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___________ SHELDON SILVER, individually and in his official capacity as Speaker of the New York State Assembly; Defendant-Respondent. __________________________________________ Plaintiff ROBERT L. SCHULZ, alleges: 1. This is a constitutional challenge and an action for declaratory, injunctive and equitable relief. RELIEF REQUESTED 2. The relief requested herein is a final decree, judgment and order: a) declaring Defendant violated Article VII, Section 8 of the NY Constitution by using public funds in the amount of $103,080 as partial settlement of an Agreement executed on or about June 6, 2012, between Assemblyman Vito J. Lopez and others; and, b) directing Defendant to compensate the treasury of the State of New York, from his personal funds, in the amount of $103,080 plus interest at the rate of 10% per annum retroactive to June 6, 2012, and to do so within twenty days from the date of the Court’s Order; and, c) for such other and further relief as to the court may seem just and proper.
This is an action for declaratory, injunctive and equitable relief against Defendant Sheldon Silver in his individual and official capacity for using public funds: a) as payment for the silence of persons accusing Vito J. Lopez, a prominent Member of the Assembly and a member of Defendant’s Political Party, of sexual harassment; and b) as payment for the confidentiality of the accusers, the accused Member, and the terms of the payment, since such activity is not part of the legislative function but was a private application of public revenue prohibited by NY Const Art VII § 8, which provides appropriate source of standards by which limitations on legislative function may be judicially determined. See People v Ohrenstein (1988) 139 Misc 2d 909, 531 NYS2d 942, affd (1st Dept) and affd 77 NY2d 38.
Defendant Sheldon Silver was more interested in covering up the matter than uncovering and disclosing the facts of Lopez’s behavior by following Assembly rules and honoring the New York State Constitution. JURISDICTION
This Petition is brought under Article I, Section 9 of the New York State Constitution, which reads in relevant part:
§ 9. 1. “ No law shall be passed abridging the rights of the people peaceably to assemble and to petition the government, or any department thereof…. “
In addition this Petition is brought under the First and Fifth Amendments to the Constitution for the United States of America, which read in relevant part:
Amendment I. “Congress shall make no law … abridging the … right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Amendment 5.“No person shall be …deprived of life, liberty, or property, without due process of law….” 2
In addition, this Petition is a constitutional challenge brought under Article VII, Section 8.1 of the New York State Constitution, which reads in relevant part: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.” NY Constitution, Article VII, Section 8.1
In addition, Section 3001 of the CPLR provides that a court "may render a declaratory judgment" to resolve "the rights and other legal relations of the parties to a justiciable controversy."
“The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds.” CIVIL PRACTICE LAW AND RULES, SECTION 3001.
The statute is broad in scope. James v. Alderton Dock Yards, Ltd., 256 N.Y. 298, 305 (1931). A further declaration of the Rights of the People and the obligations of the Government under Article VII, Section 8 of the New York State Constitution in this case will serve a necessary and useful purpose. Davis Constr. Corp. v. County of Suffolk, 112 Misc. 2d 652, 656, (Sup. Ct. Suffolk County 1982), aff'd mem., 95 App. Div. 2d 819 (2d Dep't 1983).
