Sex Harassment Complaints in New York Fall Into an Enforcement Maze

In early April, with hundreds of New York City’s elite gathered at a power breakfast at Cipriani Wall Street, Gov. Andrew M. Cuomo extolled the merits of the state’s new sexual harassment policies, calling them a model that would be “binding on every government in the state of New York.”

But while Cuomo and other lawmakers have lavished praise upon the new reforms, little has been said about a less glamorous question: Who, exactly, will enforce them?

There is no single investigative body or agency charged with hearing complaints of sexual harassment or abuse by state officials. Nor is there a uniform statewide definition of sexual harassment.

What exists is a tangle of commissions, offices and agencies, many with overlapping jurisdictions but different procedures and enforcement powers — and no clear framework for reconciling them.

In three recent harassment complaints against top state officials, no fewer than six groups conducted investigations, an examination by The New York Times shows. All the cases were reviewed at least three times, sometimes with conflicting results. In one case, an allegation went from the state’s Justice Center for the Protection of People with Special Needs to the Governor’s Office of Employee Relations and then to the state inspector general.

In another, an allegation was handled by the inspector general’s office, then by the Division of Criminal Justice Services, and then by the Joint Commission on Public Ethics. In the third, it went from the Office of General Services to the governor’s employee relations office to the inspector general, and finally to the public ethics commission.

The cases show that bringing a complaint in New York state government can be a clunky, unpredictable process. What policies do exist are not always followed. And for all the sleek uniformity that officials have promised in recent weeks, none of the new policies fully address how, in practice, it will be achieved.

Cuomo’s aides say the multiple reviews of each of the three complaints demonstrate how seriously they were treated.

“Complainants should have as many options as possible,” Alphonso David, the governor’s counsel, said in a recent interview. “If I’m a victim of discrimination, I want to have as many options available to me to seek redress.” But ethics experts said the lack of clarity around procedure could undermine accountability and public trust.

“When jurisdiction becomes so bifurcated or attenuated that the ball just keeps bouncing from one agency to the next, that can become a tool for delay,” said Paula Franzese, a professor at Seton Hall Law School and former chair of New Jersey’s state ethics commission. “That can promote delay and studied inaction and certainly inefficiency.”

In 2016, Patricia Gunning had been at the Justice Center for the Protection of People with Special Needs for three years. As the agency’s special prosecutor, she was one of its highest-ranking officials, and after months of feeling that the agency’s acting director had created a “frat-house culture,” including having an inappropriate relationship with a staffer, she confronted him.

The retaliation was immediate, according to Gunning. In June of that year, after the director, Jay Kiyonaga, shouted at her so loudly that several colleagues sent her emails afterward asking if she was all right, she reported him to the Justice Center’s general counsel.

The subsequent inquiry found that “everyone confirmed” Gunning’s account of Kiyonaga “raising his voice and swearing at you,” according to a recording of a conversation, obtained by The Times, between Gunning and the counsel, Robin Forshaw.

But the incident “didn’t raise with us the idea” that it needed to be reported further, Forshaw said.

“We’ve told him he should just watch it, and not do that kind of thing,” she said.

The agency had written a memo about the incident, but it would not go in Kiyonaga’s file. If Gunning wanted to continue pursuing the complaint, Forshaw said, she could “make a report of discrimination or retaliation with our affirmative action officer, the Division of Human Rights, the EEOC.

“You could also, I guess, potentially make a workplace violence complaint, if that’s what your concern is,” Forshaw added.

Under a 10-step procedure devised by the governor’s office for state agencies, internal complaints are supposed to be investigated by an affirmative action officer. But Gunning said she did not speak to the Justice Center’s affirmative action liaison until after Forshaw’s call.

Gunning contacted the liaison herself, and the liaison referred the complaint to the Governor’s Office on Employee Relations. Investigators there, working with the Office of General Services, determined the complaint was “without merit,” according to Christine Buttigieg, a Justice Center spokeswoman. (Gunning said she was never informed of the results of that investigation.)

Gunning then approached the governor’s office directly. In an Oct. 26, 2017, letter to David and the governor’s secretary, Melissa DeRosa, she asked them to review her complaint, and offering to share the recorded conversation. David replied to say he had referred her inquiry to the inspector general.

That investigation is still open. Gunning said she had heard from the inspector general’s office only twice since October.

“Here you have the governor talking about all this stuff, but you don’t see many state employees coming forward, right, because why would you?” Gunning said. “Given that I was at the top of my agency — if you witnessed what happened to me, why would you ever come forward?” David said it was inaccurate to suggest that the state was trying to skirt accountability by referring complaints to different agencies.

“If an agency conducts an investigation, and they make a determination that the claim is unsubstantiated, the reason why the case is referred to another agency is because the complainant doesn’t like the result,” he said.

But Gunning said she had no choice but to bring her story to multiple agencies, because no single one provided a fair, thorough investigation.

“I literally had no idea where to go,” she said. “The burden should not be on victims of sexual harassment, discrimination or abuse to wade through multiple inconsistent and unsafe options.”

At the Division of Criminal Justice Services, after complaints surfaced against a senior official there, the referral order was reversed.

