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Wayne Barrett Asks Why NYC Mayor Mike Bloomberg is Not Scarred By The Deutsche Fire Where Two Firefighters Died
DOI's Gill Hearn wasn't asked by City Hall to look at Doctoroff's embrace of Bovis and Galt, but at the line staff at fire and buildings. She couldn't resist pointing out in her press release five weeks ago that the city's "inspectional forces" were "no match for the contractors' cavalier disregard for public safety," noting in the final paragraph of the 35-page report that Galt "should never have had this project in the first place." No one in the New York press printed that conclusion. Bloomberg's onetime closest aide, who now runs his company, approved a contractor under indictment for killing two firefighters; Bloomberg's own top investigator says categorically that the contract should never have been awarded; and not one news outlet in New York thinks it's a story. Similarly, although every city paper published penetrating stories in the aftermath of the fire, not one quoted the DOI's more recent searing language about Scoppetta's executive team or cited the issues that the DOI implicitly raised about the DOB's top management. It's as if a curtain has been drawn on the mayoral election, and the only show that will go on is the one Mike buys on the air.
          
Bloomberg's Biggest Scandal—The Deutsche Bank Fire—Should Be His Downfall. Why Isn't It?
By Wayne Barrett, Village Voice
published: July 22, 2009
LINK

Mike Bloomberg's worst scandal cost two firefighters their lives. If we lived in a media world in which facts and memories mattered, the nonchalance at the highest levels of the Bloomberg administration about the hazards and warnings at the Deutsche Bank building, where Robert Beddia and Joseph Graffagnino died on August 18, 2007, might cost him his re-election.

Our billionaire mayor will never be tarnished by the traditional pay-to-play and influence-peddling schemes that compromise politicians with ordinary bank accounts. Instead, his defining debacle is a failure of leadership, accountability, and transparency, revealed in one law enforcement report or news story after another, ever since Beddia and Graffagnino succumbed to smoke on the 14th floor of the city's most toxic building, just 118 feet from where 343 of their brothers perished six years earlier. Even Bloomberg's Department of Investigations (DOI) found last month, in a report barely noticed by the press, that it was a case of death by official dereliction.

By the time of the fire, city and state officials were so driven by their deal with J.P. Morgan Chase—which had agreed to begin building its new headquarters on the Deutsche site as soon as it was cleared—that they were pushing this unprecedented simultaneous decontamination and demolition project forward as quickly as possible. They did so without proper permits or oversight, determined to complete it before the opt-out 2008 deadlines written into the Morgan contract. Due to the extended delays that followed the fire, however, the deconstruction of the bank building remains unfinished, and Morgan has, for reasons more connected to the economic meltdown than to the Deutsche delays, walked away.

The original $45 million takedown price tag on the Deutsche building has grown by five times. Next year, finally, the blackened 40-story carcass is slated to be gone, nearly a full decade after a 15-floor gash was cut in its side by South Tower debris and it was filled with toxins and remains thrown into the bright morning air on the city's darkest day. Everything about this project and its fire has been bungled—by one city and three state administrations—yet yesterday's headlines have become today's haze, and the role of a mayor celebrated for his competence remains largely unexamined.

Deadly mismanagement cost one mayor his job. Yankel Rosenbaum's murder in a Crown Heights race riot mishandled by the NYPD finished David Dinkins in 1993, when the media refused to give a culpable administration a pass simply because its breakdowns were two-year-old news. But we are now in an era when media moguls get together to reverse two public referendums in an undisguised effort to keep one of their own in office, a time when the mayor may be the biggest new ad buyer in town. The question now is whether the press will hold accountable a mayor who has refused to hold any of his own appointees accountable for an avoidable disaster.

In the months before August 18, 2007, there were so many fires and accidents at the Deutsche Bank site that a high-powered consultant, URS, reported to state and city officials that the giant construction management firm on the project, Bovis Lend Lease, could "no longer be trusted to ensure building safety," and that the project was "an accident waiting to happen." Fifteen days after that alarm, a cigarette butt discarded on the 17th floor sparked a fire that later consumed nine stories. So many firefighters rushed up steps and elevators that 115 were injured, 46 seriously enough to require medical leave.

The docket of pre-fire municipal malfeasance starts with the collapse of inspectional regimes at the fire and buildings departments, which combined to miss a 42-foot breach in the bank building's water-supplying standpipe for months, leaving firefighters without working hoses for more than an hour in what the Graffagnino family now calls a "death trap."

Though FDNY regulations require inspections of construction or demolition sites every 15 days, the department never inspected the bank building in the six months of work that preceded the fire. The Department of Buildings (DOB) granted the project a commonplace alteration permit, the kind that is only supposed to be approved when a project "does not change" a building's use—precisely the opposite of what was planned at the Deutsche site. According to one subsequent law enforcement report, this unusual choice of permit "allowed the building to undergo concurrent abatement and demolition," a rare and risky venture. Had a demolition permit been required instead, the building would have become the province of the DOB's demolition experts, literally called the B.E.S.T. team. Instead, "inexperienced inspectors who volunteered for the assignment and never traced the standpipe" were the ones regularly on site, with B.E.S.T. inspectors in a secondary role, the same investigative report concluded.

But the record of miscalculation is not limited to inspectional dysfunction. It extends into the upper reaches at City Hall, where the mayor's most trusted deputy, Dan Doctoroff, disregarded warnings from DOI commissioner Rose Gill Hearn in favor of the reckless predilections of Bovis, a company that had built the Lexington Avenue headquarters of Bloomberg's media company and prospered in the Bloomberg administration. Bovis insisted on making a mob-and-accident-scarred firm its prime demolition subcontractor at the Deutsche site, and Doctoroff bowed to the selection over the howls of Gill Hearn. Doctoroff later told the Times that he did it because he was satisfied that sufficient "safeguards" had been put in place to make sure that the controversial subcontractor behaved itself.

The subcontractor, the John Galt Corporation, is now under indictment for manslaughter in the case of Beddia and Graffagnino. Manhattan District Attorney Robert Morgenthau found that a "behind-schedule" Galt "decided to shift the project's focus from cleaning pipes to removing them," sawing off "the hanging rods that supported the standpipe within inches of ceilings," causing "a large portion" of it to break free and crash to the ground. According to the District Attorney, the Bovis site safety manager and two top Galt supervisors—one of whom had been specifically objected to by Gill Hearn—"gathered at the foot of the broken standpipe" and decided to cut it up into sections, bagging and discarding it as asbestos-containing material. Though the building "was now defenseless against the threat of significant fire," Bovis and Galt reported it to no one, said Morgenthau. When the fire hit, the water that Beddia, Graffagnino, and 100 other firefighters needed poured out of the wide-open standpipe into the basement.

In addition to the role of the building's safety manager in this alleged incident, Bovis replaced its site superintendent after he insisted, prior to the break in the standpipe, that it be pressure-tested. Morgenthau said the new superintendent "proved to be less safety-conscious, and the standpipe was never tested again." Morgenthau concluded that Bovis prepared "fraudulent" daily checklists that failed to record not only the breach in the standpipe, but also "numerous fires and accidents" that occurred prior to August 2007.

Once the recipient of hundreds of millions of dollars in Bloomberg and Doctoroff largesse at nearly a half-dozen city agencies, Bovis averted indictment only because it was too big an employer to fail, according to Morgenthau. An agreement executed by Bovis and Morgenthau's office noted that the D.A. had "determined that it could institute a criminal prosecution" against the company on the same criminally negligent homicide and related charges it brought against Galt.

