentations to the court.

"Mr. Fagan simply has no grasp of the truth," Moerdler said Thursday.

In an Oct. 8 order, Kram permitted Fagan to file a motion for reconsideration of her prior rulings.

Fagan, who began his career as a personal injury attorney, gained fame in the mid-1990s as the first attorney to sue the German, Swiss and Austrian banks for allegedly stealing money from Holocaust victims.

According to Moerdler, Fagan obtained several million dollars in attorney fees from the suits.

In 2004, Fagan filed a $6.8 billion suit accusing a number of corporations, governmental entities and financial institutions, including Bank Austria, of stealing and selling artwork looted during the Holocaust.

In August 2005, Kram dismissed the action, which she said was "little more than an end run around" an earlier class action settlement agreement reached in In Re Austrian and German Bank Litig., 80 F. Supp. 2d 164.

In addition to filing "glaringly inadequate pleadings," misleading the court about the scope of the prior settlement, and falsely claiming that he was a member of a plaintiff organization that did not exist, Kram held that Fagan had committed champerty by having a financial stake in the artwork of which he accused Bank Austria of stealing.

The judge fined Fagan $5,000 and ordered him to pay all of Bank Austria's litigation fees in connection with the suit.

On Nov. 17, 2005, Kram refused to stay the judgment or reconsider her August decision, and directed Fagan to pay his fine "without delay" or post bond. Citing his "careless abdication of his duties as a lawyer," she also concluded that Fagan owed $345,520 in attorney fees to Bank Austria.

On April 2, 2007, after granting the disciplinary committee's unchallenged petition giving collateral estoppel effect to Kram's findings, the 1st Department held that Fagan had violated a number of disciplinary rules prohibiting an attorney from disregarding a court's rulings, engaging in conduct involving dishonesty, fraud, misrepresentation or deceit, and acquiring a proprietary interest in the subject of the litigation.

In hearings before the disciplinary committee, the committee contended that Fagan had never paid the $5,000 sanction or attorney fees to Bank Austria. The committee also cited four prior instances since 1994 in which Fagan had been either reprimanded or sanctioned for misconduct.

Most recently, in August 2007, Southern District of New York Judge Shira Scheindlin disqualified Fagan from representing plaintiffs in a suit brought by relatives of six Americans who died in a ski train fire in Kaprun, Austria. After noting that Fagan, who had filed for personal bankruptcy, had a personal interest in the litigation's outcome and made false representations to the court, Sheindlin slapped the attorney with a $5,000 fine.

Fagan argued that two of the sanction rulings cited by the disciplinary committee were being appealed.

While he admitted to the hearing panel that he had only paid $250 of the $5,000 fine and none of Bank Austria's fees, he characterized his failure to comply with the judge's orders as "procedural violations."

According to the decision, Fagan said he could not afford to pay the sanction and blamed his conduct before Kram on a difficult divorce. He said he should not have taken on the $6.8 billion action because he already was saddled with a heavy case load, but feared that the litigation would be compromised if he relinquished control of the matter, the panel noted.

Despite asking for and receiving more than one extension from the disciplinary committee to bolster his case, Fagan failed to submit a brief on mitigation or new evidentiary materials.

On May 14, the hearing panel found Fagan's "sparse" mitigation evidence "insufficient to overcome the seriousness of his violations and the overwhelming aggravating evidence" and recommended that Fagan be disbarred.

The 1st Department agreed.

Fagan "knew that the plaintiff AHVRAM did not exist and that the relief he sought had already been obtained by settlement in another action," the panel held.

"In light of the significant aggravating factors, including respondent's pattern of prior sanctions for unprofessional conduct ... his failure to pay sanctions and fees imposed, and lack of contrition or acknowledgment of wrongdoing ... and the absence of little if any mitigation, respondent is unfit to practice law," the panel concluded.

Moerdler said Thursday, "It is always sad and tragic when a lawyer is disbarred." In Fagan's case, "it is even more so because there was a time when he was a serious champion of Holocaust victims and he was a person who helped start the proceeding to try and recover the ... property that Holocaust victims lost. Thereafter, he seems to have gone off the rails and that's really too bad."

In response to Fagan's recent motion for reconsideration, Bank Austria has requested that further sanctions be imposed against him, and asked the court to enjoin him from filing any more claims that are precluded by the Bank Austria settlement.

Justices Angela M. Mazzarelli, Richard T. Andrias, John W. Sweeny Jr., James M. McGuire, and Dianne T. Renwick sat on the panel.

Mady J. Edelstein handled the case for the Departmental Disciplinary Committee.

