Tuesday, November 8, 2011

Lawer issues redux!

President's Message - The Lee Seham Issue

Fellow Pilots:

Rumors and tall tales abound on the topic of Lee Seham's relationship with USAPA. Much has been written but, as usual, please take note of the authors of these grandiose yarns and you may find some insight into the motives behind these stories. But here's what has actually happened. To start with, it is worth noting that the current Officers inherited the relationship with Mr. Seham - Seham was chosen precertification.

During the summer of 2010, we recognized that Lee Seham represented a single point of failure for our union. His firm is composed of himself as the sole attorney capable of litigating and a group of journeymen in support. If something, anything, happened to Seham then USAPA would be in trouble because there is no heir apparent inside his firm. And so we sought out to find another competent RLA firm, not to replace Seham, but one with which we could create and test a business relationship in order to eliminate the single point of failure. Competent, powerful labor firms are difficult to come by but after searching for months, we had narrowed that field to Brian O'Dwyer's firm when the Pension Investigation Committee (PIC) needed counsel to potentially investigate State Street Bank (SSB). The PIC attorney was conflicted with SSB, and O'Dwyer was the perfect fit with his extensive pension litigation experience and deep bench.

And so in the spring of 2011, the Board approved the creation of a business relationship with O'Dwyer and we started assigning work to this firm to test their work product. At that time, I personally called Seham and told him the reasons that O'Dwyer had been hired. I assured him that he was not being replaced. There is, after all and unfortunately, plenty of legal work at USAPA to go around.

Now I frankly would have been more than happy to leave well enough alone at this point and to not have to go into the following detail; there just isn't any value for us in telling every detail of the occasional unpleasant business relationship. But the truth of this issue has now been clouded by those who are experts in smearing anyone in their way - they are the dying emblems of old ALPA. So here we are; time for a little truth tellin'.

For a very long time we had been warned about problems with Seham by many others including the Teamsters (their opinions of Seham are not printable), SWAPA (the Southwest pilots' union, who terminated their relationship with Seham just this year for "incompetence and billing irregularities"), APA (the Allied Pilots Association, who fired Seham for a variety of issues including pro-management business relationships), to numerous respected individual labor and RLA attorneys who are aware of Seham's poor reputation among labor advocates. These concerns were relayed to us over time and we took each of them into consideration along the way by doing our best to investigate them and assigning some level of veracity to each of the claims. Each of these concerns with Seham were addressed openly and proactively with him in an attempt to correct problem areas and to stay on track. The efforts to resolve them internally were not successful.

One of the repeated concerns from others is that Seham has a record of becoming vindictive when his business relationships end. Through the latespring, despite my assurances to him to the contrary, Seham became convinced that he was being replaced. This was not ever the plan. The plan was only to eliminate the single point of failure for our organization. At this point, Mr. Seham started engaging in the political process inappropriately. There is never a time when counsel should be politically engaged within the union, but this in fact happened on two occasions where Seham participated in secret telephone calls with certain Board members, plotting for the overthrow of Officers who he believed stood in the path of his USAPA revenue stream. (These calls are acknowledged by those who participated.) This behavior is not only outrageous; it breaches his fiduciary obligation to USAPA as counsel.

The politics continued when Seham began informing line pilots that he wasn't consulted about USAPA's status quo filing in the Eastern District of New York (EDNY) and that the filing would fail  and be harmful to our other litigations. This was most remarkable because Mr. Seham was in full favor and support of the EDNY filing - right up until the time that he wasn't the one filing the case. The EDNY case was filed because we believe the Company has been violating the law by frustrating the grievance, arbitration and negotiating process to their economic advantage. When the Company violates the law, I believe that the pilots want us to fight back with the tools available regardless of how much of an uphill battle it is to show up in court in America as a labor union. And that is what we did - we made a tough decision to defend the pilots' rights with the EDNY filing.

Finally, concerns over Mr. Seham's billing practices were coming to light. Although, by his own admission, we had substantially reduced our use of his firm during the late spring and summer, Seham's bills were actually increasing. At this point we became aware of the overbilling problems the Southwest pilots had encountered with Seham. Scrutiny of the bills produced more questions than answers and we sought professional advice to protect the organization. Many firms specializing in auditing legal bills were contacted and interviewed. Preliminary reviews by auditors told us that the Seham bills were "un-auditable", "some of the most uninformative invoices ever seen", and "a significant deviation from the standard bills law firms submit". This preliminary indication that there may have been irregularities in Seham's billing practices with USAPA is a situation that the Board has a responsibility to look into. And so, faced with these allegations, I recommended that the Board authorize an audit of all of our legal bills, which is under way. Unfortunately, after eight weeks of asking the Seham firm for the information necessary to audit the bills, not a single shred of the requested information has been forthcoming. Zero.

