Rita Glavin: The report is misleading, unreliable and needs to be corrected

On October 20, 2021, Rita Glavin, attorney for Governor Andrew Cuomo announced that a formal submission application has been submitted in response to Attorney General Letitia James’ report on August 3, 2021. The 153 pages long ‘Submission to AG 10/20/2021: Former Governor Andrew Cuomo’s application to amend, correct, and supplement the August 3, 2021 “Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo”’ is available here, and her announcement can be watched here.

In this post, we have summarized and extracted the essential points of this submission. Please note that we have not included the numerous citations of applicable caselaw included in the submission.

The report needs to be amended, corrected and supplemented

  • The investigation had a predetermined outcome and the report is flawed, one-sided and unreliable.
  • The manner in which the investigation was conducted, and the report issued, lacks objectivity, fairness, and impartiality.
  • The report omits material evidence that would undermine findings that the Governor sexually harassed even one of the eleven complainants.
  • It is misleading to the public, to entities such as JCOPE, NYS Assembly and to courts which rely on it as basis for their investigations.

James’ misleading report and her prejudicial press conference

  • Created a false narrative that the Governor “sexually harassed 11 women”.
  • Caused the President, both U.S. Senators from New York, the Speaker of the U.S. House of Representatives, and numerous state legislators to demand the Governor’s resignation.
  • Caused the character assassination of Governor Cuomo and his resignation which disenfranchised the votes of 3.6 million New Yorkers.

Continued refusal to release evidence violates due process. James continues to not give Cuomo’s attorney access to the evidence incl. transcripts which were provided to Assembly Judiciary Committee

  • AG James proclaimed the Governor’s culpability but avoids any responsibility for having to defend the report’s findings and conclusions that ousted her political rival.
  • AG’s office has not responded to written requests (August 6 and October 8, 2021) for all the evidentiary materials underlying the report, including all transcripts, notes, and memoranda memorializing the 179 interviews the investigators purportedly conducted.
  • The Assembly Judiciary Committee refused Cuomo’s attorneys’ request (August 5) for access to all of the evidence underlying the report by letter dated August 8, 2021.
  • Not having access to the evidence completely hinders the Governor’s ability to respond, challenge the caselaw and legal analysis and deprives him of any fair process.

Report wrongfully concluded that Executive Chamber employees engaged in unlawful retaliation against Lindsey Boylan

The Executive Chamber released three memoranda documenting the actual circumstances of Boylan’s departure from state employment to correct the record in response to her  tweets that misrepresented why and how she left her state employment. The release of those three memoranda was proper under the law because the Executive Chamber had a right to defend itself against Ms. Boylan’s public misrepresentations as part of her political campaign.

Requests

1. Appointment of a truly independent reviewer to assess the report and review the application to amend, correct, and supplement it.
2. Termination of her pending criminal investigation of Governor Cuomo and his staff or referral to a local District Attorney’s office.


This criminal investigation was referred to the AG by the Comptroller on April 13, 2021 or, while he was also contemplating running for governor in 2022.

The AG’s cannot lead any investigation of Governor Cuomo given her stated interest in running for governor and the Democratic primary just eight months away.

Letitia James violated the terms of referral by Governor Cuomo

Governor Cuomo’s March 1, 2021 referral to the AG specified that she must select an independent law firm to conduct an inquiry into allegations made against him. The review was to be conducted by a law firm with no bias or predisposition, and the AG was not to be involved in the investigation and report. James was only to select the independent law firm and receive weekly updates.

The reason for this very specific referral was that Cuomo intended to run for a fourth term in 2022 (this was public knowledge) and that James refused to deny her own intention to run for governor against him. Investigating a potential rival would have been a major conflict of interest. Cuomo had numerous discussions with the Attorney General about this. He wanted to refer the investigation to an independent former judge with no aspirations to run for any political office. James insisted on referring it solely to her office. Therefore, his referral was drafted to limit James’ involvement.

