Amid Internal Power Struggle, Firefighters Union Clears President of Wrongdoing

Originally published in The Intercept on September 22, 2020.
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THE INTERNATIONAL ASSOCIATION of Fire Fighters has absolved its president, Harold Schaitberger, of any wrongdoing related to his receipt of pension payments, according to an internal review obtained by The Intercept. The union’s No. 2, General Secretary-Treasurer Ed Kelly, had charged back in March that Schaitberger was receiving the payments too soon, prompting the investigation. Another internal review, which was distributed within the union last week, found that Kelly had improperly hired outside legal counsel to investigate Schaitberger and the IAFF.  

Kelly alleged in the spring that Schaitberger, who was elected as the IAFF’s president in 2000, after 24 years of serving as an IAFF staffer, has been drawing from his staff pension benefits too soon, receiving more than $1 million earlier than allowed by federal law and union rules. The allegations sparked the internal probes, which were led by board-level committees.

The jockeying at the top of the IAFF, which represents 320,000 firefighters and paramedics across the U.S and Canada, comes at a crucial political juncture, ahead of the presidential election in November and union elections in January. Schaitberger is a key ally of former Vice President Joe Biden, and under his leadership, the IAFF endorsed Biden in April 2019, long before any other labor union, drawing the ire of President Donald Trump. Schaitberger is up for reelection in January and is currently running unopposed — though, as The Intercept reported last week, Kelly has expressed interest in the role, according to an IAFF leader from the Midwest and other union members. Kelly’s chief of operations, Matt Golsteyn, was pardoned for war crimes by Trump in November 2019 and campaigned with him at a Republican Party fundraiser a month later.

Following Kelly’s accusations, the union executive board suspended Schaitberger’s monthly pension payments and suggested that the union may need to “recover the impermissible benefit payments” Schaitberger had received, potentially by offsetting them against future payments. The board then launched its internal review; neither Schaitberger nor Kelly were involved in appointing members to the committee tasked with reviewing the pension claims, according to the 29-page report.

The report was distributed to thousands of IAFF leaders on Monday, and in it the union reversed its suspension of Schaitberger’s pension payments. The report also noted that the union’s executive board unanimously approved an amendment in 2002 affirming Schaitberger’s right to collect his staff pension while serving as president. It does not say definitively whether he improperly received payments, but concludes that any overpayment he may have received “cannot be recovered from him” because it would be “improper” under the principles of the Employee Retirement Income Security Act of 1974 to hold him financially responsible for that. (The federal retirement law places the responsibility of record retention on the employer, not the employee, and the union noted many key witnesses involved in managing the pension fund are now dead.) “Our determination is due in no small part to the amount of time that has passed since the events at issue and the significant prejudice to Mr. Schaitberger resulting from the passage of time and the wasting of evidence,” the report concluded.

Earlier this month, federal authorities launched a criminal probe into the allegations. In the union’s new report, the authors acknowledged that the federal government may still find wrongdoing, but emphasized that if a pension “correction” is needed with the IRS, Schaitberger should not be personally on the hook for it.

On Monday, Schaitberger sent a lengthy email to IAFF leaders sharing the pension report, which he claimed “vindicated me,” laying out the major findings of the internal review. He also warned that some may try “to mischaracterize this Decision, to once again serve their own ambition and purposes. When they do, they will continue to expose their own agenda and further harm this IAFF.”

A second executive board committee report, which was distributed internally to IAFF leaders last week, blasted Kelly for secretly hiring the “antiunion, anti-employee” law firm Nelson Mullins in January to investigate the union’s finances. Kelly used his personal email account to hire the law firm, without knowledge or approval from others on the union executive board. When reprimanded in March by Schaitberger for the unauthorized hire, Kelly defended his decision, saying that his constitutional authorities as general secretary-treasurer “provide[s] for the ability to retain outside counsel to assist me with my fiduciary responsibilities as the association’s treasurer.” (The IAFF’s general counsel disagreed with this assessment, according to an email he sent Kelly on March 12.)

In the report pertaining to Nelson Mullins, the IAFF said that when it had first asked the firm for documents and emails relevant to its representation of the union, it “provided an incredibly incomplete response” and allegedly withheld documents from the executive board. This prompted the board to vote in July to instruct Nelson Mullins to immediately cease all IAFF work and provide the union with all documents, correspondence, and work product by August 7. But the law firm, according to the IAFF, did not stop working and proceeded to submit a so-called preliminary report on the union that had not been requested. The IAFF blasted Nelson Mullins for producing an unauthorized work product that “is filled with unsubstantiated allegations, innuendo, and factual misstatements” and “appears to be nothing more than a hit piece on the IAFF Executive Board and General President.” 

Asked about the internal reports, a spokesperson for the IAFF told The Intercept that they “speak for themselves.”

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