Wayne Barrett (Village Voice, 2005) and Others, on Mike Bloomberg's Payoffs

Journalists and the general public know that Mike Bloomberg does not want anyone to criticize him about anything. In fact, he'll do anything to avoid accountability. The internet is full of articles about his behavior towards pregnant women who worked for his company Bloomberg LLP, and discriminatory comments against Mexicans, Blacks, and other ethnic groups. Below is an article published in August 2007, and another published by Wayne Barret in the Village Voice in 2005.

Money always finds a pocket.

New York's Mayor Bloomberg in sex lawsuit
By Toby Harnden in Washington,

A possible presidential bid by Michael Bloomberg, the mayor of New York, could be threatened by new details of a sexual harassment lawsuit that alleged he said "kill it!" to an executive who told him that she was pregnant.

Apart from being accused of suggesting that Sekiko Sakai Garrison abort her baby, he also allegedly said to her: "Great! Number 16!", an apparent reference to the number of pregnancies among his staff.

The billionaire businessman is also claimed to have pointed out a woman to Mrs Garrison, and said: "If you looked like that, I would do you in a second."

The suit accused him of referring to Mexican clients as "jumping beans" and saying of a female worker who was having trouble finding a nanny that "all you need is some black who doesn't even have to speak English to rescue it from a burning building".

Mr Bloomberg, 65, settled the lawsuit in 2000. A gag clause on both sides was part of the deal but details of the allegations made against him were leaked yesterday to the Associated Press.

The mayor was sued in 1997 by Mrs Garrison, a former sales executive with his company Bloomberg from 1989 to 1995, when she was dismissed.

He vehemently denied all the claims and did not admit any wrongdoing in settling the case for an undisclosed sum.

His spokesman yesterday declined to comment about the fresh details.

During his first mayoral campaign in 2001, aides said that Mr Bloomberg, a divorcé, had passed a polygraph or lie detector test in which he had denied Mrs Garrison's allegations but the chart of the actual test has never been released.

Mr Bloomberg was said by the Associated Press to have admitted in a deposition that he had uttered the words "I'd do her" about Mrs Garrison and other women.

He has denied for a decade ever using the words "kill it", though Mrs Garrison is alleged to have a tape of an answering machine message from Mr Bloomberg saying he had heard she was upset about pregnancy comments, stating: "I didn't say it, but if I said it I didn't mean it."

Shut Your Mouth
Big-Bucks Bloomy buys corporate silence in six sex and race cases

Wayne Barrett, Village Voice, published: October 25, 2005

The problem with Mike Bloomberg's money isn't limited to the $175 million he'll soon have officially spent in two campaigns to tell us what he wants us to know about him. It's the untold millions he and his company have paid in secret settlements and other deals to make sure we never learn his whole story. The Voice has tracked a half-dozen ex-employees of Bloomberg's closely held communications company who have wound up in nasty disputes with him-—on allegations ranging from maternity discrimination to sexual harassment to racial comments—and who will not discuss his conduct, often because of confidentiality agreements they have signed. These cases, which go beyond typical corporate fodder, raise questions about a side of him unseen since he became mayor. While some of these complaints have been resolved during his mayoralty, no new ones like them have emerged involving public employees. However, the timing and substance of the cases suggest that Bloomberg might never have become mayor had all the facts surfaced during the 2001 election. The silencing of these former staffers merits scrutiny before this election. Here's the list:

Sekiko Garrison: While her case of gender discrimination got a great deal of attention in 2001, culminating in a shrill television commercial aired by Democrat Mark Green, Bloomberg brushed past it by issuing a public denial of its core charge. One of several women who alleged in court documents that they'd "lost lucrative portions of their sales territory, were denied business opportunities and received inferior bonuses" once they got married or had children, Garrison claimed that Bloomberg told her twice to "kill it" when she informed him she was pregnant. He also added, according to Garrison: "Great! Number 16," a reference to the number of company women on maternity leave.

Garrison's attorney, Neal Brickman, would not even acknowledge that the case was settled, only that it was "resolved" in the early fall of 2000 and that he was not permitted to discuss it. He said Garrison, who now lives in Seattle, wouldn't discuss it either. Asked if he thought the case might have ended because Bloomberg was simultaneously announcing his interest in a possible 2001 mayoral race, Brickman told the Voice: "It certainly may have been, though it was never mentioned. This case went from one that was remarkably hotly contested to not hotly contested overnight." News reports in 2001 indicated that Bloomberg personally settled the case for a "substantial" sum pegged at "six figures."