Interestingly, instead of cooperating with USAPA and simply providing the requested documentation, Seham has retained counsel which specializes in defending attorneys against ethics charges and disbarment proceedings. I for one find it interesting that he feels the need for this when he has simply been asked to provide substantiation for his billing to us. USAPA has an absolute right to the information we are requesting. The audit will proceed, with or without Mr. Seham's cooperation. Each of our other law firms has indicated they will cooperate fully.

We have found that Mr. Seham has presided over his own demise at many labor unions, and he certainly isn't helping himself here at USAPA. I would be happier if this all were not so, but our obligations to maintain competent, ethical and effective counsel will not be hindered.

I am happy to report that attorneys Brian O'Dwyer and Pat Szymanski are offering us many opportunities that were not previously available. Most recently, the Board approved the reassignment  of the Phoenix Declaratory Judgment case to Szymanski and O'Dwyer. Aside from the fact that we cannot be represented by a firm that presents basic trust issues, O'Dwyer is a seasoned labor attorney with political clout that was simply unavailable before. Szymanski is a very experienced RLA attorney who served as general counsel to the Teamsters and Mr. Hoffa for seven years. Their approach is decidedly different from the high confrontation that marked Seham's interaction with everyone, from the judges to his attorney counterparts on the other side. Being advocates for your position doesn't require foment and hostility with those on the other side. A fresh approach to our legal strategy will produce healthier results.

I know that there are additional questions that have been raised. If you want more information, one accurate place to get more information is the recent CLT update that you can read by clicking  here. In addition, we have assembled a short series of Q&As on this topic that you can read by clicking here.

None of these decisions were made lightly. All were made after due deliberation and after a full review of the facts. This organization will be managed methodically and dispassionately with only your best interests in mind. I am extremely confident that we are in a position to move forward with more competent legal counsel than we had before. We are well aware that all of this may not be very interesting to many pilots and we will be communicating to you on the critical topics of the status of our contract and seniority dispute in the next few days.


Captain Michael Cleary

Q&A Regarding The Lee Seham Issue 

Did the USAPA President fire Seham? 

Absolutely not. The Officers proactively sought to eliminate the single point of organizational failure that the Seham firm represented by seeking out an additional competent labor law firm. The Board hired that firm. Work was assigned to O'Dwyer to fill a specific need, and to test their work product. Finally, the Board reassigned the Phoenix Declaratory Judgment case to O'Dwyer after the raft of concerns with Seham manifested themselves over the past few months.

Isn't this audit just a witch hunt against Seham?

No. The billing questions raise serious issues. The Officers and Board have a fiduciary obligation to find the truth and have taken responsible steps to do so: 
  • Special counsel has been hired to independently oversee the audit and to protect the privilege of the invoices in question,
  • A highly competent nationally recognized auditing firm will review the bills under the direction of special counsel,
    A report will be made to the Board and the Board will decide what to do then.
 The bottom line is this: if there are no billing irregularities, then Seham has nothing to fear.

I have heard that a former Seham attorney may have a conflict of interest due to a relationship with someone at USAPA. Is this true?

No, it is not. Conflict of interest is a legal question. Almost two years ago, the attorney in question approached Seham with disclosure and to see if any conflict existed. Seham said there was no conflict. This attorney then approached the President of USAPA with the same disclosure, who in turn called Seham for advice. The advice from Seham again was clear - there is no conflict. Fast forward one and a half years to August of 2011 and suddenly Seham sees a conflict and secretly contacts certain Board Members, apparently forgetting he had already offered the opinion, twice, that there was no conflict. USAPA then sought an independent, third party legal opinion regarding the issue and received the same answer: there was no conflict of interest. Coincidentally, Seham's abrupt change of legal opinion occurred at the exact same time as the hiring of O'Dwyer and the reassignment of some of our legal work from Seham to O'Dwyer, and is nothing more than an attempt to recapture all of USAPA's legal work through politics. It's not about conflict of interest; it's about greed.

Are all of USAPA's law firms' bills being audited?

Yes. Although we are not suspicious or concerned about any of the bills except for the Seham bills, out of fairness we will look closely at all of the invoices from all of the firms. As we do that, only one firm has refused to cooperate by stonewalling all requested information in excess of eight weeks as of today. USAPA’s first letter to the Seham firm requesting information was sent on September 6, 2011.