Gift laws can impede state employees’ access to justice
Earlier this year, Andrew Cuomo’s campaign received a $565,000 windfall, substantially bolstering its coffers as the former governor contemplates a potential run for New York City mayor.
This influx of cash wasn’t thanks to an upswell of enthusiastic donors. Rather, half a million dollars in taxpayer funds were provided to the governor’s campaign as reimbursement for his criminal legal defense of sexual harassment claims —— claims that multiple investigations have now determined to be credible.
What’s more, taxpayers could soon be footing an additional $1 million of the former governor’s bill.
New York law requires the state to reimburse elected officials who are accused but not convicted of crimes. Because
Cuomo was not convicted of sexual harassment in a court —— less than five percent of sitting lawmakers accused of sexual harassment ever are —— he is entitled to full reimbursement of any legal fees associated with his criminal defense.
While the former governor has not been convicted in a criminal court of law, he still faces potential liability, as two women are seeking to hold him accountable in civil court —— where he can also tap into his campaign coffers to cover expenses he won’t be reimbursed for.
Unlike the former governor, survivors of his harassment won’t get their legal fees reimbursed in any proceeding, criminal, civil or otherwise. Not only do they shoulder the burden of legal expenses, they also face potential job loss and other serious impacts on their mental health, safety, privacy and career. And the cost of hiring an attorney to help navigate these systems can be prohibitive for many, a factor that weighs heavily on already-fraught decisions to pursue allegations.
Although services and support that can benefit survivors exist —— pro-bono legal counsel and mental health counseling, for example —— state employees are essentially barred from accepting any in-kind offers of legal or mate
rial support, thanks to otherwise well-intentioned gift laws.
Gift laws are a common ethical practice in government to restrict what handouts elected officials and government employees can accept, and they are generally considered to be smart policy. However, some state gift laws are having unintended consequences, preventing survivors of sexual harassment from receiving any probono help at all.
While some attorneys may take on an accuser’s case in civil court, some victims may choose a different avenue of justice, such as an administrative hearing, making it harder to find probono representation from an attorney who wouldn’t be banned as a result of gift laws.
For survivors, this is a dilemma: Do they quit their jobs, thereby freeing themselves from the restriction of gift laws? Do they pursue accountability with the meager resources they alone can muster? Or do they simply remain silent?
The traumatic and financial impacts of sexual harassment cannot be overstated. According to a recent study on sexual harassment in statehouses by the National Women’s Defense League, “after coming forward with their story, most survivors are left unprotected, and receive personal hate messages at their homes, on their phones, and on social media. In many cases, they risk their reputation, privacy, and livelihoods.”
Here in New York, the Legislature has passed numerous sexual harassment reforms since 2018, mostly due to the advocacy of survivors and the Sexual Harassment
Working Group. These oversights in access to justice must be tackled next.
We urge the Legislature to support survivors harassed under its watch by fixing gift laws and explicitly exempting pro bono services for state employees who say they have experienced harassment and discrimination. In addition, lawmakers should close the loophole that allows reimbursement for harassers based on a lack of criminal conviction.
The state has failed to provide a safe work environment for survivors; it should at least make it as easy as possible to reduce harm as they seek accountability and justice.