Bloomberg was deposed in the case but his testimony has never become fully public due to the settlement. While his lawyers disputed the comments Garrison attributed to him, she retained a tape of a message he left for her both apologizing for the remarks and denying he made them. Had the case gone to trial, the bizarre recording would've been played in court. Bloomberg conceded during his deposition that he had used the expression "I'd do her" about Garrison, though he insisted that what he meant by the expression was that he would have a personal relationship with her. He reportedly tried to walk out of the deposition when asked if the Debbie who "did" Dallas in the infamous porn movie had a "personal relationship" with the entire city.

Mary Ann Olszewski: Her rape charge against a top Bloomberg L.P. executive was even more explosive than the Garrison allegations, and it too surfaced in part during the 2001 campaign. As the Voice revealed then, Bloomberg testified in the case that he would not believe the allegation was "genuine" unless there was "an unimpeachable third-party witness," adding that "there are times when three people are together." While Olszewski's attorney David Mair threw me out of his office in 2001 when I asked him if there was a settlement in the case, and Olszewski refused to comment, every indication is that Bloomberg "resolved" this time-bomb case as well.

His 272-page, 1998 deposition—in which he also said "my own morals would require" corroboration in rape cases generally and "I don't have an opinion" about whether false rape claims "are common"—would have never become public had not the Voice obtained it from a confidential source. Asked if he'd said he would like to "do that piece of meat" or that he'd "do her in a second," he only partially corrected the quotation: "I don't recall ever using the term 'meat' at all," he testified.

What has become clear since 2001 is that Olszewski, who was described by her attorney as unable to pay $14,769 in court costs, leased a new blue convertible BMW in Florida on February 19, 2001, the day before the case was finally dismissed in Manhattan federal court. She also moved into a $5,000-a-month Miami luxury condo on February 26, and on March 1 incorporated her own hedge fund, which she operated out of the unit. A year later, she paid $750,000 to buy another apartment in the same building. She still has the BMW.

At the final hearing in the case in October 2000, Judge Robert Patterson raised the question of a settlement, saying he was "sure the parties have discussed it from time to time," though he said he had no "insight" into "why, at this stage, there would be any hope" of one. The judge expressed concern that "there be justice here and not be some technicality standing in the way of justice"—an apparent reference to the fact that he'd dismissed the case once already because Olszewski's prior lawyer had not filed response papers on time. Also speaking sorrowfully about "any possible injustice" to Olszewski, Patterson issued a December 12 ruling giving her 28 days to file papers vacating his dismissal. Incredibly, after trying for a year to overturn Patterson's default judgment, Olszewski's new attorney Mair never filed the motion, even when Patterson extended the deadline. Mair refused again recently to discuss why, presumably because it would have required him to answer questions about a settlement.

Bloomberg made his first political speech at a GOP event on February 14, just as Patterson's deadline expired, and hired media whiz David Garth, who'd elected Ed Koch and Rudy Giuliani, the same day Patterson dismissed the case. Bloomberg took a leave from his company to run two weeks later. Had Mair filed for and won the vacate order, the case would've gone forward throughout the mayoral campaign, highlighting revelations that Bloomberg's company had conducted a lengthy investigation of Olszewski's sex life while simultaneously launching a joint defense with the accused rapist and even getting him a lawyer. The absence of any sex harassment procedures at the company until after the Garrison and Olszewski cases were filed would've added to the political embarrassment.

While the company denies it paid any settlement to Olszewski, the testimony of one Bloomberg-tied attorney in a related 2002 disciplinary proceeding was carefully parsed to leave open the possibility that Bloomberg, or an entity acting in his name, settled it. The Bloomberg campaign declined to answer questions about it.

Alan Feltoon: The best evidence that Olszewski won a bonanza was that Feltoon, who wound up settling two suits involving Bloomberg L.P., dropped the lawyers who'd been representing him for two years and hired Mair a month after the Voice story about his handling of the Olszewski case appeared. An architectural contractor who did major work for Bloomberg for five years, Feltoon was fighting a Bloomberg lawsuit charging that he'd defrauded the company. Soon after Feltoon switched to Mair in November 2001, the federal judge in the case ordered a deposition of Bloomberg for January 11, 2002, just days after he was inaugurated.

A few hours before the scheduled deposition, Bloomberg L.P. settled the case on terms both parties refused to reveal. Then, in September 2002, Mair resurrected the issues by suing another Bloomberg architectural firm, contending that it had conspired with the mayor's company to illegally copy millions of dollars' worth of Feltoon's work. While Bloomberg L.P. wasn't named in the second suit, a New York Observer story cited experts and evidence predicting that Bloomberg would again face the witness stand. The Observer reported that Bloomberg's company was not named because the settlement of the earlier case barred Mair and Feltoon from suing it directly. Feltoon recently e-mailed the Voice that he "settled" this case in late 2003 "and was satisfied with the resolution," refusing to spell out the details.

