Preview
FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024
EXHIBIT E
FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024
STATEOFNEWYORK
COMMISSIONONETHICS ANDLOBBYINGIN GOVERNMENT
INTHE MATTEROFANINVESTIGATION OF
FORMER SENATORJEFFREYH. KLEIN
ORDERNO. 4
PROCEDURAL
Respondent. COELIG No. 18-015
1. In Procedural Order No. 2, issued on March Respondent's application
20, 2024, I declined
to continue the hearing in this matter until the Appellate Division had ruled in Cuomo v.
New York State Commission on Ethics and Lobbying in Government. In that case, the New
York Supreme Court had held on September 11, 2023, that the Commission's investigatory
and enforcement authority violates constitutional separation of powers at least in certain
respects, and had enjoined the Commission from acting contrary to that finding. On
October 10, 2023, the Appellate Division Third Department had stayed the Supreme
Court's decision except as to the specific enforcement proceeding there at issue.
2. In Procedural Order No. 2, I noted that the Commission's Rules provide that "[a] hearing
officer grant an adjournment of any hearing pursuant to these rules only for good
shall
cause."
19 NYCRRSection 941.8(a). I concluded, "I do not find the possibility that the
Appellate Division might affirm the Supreme Court's decision to be good cause. The
Appellate Division has specifically stayed that decision, indicating that the Commission
case."
may proceed with its functions in all respects save for the proceeding at issue in that
PO2 ¶ 6. I also was unclear whether the grounds for the Supreme Court's
noted that it
decision, which were in part that the Commission's exercise of power to penalize conduct
by Executive officers intruded on the powers of the Executive, would apply to this case,
because this case involves a former member of the Legislature. Id. ¶¶ 7-8.
3. However, because the Commission had consented to a limited 60-day postponement of the
hearing, and because this was the first such request for an agreed postponement, I granted
the requested stay to that extent. The parties then agreed to new hearing dates of June 17-
18 and 25-26, 2024. PO3.
4. On May 9, 2024, the Appellate Division affirmed the Supreme Court's decision. On May
12, 2024, I asked the parties for written submissions on the effect of that decision on the
hearing and other dates in this matter, and I held a conference with the parties on May 15,
2024.
5. Respondent has renewed his motion for a continuance of the hearing dates in this matter,
arguing that "it would be unfair to [respondent] to have to defend himself at a hearing
authority."
before a Commission that had been found to be without constitutional The
Commission opposes the continuance. It says that it has moved for leave to appeal the
FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024
Appellate Division's decision to the Court of Appeals (and has provided me with a copy
of that motion). Under CPLR§ 5519(a)(1), service of a notice of appeal or a motion for
permission to appeal automatically stays the judgment or order appealed from where "the
appellant or moving party is the state or any political subdivision of the state or any officer
state."
or agency of the That stay continues in force until five days after the motion for
leave to appeal is denied or, if the motion is granted, five days after the Court of Appeals
decides the Commission's appeal. CPLR§ 5519(e).
6. In addition, the Commission argues Supreme Court has pending before it a fully
that the
briefed motion on
severability functions from those at issue
of the rest of the Commission's
in the Cuomocase, and that the Supreme Court has said it would rule after the Appellate
Division decision. Once the Supreme Court decides that motion, the court will presumably
enter a final judgment, which the Commission says it will then appeal to the Court of
Appeals. Under CPLR§ 5601(b), the Commission may appeal as of right to the Court of
Appeals from a trial court decision "which finally determines an action where the only
state."
question involved on the appeal is the validity of a statutory provision of the Further,
such an appeal would likewise give rise to an automatic stay under CPLR§ 5519(a)(1).
7. In light of this statutory scheme, I do nothave good cause to continue the hearing.
find that I
Under these CPLRprovisions, statenot supposed to be stopped in their
agencies are
functions when a statute is held unconstitutional unless and until the Court of Appeals has
weighed in. Likewise, where the state is appealing, or even moving to appeal, an adverse
order against it is likewise stayed. Where the statutes of the state call for a state agency's
work to continue after an adverse court ruling, I do not think the fact of such an adverse
ruling can be good cause to continue a hearing.
8. Therefore, the Procedural Timetable set forth in Procedural Order No. 3 (revised) remains
in force with two modifications that were discussed in today's conference: (1) at the
Commission's request, agreed to by respondent, the date for responses to requests for
production is extended from May 17, 2024, to May 21, 2024; and (2) the parties shall
provide me by Monday, May 20, 2024, at 6 pm simultaneous letter briefs on the issue of
discovery into possible memory loss of a witness that was raised in Mr. Portale's letter of
May 6, 2024.
