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EXHIBIT A

Filed in Albany County Clerk's Office 12/2112020 09:21 :58 AM Index# 907927-20 Clerk: GG
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STAlE OF NEW YORK

JOINT COMMISSION ON PUBLIC ETHICS

IN THE MATTER OF AN INVESTIGATION OF RECOMMENDATION

FORMER SENATOR JEFFREY KLEIN. JCOPE No. 18-015

Respondent

On January 3, 2020~ I was designated as the hearing officer in this matter. This constitutes my

recommendation to the Commission.

This case involves one single act on the part of the Respondent. The Notice of Substantial Basis

Investigation & Hearing alleges that the Respondent, who was a member of the Senate and a

leader of one of its three conferences~ forcibly kissed a woman who was a Senate employee and

worked for the conference. This allegedly happened during a celebration held on March 31, 2015

after the adoption of the state budget for the upcoming ftscal year. The celebration took place at a

restaurant on Lark Street in Albany. The action of the unwanted kiss allegedly took place on the

sidewalk in front of the restaurant while the Respondent and the employee had gone outside to

smoke cigarettes. The Respondent categorically denies the allegation.

After the matter was referred to me, I had several conversations with counsel for the Commission

and the Respondent. From these conversations. it was clear that there were several legal issues

that needed to be resolved before holding a factual hearing. These related to the jurisdiction of

the Commission and its legal authority to proceed with the matter. A briefmg schedule was
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agreed to, with initial, reply and sur-reply briefs. Clearlyt the questions at issue needed resolution

in order to determine whether the Commission had the authority to proceed further. If it had no

authorityt the matter would necessarily have to be dismissed.

Basically, there were two areas of concern. One was procedural and the other substantive. The

procedural issues raised were ftmdamentally based on the alleged failure of the Commission to

follow the requirements imposed by section 94(13) of the executive law. The substantive issue

involved the power of the Commission under section 74 of the public officers law. After

reviewing the briefs that were submitted, I have considered each of these.

PROCEDlntALISSUES

The Respondent argues that there were several procedural defects in the manner in which this

matter was handled by the Commission. For example, he argues that a second 15 day letter

should have been issued before the Commission's vote on whether to commence a full

investigation. He further argues that the Commission failed to notify him before that vote and

failed to give him an opportunity to make a further presentation. All of this. he urges. resulted in

substantial prejudice and deprived him of due process.

Even if this argument reflected a failure on the part of the Commission to follow the statutory

rules under which it operates. I would not fmd that the proceeding must be dismissed as a denial

of due process of law. This argument is based on a concept found in the Constitution. I do not

believe that it is within my powers as a hearing officer to review and determine matters of

constitutional dimension. They are for the courts.

Furthermore, the Respondent is in error in a number ofhis assertions. Under section 94.13(a),

only one 15 day letter is required. Its fundamental purpose is ''notify the individual" of the
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pendency of the matter and "the evidence, if any ...." Thus. the 15 day letter is really a means of

notification rather than a document for presenting evidence. There is no requirement in this

section of the executive law that the Commission notify the respondent in a proceeding of the

evidence it develops after the 15 day letter is sent. The next required notification under paragraph

(b) of subdivision 13 is after a vote to commence a substantial basis investigation.

For all of these reasons, I fmd that none of the above procedural issues preclude the Commission

from proceeding with this matter.

However, two of the alleged procedural failures warrant further consideration. The Respondent

correctly notes that section 13(a) requires that the Commission vote on whether to commence a

full investigation of the matter before it "within sixty calendar days after a complaint or referral

is received or an investigation is initiated on the commission's own initiative.'' The Respondent

argues that no such vote was taken within the time authorized by this statute and that such failure

deprived the Commission ofjurisdiction, thereby mandating a dismissal of the proceeding.

The controversy arises because of the Commission's action on May 22, 2018. On that date the

matter in question was presented to the Commission. Both parties agree that this was within the

sixty day period. According to the Notice of Substantial htvestigation & Hearing, the

Commission determined at that time that "it needed additional information before making

deciding (sic.) whether to commence an investigation into this matter." Thus. the Commission

authorized staff to take further steps to gather additional information and granted it leave to re-

present the matter at a future time on the same 15 day letter. It voted not to commence an

investigation at that time.