Pointing to the damaging impact of Bloomberg's testimony in the rape case, news stories in 2002 noted that "a deposition of Bloomberg would seek to lay bare in intricate detail the inner workings of the top echelons" of his company. The stories added that he might also have been asked about the sexual harassment charges of a former employee sued in the same case, Diane Winger, who claimed that Bloomberg had made explicit comments about her body and encouraged her to spend time alone with him. Winger's husband, Joseph Menno, another Bloomberg executive named in the civil suit, wound up pleading guilty to criminal charges of defrauding the company.

However, testimony in the Olszewski case, available to Mair, revealed that Winger was fired after she filed her harassment complaint and that Bloomberg then personally ordered the internal probe of Menno's work that eventually led to his prosecution. When Menno pled guilty, Bloomberg L.P. settled its suit against him and Winger.

Susan Friedlander Calzone: The witness whose Olszewski deposition detailed the sequence of events in the Winger case, Calzone was one of the highest-ranking female executives at Bloomberg L.P. for years, in charge of administration. By her own testimony, she orchestrated the company's handling of these three and other sexual harassment cases, personally participating in the initial debriefing of Olszewski's alleged rapist and managing the corporate handling of Garrison and Winger. She testified about Olszewski wearing "a sheer white blouse without a bra" to work, stated that she had "no reason not to believe" the executive charged with raping Olszewski, and offered an extraordinary account of the voice mail message she heard Bloomberg leave for Garrison: "He may have said sorry. I can't remember the words. You know, blah, blah, blah, blah, come see me." Ironically, Bloomberg's campaign spokesman Stu Loeser says that Calzone is now in charge of Women for Bloomberg, which has hosted several highly successful events for the mayor in 2005. Yet two sources told the Voice that Calzone herself went to a lawyer to discuss a possible suit against Bloomberg L.P., charging that when she returned to the company after a maternity leave in 2001, she was displaced by a male executive and not given her full portfolio of responsibilities. Since Bloomberg was on leave and only intermittently involved with the company in 2001, his role in these decisions is unclear.

Calzone did not sue, worked for months at campaign headquarters, and was then seen repeatedly at City Hall, sparking news stories that she might become a deputy mayor. She was even paid $9,000 by Bloomberg's committee in December 2001 to help with the transition. Instead, she returned to the company and remained there until early this year, when news stories again noted that she was leaving it to join the campaign.

But just how Bloomberg has kept this high-six-figure executive with young twins happy is a financial mystery. She appears three times on the 2005 filings of Bloomberg's committee for a skimpy total of $1,099, all as reimbursements for expenses she advanced the campaign, starting in June. One of her close friends, ex–Bloomberg executive Susette Franklin, says she has met and talked with Calzone a few times this year, even attending a Women for Bloomberg event. "I would've assumed she was paid by the campaign," Franklin says. Calls to Bloomberg's main headquarters connect to her voice mail, but Loeser could not explain how she was paid.

Elizabeth DeMarse: Marketing director at the company, DeMarse hit the headlines in 2001 when she confirmed that she'd compiled a 32-page pamphlet of offensive Bloomberg quotes given to him on his 50th birthday. She told New York magazine that Bloomberg "says this stuff"—a collection of sex and race gags—"to customers and new hires and anyone who comes into the office. These are his lines. Everything in there I've heard him say many times. I sat next to him for seven years." One quip was that "if women wanted to be appreciated for their brains, they'd go to the library instead of to Bloomingdale's."

But then Bloomberg lawyers called her and told her not to "answer any questions about the company or Bloomberg himself." According to news accounts at the time, she said she was restricted by a confidentiality agreement she signed as part of a severance package. Bloomberg said his lawyers were doing "what they're supposed to do" and told reporters not "to waste your time asking" that he allow DeMarse to speak out. In fact, the heat got so intense DeMarse left town for Florida during the general election campaign, sources said. The concern was not just the racy booklet, but that DeMarse had reportedly been a witness to the "kill it" comment in the Garrison case, as well as to Bloomberg's conflicting voice mail call.

Burton Waddy: A top black executive at the company until June 2005, he left deeply disturbed about comments he regarded as racial that were allegedly made by Bloomberg. Three people who have talked to him about these comments say that he reached an apparent settlement with the firm not to discuss the remarks. Peter Noel, a former Voice reporter who is now a freelance writer and radio host, says that he conducted taped interviews "three years ago" with Waddy and Harold Doley III, a high-ranking black employee of the 2001 Bloomberg campaign. Noel says that they told him "damaging" stories about Bloomberg, but that he could not discuss the specifics because Waddy had subsequently asked him not to.