In December, the state inspector general, Catherine Leahy Scott, wrote a letter informing the criminal justice agency’s deputy commissioner that the official, Brian J. Gestring, had created an environment “rife with incidents of sexual harassment, ageism, racism, and threats of retaliation and physical violence.”

But while the inspector general’s office was conducting its inquiry, the agency had been conducting its own.

The agency’s conclusions contrasted starkly with the inspector general’s. The inspector general’s office found that Gestring, director of the agency’s Office of Forensic Science, had told employees they needed to “hump more” and had threatened to hurt a female employee. It recommended that the agency “take action as you deem appropriate” against Gestring, according to the letter, which was first reported by The Albany Times Union.

The criminal justice division’s investigation, in contrast, concluded that the allegations were unsubstantiated, according to an agency spokeswoman, Janine Kava.

One employee who had testified against Gestring, Kimberly Schiavone, was transferred to another office within the agency, and another, Gina Bianchi, was fired and then reinstated to a demoted position. Gestring remained in his position.

After the women announced their intention to sue the state for retaliation and equal protection violations, David said he referred the retaliation claims to the Governor’s Office of Employee Relations; the harassment claims, as well as the conflicting findings of the two previous investigations, went to the Joint Commission on Public Ethics. Both of those probes remain unresolved.

John W. Bailey, a lawyer for the women, said the inspector general’s findings should have stood.

“It is clear that certain people are not happy with the inspector general’s report,” he said. “They want someone else to say, ‘We’ve taken a look at this, and we don’t agree.'” New York’s statutes offer little guidance as to how these various investigative bodies are to coexist, and which might get priority over another.

The public ethics commission is responsible for investigating violations of the state’s public officers law, which does not explicitly refer to sexual harassment but requires officials to follow a “course of conduct which will not raise suspicion among the public.” The inspector general’s office investigates allegations including “abuse” in executive agencies. The Division of Human Rights prosecutes “unlawful discriminatory practices,” and the Governor’s Office of Employee Relations “promotes and maintains a safe and healthy workplace.”

Each state agency is also required to have its own procedures for addressing discrimination complaints.

Karl Sleight, the former executive director of the now-defunct New York State Ethics Commission, compared the development of state ethics bodies to the accumulation of shale.

“You have layer upon layer upon layer, and it’s reactionary. It’s by virtue of something happening — some kind of scandal,” he said. “That’s how these laws developed, how these agencies developed, and how their jurisdiction developed.

“It’s usually not with a clear central purpose. It’s to deal with the crisis du jour.”

David said that in the case of concurrent complaints, one agency might postpone its investigation until another’s had finished. But he acknowledged the potential for conflict.

“It may create confusion for an agency to do the same investigation where it’s interviewing the same people, reviewing the same documents, soliciting the same information,” he said.

And despite its investigative muscle, which includes subpoena power, the inspector general’s office has no enforcement authority; it can only recommend action. The public ethics commission can issue fines, but only for specific violations, such as improper financial disclosures. For others, including conduct that might “raise suspicion,” it too makes recommendations. David conceded that the myriad complaint venues could have inadvertently negative effects. If two agencies arrived at different conclusions, complainants could lean on the one in their favor — “but be aware,” David said, that defendants could do the same.

“If you file a complaint with 30 different agencies, it may actually hurt you,” he said.

In the third case, Lisa Marie Cater, an employee of the state’s Department of Motor Vehicles, dealt with multiple authorities after accusing Sam Hoyt, a regional president of the Empire State Development Corp., New York’s main economic development arm, of sexual harassment and abuse. Cater filed a federal lawsuit against Hoyt and Cuomo in November, alleging the governor’s office had turned a blind eye to her complaint.

Hoyt, a former assemblyman from Buffalo, had previously been sanctioned after having an affair with an intern.

According to the lawsuit, Cater tried several times to report Hoyt’s harassment to the governor’s office but was consistently ignored.

Eventually, she was contacted by a lawyer with the Office of General Services, Noreen VanDoren. VanDoren, the lawsuit said, referred Cater to the inspector general’s office. From there, she was put in touch with the Joint Commission on Public Ethics. The governor’s office, which has denied any wrongdoing, says it referred Cater’s complaint to the public ethics commission after she refused to cooperate with the inspector general’s office. It has consistently pointed to the multiple investigations as evidence that the lawsuit is baseless.

“The state launched three separate investigations in this matter, and any assertion to the contrary is patently and demonstrably false,” David said after the suit was filed.

The lawsuit is still active. The other complaints, too, remain unresolved.

Gunning resigned from the justice center in August. Schiavone and Bianchi remain in their demoted or transferred positions at the Division of Criminal Justice Services. Cater is on unpaid sick leave from the Department of Motor Vehicles.

Kiyonaga is now executive deputy commissioner of the Office for People with Developmental Disabilities, the state’s second-largest agency. Hoyt resigned from the state development corporation; after he announced his departure, top state officials, including the lieutenant governor, praised his work record.

Gestring, at the Division of Criminal Justice Services, was fired on March 22 — but not because of the inspector general’s findings, according to an agency spokeswoman.

He was fired, she said, for a separate set of “inappropriate remarks.”