Over the years there's been no shortage of suggestions about how the commission could deal more effectively with issues like sexual harassment. | AP Photo Legislators and advocates skeptical about Cuomo's sexual harassment plan

ALBANY — Gov. Andrew Cuomo says a proposal in his budget to speed up sexual harassment investigations will address criticism of an ethics commission that handles the cases. But some observers remain uneasy about the commission's role in the first place.

The controversy springs in part from the Senate Republicans' decision to refer a sexual harassment investigation of state Sen. Jeff Klein (IDC-Bronx) to the Joint Commission on Public Ethics, which has conducted similar investigations in the past. Nine days later, Cuomo proposed the creation of a new unit within JCOPE solely focused on harassment claims.


“The only criticism of JCOPE in the past ... was the timing, that it took them a long time," Cuomo said of the commission's past investigations of sexual misconduct.

But critics of the oft-maligned ethics and lobbying watchdog say that having JCOPE conduct these investigations without further changes could leave victims at risk. Some have questioned whether JCOPE is the best venue to investigate harassment claims against lawmakers.

“We probably need somebody who is most nonpartisan and just has the concerns of the victims" in mind, said state Sen. Jim Tedisco (R-Glenville) when asked about JCOPE's role. Such an entity, he added, needs to make sure that "everybody has the message that there will be controls, that there will be investigations, and the investigations will be followed through. I don’t think JCOPE right now is the best we could do. I probably think we could do better.”

Alphonso David, Cuomo’s chief counsel, said the administration was open to hearing about alternatives to JCOPE and noted the governor's proposal does nothing to strip other entities — the Senate, Assembly, executive branch, the human rights division or a prosecutor — from pursuing their own investigation.

“We are not at all opposed to having a public policy discussion or debate about creating another alternative but what we don’t want to do is simply sit on the sidelines and have that discussion for another year, or two years or three years,” he said. “We need to make sure we provide the resources to the organization that currently has the jurisdiction to investigate these claims.”

Of the many criticisms of JCOPE, the notion that it took too long to investigate harassment wasn’t a common one before Cuomo cited it. It has engaged in two high-profile investigations of alleged harassment. One took five months, and the other took a year, leaving it pretty much in line with the “approximately 10 months” that it typically takes the federal Equal Employment Opportunity Commission to investigate a claim.

Four years after Cuomo pushed a bill to create JCOPE through the Legislature, a task force spent several months reviewing ways to improve the commission’s operation. In a 307-page report the task force compiled, the claim that investigations took too long didn’t come up.

In fact, the only direct reference to a time frame for JCOPE investigations came from the task force itself — it recommended that the commission spend more time conducting them. Under the statute that established JCOPE, the commission had 45 days from the receipt of a complaint to decide whether it merited a full investigation. This, the review board found, “hinders the ability of JCOPE to fully and effectively investigate and consider such complaints.”

At least as of 19 months ago, Cuomo seemed to agree. A bill that his office authored and pushed through the Legislature at the end of the 2016 session increased the time JCOPE has to launch a formal investigation to 60 days.

Over the years there's been no shortage of suggestions about how the commission could deal more effectively with issues like sexual harassment.

Many of those suggestions involve the very structure of the agency. Eight of the 14 members are appointed by the four major legislative leaders, with each political party getting four apiece. In order for an investigation into a legislator to go forward, at least two of those four co-partisans need to sign off. That leaves open the possibility of a scenario in which commissioners vote to examine somebody by an 11-3 margin, but the investigation is blocked.

That flaw was highlighted in the investigation into former Assemblyman Vito Lopez, who was accused of sexual harassment. Nobody suggested that JCOPE went light on Lopez, who was fined $330,000 and resigned. But numerous skeptics expressed concerns that the agency did not also penalize then-Assembly Speaker Sheldon SIlver, who had secretly used $103,800 of public money to settle with a Lopez accuser.

“Without knowing what actually transpired during JCOPE’s deliberations and its investigation of the Lopez case, such an anti-majoritarian vote, had it taken place, could have blocked the extension of the investigation to other persons whose conduct merited further inquiry,” Common Cause New York and the New York City Bar Association wrote in a joint testimony to the review commission.

Attorney Kevin Mintzer has represented women in claims against the Assembly — including in the Lopez investigation.

"They may be an acceptable forum in some cases but to the extent that anyone's conduct is at issue who is in some way connected to the people appointing the JCOPE commissioners, then I think the Lopez case shows JCOPE is going to have severe limitations,” said Mintzer. “I think JCOPE is better than nothing in terms of having an impartial forum for these things but it is certainly not ideal and not completely politically independent."

Others agreed with this interpretation.

“The way it’s structured, any of the three leaders can stop an investigation,” said state Sen. Liz Krueger (D-Manhattan), who has been a vocal advocate for victims of workplace harassment in Albany. “The whole point of a good policy for protecting people who work for one of the three leaders or within their constructs, is you can’t have one of them being able to stop the investigation.”

The critiques of JCOPE go beyond this voting structure. The commission itself has issued recommendations that might allow it to be more effective, some of which have a direct bearing on recent sexual harassment incidents. In a 2015 package of legislative proposals, the commission requested “more flexibility to make information public.”

Commissioners and staffers are legally barred from saying anything about an investigation unless the commission decides to issue a “substantial basis” report detailing wrongdoing. Was there a vote to reprimand Silver that failed because his nominees blocked it? What if the investigation into Klein exonerates him and gathers concrete evidence that the accusations against him were false? Or what if he’s exonerated, but a sizable bloc of commissioners found evidence that he did actually engage in the acts he’s accused of? That information, by law, will remain hidden from the public.

In that 2015 package, the commission wanted “the ability to make investigative findings public if no legal violation is found or if JCOPE determines not to investigate.” That suggestion has not been proposed by the governor or passed by the Legislature.

Mintzer, the attorney, said that there’s room for lawmakers to make internal changes to the way harassment claims are addressed. While the Assembly updated its policy after the Lopez case to have investigations of members be reviewed by its Ethics Committee, the Senate’s updated harassment policy still doesn’t provide a separate mechanism to address accusations of sitting senators. Instead, it directs individuals to report to the chamber’s personnel officer and appeals go the counsel for the majority.

“It should be clear what the obligations are when the members are accused, given the authority of the members over the people who may be making the complaint,” Mintzer said.

On the statutory front, there’s still the possibility of significant changes. For example, Cuomo’s budget proposal does not actually include any funding for the new harassment unit at JCOPE, something that needs to be worked out in the coming months.

“The challenge that we face is if you don’t utilize JCOPE, what’s the alternative?” David asked. “I don’t believe there exists an alternative that could work here. We think it's too important at this point to ignore the fact that we don’t have enough resources put into JCOPE and we don’t have a uniform system to address claims of sexual harassment. We have to create something and we have to do so now.”