Doley confirmed that he and Waddy had talked to Noel on tape, but Waddy referred the Voice to his attorney, Denise Bonnaig, who would not answer any questions. Doley said Waddy was "bellicose" about these Bloomberg comments until this April, when he was "shut down." While two of these sources did indicate what some of these comments were, neither would go on the record about them for fear of hurting Waddy. That's why the Voice will not print any of these alleged remarks.

The six sagas here are both unsettling and incomplete. The confidentiality blanket that covers them gives each episode a powerfully suggestive aura short of definitive fact, but the cumulative picture that emerges is one of a corporate Bloomberg awash in unusual personnel problems either connected to his own unhinged repartee or his company's insensitive policies.

As mayor and candidate, Bloomberg often lays claim to the company's progressive initiatives, telling gay groups, for example, about its enlightened health care coverage for unmarried spouses. In the same spirit, he has to accept responsibility for its dark side, depicted in the handling of these individuals. He created Bloomberg L.P., still owns 72 percent of it, and is said to periodically involve himself, ever so discreetly, in its big business decisions. It remains a window into his inner world, however clouded, and part of the portrait of him every voter should know.

Research assistance: Jessica Bennett, K. Emily Bond, Ben James, Lee Norsworthy, Xana O'Neill, and Nicholas Powers

November 26, 2001
Bloomberg a Man of Contradictions, but With a Single Focus

Throughout most of his 59 years, there have been two distinct sides to Michael R. Bloomberg, the mayor-elect. Those who know him well say that New York City should expect to see plenty of both.

There has been a jocular, brash and egocentric Mr. Bloomberg. There has also been a thoughtful, earnest and selfless Mr. Bloomberg. Interviews with his friends, relatives and business associates suggest that each version is authentic and irrepressible and that one is never too far removed from the other.

Together they make for a man who can create a horrible scene shouting at you one moment and politely ask you to lunch the next; a man who revels in fame and celebrity but who is known to cross his eyes at the idle chitchat of high society; a man who espoused the virtues of school prayer during the campaign but who threw a holiday party last December with seven deadly sins as its theme and a gigantic bed covered in purple satin.

This is Mr. Bloomberg. At his Park Avenue offices. At a charity board meeting. At a black-tie event. He impatiently jingles the contents of his pocket. He breaks away from one conversation to pick up on another. What did you say? he asks. No, he would rather not sit down. Want a laugh? He loves an audience. Prepare to blush. Want a confidant? His eyes will not leave yours. There is no better listener or friend.

''He wants it all,'' said Beverly Sills, a friend who recruited Mr. Bloomberg as a board member of Lincoln Center, where she is chairwoman. ''The man has heart, he really does. He is touched by all kinds of things that will always take you by surprise.''

Matthew Winkler, who runs the news operation at the mayor-elect's company, Bloomberg L.P., says he has been pushed and pulled, coaxed and cajoled by Mr. Bloomberg over the last 11 years, sometimes pleasantly, sometimes not so pleasantly. He is one of thousands.

''He uses everything that he takes in and is able to leverage it,'' said Mr. Winkler. ''He is opinionated, adventurous and fearless, but also a team player.''

Most of Mr. Bloomberg's days begin with a telephone call to his 92-year-old mother, Charlotte. ''He checks in on me,'' said Mrs. Bloomberg, a widow who still lives in Mr. Bloomberg's childhood home in Medford, Mass. ''These days, he skips some days.''

Those missed days are more than compensated by a deluge of inquiries from Mrs. Bloomberg's friends ever since her son's election victory. Some former neighbors are contacting Mrs. Bloomberg for the first time in 40 years. Her son is famous now, she said, not just rich.

''Nobody has said, 'I'm surprised,' '' she said. ''Whether they are or not, I can't tell you.''

Mrs. Bloomberg said her son reminded her a lot of her brother, Louis Rubens, who ran a successful grocery business. ''He had stick-to-it-ness,'' she said. Years ago, her own mother remarked on the similarities between the two men.

''If he liked it, he worked hard at it,'' Mrs. Bloomberg said of her son. ''But he had to find something he wanted to do.''

And his wilder side? ''I don't know where that came from,'' she said, chortling. ''That is not from my family, no.''

Mrs. Bloomberg suspects some of it can be traced to the family of her husband, William, who was Mr. Bloomberg's biggest admirer, but died in 1963 when his son was in college. (Reminiscing with her mother at an Upper East Side restaurant, Mr. Bloomberg's sister, Marjorie Tiven, protested at this suggestion, saying her father was not around to defend himself.) William Bloomberg was a bookkeeper at a dairy most of his life and also sold mutual funds.

''His father thought that Michael was the most wonderful person on earth and anything he did was O.K.,'' Mrs. Bloomberg said. That made it clear who was the disciplinarian, she said, pointing to herself. And also who was the main worrier, she said.

