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Serving the cityʹs law profession since 1854
April 9, 2014
N.Y. pol can’t take Assembly down with him
By Adam J. Glazer
Adam J. Glazer is a partner at Schoenberg, Finkel, Newman & Rosenberg LLC and an adjunct professor at
Northwestern University School of Law. A general service firm, Schoenberg, Finkel dates back about 60 years in
Chicago. Glazer maintains a broad commercial litigation practice with an emphasis on preventing, and if
necessary, litigating business disputes.
He’s not a big name in Chicago, but Vito J. Lopez is notorious in New York. Once considered among the state’s
most powerful politicians, the former chairman of the Brooklyn Democrats and longtime state assemblyman
resigned from office in disgrace last year after two more of his ex‐staffers filed sexual harassment allegations against
the 72‐year‐old pol.
The staffers’ allegations were brought not only against Lopez but against the New York State Assembly where
he served, prompting a Manhattan judge to rule March 7 that the two staffers went too far.
Before that ruling is explored, the significant legislative career of Vito Lopez merits mention.
Lopez had a decades‐long record of service to his Brooklyn neighborhood prior to the surfacing of any
harassment allegations. As the longtime chairman of the assembly’s Housing Committee, Lopez was responsible for
allocating funds that turned some 1,800 burned‐out Brooklyn lots into affordable housing and senior centers.
Long‐dilapidated blocks of urban decay were transformed into sustainable and award‐winning blue‐collar
developments, largely through Lopez’s proficiency at arranging government and private funding sources. Such
successes helped secure his easy re‐elections for nearly three decades. He did this with up to 90 percent of the vote.
Alas, the more recent and repeated allegations of groping and attempting tawdry come‐ons to young staffers
has not only tarnished his name but secured his status as a creep. In August 2012, the New York State Assembly
Standing Committee on Ethics and Guidance determined Lopez violated the assembly’s sexual harassment policy.
Lopez, who denied all allegations of harassment, was stripped of his seniority, removed as Housing Committee
chair, censured and restricted from hiring any staffers under age 21. What did the voters think? He coasted to a 90
percent re‐election win three months later.
In 2013, the state’s Joint Commission on Public Ethics found he harassed at least eight female staffers just since
2010, leading to his resignation from the assembly under threat of expulsion.
The report found the staffers felt intimidated by Lopez, who repeatedly attempted to kiss and touch them
inappropriately and engaged in “knowing, willful and prolonged mistreatment of certain female members of his
assembly staff.”
Two of those staffers filed a 27‐page, one‐count complaint setting forth “alarming” allegations of misconduct by
Lopez, according to Justice Joan Kenney of the state trial court in New York County. Curiously, that action was
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2. directed only against the Assembly of the State of New York. The case is Burhans v. The Assembly of the State of New
York, No. 155232/13.
The plaintiffs’ claim, titled “Sex Discrimination and Sexual Harassment,” contended their employer was the
State Assembly, and it was the assembly that discriminated against them. Their action sought to remedy that
discrimination, including the hostile work environment and harassment that went along with it.
By not properly addressing the earlier sexual harassment complaints made against Lopez, the Assembly
allegedly aided and abetted him by enabling him to retain the power to hire and fire the plaintiffs.
On the assembly’s motion to dismiss, the court recognized that its “threshold question” was “whether or not
the assembly, as a body, is an ‘employer’” under New York law. Finding that the assembly members, as public
officers, have no ownership interest in the assembly itself and noting how plaintiffs did not allege “anyone other
than Lopez had the power to hire or fire them from their employment with the [s]tate of New York,” Kenney
seemed to reject the “threshold” inquiry.
“Assuming arguendo, that the assembly could be considered plaintiffs’ employer,” however, the court ruled
liability could only be imposed “where the ‘employer’ encourages, condones or approves the unlawful
discriminatory acts.” Here is where the plaintiffs’ action failed decisively.
The court found no support for the plaintiffs’ contention that the assembly’s other 149 members had any
authority to hire or fire them or make any personnel decisions on Lopez’s behalf.
Further, the aiding and abetting allegations were deemed insufficient where no facts were pleaded against any
individual assembly member, and no showing was made “that a defendant actually participated in the conduct
giving rise to a discrimination claim.”
As obvious as the dismissal may seem, the two staffers’ attorney has vowed to refile. His published comments
indicate the new emphasis will be on the staffers’ payments — technically coming from the assembly — as well as
on a sexual harassment handbook published by the assembly for all members. He said he will now argue the
assembly handbook shows the assembly was responsible for the staffers’ safety.
The dismissal was without prejudice, and Kenney left a door open in her opinion to amended allegations of
participation by other assembly members in the discriminatory acts in order to plead “an alternative theory of
individual liability” against those members, but such evidence seems non‐existent.
Kenney also expressly suggested that while the assembly was not a proper defendant, the “proper parties” to
this action would be the state of New York and/or Vito Lopez.
The two staffers, however, have a separate suit pending in Manhattan federal court against Lopez and
Assembly Speaker Sheldon Silver, who secretly settled earlier harassment allegations by two other former Lopez
staffers with $103,000 of taxpayer money. That action is unaffected by the state court ruling.
Meanwhile, after resigning the New York State Assembly seat he held for nearly 30 years, Lopez followed New
York’s rich tradition of tainted politicians pursuing comebacks (e.g., Eliot Spitzer, Anthony Weiner) by running in
September’s New York City Council election. Lopez lost in the Democratic primary.
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