Beyond these inspection and contracting mistakes, the catalog of fatal failings also includes the fire department's response the day of the fire, which offered chilling reminders of how little was learned from 9/11. Firefighters once again charged skyward in droves, though this time, there were no possible victims to rescue. A fire chief on the FDNY's executive staff had written a warning calling for a Deutsche Bank–specific response plan two years before the demolition began, but he and the rest of the department brass failed to develop one tailored to this complex and dangerous site. Instead, the department, from the commissioner on down, behaved as if standard operating procedure was a sufficient response to any incident at the bank, even though, as Morgenthau put it, a project to concurrently clean and clear "a high-rise in a dense residential and commercial neighborhood had never been done before in New York City."

Bloomberg's tabloid-celebrated pretense at running a CEO-style government is belied by his response to these failings.

The only supposed culprits punished for the inspection breakdowns are people the mayor does not know or didn't appoint—line staff at the FDNY and the DOB—while the executives at these agencies, led by Fire Commissioner Nick Scoppetta, have yet to elicit so much as a critical word from him.

In fact, Bloomberg went out of his way to defend Scoppetta when Morgenthau pointed out, in a 32-page report, that the commissioner visited the firehouse next to the Deutsche building three months before the fire and never "inquired as to whether regular inspections were being conducted" at the bank building or "whether a special fire operations plan for this project was in place." Scoppetta was there that May because a 15-foot pipe fell from the Deutsche site through the roof of the firehouse and injured two firefighters, forcing the then 74-year-old commissioner to climb to the firehouse roof. Morgenthau added that "the failure to inspect"—which, he says, "contributed to the conditions that led to the deaths" of the firefighters—"implicates high-ranking FDNY officials" who "clearly recognized that buildings undergoing construction, demolition, and abatement were extremely dangerous for firefighting operations."

Bloomberg's lawyers, according to sources at Morgenthau's office, pushed unsuccessfully "to delete the Scoppetta language" from the report. The day after it was released, only seven months ago, Bloomberg said, "You just can't take it all the way to the top and always go fire the top guy." He insisted that whatever went wrong had occurred at another "level," consistent with Scoppetta's decision this June to discipline up to seven fire chiefs, none of whom were part of his inner circle. Scoppetta, who ran the Children's Services agency under Rudy Giuliani, is in his eighth year as Bloomberg's fire commissioner, the longest-tenured in half a century.

Even the DOI, while focusing favorably on the post-fire reforms that Scoppetta introduced, quietly took him apart. Its June report, which drew only puny stories in two city dailies, noted that "after the fire," Scoppetta "became heavily involved with inspections," adding that what was missing "at each and every level within the chain of command" before Deutsche was an effort to "ensure" that "the rules" requiring inspections of construction and demolition projects every 15 days were "being followed." The report disparaged "the executive team"—including Scoppetta and his three top chiefs—finding that all four were "unaware of, or did not address noncompliance with, the 15-Day Rule," charging that "the importance" of the rule was not "reinforced to the lower ranks."

The DOI also blasted "a culture of widespread disregard of the 15-Day Rule," and said it was violated "in commands throughout the Department." That makes it impossible to contend, as Scoppetta and the mayor did, that the FDNY's borough, division, and lower-level chiefs overseeing the bank building did anything out of the ordinary. In fact, when Scoppetta finally issued reprimands against them a few days ago, the charges placed in their file made no reference to any specific failure to inspect the Deutsche building, instead faulting them for general inspection shortcomings.

The reprimands, which will be removed from the files of these chiefs in a year and are among the least punitive forms of administrative discipline, implicitly make the case against Scoppetta and his top brass. They could not press tougher charges against the chiefs, targeting failings at Deutsche, without exposing—at any ensuing administrative trial—their own failure to ever issue any orders or directives compelling compliance with the inspection rules. In fact, the DOI report had to rely repeatedly on the promotional exams that chiefs take as the only notice they ever had to the existence of the 15-Day Rule, a thin reed indeed, since exam preparation covers multiple volumes of department regulations. (Is lawyer Scoppetta responsible for recalling everything he learned for the bar exam?)

Frank Gribbon, the FDNY's spokesman, conceded in a Voice interview that Scoppetta and his top staff had said "nothing about the 15-Day Rule" in any of their regular department orders prior to the fire. He confirmed that William Siegel—the chief whose detailed 2005 memo urging a specific response plan and weekly surveillances for the Deutsche Bank site was used to justify some of the disciplinary actions—had actually been promoted to Scoppetta's cabinet by the time the demolition began in early 2007. Siegel did not, to Gribbon's knowledge, ever mention his own concerns about the site in Scoppetta's weekly executive sessions. That suggests that, at the highest levels in the department, even the two-star chief who'd written the book on the bank building was asleep at the switch. (Siegel, who has since retired, declined to answer questions when reached at his home.)

Gribbon added that the department was not going to investigate any managerial mistakes made during the fire response, and refused to answer questions about whether it believed any had occurred, despite critics inside and outside of the department who contend that so many firefighters were dispatched without water or purpose that it was fortunate only two were lost. He maintained that "the issue," when Scoppetta went to the firehouse next to the bank, was "protecting the firehouse," and that Scoppetta made Bovis "construct a platform" and "considered" pulling the firefighters out during the demolition, never focusing on inspecting the actual cause of the accident.

Asked if there was any indication, after the Morgenthau and DOI reports, that the mayor was contemplating any actions against Scoppetta or the rest of the executive team, Gribbon said simply, "No." Asked if the mayor was "considering any actions against executives" in the FDNY or DOB, Bloomberg press secretary Stu Loeser sent an e-mail to the Voice recounting instead the disciplinary decisions those executives have taken against lower level staff.

The buildings commissioner at the time of the Deutsche breakdowns was Patricia Lancaster, the first Bloomberg department head to be forced from office. Lancaster's departure in late April 2008, eight months after the fire, occurred the day after she testified at a City Council hearing that the DOB had mistakenly issued permits for an East-side building where a crane collapsed, killing seven people and injuring 24 others. Her ouster was never said to have had anything to do with the fire-connected blunders of her department. Though the mayor acknowledged when Lancaster quit that he didn't "think anybody should be fully satisfied with the DOB's performance," he moved immediately to replace her with first deputy Robert LiMandri.

Neither Morgenthau's nor the DOI's report indicate if either Lancaster or LiMandri was aware of any of the department mistakes in the lead-up to the fire—including the failure to ever do an inspection in the basement. Nor do the reports deal with the question of whether these top executives should have been directly involved in so high-profile a project, if they contended they weren't. A DOI spokeswoman told the Voice that it did not comment on the role of top DOB officials because that "would have been a judgment call," and all DOI was requested by the mayor's office to examine was whether city officials had violated or failed to enforce "any rules" in connection with the fire.

An e-mail to the Voice from the DOB indicated that LiMandri "was aware of the decision" to issue alteration rather than demolition permits "and did not object," observing that, nonetheless, "no investigation has raised any questions about Commissioner LiMandri's role." In fact, without naming LiMandri or Lancaster, the DOI criticized the issuance of an alteration permit and concluded that "regardless of the type of permit issued to a contractor, the DOB should not permit projects to undergo demolition until the abatement process is fully completed," precisely what the DOB is now doing on the site. The FDNY's 176-page report on the fire similarly pointed out in the second paragraph of the first page that "no demolition permit was filed or issued," noting that, instead, the DOB issued alteration permits—a point the FDNY reiterated later in the assessment.