William Bloomberg would not sleep nights when his son took the car and stayed out late on a date. There was no formal curfew, just an understanding that the freedom to roam would not be abused.

''I remember lying in bed around midnight, and then you could hear when he drove in the garage, you could hear a certain noise,'' Mrs. Bloomberg said. ''I would say, 'All right, he is home.' His father wouldn't go to sleep until Michael was home.''

Antics and Academics

As a boy, Mr. Bloomberg had a passion for snakes. He would rummage through the thicket of trees near their home, smuggle them upstairs into his bedroom in knotted socks and thoroughly terrify his little sister in the process. She soon learned to flee the house when he was transferring his catch from the socks to more permanent quarters.

''There were incidents of snakes escaping,'' recalled his sister, Ms. Tiven. '' 'Have you seen my snake?' he would ask. I remember once looking through the kitchen door and seeing this large snake, several feet long, slithering down the steps.''

But when the time came to stop the mischief, the snakes went away, and the young Mr. Bloomberg would dutifully perform chores for his Aunt Ruth. She was retarded and lived in a nearby town with his paternal grandfather. She was always in need of a helping hand. And, as his sister and mother tell it, there was none more capable than his.

As for the snakes, Ms. Tiven said she was pleased those many years ago to see her brother's attention eventually turn to things like the debate team and the slide-rule club -- even to horses and tobacco.

''He loved horses and he loved the social activity at the stables as well,'' she said. ''There were older guys. I am sure there were cigarettes -- I am only speculating.''

When he got to Johns Hopkins University in Baltimore, Mr. Bloomberg would while away some afternoons drinking beer with his fraternity brothers at Phi Kappa Psi and taunting the prep-school girls who played field hockey behind his apartment. It was sometimes raucous and always in good humor, one roommate recalled, even if the girls did not take kindly to it.

''We had a good time,'' Mr. Bloomberg said of his fraternity years later in an interview with the student newspaper at Johns Hopkins. ''We drank a lot of beer. We didn't study very much. I burned the candle at both ends.''

But truth be told, after the nuisance-making, Mr. Bloomberg would often slip away to a job at the faculty club parking lot, where he attended cars in exchange for dinner and $35 a week. And later at night, when few of his friends would notice, he escaped to the computer lab, where he did his most serious studying for his engineering degree -- and eventually got good enough grades to gain admission to the business school at Harvard University.

''He always gave the impression that he was just one of the guys hanging out, that he wasn't there working until 2 or 3 in the morning,'' said Dr. Jack Galotto, an internist from Potomac, Md., who was one of Mr. Bloomberg's roommates and fraternity brothers. ''But we caught him with the goods, lugging those giant three-foot-wide computer printouts.''

As a married man in the 1980's, Mr. Bloomberg would quarrel with his wife, Susan Brown, about his long stretches away from home both building his business and enjoying the after-hours social life it afforded him. He would go home in the evenings, spend an hour or two with his two daughters and then typically leave for dinner.

''They were not getting along because their lives are not compatible,'' said Emma Bloomberg, 22, the elder of Mr. Bloomberg's two daughters. ''My mother doesn't want to be social all of the time. She was perfectly happy to curl up with a book and not go out all week.''

But after their divorce in 1993, Ms. Brown moved back into his Manhattan townhouse on East 79th Street with Emma and her sister, Georgina, for the better part of a year. The two have remained the closest of friends; later Ms. Brown and her boyfriend volunteered for Mr. Bloomberg's campaign. They still celebrate Thanksgiving and most Jewish holidays together at Mr. Bloomberg's country home in Armonk, N.Y.

''I think I remember we met on a hot dog line one lunchtime,'' Ms. Brown said, kidding, in a videotaped birthday tribute one year to her ex-husband. ''Michael was pushing his way to the front and he rather annoyed me. I think I put my foot out.''

Emma Bloomberg was so struck by her parents' friendly parting that she wrote about it in her college applications.

''My parents' divorce was one of the best things that ever happened to me,'' said Ms. Bloomberg, who graduated this year from Princeton University. ''It made my relationship with both of my parents stronger. My parents are best friends. Nobody understands that until they actually see it.''

Tom Weisel, who skis with Mr. Bloomberg, said the way he handled his divorce surprises people.

''What you see is what you get, 100 percent honesty,'' said Mr. Weisel, who attended Harvard Business School with Mr. Bloomberg and who once owned a condominium in Utah with him and two other skiing friends. ''The guy has accomplished a lot and is still doing things and re-inventing himself. I am sure there is a lot of jealousy about that. He is an aggressive guy, and if you don't like that, you don't. I happen to like it a lot.''

