We’re in the second month of the Vito Lopez mess and everyone (except Lopez) agrees it was poorly handled. Now the time has come to take stock and see what we can learn about fixing the process going forward. Having served as both the New York Attorney General’s chief public corruption prosecutor and a gubernatorial appointee to the state’s Public Integrity Commission, I see several important lessons.
To start, let’s be clear on what did not go wrong. The fact that a potential lawsuit against a state employee was settled, confidentially and with public dollars, is not, of itself, improper. The state settles lawsuits brought against its employees all the time: If you go to a state hospital for an operation and the doctor removes your tonsils instead of your appendix, the state will settle; if you slip while walking on state property because a maintenance worker left water on the ground, the state will settle that too. As it should.
While most settlements are not confidential, that too is not unheard of or, in appropriate circumstances, improper. While a senior member of the attorney general’s staff, I approved confidential settlements. There are times when all concerned wish to get on with their lives without the glare of public scrutiny.
Why then was the decision to settle sexual harassment claims against Vito Lopez different? Why is virtually everyone involved uncomfortable with the result this time?
Three things: First, the underlying conduct involved here, if proven true, was intentionally malicious. This was not an overworked doctor who misread an X-ray or an overtired maintenance worker who missed a spill at the end of a long, hard shift. As alleged, this was a predator violating the basic rights of young women. Because no one referred the case to the proper authorities, this was a predator left to continue his actions unchecked. The confidential settlement only abetted that outcome.
Second, this settlement did not pay damages for the actions of some anonymous employee, but rather for the conduct of one of the most powerful politicians in the state, a public figure with vast control over housing policy, among other things, affecting millions of New Yorkers. As a result, confidentiality is more troubling; public figures need to have their actions judged by the public.
The third point is the least dramatic but perhaps the most important. Generally, when a lawsuit is brought against a state employee, the state agency involved, working with the attorney general, handles the settlement. The individuals accused are employees of that agency—they need to cater to their bosses at the agency. As such, the settlement decision-makers (the agency’s general counsel and others) are not beholden to the accused individual and have no immediate need to shield that employee from his or her acts. Appropriate disciplinary referrals are made and settlements and disclosures can consider the overall public good.
In the Legislature, this dynamic is set on its head. Individual legislators, especially powerful committee chairs, are not employees of the Legislature and it is the head of the Legislature who needs to cater to the needs of his or her members. Suddenly the settlement decision makers must cater to the accused. Having managed numerous settlements both in government and now in private practice, this altered power dynamic makes all the difference in the world.
This altered power dynamic does not likely affect the legal status of the settlement. However, as we’re seeing, it can lead to the type of poor and uncomfortable results. As such, we need to change that dynamic.
Obviously, we cannot change the dynamic between legislative leaders and their members, but we can change the way in which settlements get made. Where a settlement involves an elected official, the final decision on the settlement cannot rest with that official or others in the same body. Like much else in government, checks and balances are crucial.
If someone outside the Assembly had been required to review this settlement, it is hard to believe they would have agreed to it without, at least, some action to discipline Lopez, to make sure he was unable to continue to prey on his staff. Confidentiality, if at all, would have been solely for the benefit of the victims. More important, a settlement approved by officials with no need to cater to Lopez would not be subject to the legitimate skepticism occurring here, and that too is important. Confidence in government and government actions is its own public good.
It seems likely that before all is said and done we will see changes in the way Albany does business and that is all to the good. When crafting the changes, it is important to keep in mind the real problems to target real solutions.
Mark G. Peters is a partner at Edwards Wildman Palmer.