Preview
FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024
EXHIBIT M
FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024
STATEOFNEWYORK
COMMISSIONONETHICS ANDLOBBYlNGIN GOVERNMENT
IN THEMATTEROFANINVESTIGATION OF
FORMER SENATORJEFFREYH. KLEIN
PROCEDURAL
ORDERNO. 2
Respondent. COELIG No. 18-015
1. On December 11, 2023, in a conference with the parties (later confirmed in Procedural
Order No. I
1), scheduled the hearing in this matter for April 8-12, 2024. The parties and
I jointly selected these dates in view of the schedule of counsel. On December 15, 2023,
Respondent's counsel advised meby email that, while they would continue to participate
in scheduling arrangements for that hearing, Respondent intended to seek a continuance of
the hearing in the event a decision by the Third Department in Cuomov. NewYork State
Commission on Ethics and Lobbying in Government had not been made prior to the
hearing. In that case, the NewYork 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 the specific enforcement
proceeding there at issue.
2. On December 18, 2023, the Commission staff responded to Respondent's email, saying
that opposed any continuance. The staff noted that the Appellate Division had stayed the
it
Supreme Court's order in all respects, except with respect to that case, and that this
proceeding should therefore continue without delay.
3. Based on a set of agreed dates provided to meby the parties, I issued Procedural Order No.
1 on December 22, 2023, setting out a schedule for pre-hearing including
preparations,
dates for requests for production of documents (March 15, 2024), responses thereto (March
22, 2024), identification of witnesses and provision of evidence (March 22, 2024), requests
for hearing subpoenas (March 22, 2024), and other steps.
4. On March 15, 2024, Respondent (through counsel) made the foreshadowed request for a
continuance, noting that the Appellate Division had heard arguments on the appeal in
February but had not yet ruled. Respondent sought a continuance of the hearing until after
the Appellate Division decision. Respondent argued that it would be unfair to force him
todefend himself at a hearing that has been found to be without constitutional authority.
He argued that his personal and professional reputation might be irreparably harmed if I
made an adverse finding and the Appellate Division later affirmed the decision against the
Commission. Respondent also argued that it would wasteful to dedicate "hundreds of
happen."
hours of preparation time only to learn that the hearing cannot Further,
FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024
Respondent argued that if the hearing is not continued, he would need to bring his own
action seeking an injunction restraining the Commission from proceeding against him,
entailing further wasted effort. Finally, Respondent reported that the Commission staff
had not agreed to the requested continuance.
5. The Commission staff responded to Respondent's application on March 20, 2024. The
Commission stated that, while the Commission has authority to proceed, it was "willing to
consent to a limited adjournment for approximately 60 days from the originally scheduled
hearing date of April 8, 2024, to June 10, 2024, and consequently, adjournment of the
Order."
current Procedural The Commission stated that "[t]his timeframe will allow for
the Appellate Division to render a decision in the Cuomolitigation,
which the Commission
expects will be issued by mid-April at the
latest, as well as provide the Respondent ample
hearing."
time to prepare for the The Commission noted that this action has been delayed
for a period of years and that even if the Supreme Court's decision in the Cuomocase were
affirmed the Commission would be entitled to an automatic continuation of the current stay
of that order while it pursued review in the Court of Appeals, citing CPLR5519(e).
6. Pursuant to 941.8(a) of the Commission Rules Governing the Conduct of
Section
Adjudicatory Proceedings (19 NYCRR Part 941), "[a] hearing officer shall grant an
cause."
adjournment of any hearing pursuant to these rules only for good 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 may proceed with its functions in all respects save for the proceeding at
issue in that case.
7. Moreover, the Supreme Court's decision that the Commission's authority violated
separation of powers was based on a ground that seems to be of significantly decreased
force in this case. The Supreme Court found a violation because (1) a majority of the
Commission's members were nominated by the Legislature and the Commission had the
power to penalize conduct by Executive officers, thereby intruding on the exercise of
Executive powers; and (2) the power to appoint Commission memberswas vested in a body
called the Independent Review Committee (IRC), consisting of the deans of the 15 New
York law schools, and that is a private body with no public accountability, giving rise to
an unlawful delegation of Legislative power.
8. The applicability of the first ground seems open to question here. Respondent is a former
member of the Legislature, not the Executive, and it appears that the Commission has no
power to penalize such a member, but can only investigate and recommend action to the
Legislative Ethics Commission. Executive Law § 94(10)(p).
In these circumstances, it is
also unclear whether the objection to the delegation of power to the IRC applies to the mere
power to investigate and recommend, which is something that outside counsel often do.
There is thus some reason to think the Commission's powers in this case could survive
even an affirmance, which decreases the likelihood that the effort to prepare for and hold
the hearing in this matter will be wasted.
9. Ido not see that proceeding with a hearing poses any imminent reputational risk to
Respondent. My findings of fact and recommendation are to be made available to the
-2-
FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024
Respondent and his or her representative and to the Commission. Rules § 941.13(a). The
Rules provide for publication only after the Commission has made any recommendation to
the Legislative Ethics Commission and only after the Legislative Ethics Commission has
itself acted. Id. § 941.12(f); Legislative Law § 80(10). It seems highly likely that by then
the Appellate Division will have acted.
10. But where the Commission has consented a limited postponement of the hearing date, I
to
amloath to force the parties to proceed, where this is the first such postponement.
at least
Therefore, I grant a postponement to June 10, or to such date within two weeks of that date
when the parties and I are available.
