Originally Published: May 16, 2013
Asks Why Assembly Itself Was Not Investigated And Points to Need for Strengthening JCOPE’s Independence and Transparency
Good Government Group Calls for Lopez to Resign and LEC to Act
Yesterday’s revelations in the matter of Assemblymember Vito Lopez’s sexual harassment of his staff made clear the following:
- Lopez has to leave office.
- The new ethics law creating the independent watchdog to address ethical misconduct in our state capitol is working because for the first time ever an investigation of a sitting legislator brought to public light important facts.
- That no criminal activity was found to have taken place in Brooklyn does not mean that criminal activity didn’t take place in Albany or New Jersey.
- Challenges remain in ensuring the full scope of Joint Commission on Public Ethics (JCOPE)’s promise to restore public trust in Albany can be fully realized.
Though Staten Island District Attorney Dan Donovan determined that the reprehensible behavior of Assemblymember Vito Lopez did not warrant criminal charges in Brooklyn, Citizens Union is troubled both by the content of DA Donovan’s statement and the disturbing details unveiled in the Joint Commission on Public Ethics (JCOPE).
JCOPE found convincing and detailed evidence that Assemblymember Lopez through his pervasive pattern of sexual harassment broke the public trust and violated the Public Officers Law. Such an irrefutable finding should now compel the Legislative Ethics Commission to administer the appropriate discipline and take strong action against Lopez. Furthermore, the appropriate law enforcement entities in Albany and New Jersey should now investigate whether Assemblymember Lopez’s actions rose to the level of criminality in those jurisdictions. Citizens Union calls upon Assemblymember Lopez to resign. If he does not, then steps to remove him from office should be taken.
We have reached a significant milestone in that for the first time in New York State, an independent ethics body sat in judgment of a sitting legislator and issued a strong public report rebuking his actions and condemning his bad behavior. We welcome JCOPE’s strong findings and recommendations on Lopez. Ignoring reported attempts by the LEC to edit severely its critical report, it presented a full accounting of the facts not only about Lopez’s disgraceful behavior, but also the Assembly’s mishandling of the matter. But the Lopez matter also underscores the limitations of the new law.
We have questions about why JCOPE only commented on the Assembly’s mishandling of the Lopez matter and did not specifically investigate whether there were other violations of the Public Officers Law beside those committed by Lopez. JCOPE found that the Assembly made numerous errors in its management of the initial complaints against Lopez. For example, these complaints were not promptly referred to the Assembly Ethics and Guidance Committee, as Assembly rules require. That it did not investigate the Assembly begs the question why not.
JCOPE’s decision simply to comment on and not investigate the Assembly’s handling of the matter may be due to the complex voting rules the 2011 law. In order for an investigation of a legislator or legislative employee to move forward, a majority of JCOPE’s members must vote in favor, including at least two appointees of the legislative leaders of the appropriate party – meaning as many as 11 can vote in favor of an investigation, but it can still be blocked by 3 votes. That we don’t know what JCOPE’s consideration entailed in this area illustrates the need for there to be even stronger independence and greater transparency around JCOPE’s deliberations.
Where JCOPE only commented, DA Donovan found that the Assembly’s poor handling of the initial complaint contributed to Lopez’s continued sexual harassment. Specifically, the DA said that had the initial complaints been “promptly referred to the Assembly Standing Committee on Ethics and Guidance for investigation, or had the settlement not included a confidentiality clause, the incidents involving the second two complainants in June and July 2012 might have been avoided.” We are further concerned by Donovan’s finding that “resolving the complaints in this secretive manner and requiring a confidentiality clause edited by Assembly Member Lopez apparently encouraged him to continue the inappropriate conduct.” Even while the settlement involving the first two complainants was being secretly negotiated, two new staffers in Lopez’s office were being subjected to similar reprehensible conduct.
According to DA Donovan “the chief concern of those in the Assembly was mitigating the Assembly”s damages” and “that goal outweighed any interest in investigating or disciplining Assembly Member Lopez or in preventing similar occurrences in the future.” We agree with Donovan that “the manner in which [the Assembly] dealt with the allegations fell short of what the public has the right to expect.” It is clear that the Assembly’s procedures for handling allegations of sexual harassment deserves a more formal review so that the public and staff members of the Assembly can be assured that complaints will be handled effectively in the future. Citizens Union supports JCOPE’s call for the Assembly’s Standing Committee on Ethics and Guidance to investigate the Assembly’s handling of the matter.
The relationship between sexual harassment complaints and possible Public Officers Law violations also deserves further review. The 2011 Public Integrity Reform Act provided that JCOPE investigate ethical violations, yet the Speaker’s Office initially addressed the complaints made against Vito Lopez and, for the second set of complaints, the Assembly Ethics and Guidance Committee reviewed the matter without involving JCOPE. It is now clear that Lopez’s actions also related to the Public Officers Law, since JCOPE found a substantial basis to conclude that Lopez violated the public trust.
Citizens Union also believes that Donovan’s findings regarding the State Comptroller and Attorney General warrant serious consideration. Donovan found that “[h]ad the Attorney General’s Office acted as an attorney and counselor at law, and allowed itself to become truly engaged in the process, it could have advised against inclusion of the confidentiality clause as being contrary to public policy.” Further, Donovan recommended that the State Comptroller play a larger role in approving settlements. Specifically, Donovan said that “in order to safeguard the public fisc, promote governmental transparency, and avoid even the appearance of impropriety, the Office of the State Comptroller should be prepared to conduct its own independent review the moment a state agency or the Office of the Attorney General is contemplating a monetary settlement in a employment dispute…”
In short, while this important test case under the new ethics law provided a welcome level of unprecedented oversight of the legislature, it also points to the need for further improvements to ensure a more independent and transparent ethics watchdog.