Loeser insists that "the issuance of alteration permits had no bearing on the level" of DOB oversight, a contention that is contrary to Morgenthau's finding that "inexperienced" inspectors, rather than B.E.S.T. inspectors, wound up in charge, as a direct consequence of the absence of a demolition permit. The DOB insists that it took "the unprecedented step of dedicating a permanent team of inspectors to the site," meaning it "received greater attention" than any other construction site in the city. That's a quantity-over-quality argument, since the DOI found that none of the DOB's inspectors assigned to the site "had any experience on site safety demolition projects," and one department supervisor is quoted as concluding that the inspectors examining the standpipe "really did not know what they are looking at."

LiMandri actually promoted Tom Connors, the Manhattan inspection manager, and named Chris Santulli, the Manhattan commissioner, to a citywide post—after both had been faulted by the DOI for "no follow-up to ensure that the B.E.S.T. Squad was training" the inspectors actually monitoring the site. Though Connors "never told" the inspectors "what to inspect at the site" or provided them "with any type of formal training," LiMandri elevated him around the first anniversary of the fire to Executive Director of Construction Site Safety. Last October, LiMandri named Santulli the acting assistant commissioner of engineering and safety operations, and it was Santulli who appeared at a January 2009 City Council hearing to offer assurances about how well the Deutsche project was currently proceeding.

Though Connors was a featured speaker at a DOB-sponsored forum for Construction Safety Week in April, and both Santulli and Connors appeared with LiMandri at a similar event hosted by the Building Trade Employers Association in November, they both finally got letters of reprimand placed in their file a couple of weeks ago. The reprimands (without demotions) were issued three weeks after the Voice began asking questions about whether they'd be disciplined at all. Connors has received a $15,052 raise since the fire, while Santulli is still at the same $138,403 level. (Both were included in the citywide managerial salary hikes released by the mayor the same day that the reprimand letters were placed in their files. The raises they received tallied a combined $19,944.)

Beyond the mild and late letters on Santulli and Connors, Robert Iulo, who took over the inspection unit at the Deutsche site shortly before the fire, is the only DOB employee to face formal departmental charges. Iulo is accused in the DOI report of killing a stop-work request from one of the inspectors, who observed a problem with the standpipe unassociated with the basement breach. The inspector testified that, two months before the fire, he reported this standpipe problem to Iulo, as well as to the same Bovis manager ultimately charged with participating in the cover-up of the breach. The inspector wanted the pipe tested immediately, but Iulo blocked a pressurized test and allegedly instructed the inspector not to include his concerns in his report. Of course, a stop-work order would have meant delays no one wanted, and the Bovis manager, if his indictment is accurate, knew that the pipe would fail a test, leading to a prolonged stoppage of the project.

Throughout this period, the DOB reported to Dan Doctoroff, the deputy mayor who also headed the eight-member city delegation on the 16-member board of the state's Lower Manhattan Development Corporation (LMDC), the entity that bought the bank building from Deutsche and hired Bovis to tear it down. None of the investigative reports examine Doctoroff's role, if any, in the DOB's alteration permit, which exempted LMDC from the requirement that abatement precede demolition, or the patchwork inspections, which fast-tracked the project. He was, however, the only city official with a heavy hand at both agencies. One source involved with the probe at Morgenthau's office said Doctoroff was "the guy pushing and pushing and pushing" to get the project "moving forward," and that he "didn't bother himself with the details."

Doctoroff attended the LMDC meetings in July and August of 2005, when the contracts with Bovis and a Galt-tied subcontractor named Safeway were approved. He was the mayor's representative to LMDC, but didn't actually join its board until a couple of months later. Though he didn't hesitate to raise objections to matters on the agenda before he became a board member, including at the August meeting, he said nothing about the two contracts for the Deutsche project. The Bloomberg administration had distanced itself from LMDC as part of a broader power-sharing arrangement with Governor Pataki, but just as the bank project got under way, it aggressively threw itself into the LMDC mix. The Times said the administration played a key role in determining "who was to do the work" at the Deutsche site. Doctoroff became so personally involved that he put two of his own aides on the board as well.

Even though Safeway was soon dropped—in part for violations it received that summer in connection with the collapse of a supermarket it was demolishing, injuring 10 people—Doctoroff has conceded that, in February 2006, after joining the board, he signed off on two Bovis deals with Galt, which the DOI branded "a reincarnation" of Safeway. He apparently found Bovis's pitch for Galt—which won a $58 million contract covering the abatement and demolition of the building—more persuasive than the DOI's 10-page January 2006 memo blasting the company. "Investigators felt that their warnings had been ignored," the Times later noted. The DOI told the Voice that it "made its objections well known," but the spokeswoman said she "would not comment" on the agency's interactions "with the mayor's office."

A second DOI letter to LMDC that April called Galt's hiring of ex-Safeway executives—specifying the person subsequently charged in the bagging of the broken standpipe—"shocking and disturbing." The letter branded one of Doctoroff's "safeguards," namely that the Galt/Safeway executives had to cooperate with investigators, "a disingenuous fig leaf intended to put the imprimatur of the DOI on your arrangement." Another Doctoroff "safeguard" supposedly made sure that Galt did not "funnel money back to Safeway," a charge that Morgenthau is investigating now. "Once Galt and Bovis" agreed to these "stipulations," Doctoroff said after the fire, he and the rest of the city members "voted to approve the contract amendment to Bovis" that okayed Galt.

The canard later invoked by the mayor himself—that "there was only one contractor willing to work on taking down the building"—is contradicted by the DOI's April letter. Robert Roach, chief of staff to the DOI commissioner, said that the agency had provided "the names of several demolition contractors" that the state and city had "previously used." LMDC told the DOI that it "found these alternative contractors too expensive," and Roach presciently replied, "New York City has a policy of hiring only the lowest responsible bidder, in part because non-responsible contractors, such as Safeway and its officers, frequently cost the City more in the long run by virtue of delays and mistakes."

This was hardly the only time Doctoroff sided with Bovis on the project. The company came back to the board four times for contract increases, and Doctoroff and the city team backed every boost. Indeed, the mayor's only known personal intervention in the five-year effort to take down the building occurred days after Eliot Spitzer became governor in January 2007. Bloomberg and Doctoroff hosted a cozy session at Gracie Mansion with Spitzer, attempting to add $38 million to the public bill due to Bovis, Galt and others on the project. Though it was already known that a Galt director had been fingered at the trial of John Gotti Jr. as an "associate" of the Gambino crime family, a company executive sat confidently through the mansion meeting, having prompted it by pulling workers off the site. Doctoroff declared afterward, "I believe we have solved our problem."

A state official familiar with Doctoroff's disposition toward Bovis said he believed they had "a special relationship," adding that the Bloomberg administration "had a preference for them, was comfortable with them." Asked for an example of that, the official said that, up to the mansion negotiations, LMDC, with Doctoroff's support, "gave Bovis the increases they asked for" without conditions. The Spitzer team took the "We'll advance the money now and litigate later" position, with the understanding that LMDC might seek to recoup some of the payment. The state and the city made it clear that Bovis and Galt would be financially penalized if they failed to meet a year-end deadline, a commitment they made just months before the fire, feeding their recklessness. The negotiations with Morgan to do its linchpin downtown revival tower on the bank site, with Doctoroff at the helm, peaked in the same time frame.