Screenshot from the referral letter

Letitia James violated these terms by being personally involved in the investigation. She assessed the evidence, spoke to witnesses, and made credibility determinations. She admitted this on September 30, 2021 at the Ulster County Democratic dinner.

Screenshot from NYP article

Furthermore, James admitted she spoke to “every politician [she] knew” about the case, hence contradicting her own statement (Screenshot, press release August 20) that the investigation was “without outside influence”.

In addition, she was dishonest about the referral after being called out on the numerous issues with her report. In press releases from August 6 and August 20 she claimed that Cuomo himself had asked her to “oversee” the investigation. (Screenshot#1, Screenshot#2).

Additionally, James did not appoint independent investigators but two people with obvious and significant biases and predispositions – a former federal prosecutor who spent years supervising investigations into the Governor and the Executive Chamber, and a plaintiff’s lawyer with decades of experience representing employees in sexual harassment and discrimination cases. She did so despite promising Cuomo specifically she would not appoint a plaintiff’s lawyer. James violated that commitment.

Omissions, deficiencies, failures demonstrate the lack of objectivity and fairness

  • Credits complainants’ claims in their entirety, while discrediting, disregarding or omitting entirely the Governor’s testimony and other witnesses whose accounts did not fit its prescribed narrative. Undermines Cuomo’s testimony and suggests he testified falsely (e.g. regarding staff present in Mansion on November 16, 2020).
  • Omits deliberately testimony by numerous individuals and evidence showing that Governor’s alleged conduct and comments were not gender-based and that he routinely hugged, touched and kissed men, commented on their appearance, and engaged with them about their personal lives.
  • Fails to seek out all relevant information, communication incl. emails and text messages from the complainants (e.g. messages between Commisso and McGrath, communication regarding Boylan’s campaign and medium essay), but subpoenaed the Executive Chamber for all records relating to the harassment allegations.
  • Relies on complainants’ testimony of what other “witnesses” said without providing the statements of these individuals or indicating that they were even questioned.
  • Fails to provide citation to any transcript when referring to unidentified individuals who purportedly supported complainants’ allegations multiple times: e.g. regarding other women who Cuomo allegedly asked to take a selfies, employees noticing changes in Commisso’s demeanor, a staffer saying Cuomo had tested Bennett, a coworker hearing that Cuomo told Commisso to take her hoodie off when she told him she was hot, an employee who told Liss that Cuomo liked her, etc.
  • Selectively incorporated only 111 documents in the Report, out of the “over 74,000 documents it received,” none of which are copies of transcripts of formal depositions or notes of informal interviews.
  • Attempted to draw a distinction between “concluding that the Governor engaged in unlawful sexual harassment,” and “not reach[ing] . . . a conclusion as to whether the conduct amounts to or should be the subject of criminal prosecution, disavowing any responsibility for having to defend those legal findings.
  • Questions were frequently leading, posed with an air in incredulity, and seemingly designed to push witnesses into particular answers that seemed less favorable to the Governor or the Chamber (observed during the course of 18 interviews in which the attorney’s represented individual Executive Chamber employees).
  • Investigators warned some witnesses—primarily Executive Chamber employeesto refrain from discussing with anyone their testimony or otherwise be guilty of a misdemeanor. They did not always provide that same warning to the complainants. While Governor and others refrained from publicly addressing the allegations during the five-month investigation, the complainants and their attorneys were allowed to discuss their allegations in public social media posts and in interviews with various news outlets.