March 20, 2024
Joseph E. Neuhaus
Hearing Officer
-3-
Preview
FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024 EXHIBIT M FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024 STATEOFNEWYORK COMMISSIONONETHICS ANDLOBBYlNGIN GOVERNMENT IN THEMATTEROFANINVESTIGATION OF FORMER SENATORJEFFREYH. KLEIN PROCEDURAL ORDERNO. 2 Respondent. COELIG No. 18-015 1. On December 11, 2023, in a conference with the parties (later confirmed in Procedural Order No. I 1), scheduled the hearing in this matter for April 8-12, 2024. The parties and I jointly selected these dates in view of the schedule of counsel. On December 15, 2023, Respondent's counsel advised meby email that, while they would continue to participate in scheduling arrangements for that hearing, Respondent intended to seek a continuance of the hearing in the event a decision by the Third Department in Cuomov. NewYork State Commission on Ethics and Lobbying in Government had not been made prior to the hearing. In that case, the NewYork 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 the specific enforcement proceeding there at issue. 2. On December 18, 2023, the Commission staff responded to Respondent's email, saying that opposed any continuance. The staff noted that the Appellate Division had stayed the it Supreme Court's order in all respects, except with respect to that case, and that this proceeding should therefore continue without delay. 3. Based on a set of agreed dates provided to meby the parties, I issued Procedural Order No. 1 on December 22, 2023, setting out a schedule for pre-hearing including preparations, dates for requests for production of documents (March 15, 2024), responses thereto (March 22, 2024), identification of witnesses and provision of evidence (March 22, 2024), requests for hearing subpoenas (March 22, 2024), and other steps. 4. On March 15, 2024, Respondent (through counsel) made the foreshadowed request for a continuance, noting that the Appellate Division had heard arguments on the appeal in February but had not yet ruled. Respondent sought a continuance of the hearing until after the Appellate Division decision. Respondent argued that it would be unfair to force him todefend himself at a hearing that has been found to be without constitutional authority. He argued that his personal and professional reputation might be irreparably harmed if I made an adverse finding and the Appellate Division later affirmed the decision against the Commission. Respondent also argued that it would wasteful to dedicate "hundreds of happen." hours of preparation time only to learn that the hearing cannot Further, FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024 Respondent argued that if the hearing is not continued, he would need to bring his own action seeking an injunction restraining the Commission from proceeding against him, entailing further wasted effort. Finally, Respondent reported that the Commission staff had not agreed to the requested continuance. 5. The Commission staff responded to Respondent's application on March 20, 2024. The Commission stated that, while the Commission has authority to proceed, it was "willing to consent to a limited adjournment for approximately 60 days from the originally scheduled hearing date of April 8, 2024, to June 10, 2024, and consequently, adjournment of the Order." current Procedural The Commission stated that "[t]his timeframe will allow for the Appellate Division to render a decision in the Cuomolitigation, which the Commission expects will be issued by mid-April at the latest, as well as provide the Respondent ample hearing." time to prepare for the The Commission noted that this action has been delayed for a period of years and that even if the Supreme Court's decision in the Cuomocase were affirmed the Commission would be entitled to an automatic continuation of the current stay of that order while it pursued review in the Court of Appeals, citing CPLR5519(e). 6. Pursuant to 941.8(a) of the Commission Rules Governing the Conduct of Section Adjudicatory Proceedings (19 NYCRR Part 941), "[a] hearing officer shall grant an cause." adjournment of any hearing pursuant to these rules only for good 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 may proceed with its functions in all respects save for the proceeding at issue in that case. 7. Moreover, the Supreme Court's decision that the Commission's authority violated separation of powers was based on a ground that seems to be of significantly decreased force in this case. The Supreme Court found a violation because (1) a majority of the Commission's members were nominated by the Legislature and the Commission had the power to penalize conduct by Executive officers, thereby intruding on the exercise of Executive powers; and (2) the power to appoint Commission memberswas vested in a body called the Independent Review Committee (IRC), consisting of the deans of the 15 New York law schools, and that is a private body with no public accountability, giving rise to an unlawful delegation of Legislative power. 8. The applicability of the first ground seems open to question here. Respondent is a former member of the Legislature, not the Executive, and it appears that the Commission has no power to penalize such a member, but can only investigate and recommend action to the Legislative Ethics Commission. Executive Law § 94(10)(p). In these circumstances, it is also unclear whether the objection to the delegation of power to the IRC applies to the mere power to investigate and recommend, which is something that outside counsel often do. There is thus some reason to think the Commission's powers in this case could survive even an affirmance, which decreases the likelihood that the effort to prepare for and hold the hearing in this matter will be wasted. 9. Ido not see that proceeding with a hearing poses any imminent reputational risk to Respondent. My findings of fact and recommendation are to be made available to the -2- FILED: ALBANY COUNTY CLERK 05/29/2024 07:39 PM INDEX NO. 905075-24 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/29/2024 Respondent and his or her representative and to the Commission. Rules § 941.13(a). The Rules provide for publication only after the Commission has made any recommendation to the Legislative Ethics Commission and only after the Legislative Ethics Commission has itself acted. Id. § 941.12(f); Legislative Law § 80(10). It seems highly likely that by then the Appellate Division will have acted. 10. But where the Commission has consented a limited postponement of the hearing date, I to amloath to force the parties to proceed, where this is the first such postponement. at least Therefore, I grant a postponement to June 10, or to such date within two weeks of that date when the parties and I are available. March 20, 2024 Joseph E. Neuhaus Hearing Officer -3-