Doctoroff now sits in the Bloomberg LP headquarters that Bovis built during the first few years of the mayor's administration. The mayor held his favorite deputy so accountable for the Deutsche Bank screw-ups that, five months after the fire, Doctoroff became president of the $5-billion-a-year company Bloomberg almost entirely owns. A Bloomberg LP spokeswoman says that the company did not select Bovis to build the headquarters (the developer did). But a tenant like Bloomberg LP, whose company occupies virtually all of the office space in the mixed-use tower and participated in every detail of the design, undoubtedly developed ties to Bovis during the project. Alan Gerson, the City Council member from Lower Manhattan who chairs the committee that monitors LMDC, says that "without question," he believes Bovis got "favored treatment" from the city, especially at the Deutsche site.

Though Bovis had a track record with the city before Bloomberg became mayor, it prospered even more once he took office. In 2003, the Doctoroff-run NYC Economic Development Corporation (EDC) picked Bovis as one of its three construction managers on projects, awarding it $75 million in jobs so far, and renewing the contract without bids three times. Similarly, the Department of Citywide Administrative Services (DCAS)—from where one official, who asked not to be identified, said that Bovis was seen as "a preferred contractor prior to the fire"—selected Bovis twice as the agency's construction manager for its work downtown, where most of the city-owned office buildings that the DCAS manages are located. Bovis is still performing many jobs awarded under the prior EDC and DCAS agreements that will produce millions more in revenue.

In the days immediately after the fire, the mayor said he wanted answers about the city's failings. "We will not stop until we get them," he promised. He repeated the vow to the Graffagnino family at the funeral: "We're going to get those answers, and those answers will be followed by actions." When he and Scoppetta announced nine days after the fire that three chiefs would be relieved of their commands, he said the actions were "strictly preliminary" and predicted they "could wind up being the least of the actions we will take." They actually turned out to be the city's toughest disciplinary decisions, as the recent reprimands of the same three chiefs, and four others, were a retreat from the 2007 threats.

Even as Bloomberg was making these public promises, his top lawyer, corporation counsel Michael Cardozo, was calling Morgenthau personally and telling him that "the mayor was taken aback" that the district attorney had told reporters he was investigating the fire. Cardozo's call, according to two sources familiar with it, came within hours of Morgenthau making his announcement. "Tell the mayor that I'm taken aback that he's taken aback," said the legendary D.A., who then had to face what sources called many "contentious" dealings with attorneys in Cardozo's office. (One of the sources recalled Cardozo using a synonym for "taken aback.") Firefighters scheduled to appear at Morgenthau's office for questioning at 10 one morning were summoned to Cardozo's office at 8 for a briefing, but refused to show.

Asked about this exchange, as well as the attempts by other attorneys representing the city to get Morgenthau's office to remove language from his report criticizing Scoppetta, Cardozo's spokeswoman said, "We will not comment on what specifically may have been discussed in conversations between the city and the District Attorney's office." Loeser also refused to discuss the conversations, "other than to say that we defended the city's actions."

Bloomberg faced—at that moment, and for the next year and a half—a possible career-killing indictment. Morgenthau was openly considering an unprecedented indictment of the city for criminally negligent homicide. The exchanges with Morgenthau's office got so difficult that Bloomberg wound up hiring a respected criminal attorney, Gary Naftalis, to represent the city, and Cardozo's office paid Naftalis's firm $4.5 million in a single year. Cardozo is in the process even now of extending the contract and raising the price to $6 million, even though Morgenthau announced last December that he would not indict the city. Cardozo's office says that Naftalis is advising the city in its fight against the Beddia and Graffagnino families and in any other civil litigation.

When Morgenthau decided not to charge the Bloomberg administration, he made it clear that it wasn't for lack of evidence. He likened any attempt to charge the city to "tilting at windmills," citing its "sovereign immunity" as an insuperable legal obstacle.

Fortunately for Bloomberg, the trials of Galt and the three employees indicted for the deaths of the firefighters will not start until after the election, when defense attorneys plan to point the finger at the city in every way. Stu Loeser and Dan Doctoroff are refusing even now to answer any questions about the hiring of Galt, using Morgenthau's continuing investigation as their excuse. Loeser won't even say what the DOI warned city officials—including the mayor himself—about Galt, much less whether Bloomberg believes Doctoroff should have heeded the DOI and objected to its retention.

Cas Holloway, the top Bloomberg adviser on the Deutsche job and one of his current appointees to the LMDC board, appeared at a City Council hearing weeks after Morgenthau closed the fire case, and joined Bovis in refusing to answer questions about it. "We're not prepared to speak to every finding" in Morgenthau's report, Holloway said, refusing, in fact, to address any of them. "What we really want to talk about is what is happening at the site now." Morgenthau told the Voice that his office "certainly didn't tell anyone" not to answer public questions about the Deutsche debacle. Gerson, the Council member who chaired the hearing, called the city and Bovis's refusals "stonewalling."

The caged lion inside Bloomberg's administration, the DOI's Gill Hearn, wasn't asked by City Hall to look at Doctoroff's embrace of Bovis and Galt, but at the line staff at fire and buildings. She couldn't resist pointing out in her press release five weeks ago that the city's "inspectional forces" were "no match for the contractors' cavalier disregard for public safety," noting in the final paragraph of the 35-page report that Galt "should never have had this project in the first place."

No one in the New York press printed that conclusion. Bloomberg's onetime closest aide, who now runs his company, approved a contractor under indictment for killing two firefighters; Bloomberg's own top investigator says categorically that the contract should never have been awarded; and not one news outlet in New York thinks it's a story. Similarly, although every city paper published penetrating stories in the aftermath of the fire, not one quoted the DOI's more recent searing language about Scoppetta's executive team or cited the issues that the DOI implicitly raised about the DOB's top management. It's as if a curtain has been drawn on the mayoral election, and the only show that will go on is the one Mike buys on the air.

wbarrett@villagevoice.com

Safety warnings were ignored before Deutsche Bank fire
BY JONATHAN LEMIRE and ADAM LISBERG, DAILY NEWS STAFF WRITERS
Monday, August 18th 2008, 1:04 AM

They knew.

Months before the Deutsche Bank inferno killed two firefighters, inspectors knew there was a blatant disregard for even the most basic fire-safety rules, a Daily News probe has found.

A review of thousands of internal documents exposes how careless hardhats at the downtown site regularly sent sparks flying, started small fires and ignored repeated warnings to stop.
PHOTO GALLERY: A LOOK BACK AT THE DEUTSCHE BANK FIRE

Inspectors hired to look for safety failings warned a dozen times that John Galt, the company decontaminating and demolishing the tower, did not have enough safety managers to watch for blowtorch sparks.

They also reported that six small fires were put out without Fire Department notification.

"Burning details are being manned by only one fireguard. Demo foreman has been strongly advised of the need for an additional fireguard or perhaps two," an inspector wrote July 25.

Two weeks later, another report said, "At 2:47 pm S/W side column had a fire. No fire watchman or fire extinguisher on the floor."

And then tragedy struck.

A year ago Monday, investigators theorize, a worker carelessly chucked a lit cigarette, igniting the blaze that claimed the lives of Firefighters Joseph Graffagnino Jr. and Robert Beddia.

When inspectors and FDNY investigators walked back though the building nine days later, they made a shocking find in a sixth-floor room.

"Many cigarette butts were found along with a Weber black small BBQ," one wrote.

"Someone was barbecuing?" Graffagnino's outraged widow, Linda, said last week when told by The News of the finding.

"I'm not surprised. That stuff really makes me angry. How could that be allowed?" she asked.