Larger Than Self-Made Life

Mr. Bloomberg, the aggressive guy, is perhaps best known for turning adversity into opportunity in the business world.

He created Bloomberg L.P., a multibillion-dollar information-services company, 20 years ago after being fired as a partner at Salomon Brothers and being handed $10 million in severance.

He was pushed out of Salomon when it merged with the Phibro Corporation. But he had been sidelined two years before the merger (significantly, he was put in charge of the firm's information services), after losing a battle of politics and personalities.

According to some accounts, Mr. Bloomberg was an insufferable know-it-all at Salomon who had trouble getting along with some fellow managers; Mr. Bloomberg's version is somewhat different. He says his rivalry with one partner in particular, Richard Rosenthal, ultimately did him in.

''Determined, and armed with that great advantage lack of knowledge gives one, Rosenthal was a winner,'' Mr. Bloomberg wrote in his autobiography, which was published in 1997, after Mr. Rosenthal's death.

It is the entrepreneurial success story that followed his departure from Salomon that Mr. Bloomberg promoted in the autobiography, ''Bloomberg by Bloomberg,'' and that provided a ubiquitous backdrop to his mayoral campaign. One of Mr. Bloomberg's favorite literary devices during the drafting of the book was adding exclamation points and quotation marks, according to Mr. Winkler, who wrote the book with him.

''He has always been his hero, I think,'' Mr. Winkler said of him, adding, ''He is not that introspective. He doesn't spend a lot of time analyzing himself.''

Like those in any good fishing story, some details of Mr. Bloomberg's personal tale seem to have grown larger than life. In one small example, Mr. Bloomberg recalls starting his new company in a one-room ''broom closet of an office'' on Madison Avenue. Tom Secunda, one of his original partners, says it was small but most definitely not that small. It had three rooms.

During his run for mayor, some of the book's more serious exaggerations, omissions and score-settling became a political headache for his campaign as it sought to head off possible political repercussions.

Ambiguous references to Mr. Bloomberg's lack of service in Vietnam and his company's dealings with apartheid-era South Africa made headlines and were exploited by Mr. Bloomberg's opponents. But there were also other potentially worrisome passages, particularly Mr. Bloomberg's blunt reaction to the plane crash that killed Mr. Rosenthal, his Salomon rival.

''Was I happy or sad?'' he wrote. ''After all the years of bitter fighting, I am ashamed to say that the right word was ambivalent.''

Mr. Winkler said some of Mr. Bloomberg's ''anecdotes and comments'' were deleted in the final draft of the book, but others remained. In one, there is an unflattering mention of a college friendship. Dr. Galotto, his fraternity brother, knew of the friendship and said he was taken aback at Mr. Bloomberg's ''unpleasant'' description of the friend, who was not named in the book. ''He was good friends with him, no matter what he said in the book,'' Dr. Galotto said.

Outside his business success, this aggressive and larger-than-life side of Mr. Bloomberg has had a variety of lesser-known manifestations.

Mr. Bloomberg is an amateur pilot who has walked away from crash landings of both a helicopter and an airplane, the latter in 1995 at Westchester Airport while trying to give a nephew a bird's eye tour of Manhattan. He is an inveterate and competitive socialite who last year threw a holiday party in London for his European employees that, besides the purple satin bed, featured drag queens, massage tables and entertainers waving wads of cash and shouting, ''Money -- ain't it gorgeous?''

The Sunday Times of London called it ''Britain's most extravagant staff Christmas celebration,'' and the event's planners, Fisher Productions, said it required a staff of 600 people, including 6 fire officers, 40 security guards and paramedics at three first-aid stations.

Mr. Bloomberg is an exacting and sometimes crass boss. Former workers at Bloomberg L.P. say he has been known to greet some new employees with an off-color joke or remark and he demands absolute loyalty from those around him. He is riled when people talk of quitting his company, and when they do quit, they are typically required to sign an agreement that ensures their silence.

When one former employee, Elisabeth DeMarse, spoke with reporters during the campaign about a book of jokes she compiled for Mr. Bloomberg's birthday several years ago, including some sexist and bigoted ones attributed to him, she was repeatedly warned by Mr. Bloomberg's lawyers to keep quiet.

Did Mr. Bloomberg really say those things? Some of them, without a doubt, several current and former employees said. Did he really mean them? Absolutely not, they said, suggesting he almost could not help himself after spending so many years using the vernacular of Wall Street traders.

Over the years, Mr. Bloomberg's foul mouth and locker-room humor have been topics of discussion among some of those who work around him. On more than one occasion he has been gently prodded to tone it down, apparently with some success.

