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In what might be the beginning of a lengthy legal battle, a state labor judge has ruled that Bob Kunst, fired this past August from his executive post at Cure AIDS Now, is entitled to the unemployment benefits he has been collecting. On February 17 Josefa Perez, an appeals referee at the Florida Department of Labor and Employment Security, ruled the agency's former executive director had been fired "for reasons other than misconduct connected with work." The decision follows a similar ruling January 21, by labor referee Gene Grimm, in favor of Marlene Arribas, a vocal Kunst supporter and CAN's former director of operations, who was fired three days after her boss.
The rulings came after CAN attempted to block the unemployment payments, a move Kunst deems part of a campaign of harassment and intimidation. "This is fabulous. This proves our whole case," says Kunst. "It just shows that all the charges they leveled at me in this hostile takeover were nothing but a pack of lies, and now it's not just me saying it. It's an independent authority - a state referee - saying these charges they took to the public as part of a conspiracy to muzzle the mouth were just part of a phony set-up and ow a cover-up."
This past August 12, after a flurry of Miami Herald newspaper articles and audits by groups that fund the organization, including the Metro-Dade Commission, Kunst was fired from the agency he formed in his Miami Beach living room seven years ago. Critics claimed Kunst spent thousands of dollars traveling around the world in his fight against AIDS while at the same time mismanaging CAN to the point of bankruptcy. Kunst countered that the charges were nonsense trumped up by opponents who wanted him ousted and who wanted to silence his vehement criticism of AIDS organizations and those who financially support them. Three days after Kunst's ouster, Arribas, who began working for CAN in January 1987, was handed a letter from acting executive director Joe Hudson, informing her she was fired because she had refused to resign from the board of directors and because she was guilty of "unacceptable management practices."
Both Kunst and Arribas filed for unemployment compensation, which would be paid in part by a tax charged to the AIDS organization. On September 12 a labor department claims examiner determined that Arribas was entitled to $225 per week in benefits. Eight days later a claims examiner ruled that Kunst could collect the same amount, and both began to receive payments that could continue for up to a year. CAN appealed the rulings, arguing that Kunst and Arribas had been fired for misconduct on the job. (Florida law states that a person fired for misconduct at work is ineligible for unemployment benefits, and defines "misconduct" as willful or wanton disregard for the employer's interests, an intentional or negligent act or course of conduct in violation of the employee's duties and obligations to the employer.)
Labor referee Gene Grimm ruled that Arribas had attempted to do her job, which sometimes included handling Kunst's duties when he was away, and that it had not been unreasonable for her to object to resigning from the board; it was Arribas's understanding that although most paid staff members had been removed from the volunteer board, one salaried employee was to have remained. There was no preponderance of evidence, Grimm decided, to show a willful or wanton disregard for the employer's interests. "Accordingly," he wrote in his decision, "it must be concluded that the claimant's discharge was not for misconduct connected with the job."
Grimm also pointed out that Joe Hudson had claimed Arribas's work performance was unsatisfactory, yet Hudson was named acting executive director of CAN only three days before Arribas was fired. "[Hudson's] testimony, and the testimony given by the associate executive director [Dominick Magarelli] about the claimant's work performance, was questionable, vague, uncertain, and consisted essentially of hearsay upon which a finding of fact cannot be based," Grimm wrote.
Like Kunst, Arribas says she feels absolved by the ruling. "It just shows they out-and-out lied," she says. "They wanted to play games, and you can't play games with other people's lives forever and win."
In protesting Kunst's claim for benefits, Hudson had alleged insubordination, failure to attend meetings, unsubstantiated travel reports, and bankruptcy of the organization as reasons for firing the gay activist. However, labor referee Perez wrote in the final order, Hudson was unable to substantiate the allegations and therefore failed to meet the required burden of proof. As was the case with Arribas, the referee ruled that the CAN board did not prove Kunst was fired for misconduct on the job.
Hudson, now a boardmember, and Magarelli, now CAN's executive director, stand by their allegations. "The charges are obvious and we think we proved them," Magarelli contends. "We're still trying to clean up the mess they left behind. Ask any of the boardmembers." It was in the best interest of the agency to contest the payments, Magarelli says, because with each successful claim against the organization, CAN's state unemployment tax increases.
Kunst says the labor rulings may be grounds for further legal action. In dismissing him, the board violated state laws governing nonprofit corporations, he alleges, because the meeting during which he was fired was actually convened to discuss the organization's bylaws, not his status as executive director. (According to state law, the agenda of a special committee such as the one formed to discuss bylaws cannot be changed without proper notice to all boardmembers.) Kunst further claims his opponents illegally voted out three of his supporters from the board, and fired him without having a proper quorum of directors.