She may soon get some answers. An internal FDNY probe is expected to be highly critical of the department's inspection failures and handling of the blaze. A grand jury investigating the blaze is expected to issue indictments next month.

The inspectors who cited trouble before the blaze worked for a subcontractor, Site Safety LLC, and were hired by URS, the company managing the Deutsche project and working with Galt.

The two companies reported to the Lower Manhattan Development Corp., the state agency in charge of rebuilding downtown. Site Safety and URS declined to comment, and John Galt could not be reached.

Michael Murphy, spokesman for the Lower Manhattan Development Corp., which owns the site, could not say whether Site Safety's reports were reviewed by the state agency.

Murphy insists close attention was paid to fire safety — and that the regular mention of problems shows how carefully inspectors were monitoring work.

"The issue of fire watch and reviewing the fire watch was extremely important, as were any other safety issues," he said. "They served as one component of a system in which job-site issues were monitored and corrective action taken as necessary."

Other city, state and federal inspectors regularly trolled the site, yet none stopped the practices that led to the fatal blaze.

The city has since revamped construction rules to require better inspections, and is seeking authority to enforce building codes in state-owned property like the former Deutsche Bank building.

The Fire Department, which failed to inspect the tower every 15 days as required by law, now says it meets the 15-day target on 93% of buildings.

"It was the perfect storm last year: a contaminated building being taken down by a shady company, and our guys weren't doing the inspections," one FDNY source said.

A key question is who cut a 40-foot length of standpipe from the basement, leaving Graffagnino and Beddia stranded without water in the mazelike building.

In hundreds of daily reports, inspectors noted changes to standpipe connections, and twice said the standpipe was too far below the level where workers were dismantling columns.

The basement standpipe, though, was barely mentioned.

Uniformed Firefighters Association President Steve Cassidy wants the FDNY to add a new rule that firefighters must be advised of water conditions during a blaze.

"When there is a firefighter hurt or killed, a lack of water is often the issue," Cassidy said. "What we're asking here doesn't cost a penny, but it could save lives."

All work at the Deutsche building will cease today in memory of Graffagnino and Beddia, who will be honored by Mayor Bloomberg at a 10 a.m. ceremony.

Plaques in the men's honor will be unveiled at their SoHo firehouse, Engine 24/Ladder 5, at Houston St. and Sixth Ave.

The LMDC hopes to finish removing asbestos and other dangerous materials from the building by the end of the year and have the structure removed by next summer.

alisberg@nydailynews.com
With Erin Durkin


Contractor Bovis Lend Lease under investigation for overbilling on Citi Field, 9/11 Memorial
By Doug Feiden and Greg B. Smith, DAILY NEWS STAFF WRITERS
Friday, June 5th 2009, 2:31 AM
LINK

Citi Field is one of several projects prosecutors are investigating contractor Bovis Lend Lease for overbilling.

Prosecutors are investigating allegations of overbilling by a major contractor at the Sept.11 Memorial, Citi Field and three other huge New York projects, the Daily News has learned.

Brooklyn U.S. Attorney Benton Campbell has subpoenaed thousands of payroll and billing documents from Bovis Lend Lease for five specific projects, two sources familiar with the ongoing investigation said.

Besides the Sept. 11 museum and the new Mets stadium, the other projects are the New York University Medical Center, the demolition of the Deutsche Bank tower at Ground Zero and a mall in Rego Park, Queens.

A Port Authority spokesman confirmed the investigation Thursday night.

"This is an ongoing U.S. attorney's investigation. Our inspector general's office is actively engaged in the investigation," said spokesman Steve Coleman.

The Port Authority is the construction manager of the $700 million Sept. 11 Memorial, and Bovis serves as the general contractor.

Bovis, one of the biggest contractors in America, has ordered a freeze on multiple corporate documents, including payroll records regarding overtime, time sheets and daily work tickets, one source said.

A second source said investigators were looking into allegations of inflating bills by putting in for hours not worked or adding on overtime that wasn't justified.

The investigators also want to know about the firing of a top Bovis employee, Brian Aryai, two sources said.

Aryai is a former U.S. Department of Treasury agent who was hired as senior vice president of finance and controller at Bovis in April 2008. He left to form his own company in January.

His job included conducting internal investigations of fraud and implementing internal controls, his Web site profile says.

Aryai could not be reached for comment.

Bovis employees were told not to "discard, delete, destroy or alter in any fashion" a laundry list of specific documents.

In an internal e-mail obtained by The News, company lawyers warned employees not to speak with the media or law enforcement officials about the investigation.

Citi Field was privately built but subsidized by the city Economic Development Corp. through tax-free bonds.

An EDC spokesman could not be reached for comment.

Bovis is the general contractor on the $274 million Deutsche Bank demolition and was criticized - but not charged with a crime - for its role in a deadly August 2007 fire that killed two city firefighters there.

The Deutsche Bank demolition is overseen by a state agency, the Lower Manhattan Development Corp. A spokesman had no comment.

Neither the Brooklyn U.S. attorney's office nor Mary Costello, a spokeswoman for Bovis, would comment.

With Barbara Ross and John Marzulli

Bronx contractor John Galt Corp. charged with manslaughter in Deutsche Bank blaze
BY BARBARA ROSS AND GREG B. SMITH, DAILY NEWS STAFF WRITERS
Updated Monday, December 22nd 2008, 2:00 PM
LINK

A Bronx company hired to demolish the Deutsche Bank tower - over the objections of city investigators - was charged Monday with manslaughter in the deaths of two firefighters during a 2007 blaze.

The John Galt Corp. and three construction supervisors were charged in a wide-ranging criminal indictment brought by a Manhattan grand jury.

In a statement, District Attorney Robert Moregnthau noted as part of the agreement, the city and Bovis Lend Lease, the general contractor that hired John Galt, had agreed to implement new remedial steps to ensure safety at demolition sites across the city.

"Our goal is to put in place procedures which will prevent a disaster of the magnitude of the Deutsche Bank fire and to make sure than never again are firefighters exposed to the risks they faced in that fire," he said.

An hour after the indictment was announced, Mayor Bloomberg put out a terse admission of culpability for the city's multiple failures that led to dangerous conditions on the day of the fire:

"The City accepts responsibility for the inspectional and enforcement failures by its agencies."

Morgenthau called his investigation "one of the most complex we have ever conducted," including interviews with 150 people, more than 3 million documents subpoanaed and 80 witnesses before the grand jury.

After 16 months, however, Morgenthau did not bring charges against any city or state official or Bovis.

Instead, the indictment charged only the Galt company and private sector employees: Galt executive Mitch Alvo, Galt foreman Salvatore DePaola and Bovis site safety manager, Jeffrey Melofchik.

All where hit manslaughter charges in the Aug. 18, 2007, deaths of firefighters Robert Beddia and Joseph Graffagnino Jr.

The two died inside the tower during a smokey blaze in the upper floors of the half-demolished tower next to Ground Zero. A crucial standpipe that would have carried water to the upper floors had been cut.

For the first time, prosecutors revealed that the standpipe was cut because it was difficult to clean, and supervisors DePaola and Melofchik decided to simply cut it down to save time.

After the fire, the Fire Department acknowledged it had failed to inspect the building as required, and city buildings department inspectors hadn't noticed the missing standpipe.

The indictments follow an exhaustive investigation of the circumstances surrounding the fire, as well as weekslong negotiations between the city, the DA and the firefighters' families.