This controversy is definite, substantial, and ripe for final determination. The parties have adverse interests; the Plaintiff has been harmed. PARTIES
Plaintiff- Petitioner ROBERT L. SCHULZ is: a) a citizen of the United States of America whose individual, natural, unalienable, human Rights, including his Right to a government republican in form and substance are guaranteed by the Constitution for the United States of America, and
b) a resident of the State of New York whose individual, natural, unalienable, human Rights, including his Right to government officials that honor their oaths of office, are guaranteed by the Constitution for the State of New York; and, c) as such, he is obligated and duty-bound to defend and enforce the N.Y. and U.S. Constitutions; and, d) he pays local, state and federal taxes. 13. SHELDON SILVER is: a) a citizen of the State of New York residing in lower Manhattan; and, b) a duly elected member of the Assembly of the New York State Legislature; and, c) the duly chosen Speaker of the Assembly of the New York State Legislature; and, d) under oath “to support the Constitution of the United States, and the Constitution of the State of New York” and to “faithfully discharge the duties of [his]office….” STATEMENT OF FACTS 14. On February 12, 2013, the State of New York’s Joint Commission on Public Ethics (“JCOPE”) issued JCOPE-127, a Report titled, “IN THE MATTER OF AN INVESTIGATION OF ASSEMBLYMAN VITO LOPEZ.” Exhibit A, hereto. 15. On May 15, 2013, Daniel M. Donovan, Jr., the district attorney for Richmond County issued a statement titled, “STATEMENT BY SPECIAL DISTRICT ATTORNEY DANIEL M. DONOVAN, JR., CONCERNING THE INVESTIGATION INTO A MEMBER OF THE ASSEMBLY.” Exhibit B, hereto. 16. From 1984, until he resigned on August 28, 2012, Vito J. Lopez was a member of the Assembly of the State of New York.
In December 2011 and January 2012, two employees of Assemblyman Vito J. Lopez made complaints of sexual harassment by Lopez to the Office of Counsel for the Assembly Majority. See JCOPE-127, at 1.
According to Assembly Sexual Harassment/Retaliation Policy, Section V, all complaints of sexual harassment against any Member shall be referred to the Assembly Ethics Committee for investigation; The Complainant shall submit a written complaint to the Office of the Counsel for the Assembly Majority; An investigation is mandatory.
Without any investigation by the Office of Counsel for the Assembly Majority or a referral to the Assembly Ethics Committee, as required by the Assembly’s Sexual Harassment/Retaliation Policy, these complaints were “resolved” on June 6, 2012, through a confidential settlement agreement negotiated between counsel for the Assembly Majority, counsel for Lopez, and counsel for the employees (the “Settlement Agreement”). See JCOPE-127, at 1.
The Settlement Agreement contained a confidentiality clause that shielded from public disclosure the fact that Lopez and the Assembly had settled the dispute relating to Lopez’ conduct. See JCOPE-127, at 2.
There is no evidence that Lopez improperly exercised his influence or power as a public official in settling the complaints against him. See JCOPE-127, at 2.
The decision not to investigate or refer the complaints to the Assembly Ethics Committee (i.e., to handle the matter as alleged misconduct by Lopez in his individual capacity) was endorsed and approved by the Speaker of the Assembly, Sheldon Silver, “without input, pressure, or influence by Lopez.” See JCOPE-127, at 2.
Lopez subjected his employees to “unreasonable demands unrelated to any legitimate aspect of his public office.” (Plaintiff’s emphasis). See JCOPE-127, at 6.
No investigation was conducted, and the Assembly acknowledges that it has not conducted an investigation to date. See JCOPE-127, at 38.
Office of Counsel for the Assembly Majority (Collins) and counsel for Lopez (Lefcourt) wrote the confidentiality Clause, first proposed by Lopez, to be included in the Settlement Agreement. See JCOPE-127, at 40.
Counsel for the employees (Wang) did not propose or demand a confidentiality provision. See JCOPE-127, at 40.
On June 6, 2012, Lopez, his employees and the Assembly executed a confidential Settlement Agreement calling for the payment of $103,080 by the Assembly and $32,000 by Lopez “for alleged damages for pain and suffering and attorney fees.” See JCOPE-127 at 44.
The confidentiality clause reads: “Except in response to a court order or in response to a valid subpoena or in connection with necessary disclosures to financial or tax advisors, or medical professionals, neither party to his Agreement, nor any attorney, counsel, representative, heir, assign or other person affiliated with any party to this Agreement will discuss or make any statement of any sort concerning the underlying circumstances of this dispute which has given rise to this Agreement, the fact of this Agreement, or any terms of this Agreement with any other person or entity.” JCOPE-127, at 41-42.
The $103,080 came from the Assembly’s Miscellaneous contractual Services Account. See JCOPE-127, at 45.