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The question is whether this failure by the Commission to make a decision within the 60 day

mandate of the statute was a failure that deprives it ofjurisdiction and requires dismissal of the

proceeding.

This question is answered by Matter of Trump v. Joint Commission on Public Ethics. 47 Misc.3d

993 (Sup. Ct.~ Albany County 2015}. In that case~ the Commission failed to act within the sixty

day period. The Courtt in its decisiont was clear that with this statutory mandate "it cannot be

said that it otherwise remained within the discretion of the Commission to adhere to any other

timetable.'' However, the Court's remedy for the Commission's failure to follow the statute was

not to dismiss the matter for lack of jurisdiction, butt rather, to order it to act within 30 days. If

the Court had believed that the Commission's failure to follow the statute were jurisdictionalt it,

of necessity, would have had to dismiss the action. Thus, even if the Commission failed to meet

its mandate here by delaying the vote to obtain further informationt that failure did not deprive it

ofjurisdiction.

Respondent's other jurisdictional argument is based on executive law section 93. 13 (c), which

deals with former state officers and employees. This provision gives the Commission jurisdiction

over those who have left state government ''provided that the commission notifies such

individual or entity of the alleged violation of law pursuant to paragraph (a) of this subdivision

within one year from his or her separation from state service." The Respondent argues that the

Commission must issue its 15 day letter and vote on whether to commence a full investigation

within that one year period.

The first event with respect to this matter occurred on January 11, 2018t when the Respondent

wrote a letter to the Commission Chair and Executive Director at that time asking for an

investigation of the incident in question. This was shortly after the accusation was made public
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by his former staff member. At that time, the Respondent was a member of the Senate. and the

letter to the Commission was written on Senate letterhead. On April19, 2018, the Commission

issued its 15 day letter. Following the issuance of the letter, the Commission, as noted above,

voted on May 22, 2018 to seek more information before deciding whether to open a full

investigation. All of this took place while the Respondent was a member of the Legislature.

On December 31, 2018, the Respondent completed his fmal term in the Senate and left state

service. While a good deal of activity took place in 2019, the Commission notified the

Respondent bye mail on December 30, 2019 of the substantial basis investigation. This

investigation continues. The Respondent argues that since more than one year has passed since

he left state service. the Commission is without jurisdiction over him.

His theory seems to be that the Commission lost jurisdiction by not acting on May 22,2018 on

the full investigation question, and it has not begun a new investigation because it has not issued

a second 15 day letter. With more than one year having passed, he argues that the Commission

no longer has jurisdiction over him.

There is no question but that the 15 letter was issued while the Commission had jurisdiction. As

noted above, section 93 .13(c) provides that the Commission has jurisdiction if it Hnotifies such

individual or entity of the alleged violation of law pursuant to paragraph (a) of this subdivision

within one year ofhis or her separation from state service ...... Under paragraph (a) "the

Commission shall notify the individual. .. '' by issuing the 15 day letter. Thus, the notification

here was clearly timely to establish the jurisdiction of the Commission. The Respondent's

argument is based on his assertion that the Commission lost jurisdiction by failing to vote on the

full investigation question within the mandated 60 days, thereby requiring a second 15 day letter.

However, I have previously found that this is an incorrect reading of subdivision (a). Thus,
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jurisdiction was established within the timeframe required by paragraph (c) and such jurisdiction

authorizes the Commission to proceed as it has even though it is now more than one year since

the Respondent left state service.

For these reasons~ I see no need for the Commission to dismiss this matter on procedural

grounds.

SUBSTANTIVE ISSUE

The substantive challenge to the Commission's allegation raises the question of whether the

single act of a forcible kiss imposed on an individual who works under the supervision of the

person planting the kiss is a violation of section 74 of the public officers law. For purposes of

this discussion, I assume that the allegation is true even though it has been categorically denied

by the Respondent. In other words. I approach this like a motion to dismiss, which tests the legal

basis of the allegations in a complaint.

