A "sample survey" that Labor Secretary Raymond J. Donovan's lawyers cited last week in a motion to dismiss the fraud indictment against him was conducted by a corporation that was not incorporated until after the survey had reportedly been conducted.
The survey was filed in Bronx Supreme Court in support of Donovan's claim that he and his construction company are being prosecuted for what has become a common practice nationwide in dealing with minority business subcontractors.
Described as a 15-point questionnaire, the survey was ostensibly undertaken last fall for the National Association of Minority Contractors by a firm calling itself Construction and Housing Resources Inc., of 1220 East West Highway in Silver Spring.
The address is a residential apartment listed in the name of S. Patrice Newman, whose name appears on the survey as the principal of Construction and Housing Resources Inc. Newman, however, works at the NAMC offices in downtown Washington, which, a reporter was told just before noon yesterday, she had "just left."
According to Washington Times reporter Gene Goltz, who discovered the discrepancy, Newman said in a telephone conversation several days ago that she started the survey in November but didn't incorporate her business until January. She declined to say how many companies were polled or why the court papers show that the survey was conducted by a company that did not exist.
The survey was submitted to the Department of Transportation in a letter dated Dec. 18, by Dewey Thomas Jr., executive director of NAMC. He described it in an affidavit and an accompanying letter as "a representative sample survey" of NAMC's 3,500 members and said it showed, for example, that 83 percent of the minority businesses surveyed lease equipment from the prime contractors for whom they work.
Maryland state records show that Construction and Housing Resources Inc. was incorporated, with Newman listed as resident agent, on Dec. 20.
Repeated attempts to contact her and Thomas yesterday were fruitless.
Donovan's lawyers, William O. Bittman and T. Timothy Ryan, a former Labor Department solicitor, said yesterday that they and other attorneys working on the case had been openly contacting trade associations, contractors and others, including Thomas, to seek support for their contention that the indictment is groundless.
Bronx authorities have accused Donovan and 11 codefendants of conspiring to defraud the New York City Transit Authority of about $7.4 million on a subway project by pretending to rent specialized equipment to a mob-controlled subcontractor posing as a legitimate minority business.
The NAMC's Thomas wrote the Transportation Department's general counsel, Jim J. Marquez, on Dec. 20 to say that the Donovan case had created uncertainty about leasing arrangments between minority and nonminority contractors and to ask a hypothetical question concerning such arrangements.
Marquez, who had said he would not answer hypothetical questions posed in the Donovan case, responded with a Dec. 31 letter indicating that it is proper for a prime contractor to lease certain special equipment to a legitimate minority company if the minority company actually performs the work.
Bittman said yesterday that it was his understanding that Newman left NAMC around June 1983 "to start a consulting firm with minority business issues" and that she had applied for incorporation last August, but because of "bureaucratic delay" or some other reason, "the incorporation was not completed until Dec. 20, 1984."
Maryland records in Baltimore show the articles of incorporation were signed by Newman and two other people on Dec. 5 and that they were approved and received for the record at 11:32 a.m. Dec. 20.