Omissions and Failures in the Boylan Case

  • Ignored Boylan’s credibility issues, although she was aware. She told Melissa DeRosa on March 1, 2021 that she had been informed by others that Boylan was not credible.
  • Omitted evidence of circumstances of Boylan’s departure from ESD. Specifically, as the Governor (and others) testified and as is memorialized in internal memoranda but omitted from the Report, in September 2018, senior management at ESD—including ESD counsel Elizabeth Fine—requested to terminate Ms. Boylan’s employment because of several complaints received from numerous employees that Ms. Boylan was a bully and hostile (and was seen as such agency-wide). The report deliberately redacted these parts of the memo.
  • Omitted that ESD’s CEO, Howard Zemsky specifically authorized the request to terminate Boylan.
  • Omitted evidence regarding Boylan’s “jarring” threat to Howard Zemsky to induce him to change his statement and failed to analyze his change of recollection of events.
  • Omitted that the meeting between Alphonso David and Boylan January 2018 (in which she denied being subjected to sexual harassment) was regarding complaints about her and Zemsky. The report only mentions that the meeting was unrelated to Cuomo.
  • Omitted any discussion about Boylan’s relationship with Zemsky and what they each testified to about their relationship and how it related to that “threatening” message.
  • Failed to assess other threats to coworkers and witnesses to pressure them to go along with her allegations.
  • Omitted testimony regarding what exactly Ms. Boylan said to Stephanie Benton in an effort to speak to the Governor after quitting her job and trying to get it back, including, “in sum and substance”, that she loved the Governor, wanted to talk to him, and had his best interests at heart.
  • Omitted Stephanie Benton’s testimony about the alleged “kiss” that happened while she was sitting at her desk, which is in view of where Boylan claims this occurred.
  • Failed to investigate communications between Boylan’s campaign and AG’s office in December 2020 (specifically between Boylan’s campaign consultant Trip Yang and James’ chief of staff Ibrahim Khan).
  • Failed to investigate why Boylan’s communications consultant Lupe Todd-Medina resigned (according to witnesses because of Boylan’s allegations).
  • Failed to investigate Boylan’s campaign motivations in promoting and embellishing her allegations and the timing of her allegations.
  • Failed to address the positive public statements Boylan made about Cuomo throughout the time and after he harassed her and she “truly feared” him.
  • Omitted other false and inflammatory public statements Boylan made.
  • Omitted that after Boylan first made her allegations against the Governor in December 2020, they became a central theme in her campaign.
  • Ignored the submission from the Executive Chamber’s attorney demonstrating that the memo release relating to Boylan’s departure from ESD to refute her wrong narrative were not retaliation and ignored applicable caselaw.

Omissions and Failures in the Bennett Case

  • Failed to include and consider Bennett’s history of making sexual misconduct allegations.
  • Failed to include Cuomo’s detailed testimony that provides important context to his conversations with Bennett.
  • Omits Cuomo’s lengthy testimony that his family member (who is around Bennett’s age and a victim of sexual assault) had experienced a situation that was “eerily identical” to what Bennett told him, so that he wondered if she could know about this situation.
  • Failed to sufficiently address, the “filter” for Cuomo in their conversations was “the possible consequences for a victim of assault and how it plays out.” (for example his question about dating older men because he had heard that she was in a potentially damaging relationship).
  • Omitted that Cuomo followed the advice of a therapist (in the context of his family experience) on how to discuss potential tattoos with victims of assault.
  • Omitted that the topic of potential girlfriends was a running joke amongst staff and family in 2020 and his comment to Bennett was within this context (after she reviewed his social media accounts and told him about all the women who want to date him).
  • Wrongly concluded that the Governor’s comments were “sexually suggestive”, “gender-based, offensive, and harassing” by omitting the context that disproves this.
  • Ignored that what Bennett alleged in February 2021 was markedly different than what the Special Counsel to the Governor testified Ms. Bennett told her in June 2020. Most importantly, Bennett never suggested to the Special Counsel in her conversations, and specifically denied when asked, that the Governor had ever made sexual advances. Yet, after communicating with Ms. Boylan, she publicly alleged that she he was grooming her and propositioning her for sex.
  • Based on Bennett’s statements that she did not perceive his conduct and comments as sexual harassment at the time, there was no Title VII violation (cites applicable caselaw).