The Beddia family has agreed to accept a $5 million payment from Bovis, but reserved the right to sue the constrution giant as well the city and Galt.

The Graffagnino family is furious that Bovis - the company responsible for safety at the site - wasn't charged. They intend to take their case to court.

The family has also questioned why no city or state official was held responsible for the outrageously unsafe conditions the firefighters encountered inside the tower.

An Inconvenient Woman
By Craig Horowitz, NY Magazine, Published May 26, 2003

Fired from her job as a U.S. customs agent, Diane Kleiman has filed a lawsuit against her former employer with explosive allegations of anti-semitic slurs, corruption, and possible theft. But it’s her charges of lax airport security that make it a case everyone should worry about.

A biting February wind was blowing through Battery Park City when Diane Kleiman returned home one evening after a long day at work. Kleiman, a rookie special agent for U.S. Customs who’d been at JFK only a month, had barely hung up her coat when she was beeped to come back to the airport. Two Haitian men had been stopped trying to leave the country with what an inspector told her was $750,000 in cash wrapped in newspaper and aluminum foil and stuffed inside their suitcases. For Kleiman, a former Queens prosecutor who had traded her conservative suits and leather briefcase for a badge and a gun, it would be her first opportunity at JFK to handle a real case.

By the time Kleiman reached the airport, the investigation was well under way, with the suspects already fingerprinted and in the process of being interrogated. Walking through the bland, low-slung building, Kleiman saw one of the other agents on the case alone in a room with the money. “He was violating procedure, so I volunteered to stay with him,” she says. “But he got really hostile, so I walked away.”

Then a surprising thing happened: When it came time to do the paperwork on the seizure, she says, the $750,000 had somehow shrunk to $452,000. She reported this promptly to her boss, group supervisor Thomas Flood. His response was even more surprising: “Shut up and do what you’re told,” she claims he said to her.

According to Kleiman, Flood went on to explain that the final, “official” count was the only one that mattered, not the one done at the scene by the inspectors who made the stop. And when the ROI (report of investigation) was written, she says, he forced her to record $496,000 as the unofficial count at the time of the seizure, and $452,000 as the final tally. He told her nobody would care about a $44,000 discrepancy. He was right. No one ever asked about it.

In the days following, Kleiman says, she began to be frozen out. “Agent Flood was angry that I tried to make an issue of the cash,” Kleiman says now. “So he ordered everyone in the group, the financial-investigations unit, to stop talking to me.”

Still, there was plenty of opportunity to observe. Kleiman saw what she felt was a pattern of incompetence and outright theft by agents. More alarming, especially in hindsight, were critical security lapses at the airport. Kleiman’s most serious charge was that countless people, including minimum-wage employees who’d probably never had a background check and were sometimes even in this country illegally, had unfettered access to the planes while they were being cleaned and refueled between flights. Once they got on the ramps—the supposedly restricted area where the planes sit parked at the gates—baggage handlers, maintenance workers, food-service employees, and ground personnel all had unmolested access to the aircraft. They could walk onto a plane, hide a weapon or place a bomb somewhere, and walk off without being questioned.

Access to the ramps requires only an I.D. card shown at one of the checkpoints. No metal detectors, no personal searches, no questions asked. And the I.D. cards were often issued to employees of outside contractors who made their own decisions about whether to go to the trouble and expense of background checks.

When she reported these lapses to Flood, she was told she needed to learn to be a team player. “ ‘Otherwise,’ ” she says he boldly told her, “ ‘your life at this agency will be miserable and very short.’ ”

Kleiman quickly found out her boss wasn’t kidding. After five months, she was transferred to a different unit at JFK. Then, in June 1999, she was called to a meeting with Marvin Walker, the supervisor in charge of all Customs agents at JFK. She was asked to lock up her gun before she went into his office.

Walker wasted no time on pleasantries when Kleiman sat down. Bluntly, he asked her to resign. He told her that if she complied, they would make no effort to retaliate against her. When Kleiman refused, Walker spent 45 minutes trying to change her mind. Finally, he fired her—giving her ten minutes to clean out her desk and leave the building. The last words she remembers hearing Walker say were “You’ll never even collect unemployment.”

Diane Kleiman is an intense, 42-year-old woman with flaming-red hair. And, as whistleblowers often are, she’s an inconvenient person. She’s high-strung. She’s aggressive. She repeats herself. She can be exhausting. You wonder how you’d behave if you were her boss—which is what makes her case so complicated.

Before arriving at the Customs department, Kleiman had worked on Wall Street, done stints at the Immigration and Naturalization Service, the Bureau of Alcohol, Tobacco and Firearms, and had volunteered for Barry Scheck’s Innocence Project. Most recently, she’d spent six years as an assistant district attorney in Queens.

But in the nearly four years since she was fired from Customs, she has not worked a single day. Every job possibility she has had has blown up, she claims, as soon as U.S. Customs was called for a reference.

Kleiman sees her unemployment as the purgatory of the whistleblower. “I was always taught that if you do the right thing, you’ll be okay,” she says. “Well, not only was I punished for it while I was at Customs, but it followed me after I left. My supervisors promised they would ruin my life, and that’s exactly what they’ve done.”

At first, she was so depressed she had trouble sleeping and would sometimes spend days in her pajamas just lying in bed in her apartment. She filed discrimination charges with the Treasury Department’s equal-employment-opportunity commission, but the investigation dragged on for several years—such cases often do. Her financial problems got worse and worse. And last fall, she finally filed a lawsuit in federal court. Since so much of the case took place behind closed doors and it’s essentially a he-said-she-said kind of dispute, it is her credibility, as much as that of the Customs Service, that is on trial.

“The agency’s strategy is to drag this kind of thing out, put the person through hell, and destroy them financially,” says Mark Conrad, a veteran of 27 years with Customs, including a stint as head of internal affairs for nine states. Conrad now teaches college and works part-time as a consultant for Ron Tonkin, Kleiman’s Houston-based attorney. “Very few people have the stamina to stick it out. And the agency’s attitude is, in the end, ‘The worst that will happen is we’ll have to write a check.’ ”

In this case, Kleiman has stamina that borders on obsession. She thinks she has something more as well: a smoking gun that demonstrates a cover-up at Customs. And if Kleiman’s charges about critical security problems are true, even after September 11, the impact of her whistleblowing may result in a federal investigation.

Kleiman knew on her first day at JFK that she had a problem. Having completed a five-month training course in Glynco, Georgia, that included extensive work in surveillance, self-defense, and shooting, she was thrilled to actually get down to work. Her good feelings quickly began to fade, however, when she was led to a small, dark office for a meeting with her new supervisor. “ ‘Customs is like the Irish mafia,’ ” she claims Flood, a 25-year agency veteran, told her. “ ‘Our form of affirmative action is hiring an Italian, so understand what your place is in this agency.’ ” He made it clear, she charges, that she would never really be one of them. That because she was a Jew, a woman, and a former prosecutor, they would never be able to trust her.

This began what Kleiman claims was a relentless, daily barrage of sexual harassment (“You need to get laid”), anti-Semitic invective (“Jew bitch,” “JAP”), and general abuse. Her desk, the supervisor told her, would be in “the ghetto,” an out-of-the-way corner where the two other Jewish agents sat, and where he said he put them together so he could “keep an eye on them.”