To begin~ I examine the provisions of section 74, which must be read as a whole. Subdivision I

simply contains defmitions. Subdivision 4 provides for the penalties for violating this rule.

Subdivisions 2 and 3 contain the substantive provisions.

Subdivision 2 is denominated as the "Rule with respect to conflicts of interest.'' It prohibits an

officer or employee or member of the legislature from (1) having any interest or (2) engaging in

any business or transaction or professional activity, or (3) incurring any obligation ~'which is in

substantial conflict with the proper discharge of his or her duties in the public interest.'' I do not

see any possibility of the allegations in this proceeding being found to have violated this rule.

Presumably, the Commission agrees, as it has not charged the Respondent with violating the

rule.
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Subdivision 3 is denominated as the "Standards". However, each of these standards cannot stand

alone. If each were so read, it would be a rule. Clearly, the standards are different from the rule,

and they cannot simply be read as additional rules. If they were so intended, they would have

been denominated as rules.

This raises the question of how to read the standards and what effect to give them. One important

factor is that they are all part of one section of law, and reading this section as a whole gives us

an approach in fmding the meaning of the entire section. (See Friedman v. Connecticut General

Life Insurance Co., 9 NY 3rc1 1005 (2007), where the Court of Appeals said: "A court must

consider a statute as a whole, reading and construing all parts of an act together to determine the

legislative intent.") If we follow this approach, the standards must be read as offering meaning

and guidance in the interpretation of the rule. Each standard helps the Commission and state

officers and employees, including members of the Legislature, understand what is expected

pursuant to the provisions of the rule. This means that to violate one of the subdivision three

standards, a person must violate the particular standard in a manner related to the rule. To read

the provisions otherwise would make almost any bad act committed by an officer or employee or

member of the legislature a potential violation of section 74.

In its brief, the Commission cites Nicholas v. Kahn, 47 NY2d 24 (1979) as the guide to its role

lUlder section 74. In explaining this section, the Court of Appeals said that the legislature "chose

to couch the code of ethics in broad terms, prescribing the standards for officers and employees

of all State agencies.'' However, broad terms does not mean without limits. The Court went on to

say that "the code declares the public policy of the State -to prevent even the appearance of the

slightest taint of impropriety from infecting the decision-making process in our government"

(emphasis added). In other words, as broad as the code is, it has its limits; that is, for an
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individual to violate section 74, his or her action must be related to the decision-making process

within the govenunent. Without this limitation~ almost any act of any state officer or employee

could be deemed to be within the scope of the ethics provisions of section 74.

The Commission cites a nwnber of precedents that it argues supports its position. However, if

one examines the details of each of these precedents~ it becomes clear that every one of them

deals with the Respondent having abused his or her decision making power.

The Commission fust cites the case against the Commissioner of Transportation that led to the

decision of the Albany County Supreme Court in New York State Asphalt Association v. White,

138 Misc.2d 836 (Sup. Ct. Albany County 1988). There. the Commissioner entered into an

agreement to permit a blacklisted contractor to be removed from that list in exchange for the

contractor's payment of $150,000 to a not for profit corporation designated by the

Commissioner. The court found that the Commissioner violated section 74(3)(d) by requiring the

contribution to an organization "espousing the Commissioner's pet causes.'' Clearly, the actions

of the Commissioner involved his decision making authority, bringing the matter squarely within

the scope of the rule. The standard applied was related to the rule's prohibitions. Thus, that case

is quite different from what is presented in this proceeding.

The next case cited by the Commission was brought by an earlier commission against Darren

Dopp. the Governor's Communications Director. It resulted from Dopp's having "misused Sate

Police resources to benefit the Governor's political agenda.'' That clearly involved the decision

making of the State employee. as it was based on the use of state resources for political purposes.

Another example offered by the Commission is the matter of Alan Hevesi, then the State

Comptroller. The Commission states in its brief that Hevesi used state resources to provide
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transportation for his wife. There, too, a state officer used his decision making power to promote

his personal interest in transporting his spouse. Again~ the section 74(3)(d) standard was applied

within the provisions of the rule.

