Ex-legislative staffers: hold sexual harassment til after budget

ALBANY — Six former legislative staffers who have accused state lawmakers of misconduct are calling for the Legislature to postpone addressing workplace harassment until after the budget negotiation is completed.

Gov. Andrew Cuomo has included in his executive budget proposal the creation of a uniform sexual harassment policy for government employees, and the Senate and Assembly have released their own versions of the legislation.

The group of women — which includes accusers of current Sen. Jeff Klein and ex-Assemblymen Vito Lopez and Micah Kellner — are calling for the issue to be addressed during the legislative session rather than through the state's notoriously opaque budget process in order to ensure an open dialogue that includes the voices of stakeholders and experts.

"Some of the bills currently under consideration by the Legislature cut back on the rights of workers, instead of increasing protections," they said in a statement, emailed Thursday to a select group of mostly female reporters. "Lawmakers should not rush through bills as part of the budget supposedly in the name of standing up for survivors — that’s not progress, it’s a pat on the back."

The statement is signed by former Lopez aides Leah Hebert, Rita Pasarell and Tori Burhans Kelly; Kellner's former chief of staff, Eliyanna Kaiser, and his ex-administrative assistant, Danielle Bennett; and Erica Vladimer, who worked as an education policy analyst and counsel for the Independent Democratic Conference, which Klein leads.

Lopez was forced out of office in 2013, when the probe by the state Joint Commission on Public Ethics found that he had harassed multiple female staffers with unwanted groping and sexual advances. (Lopez died the following year.) Kellner did not seek reelection in 2014 following his own sexual harassment scandal. Klein has asked JCOPE to investigate allegations he a forcible kissed incident that Vladimer alleges occurred in 2015.

The Cuomo administration is also facing scrutiny for its handling of sexual harassment. A Times Union story last Sunday detailed how the governor's office failed to intervene on behalf of two female employees at state's Department of Criminal Justice Services who faced professional repercussions after testifying as witnesses in a sexual harassment case last year. An investigation by the state inspector general's office found that Brian J. Gestring, director of DCJS's Office of Forensic Science, threatened employees with violence and engaged in persistent sexual harassment, racism and ageism.

A spokesman for Cuomo claimed they referred the matter to the Governor's Office of Employee Relations in December, but that agency lacks investigative authority and has done little to probe the DCJS case.

The final budget negotiations occur during secretive, closed-door meetings between the governor and legislative leaders — in this case, Cuomo, Senate Majority Leader John Flanagan (R-Long Island) and Assembly Speaker Carl Heastie (D-Bronx), and Klein, leader of the breakaway Democrats. This year, Cuomo's office has signaled that Senate Minority Leader Andrea Stewart-Cousins (D-Westchester), will be involved in some of the talks.

Employment law experts say they have found significant problems with the executive and Senate sexual harassment bills; the New York arm of the National Employment Lawyers Association (NELA), a bar association comprised of employment attorneys, has asked its members to oppose the measures.

"NELA NY is against the current Senate and Governor's bill in their present form and we urge them to pass meaningful legislation that advances protections for employees who are victims of unlawful discrimination," said Miriam Clark, president of NELA NY, in a statement.

For example, the proposals seek to limit the definition of sexual harassment to "conduct of a sexual nature," excluding forms of gender-based harassment that often impact blue-collar women, such as stealing and ruining uniforms, according to employment attorney Kevin Mintzer.

"By limiting sexual harassment to simply conduct that is sexually based, you are cutting out a whole lot of gender-related conduct that is presently illegal," said Mintzer, who represented Burhan Kelly and another aide, Chloe Rivera, in their lawsuit against Lopez, then-Assembly Speaker Sheldon Silver, and the Assembly. The case was settled in 2015, with the state shelling out $545,000, and Lopez agreeing to pay the women an additional $35,000.

The Assembly proposal only contains the limiting definition in a section of their bill that seeks to extend protections to independent contractors and subcontractors.

The governor's and Senate's bills also bar the state from paying for sexual harassment judgments and settlements, which Mitzer said means the victim will be without financial recourse if a state employee is found guilty but does not have the means to pay.

The Assembly bill enables the state to pay the victim, and then recoup reimbursement from the harasser.

Additionally, none of the proposed bills address the "severe or pervasive" standard, which allows substantial amounts of sexual harassment to go unremedied. Also, the bills do not take action deal with other types of workplace harassment, such as harassment based on race or national origin, according to Mintzer.

The Senate legislation, sponsored by Senator Cathy Young (R-Chautauqua), overwhelmingly passed the Senate last week, 56-2. Young defended the Senate's proposal in an interview Wednesday with WCNY's Susan Arbetter in which the lawmaker noted that the package does ban secret settlements, something which is not included in the Assembly proposal.

Regarding the definition, Young acknowledged that they do "need a little bit of work. I am very, very open to going back to the (federal Equal Employment Opportunity Commission) definition," which includes gender-based conduct.

Cuomo's office said that none of the women who signed the statement have reached out to the administration, and that the governor's staff have dedicated five months to soliciting feedback from a wide variety of stakeholders, including NELA.

The Assembly's proposal also recommends an independent arbitrator, and the Senate proposal does not. Rather, it recommends that JCOPE be empowered to investigate charges of misconduct. Six out of JCOPE's 14 members and the board's chairman are appointed by the governor, while the others are chosen by leaders of the Legislature's majority and minority conferences.

The group of ex-staffers say they will issue their own set of recommendations in the coming weeks.