Kleiman’s charges are so outrageous that they strain credulity—and indeed, they seem to have been dismissed as unprovable by a number of agencies she’s appealed to. But they have been corroborated by at least one former colleague, Brian Aryai, who worked at Customs for more than a decade. Aryai said in an EEO deposition that he had known Flood for about ten years, and that on many occasions he had heard him make “statements of racist and discriminatory nature against Jews, Arabs, Iranians, African-Americans, Italians, Hispanics, and Asians.” He even said in his deposition that Flood regularly referred to Marvin Walker, the man in charge of all Customs agents at JFK, as “the nigger.”

In addition to her problems with Flood, Kleiman says, the agent designated to train her refused to deal with her. “He would put his hand in my face,” Kleiman says, “and say, ‘Talk to the hand, because I’m not talking to you today and I’m not gonna waste my time training a woman.’ ” He indicated, she claims, that he knew she wouldn’t be with the agency long. After all, “her people” only worked where they could make lots of money. There was a lively office pool based on how long she would last.

Things became even more tense, says Kleiman, when she went to Flood to report security lapses. “The things I was seeing were so critical to airport security,” she says, “that there was no way I could keep quiet. I got lost one day driving around a highly restricted area in an unmarked vehicle, and a passing Port Authority police car didn’t even stop me. They waved. How could you not report that?”

Because she would not play ball, Kleiman alleges, she was isolated from the rest of her unit. Her cases were taken away. Almost no one talked to her. After several problems with her government car—two blowouts, exhaust leaking into the passenger compartment making her sick—she was convinced that the vehicle had been tampered with. She was so spooked she started sleeping with her loaded gun.

This claim, too, has an almost unbelievable ring, but there is evidence that this was more than paranoia on her part. Aryai testified in his deposition that Flood came to him regarding repair work on Kleiman’s government car: “Mr. Flood asked that no repairs be authorized for her vehicle. Mr. Flood stated: ‘I want to make that whore’s life miserable. Fuck her; let her suffer in that car.’ ”

Aryai, who was working on car-repair requests at the time, testified he told Flood his request was not legitimate and constituted harassment. Aryai alleged that Flood then said, “We will see about this. I guess you like that jap. Is she spreading her legs for you?”

The louder Kleiman talked about the problems, the more extreme were Flood’s attempts to muzzle her. She says he even threatened her mother. It was like something from a bad B-movie. “ ‘I know your mother lives alone,’ ” she says he told her. “ ‘Bad things sometimes happen to old women who live alone.’ ”

That threat, according to Kleiman, was the result of the biggest case she handled in her tenure at Customs. While working on the currency case involving the Haitians, she began talking to a DEA agent in Florida to gather information. He explained how various smuggling schemes worked and told her about an ongoing drug scam that involved airline employees. Basically, a drug mule would be on a flight with an airline employee seated close to him. They’d pick flights that came in at odd hours and use outer gates at the airport.

When the plane landed, the employee would squire the drug mule off the plane and then use a key to open a locked exit door in a “sterile”—inaccessible—corridor, enabling the men to get into the main part of the terminal without having to go through Customs. The DEA agent told Kleiman to put a watch on the computer for a particular guy he believed had been doing this.

Several weeks later, Kleiman got a call from an INS employee saying there had been a hit on her guy. He was scheduled to arrive at Miami airport on American Airlines. He was grabbed and searched, but no drugs were found. Kleiman, however, didn’t leave it there. She pulled his travel records and saw a pattern: He was traveling between Haiti, Miami, and New York every few weeks. She left the flag on him in the computer system.

It took only three weeks for Kleiman to get another call that he was traveling again. This time, he was coming into JFK. She instructed a Customs inspector—one of the uniformed people who open and check bags—to go onto the plane and grab him there. Sure enough, he had 46.2 pounds of coke in his bags, and there was an American Airlines employee seated right behind him with a key to the airport exit doors.

“This was a really big deal,” Kleiman says. “I was a new agent and I’d made this big arrest. And we got not only the drug smuggler but an employee involved in an internal conspiracy as well.”

Her joy, however, was short-lived. First, she claims, her supervisors let the American Airlines employee go. They told her they didn’t have enough to connect him to the smuggler. But that was only the beginning. She also says they wanted her report to indicate that this was a random arrest, that she had no prior knowledge of the smuggling method and had done no investigative work.

And, most important, according to Kleiman’s account, her supervisors wanted no mention that she had worked in any way with a DEA agent. In addition, there was to be no mention of the fact that when questioned, the smuggler had said he brought drugs into the country using the same means on a number of previous occasions.

All of the omissions were to prevent Customs from looking bad, from being embarrassed. If the record showed this kind of smuggling was happening regularly, it would look like Customs wasn’t getting the job done. And they certainly didn’t want it to look as though they needed the DEA’s help to catch a smuggler.

Kleiman says she was asked not only to change her reports but to give false testimony before a grand jury as well. She refused on both counts. Three days after she made the bust, she says, an intoxicated Agent Flood called her at home at a little before ten o’clock at night. After screaming obscenities, Kleiman says, Flood told her he was taking the case away from her.

“He told me I shouldn’t speak to anyone about the case, and if I did,” she charges, “something bad would happen to me. He then told me he’d speak to me in the office.”

The next day, she watched as all of her notes and case reports were shredded by another agent. Then he redid them. The day after that, she was called into a meeting with Flood. “ ‘Diane, you just don’t get it,’ ” she claims he said. “ ‘We’re not gonna let some junior Jew bitch agent take credit for such a big case.’ ” To persuade her to cooperate, she says, the threat was made against her mother.

After the imbroglio over the drug bust, Kleiman says, she approached Marvin Walker, the “big boss,” in a hallway and told him what was happening. She claims he refused to listen, and when she made repeated formal requests with his secretary to get a meeting, she never heard back. In his EEO deposition, Walker says that although he knew there were problems concerning Kleiman, he never attempted to get her side of things.

He also denies that she tried to meet with him. Walker says a meeting would have been pointless in any event because of her “narcissism.” He says a discussion of Kleiman’s behavior “would only elicit fervent denials, as well as her defense that all of her fellow employees were conspiring against her.”

He says that during her brief time at Customs, Kleiman “consistently illustrated a propensity to view all issues through filters which, in my opinion, made her ill-suited for the discipline, the latitude, initiative, and intellect of criminal-investigative tradecraft; the sole opinion that mattered was hers.”

Walker adds that he is “certain” Kleiman could excel in an academic setting but is just as convinced she “lacks the maturity of judgment to withstand any perceived slights to her authority or acumen.”

A different assessment comes from Tom McManus, who was Kleiman’s supervisor when she was transferred out of Flood’s group. During his EEO testimony, when McManus was asked how Kleiman did in his group, he said she followed orders and “performed well. There were no problems.”

The subject of her performance record at Customs is at the heart of the case. When Flood really cranked up the pressure to get her to fall in line, Kleiman says, he made an interesting threat: Flood told her that if he had to, he would retroactively redo her employee evaluations, all of which had, to that point, been positive. As part of the quirky setup at Customs, agents keep binders in their desks that hold their monthly evaluations. Shortly after the threat was made, Kleiman’s binder disappeared from her locked drawer.

The file reappeared in an EEO investigation a year later—and the original evaluations, Kleiman charges, had been replaced by more negative ones. And every single one had the same completion date—the day they were redone—next to the supervisor’s signature (it might be funny if it weren’t criminal). Essentially, she claims, they were forgeries. But Kleiman had the foresight to make copies of the original evaluations before they disappeared. “As things deteriorated, I knew that ultimately it would end up being their word against mine,” she says, her experience as a prosecutor undoubtedly coming into play. “My boss actually taunted me by saying no one would take my word over his. I knew he was probably right. So I made sure I had some proof.”