''I think he is different today,'' said Susan Friedlander Calzone, who has worked 16 years for Mr. Bloomberg and is the chief administrative officer at his company. ''I think society has changed as well.''

Was Ms. Calzone ever offended by Mr. Bloomberg's off-color remarks? ''I was the third class of women at Dartmouth,'' she said. ''I wouldn't be where I am if it hadn't been Mike giving me the opportunity.''

Mr. Bloomberg is also an impatient taskmaster who can make a scene when service is poor at a restaurant and who, according to Ms. Sills, will cross his eyes during dinner party conversation or shoot ''from the hip'' with his own uncensored remark. He also needs nudging to stay awake during the opera, she said.

Emma Bloomberg said, ''I remember as a little kid, saying, 'Oh, my God, Dad, don't make a scene, be quiet, be quiet,' when we were waiting for a table.'' But, she added, ''now that I have grown up, I see if I am paying for a meal, it should be the way I want it.''

Several years ago, when he decided to write his autobiography, Mr. Bloomberg became wildly irritated at a most basic publishing requirement: the imposition of a deadline. Even though the manuscript was finished on time, according to Mr. Winkler, Mr. Bloomberg locked it in his desk drawer and refused to hand it over for no apparent reason other than he did not like being told what to do.

''This is my book!'' Mr. Bloomberg was heard screaming during a telephone conversation with a representative of the publisher, John Wiley & Sons.

Quiet Acts of Kindness

But for every story about Mr. Bloomberg as the pushy center of his universe, there is one about Mr. Bloomberg as the unsung purveyor of good deeds -- the good friend, the responsive boss, the generous philanthropist and the loving son and father.

He does not want to move into Gracie Mansion, the mayor's official residence, because he is essentially a sentimental homebody, said his daughter Emma.

''Seventy-Ninth street is his home, and it is where he has the family memories,'' Ms. Bloomberg said of his five-story limestone townhouse near Central Park. ''We still have stuff there. Our rooms are still basically the same. I don't think he would change that.''

Mr. Bloomberg became an Eagle Scout at the unusually young age of 12 and was so intent in his pursuit of good deeds that his parents' friends would line up ''to borrow Michael,'' his sister, Ms. Tiven, recalled. His mother said he had completed his requirements to become an Eagle months before receiving the award, but was told he had to wait until he got closer to his 13th birthday for the official ceremony.

Mr. Bloomberg was writing checks to the N.A.A.C.P. as a college student in 1963, even when he was parking cars to cover his own living expenses. Dr. Galotto, his former roommate, said he once spotted one of the checks on Mr. Bloomberg's desk about the same time Duke Ellington visited the campus and was denied access to one of Mr. Bloomberg's favorite establishments.

''I said, 'What the hell are you doing that for, Mike?' '' Dr. Galotto said. ''And he said that we all need to be treated the same way, that if something bad can happen to someone who is black, it can happen to someone because they are Jewish or whatever ethnic strain.''

Mrs. Bloomberg said her son became sensitive to prejudice at a young age. There were not many Jews in their neighborhood, and the only way his father was able to buy their house in 1945 was to have an Irish lawyer purchase it first and then turn around and sell it to him. The owners had refused to sell to a Jew, Mrs. Bloomberg said.

This is the same Mr. Bloomberg who gave away $100 million to charities last year, and who, according to a close friend, Morris W. Offit, had to be talked into having his name put on buildings at Johns Hopkins, though he was the university's biggest single donor and had served as the chairman of its board.

Shortly after Sept. 11, when three of his employees were killed at the World Trade Center, Mr. Bloomberg sent his private jet to France for the vacationing parents of one of the victims and repeatedly called the couple to check up on them.

''Michael tried to give us his home number, and I said I didn't want it,'' said Stephen Alderman, whose son, Peter Craig Alderman, was among the Bloomberg employees killed. ''That was going above and beyond.''

And despite a personal fortune in the billions, homes in Vail, Colo., London and Bermuda, this is the Mr. Bloomberg who could think of nothing more compelling to do with his time than run the City of New York for the next four years.

''Don't ask me,'' said David Garth, Mr. Bloomberg's top campaign strategist. ''If I had $5 billion, I would probably be on an island somewhere.''

Michael R. Bloomberg

BORN -- Feb. 14, 1942, in Medford, Mass.
FAMILY -- Divorced from Susan Brown; two daughters, Emma, 22, and Georgina, 18
HOME -- Town house on East 79th Street, Manhattan; also has residences in Armonk, N.Y., Vail, Colo., London and Bermuda
EDUCATION -- 1964, B.S. in engineering, Johns Hopkins University; 1966, M.B.A., Harvard University
EMPLOYMENT -- Salomon Brothers, 1966-1981; Bloomberg L.P., 1981-2001