May 15, 2024
Joseph E. Neuhaus
Hearing Officer
-2-
Preview
FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024 EXHIBIT E FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024 STATEOFNEWYORK COMMISSIONONETHICS ANDLOBBYINGIN GOVERNMENT INTHE MATTEROFANINVESTIGATION OF FORMER SENATORJEFFREYH. KLEIN ORDERNO. 4 PROCEDURAL Respondent. COELIG No. 18-015 1. In Procedural Order No. 2, issued on March Respondent's application 20, 2024, I declined to continue the hearing in this matter until the Appellate Division had ruled in Cuomo v. New York State Commission on Ethics and Lobbying in Government. In that case, the New York Supreme Court had held on September 11, 2023, that the Commission's investigatory and enforcement authority violates constitutional separation of powers at least in certain respects, and had enjoined the Commission from acting contrary to that finding. On October 10, 2023, the Appellate Division Third Department had stayed the Supreme Court's decision except as to the specific enforcement proceeding there at issue. 2. In Procedural Order No. 2, I noted that the Commission's Rules provide that "[a] hearing officer grant an adjournment of any hearing pursuant to these rules only for good shall cause." 19 NYCRRSection 941.8(a). I concluded, "I do not find the possibility that the Appellate Division might affirm the Supreme Court's decision to be good cause. The Appellate Division has specifically stayed that decision, indicating that the Commission case." may proceed with its functions in all respects save for the proceeding at issue in that PO2 ¶ 6. I also was unclear whether the grounds for the Supreme Court's noted that it decision, which were in part that the Commission's exercise of power to penalize conduct by Executive officers intruded on the powers of the Executive, would apply to this case, because this case involves a former member of the Legislature. Id. ¶¶ 7-8. 3. However, because the Commission had consented to a limited 60-day postponement of the hearing, and because this was the first such request for an agreed postponement, I granted the requested stay to that extent. The parties then agreed to new hearing dates of June 17- 18 and 25-26, 2024. PO3. 4. On May 9, 2024, the Appellate Division affirmed the Supreme Court's decision. On May 12, 2024, I asked the parties for written submissions on the effect of that decision on the hearing and other dates in this matter, and I held a conference with the parties on May 15, 2024. 5. Respondent has renewed his motion for a continuance of the hearing dates in this matter, arguing that "it would be unfair to [respondent] to have to defend himself at a hearing authority." before a Commission that had been found to be without constitutional The Commission opposes the continuance. It says that it has moved for leave to appeal the FILED: ALBANY COUNTY CLERK 05/31/2024 09:31 AM INDEX NO. 905075-24 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/31/2024 Appellate Division's decision to the Court of Appeals (and has provided me with a copy of that motion). Under CPLR§ 5519(a)(1), service of a notice of appeal or a motion for permission to appeal automatically stays the judgment or order appealed from where "the appellant or moving party is the state or any political subdivision of the state or any officer state." or agency of the That stay continues in force until five days after the motion for leave to appeal is denied or, if the motion is granted, five days after the Court of Appeals decides the Commission's appeal. CPLR§ 5519(e). 6. In addition, the Commission argues Supreme Court has pending before it a fully that the briefed motion on severability functions from those at issue of the rest of the Commission's in the Cuomocase, and that the Supreme Court has said it would rule after the Appellate Division decision. Once the Supreme Court decides that motion, the court will presumably enter a final judgment, which the Commission says it will then appeal to the Court of Appeals. Under CPLR§ 5601(b), the Commission may appeal as of right to the Court of Appeals from a trial court decision "which finally determines an action where the only state." question involved on the appeal is the validity of a statutory provision of the Further, such an appeal would likewise give rise to an automatic stay under CPLR§ 5519(a)(1). 7. In light of this statutory scheme, I do nothave good cause to continue the hearing. find that I Under these CPLRprovisions, statenot supposed to be stopped in their agencies are functions when a statute is held unconstitutional unless and until the Court of Appeals has weighed in. Likewise, where the state is appealing, or even moving to appeal, an adverse order against it is likewise stayed. Where the statutes of the state call for a state agency's work to continue after an adverse court ruling, I do not think the fact of such an adverse ruling can be good cause to continue a hearing. 8. Therefore, the Procedural Timetable set forth in Procedural Order No. 3 (revised) remains in force with two modifications that were discussed in today's conference: (1) at the Commission's request, agreed to by respondent, the date for responses to requests for production is extended from May 17, 2024, to May 21, 2024; and (2) the parties shall provide me by Monday, May 20, 2024, at 6 pm simultaneous letter briefs on the issue of discovery into possible memory loss of a witness that was raised in Mr. Portale's letter of May 6, 2024. May 15, 2024 Joseph E. Neuhaus Hearing Officer -2-