Klein sought to keep case sealed
Court records show request to maintain his anonymity rejected by state Supreme Court
Former state Sen. Jeffrey D. Klein tried unsuccessfully to have a judge seal the records of a court case that he filed Monday seeking to block the state Joint Commission on Public Ethics from conducting a hearing on whether Klein violated the law when he allegedly forcibly kissed a female staff member outside an Albany bar in 2015.
Court records obtained by the Times Union show the Nov. 5 sealing request — including a plea to only identify Klein as “John Doe” in the court case — was rejected last week by acting state Supreme Court Justice Henry F. Zwack. The judge noted in his decision that the former senator “has failed to set forth any compelling interest on his part that (he) would be harmed if he was to be investigated under his real name.”
The allegations of Klein’s accuser, Erica Vladimer, were made public nearly three years ago. Klein, then the influential leader of the Senate’s Independent Democratic Caucus, immediately wrote a letter to JCOPE in January 2018 urging the panel to conduct an “independent investigation” of the matter. The lawmaker released a copy of the letter as he held a news conference denying the allegations.
The investigation by JCOPE languished, and it remained unclear until this week if the oft-criticized ethics panel had taken any action in the case. That changed when Klein filed his court petition seeking to block JCOPE’S investigation, and included documents in the case that would not normally have been made public. Those documents showed that the commission had found there was a substantial basis to proceed with a case despite a hearing officer’s recommendation that it should be dismissed.
In the sealing request filed last Friday, Klein’s attorneys argued that the former senator faced “substantial prejudice” if he wasn’t allowed to bring the court case anonymously. They noted that the section of Executive Law related to JCOPE’S investigations also sharply limits the public’s right to information in any final report that would follow a hearing by the ethics panel, which operates largely in secret.
The attorneys also argued that if Klein’s court challenge is successful, “the commission will never even issue such a report, and thus the public will not be entitled to information about the investigation,” according to Zwack’s decision striking down the request.
“However viewed, on this record the petitioner has simply failed to set forth any good reason why he should be permitted to proceed under a pseudonym or that the records in the proceeding should be sealed,” Zwack wrote. “Simply stated, he offered no evidence whatsoever that would entitle him to the relief requested. There is no supporting affidavit from the petitioner, there is no copy (redacted or otherwise) of the letter sent to the petitioner by JCOPE informing him of its decision to investigate, and the court certainly has not been advised as to what the petitioner has been accused of or how it will/could eventually prejudice him.”
The petition, filed by Klein on Monday in Albany, alleges JCOPE exceeded its authority and abused its discretion when it rejected a hearing officer’s recommendation earlier this year that the case should be dismissed.
Klein, who lost re-election in 2018, is focusing his court case in part on the decision by a JCOPE hearing officer, Richard Rifkin, who found that the section of Public Officers Law under which Klein was charged does not apply because the allegation involved “a single unwanted kiss, without anything more” that did not involve his government decision-making.
Rifkin noted in his decision that Klein could face penalty for his actions if the allegation is true, but that it should be handled by the state Division of Human Rights and could amount to a criminal violation.
The recommendation by Rifkin was that the charges against Klein be dismissed due to the commission’s lack of jurisdiction. But in August, JCOPE voted 9-2 to reverse Rifkin’s finding. It ordered the case remanded to Rifkin to conduct a hearing “and make findings of fact and conclusions of law in accordance with this decision.”
The court petition filed by Klein on Monday challenges that August decision and seeks to affirm that Rifkin’s finding was correct, and that the commission has no authority to pursue the case.
The office of Attorney General Letitia James is representing JCOPE in Klein’s court case — and her office had also opposed the request by Klein to have the case sealed.
Klein accuses JCOPE of unduly delaying the proceedings and prejudicing his due-process rights because potential witnesses may have left the state and records — including text messages and telephone records of at least 10 people who were with Klein and Vladimer on that day in 2015 — are no longer available.
Klein’s petition also charges that Vladimer “had claimed publicly that she decided to leave state employment because of the alleged incident, but the limited records that (Klein) has obtained indicate that the staff member had already been looking for a new job prior to the alleged incident.”
“The alleged incident did not happen, period,” Klein wrote in his January 2018 letter to JCOPE.
Klein, who represented the state Senate’s 34th district that includes parts of Bronx and Westchester counties from 2005 to 2018, now works for a lobbying firm.
Vladimer never filed a formal complaint, and quit her IDC job a month after the alleged encounter.
She went on to co-found the Sexual Harassment Working Group, an organization comprised of former legislative aides who say their complaints of sexual harassment on the job were mishandled.