Once she was fired, Kleiman called the FBI. She contacted the inspector general’s office at both the Treasury Department (which oversaw Customs) and the Justice Department. She called the U.S. Attorney’s office in Brooklyn. Because of its involvement in prosecuting cases brought by Customs, the Brooklyn office referred her to the U.S. Attorney’s office in Newark. Wherever she turned, she says, she was, in one way or another, given the runaround. She was essentially chasing her tail.

“Choosing to blow the whistle is a life-changing experience,” says Doug Hartnett, a lawyer at the Government Accountability Project (GAP), a private, nonprofit advocacy group dedicated to defending the rights of whistleblowers. “To understand how dramatic the impact is on these people, and the kind of price they pay for standing up, consider just one statistic. Over half the people who blow the whistle end up losing their house.”

In fact, in most instances in both government and the private sector, choosing to blow the whistle is in essence choosing to commit professional suicide. “The people who do this are rarely, if ever, made whole again,” says Hartnett. “But for these people, the ability to look at themselves in the mirror is more important than their career.”

Sharon Chavis is an old friend of Kleiman’s who works for the NYPD, and she has watched Kleiman experience this ordeal from the beginning. She has even tried to get her to drop the fight with Customs and move on. “But Diane is a very focused, driven person,” Chavis says. “When she grabs hold of something, she is like the proverbial dog with a bone in its teeth. She’s not going to let go.” In the months after she was fired, Kleiman was, by her own admission, falling apart. She couldn’t sleep, her social life withered. But a talk with another friend made her realize she had to take control of her predicament. She hired a lawyer in July 1999 and formally filed her EEO complaint in December that year. But as she tried to barrel forward, she slowly began to realize that neither her sense of purpose nor her sense of outrage was exactly contagious.

In fact, her obsessiveness, the dramatic, even conspiratorial nature of her charges, and the difficulty of corroborating events in a hostile environment are a serious threat to her credibility. Kleiman is aware of the risk. She is also aware that when something like this takes over your entire life, and you claim to see things no one else says they see, you can be dismissed as easily as the guy who wears a tin-foil hat because he claims he’s receiving signals from another galaxy. “They drove me nuts at Customs,” Kleiman says, “but I can assure you I’m not crazy.”

When I first met Diane Kleiman, at the Garden Diner on South End Avenue, a block from her apartment in Battery Park City, she was in the middle of a loud conversation across several booths with a salesman who appeared to be trying to pick her up. She seemed to be basking in the attention. In fact, she was downright giddy from their exchange, even though it was only a little before ten in the morning.

She wears too much makeup and can at times, in her efforts to seem friendly, be a little cloying. Certainly, there are moments when she repeats the same point over and over, like a malfunctioning CD, and it is easy to imagine her as an irritating if not troublesome co-worker.

But her employment record doesn’t indicate any obvious difficulties at any of her other jobs. “She’s definitely intense,” says one senior prosecutor in the Bronx who worked with Kleiman when she was in the Queens D.A.’s office. “She worked hard, she fit in fine, and she was certainly no wackier than anyone else you’ll find floating around this business.”

“She’s really gone through some terrible times,” her mother says. “She’s not the same happy-go-lucky daughter I used to have.”

In May 2001, she discovered there was a government entity called the Office of Special Counsel (OSC) set up to consider grievances from federal employees—such as that of a whistleblower who believes she was retaliated against. (The process is complicated and slow. People familiar with it say it is also solidly stacked against whistleblowers.)

In November of that year, the OSC agreed to investigate Kleiman’s case, and its report is expected anytime now. Not long after that, again mostly as a result of her tireless efforts on her own behalf, Senators Chuck Grassley (who was a co-author of the Whistleblower Protection Act fourteen years ago), Richard Shelby, and Joe Lieberman took a strong interest in Kleiman’s case as well.

Grassley and Shelby in particular have gotten behind her, writing letters to the OSC and closely monitoring the investigation. “The fact that Senator Shelby has written to OSC on her behalf is indicative of how compelling he believes her case is,” says Senate banking committee spokesman Andrew Gray.

Given the lack of any kind of response from Customs, particularly to the security issues raised by Kleiman, sources now say it’s possible the case may result in congressional hearings. Customs, citing the pending litigation, declined several requests for comment for this story.

Kleiman is far from alone in her concerns about security at JFK. One Customs agent at JFK I talked to, a man with eighteen years of experience, is himself wrestling with going public about the problems. He believes the security failures remain critical. His conscience is pushing him to speak out, even though he knows the impact this will have on his professional and personal life.

There are, he says, few checks and balances built into the system. Each airline hires its own independent contractors to handle tasks like cleaning the planes, and there are no hard-and-fast rules about background checks. “So you have all these people allowed on the ramps and in secure areas,” says the Customs agent, “and maybe there’s been an FBI check or maybe not. It’s all up to the individual companies. And these are not exactly the highest-paid jobs. There’s a very high turnover rate.”

And just as Kleiman has said based on her experience, there is this perception that if someone is on the ramps, he belongs there. The checkpoints where I.D.’s are needed are staffed by private security, not federal screeners like the ones now mandated to conduct passenger checks. Nor are any of the employees searched or asked to pass through a metal detector before gaining access to the ramps—the way prison guards, for example, are examined every time they report to work.

Perhaps even more alarming, however, given the concern about terrorists entering the country, is what the veteran agent says about the integrity of this process. When a plane comes in from a foreign country, passengers on that flight are supposed to go directly from the aircraft to the Customs checkpoint without having any outside contact. This is accomplished though the use of “sterile” corridors—the same ones that were found to be compromised when Kleiman made her big drug bust.

“There are exit doors along the sterile corridors, and they’re supposed to be locked and secure at all times,” says the Customs agent. “But it’s not unusual to find these doors unlocked and open. You can imagine the dangerous possibilities that presents.” Only eleven months ago, for example, federal authorities broke up a smuggling operation that was exploiting these holes to bring illegal aliens into the country.

The key to the operation was an airline-food-service employee with security clearance and a set of keys. He would meet an arriving foreign national at the gate and shepherd him into a sterile corridor, where he would unlock an exit door, allowing the illegal to slip into the main area of the terminal without passing through Customs. He was getting $1,000 a head for each undocumented alien he smuggled through.

As Kleiman waits for OSC to issue its findings, she has had plenty of time to think about the decisions she’s made since she first walked into Building 75 at JFK to begin her job at Customs. “There’s not been a day in the last four years,” she says, “when I haven’t gone over all this in my head trying to figure out why me? Why did I have to confront this? Why couldn’t I have had just a normal career at the agency?”

Having asked those questions, however, and knowing what she knows now, Kleiman still says she would do it all again. “Even though it doesn’t feel like it, in my heart I know I did the right thing.” What she wants now is vindication. She desperately wants a positive finding by OSC, then she wants to be reinstated and given her back pay. She even says she’d still like to work for the government. Just not at Customs. She would like some kind of job working in homeland security.

But as with most whistleblowers, her job is only part of it. “I want accountability. I want to see at least one person referred to the U.S. Attorney for prosecution,” she says, pointing out that this is about more than vindictiveness.

“People have to understand they’ll be held accountable for their actions,” Kleiman says just before leaving for Washington to meet with Senate staff. “Unless someone is punished, there won’t be any change in the system. And that’s what this has really all been about.”

 
© 2003 The E-Accountability Foundation