Omissions and Failures in the Commisso Case

  • Wrongly determined that the Governor groped Ms. Commisso’s breast on November 16, 2020 and failed to include the documentary evidence that absolutely refutes Ms. Commisso’s version of events.
  • Omitted discussion of Brittany Commisso’s evolving version of events in her various accounts of the alleged breast “groping” incident and the inconsistencies of what she told journalists (TU, CBS) and the Investigators at different times.
  • Failed to include what McGrath said about why she was jealous and additional communication between McGrath and Commisso about the selfie.
  • Ignored that the selfie was apparently filtered.
  • Failed to explore evidence regarding Commisso’s motive to fabricate and embellish her interactions with Cuomo, specifically her financial situation.
  • Failed to investigate why Commisso did not confide in her very close friend and co-worker McGrath (who was her emergency contact at work and with whom she planned vacation) about the alleged groping incident but confided first in 2 other coworkers.
  • Failed to mention whether the Investigators subpoenaed all text and email communications from Ms. McGrath and Ms. Commisso relating to their interactions with and/or allegations about the Governor
  • Is deliberately vague about why Commisso was at the Mansion on the day she was purportedly groped. Simply states that Stephanie Benton asked her to “assist” Cuomo and that she was groped after she “finished her assignment”.
  • Failed to mention the PSU Trooper PIN records demonstrating that staffers were in the Mansion on November 16, including Ms. Benton, Ms. DeRosa, and Mr. Ajemian, and instead suggests that Cuomo testified falsely.
  • Failed to ask Ms. Benton, Ms. DeRosa or Mr. Ajemian whether they had heard the slamming of the door in the Mansion on November 16, 2020.
  • Failed to include Commisso’s testimony about who, other than the Governor, she saw in the Mansion the day she was allegedly groped and testimony of these individuals regarding what the heard and saw.
  • Failed to provide details regarding what is mentioned in footnote 168, that Commisso’s “recollection has varied”.
  • Wrongly claims Commisso’s groping allegations were corroborated. What was corroborated by two Executive Assistants was her reaction to Cuomo’s statement on March 3 (4 months after the alleged incident).
  • Failed to include what Commisso specifically told Executive Assistants #2 and #3 on March 1, 2021, March 3, 2021, March 6, 2021 and March 7, 2021.
  • Failed to assess why they stated that Commisso told them initially that Cuomo pushed her against the wall, groped her breast and kissed her, which Commisso later denied.
  • Failed to note that it was the Executive Chamber that alerted the Albany Police Department about Commisso’s allegation, and instead misleadingly states that “criminal authorities […] have been alerted to the most egregious allegations”.
  • Omitted details of the interaction Cuomo had with Commisso regarding her divorce and financial concerns to which he testified.
  • Failed to show Cuomo the selfie picture he was being questioned about during his testimony.
  • Failed to accurately portray Cuomo’s numerous affirmative denials in his testimony that he did not kiss Commisso on the lips, but instead notes “he denied any recollection”.
  • Omitted Cuomo’s testimony that Commisso volunteered to him that she planned to meet with an old boyfriend while she was in Florida with Ms. McGrath, and that she also had a boyfriend in Saratoga.
  • Omitted the specific testimony of numerous Executive Chamber witnesses that Commisso welcomed the Governor’s conduct and that she and McGrath sought out the his attention and banter with them.
  • Failed to include the mentioned text messages between McGrath and Commisso that purportedly corroborate Commisso’s allegations.
  • Failed to specify which parts of Commisso’s testimony McGrath corroborated as noted in the report, as McGrath did NOT corroborate both of Commisso’s groping allegations.

