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N.Y. Assembly Speaker Held Not Liable for Sex Case Settlement Involving Former Chief Counsel
New York Law Journal
July 17, 2008
New York State Assembly Speaker Sheldon Silver cannot be held personally liable for a $500,000 settlement the state reached with an Assembly staffer involved in a sexual encounter with Silver's former chief counsel, though the speaker's conduct in the case may have been as "cavalier" as the victim alleged, a judge has ruled.
Supreme Court Justice Emily Jane Goodman of Manhattan dismissed the complaint by "citizen and taxpayer" Joseph J. Santora, who contended Silver and his former counsel, J. Michael Boxley, were responsible for the misconduct that necessitated the state's settlement with the former staffer. Taxpayers paid for the settlement.
Then-Attorney General Eliot Spitzer was obligated by Public Officers Law §17(3)(b) to defend and indemnify Silver in the sexual discrimination claim and authorized to settle the case if Spitzer deemed it to be in the state's best interests, Goodman wrote.
"As the Court of Appeals observed long ago, if in representing State officers in their official or individual capacities, the Attorney General errs in judgment in the conduct of the litigation, the remedy lies not before the Supreme Court, but at the polls," she wrote in Santora v. Silver, 107561/07.
It is not the role of the court to "superintend the litigation decisions of the Attorney General after the fact," as urged by Santora, Goodman held.
She also rejected the plaintiff's contention that by indemnifying Silver, the attorney general violated the prohibition in Public Officers Law §17(3)(a) against indemnifying "intentional wrongdoing" by state employees.
"The complaint fails to allege any illegal or wrongful expenditure of state funds on Silver's behalf, even if Silver had demonstrated leadership which would have led to an entirely different and more acceptable outcome," Goodman wrote.
But the justice also took pains to make clear her revulsion about the Boxley matter, which caused a sensation in 2003 when Boxley was arrested in the Capitol and taken from the building in handcuffs by authorities. Two years earlier, he was accused of forcing another female Assembly staffer to engage in sex, also following a night of bar hopping.
The woman in the 2001 incident declined to file criminal charges but Boxley was indicted for rape following the 2003 incident. Critics of Silver contended he had failed to heed the warning signals from the 2001 allegations about Boxley's behavior and prevent the later incident.
"This Court finds all of the underlying Facts and circumstances and conduct on the part of any lawyer, and specifically, a lawyer in the employ of and on the payroll of the State of New York, as counsel to the excessively powerful Speaker of the Assembly, and the cavalier conduct of said Speaker as alleged, outrageous and a disgrace," Goodman wrote.
After prosecutors backed off their initial allegations that Boxley had used a date rape drug to knock out his victim, he plea bargained to a misdemeanor sexual misconduct charge and was sentenced to probation and fined $1,000. He resigned as counsel following his arrest.
Boxley also paid $7,500 toward the settlement in the civil suit. Silver personally paid nothing.
Goodman ruled that Boxley cannot be held personally liable for paying more because he was no longer a state employee when he and Spitzer's office made the settlement. Boxley was also represented by an outside counsel in the civil suit, not Spitzer's office, the judge noted.
"Thus, while Boxley's conduct was wrongful, distasteful and repulsive, and involved lewd and indecent acts, the decision to settle this tawdry matter was made by Spitzer in what he deemed, in his wisdom, to be in the best interests of the State," the justice wrote.
Sisa Moyo, a spokeswoman for Silver, said Wednesday the Assembly conducted a "vigorous" investigation of the 2001 allegations against Boxley and cooperated with Albany County authorities in their 2003 criminal investigation of the counsel.
"Speaker Silver has acknowledged repeatedly that he was wrong about Michael Boxley," Moyo said. Silver, she added, has a strong record of defending the rights of sex crime victims and providing treatment for sex crime survivors.
In 2003, Silver's aides said Boxley's arrest had prompted changes in the Assembly's anti-sexual harassment policies. It has never been disclosed whether Boxley was internally disciplined for his behavior.
Santora's attorney, Robert B. McKay, was out of state Wednesday and had not read Goodman's ruling. Told of her conclusions, McKay said, "We're going to appeal."
Troy, N.Y., attorney E. Stewart Jones Jr. represented Boxley. He did not immediately return a call Wednesday seeking comment.
Assistant Attorney General Joel Graber represented Silver in Santora's claim.
Boxley's license to practice law was reinstated in 2006 following a one-year suspension by the Appellate Division, 3rd Department, without objection from the Committee on Professional Standards.
The identity of the woman he was charged with assaulting, a then-22-year-old aide to Assemblywoman Susan John, D-Rochester, has never been publicly disclosed. The civil suit she settled with the state was titled Jane Doe v. The New York State Assembly.
Elizabeth Crothers, the woman who made the 2001 allegation against Boxley, did step forward. She was 25 at the time of the incident.
Her name resurfaced in stories in the New York Daily News and The New York Times earlier this month in which she said she is supporting Paul Newell, one of two Manhattan Democrats who are challenging Silver in a primary this September for his seat.