On June 13, 2012, the Office of the State Comptroller approved and issued a check for $103,080. See JCOPE-127, at 46.
On June 26, 2012, Lopez’s attorney (Lefcourt) sent the Office of Counsel for the Assembly Majority a check for $32,000 made payable to the attorney for the employees (Wang). See JCOPE-127, at 46.
On June 27, the Office of Counsel for Assembly Majority mailed the two checks to the attorney for the employees (Wang). See JCOPE-127, at 46.
The payment by Lopez came from his personal funds. See Donovan at 3 Defendant’s chief concern was “mitigating the Assembly’s damages. That goal outweighed any interest in investigating or disciplining Assembly Member Lopez or in preventing similar occurrences in the future. The desire to shield the Assembly led to the negotiation of a settlement agreement contingent on a confidentiality provision, one crafted at the request not of the complainants but of Assembly Member Lopez.” See Donovan at 4.
The Assembly negotiated that settlement agreement with the complainants almost independently of any other agency’s oversight, and Speaker Silver has since publicly acknowledged that it was a mistake to approve the privately negotiated settlement and its confidentiality clause. See Donovan at 4.
ARGUMENT Defendant Violated The NY Constitution, Article VII “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.” NY Constitution, Article VII, Section 8.1.
Defendant abused power granted him by the People under Article III of the NY Constitution; he willfully deprived Plaintiff of his right to a government that does not use public funds in aid of private individuals or undertakings.
Defendant’s approval of the $103,080 payment was under color of law, giving the appearance of a legal power to act but, in fact, violating the law – i.e., the NY Constitution.
Defendant’s use of public funds taken out of the Assembly’s appropriation, in aid of a private undertaking, falls squarely within prohibition of NY Const Art VII § 8; See Schulz v State (1995) 86 NY2d 225
The Settlement Agreement transgressed the constitutional boundary of NY Const Art VII § 8, which prohibits public funding of private undertakings, even though the Agreement was the result of mediation process that followed employee allegations of harassment, where it unequivocally avoided the Assembly Rules and aided and protected partisan political parties. See Schulz v State (1995) 86 NY2d 225.
Defendant acted in the clear absence of all jurisdiction.
Defendant’s action was outside the legislative function. No Qualified Immunity
Defendant’s conduct violated clearly established constitutional law, thus qualified immunity does not apply. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Compensatory Damages
Plaintiff is entitled to have Defendant pay to the public treasury the monetary amount necessary to replace what was lost, including interest.
Plaintiff has suffered a legally recognizable harm that is compensable by the amount requested, an amount that can be easily and objectively determined by the Court.
Punative Damages 46. The Settlement Agreement’s Confidentiality Clause was designed to protect Defendant’s malfeasance; the action complained of was unequivocally illegal or completely wrongful. 47. Plaintiff is entitled to have Defendant pay to the public treasury punitive damages, available against Defendant in his individual capacity. Defendant’s action demonstrates a conscious disregard for the rights of Plaintiff and other citizens of the State of New York, causing substantial harm, including “pain and suffering” and harm to the reputation of the State of New York. 48. Punitive damages would punish Defendant for his conduct and serve as a deterrent to the future commission of such acts. CONCLUSION 49. Based on the above, Plaintiff respectfully requests a final decree, judgment and order: a) declaring defendant’s use of public funds in the amount of $103,080 as partial settlement of an Agreement executed on or about June 6, 2012, between Assemblyman Vito J. Lopez and others, to be a violation of the NY Constitution, Article VII, Section 8.1; and, b) directing Defendant to compensate the treasury of the State of New York, from his personal funds, in the amount of $103,080 plus interest at the rate of 10% per annum retroactive to June 6, 2012, and to do so within twenty days from the date of the Court’s Order; and, c) for such other and further relief as to the court may seem just and proper.
DATED: June 13, 2013
____________________________ ROBERT L. SCHULZ, pro se 2458 Ridge Road Queensbury, NY 12804 (518) 656-3578
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