The Commission also cites in support of its position four matters that were settled. First~ I note

that the settlement of a matter does not serve as legal precedent for the interpretation of a statute.

It means only that a charge was brought. and. whether or not it was properly brought. the

respondent agreed to the resolution of the matter. In addition, the Commission concedes in its

brief that "In all of these matters, it was the familial connection or interpersonal relationship that

presented the conflict." What this says is that these matters, like the previous matters. involved

employees who used their decision making authority to promote a personal interest.

Each of these cases was similar. Eustace Castellanata settled a charge of asking subordinates to

assist with the hiring ofhis son. Sidney Gellineau asked a subordinate to help in getting his son a

job, with the subordinate then contacting a contractor over which the subordinate had oversight

responsibilities. Jonathan Lacay~ who worked at Bronx Community College, assisted his fiancee

in attempting to get a job at the college through others who worked there. Mukesh Singhani. who

worked at the New York City Transit Authority, assisted the son of a subordinate in getting a job

with the Authority. These cases all involved the misuse of authority by the employee in charge

to advance his personal interests rather than the state's interests.

The Commission next cites sexual charges brought against four former members of the

Legislature. While each engaged in sexual acts, all of them used their authority to advance their

personal interests. The settlement agreement with the Legislative Ethics Commission in the case

of Vito Lopez provides that he offered "raises, promotions and bonuses as incentives and threats

of adverse employment action" to encourage compliance with his inappropriate requests. Dennis
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Gabryszak was found to have been "offering raises and issuing threats of adverse employment

action to force compliance with inappropriate requests.'' Mark Panepinto settled the ethics

charges against him based on his guilty plea in the United States District Court for the Western

District to Title 18 USC Section 600, which concerns a "Promise of Employment Compensation

or other Benefit for Political Activity". Angela Wozniak agreed that she "made certain personnel

decisions" related to a staff person with whom she had a sexual relationship ..

In sum, an examination of all of the cases cited by the Commission to support its position in this

matter leads to the conclusion that there is no precedent to support the type of charges that are

brought here. All of the precedents cited by the Commission involved "decision-making" by

state officials, bringing them within the scope of section 74 as defmed by the Court of Appeals in

Nicholas v. Kahn. Nothing supports the charge that a single unwanted kiss, without anything

moret is within the scope of section 74.

This does not mean that a state official cannot be penalized for such an unacceptable act. It

means only this Commission is not the entity to impose the penalty. Section 297(5) of the

Executive Law makes it clear that the Division of Human Rights can receive and pursue

complaints of sexual harassment. Such conduct in some cases may be a criminal violation. This

Commission's lack ofjurisdiction does not mean that anyone who engages in the act charged

here escapes punishment. It means only that an enforcement entity other than this Commission

is authorized to impose the punishment.

I urge that the Commissioners seriously consider this matter. The language of standard 74(3)(11)

if read as the Commission argues in its brief would make its power almost limitless. It would go
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far beyond anything the Commission has done beforet and it would seem to encompass ahnost

any act of a state officer or employee that the Commission views with disfavor. For example,

some months ago a now former member of the Assembly drank too much alcohol and crashed

his state car. The criminal law takes care of this act. Does the Commission believe that it, too,

has the power to punish in this instance? Clearlyt the action of the Assembly member raised

suspicion among the public that he engaged in an act in violation of his public trust. In fact, it

raised sufficient suspicion on the part of the public that it caused him to resign. What he did was

clearly wrong, but it is hard to see how it falls within section 74 when the standards are read in

conjunction with the rule contained in subdivision 2.

No state agency should have nearly limitless power based on the wording of one provision of a

standard within the context of a rule. The charges here would take the Commission well beyond

what it has done previously and would appear to violate the interpretation of section 74 as

pronounced by the Court of Appeals.

For these reasons, I recommend that the charges in this matter be dismissed based on the lack of

jurisdiction of the Commission. Consequently, I have not proceeded to hold a hearing on the

question of whether the act charged was, in factt committed. In my view, it makes no difference

in this matter.

Dated: June 8, 2020

Richard Rifkin