Omissions and Failures in the Trooper#1 Case

  • Omitted details of conversations about marriage which Governor did not recall until he read the report but should be part of trooper testimony. Omitted that the Governor admitted that he did “make jokes about marriage”.
  • Failed to cite or include the rule, statute, or handbook specifying the requirement of 2 years of service for troopers to be transferred to the PSU as well as purported change to this requirement.
  • Failed to assess circumstances of the other trooper which was hired to the PSU with the same amount of experience and if others with similar experiences were also hired.
  • Omitted testimony from at least one witness that Trooper #1 was recommended to the Governor by a member of the PSU corroborating Cuomo’s testimony as to why he wanted her assigned to his detail (he was impressed by her, wanted a more diverse detail, she came well-recommended to him by another member of the PSU.)
  • Wrongly concluded that comments (which Cuomo doesn’t remember making) about clothing, age differences in relationships, finding him a girlfriend, constitute sexual harassment.
  • Mischaracterized the interaction between Cuomo and the Trooper at the opening of the Moynihan Hall noting that he “sought her out specifically to wish her a Happy New Year.” Photographic evidence shows that upon entering or exiting the event, the Governor saw Trooper #1 when they were both wearing masks, quickly bumped elbows with her, and kept walking.
  • Falsely stated that the Trooper’s allegation that Cuomo touched her stomach was “fully corroborated” by “Senior Investigator #2.” The report only cites Trooper #1’s own testimony for Senior Investigator #2’s account.
  • Failed to assess why another PSU member stated he heard about this incident and that Cuomo asked the Trooper if she was pregnant, which she denied.
  • Omitted description of the event and photos to provide context that supports Cuomo’s claim that any physical contact with Trooper #1 that day would have been fleeting and incidental. It was an outdoor event on a construction site, with hundreds of people present who were taking pictures of the Governor throughout the appearance.
  • Omitted details about what door the Trooper held open, which also provides context.

Omissions and Failures in the “State Entity” Employee#1 Case

  • Failed to include photos of the September 14, 2019 outdoor event at Pier 40 at which State Entity Employee #1 was present, along with the Governor and his daughter and dozens of others, which do not show any untoward behavior by the Governor and show that the Governor was videoed and photographed throughout that event.
  • Failed to analyze that the report’s finding that the Governor “grabbed her butt” does not match up with the “contemporaneously memorialized” email.
  • Failed to show Cuomo photos of the event during his testimony to refresh his recollection of the event.
  • Omitted the text messages she sent to friends, family, multiple co-workers that corroborated her testimony.
  • Failed to weigh her supervisor’s contemporaneous reaction to State Entity Employee’s#1 allegation asking about Cuomo’s intent (presumably considering that any “tap” was accidental) and to include other details to the supervisor’s reaction (who was standing next to her with Cuomo in between them).
  • Wrongly calls this woman “State Entity Employee #1” when she did not work for a state entity, but is an employee of a State-affiliated entity.
  • Strategically anonymizes State Entity Employee #1, thereby precluding any meaningful analysis as to whether her “state affiliated entity” employer qualifies as an “employer” of the “state” or the Executive Chamber by its “affiliation” for purposes of workplace harassment.
  • Failed to explain why State Entity Employee #1 who works for an entity “affiliated” with the state is considered an employee.
  • This brief interaction with a citizen who works for a state-affiliated entity in a public place with dozens of people around, does not meet any legal standard for sexual harassment.

Other Omissions and Failures

  • Omitted photographic evidence disproving Limmiatis’ claims and failed to assess her testimony about her interaction with Cuomo, four years after the fact, against this photographic evidence.
  • Anna Ruch was not interviewed formally under oath.
  • Failed to specify what Italian phrase Cuomo allegedly said to McGrath and what his “suggestive” comment was when she and Commisso were doing groin stretches at work.
  • Failed to consider the timing of Liss’s allegations and her relationship to Karen Hinton.

Allegations that don’t constitute sexual harassment (even if true)

  1. Kaitlin: Cuomo’s comments to Kaitlin concerned her work-performance and were not gender-based. Her claims would also be time-barred.
  2. Liss: stated to New York Magazine in March 2021 that  at the time she “didn’t think of [her] experiences [with the Governor] as sexual harassment”. Therefore, her claims do not constitute sexual harassment. They also would be time-barred.
  3. Ruch: Claims (if true) do not approach anything close to sexual harassment, and as she was not a state employee her allegations would not constitute harassment anyway.
  4. Dufort (Doctor): Comments were not gender-based, and could not be deemed inappropriate under any meaningful standard.
  5. McGrath: Interactions (if true) were unremarkable and don’t constitute sexual harassment.
  6. Limmiatis: Not a state employee, law does not apply. Even if she were, this incident would not constitute harassment.

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