Corrupt Ethics Committee Issues Report on Selective Retaliation Case

Commission Clears Gonzalez of Misconduct But Calls for Reform of Hiring Practices
The New York Law Journal by John Caher  -  April 3, 2012

The Commission on Judicial Conduct has cleared the presiding justice of the Appellate Division, First Department, of any misconduct in connection with allegations that he misrepresented his residency to claim a tax credit and that he put a no-show employee on the state payroll.  But the commission was deeply critical of hiring practices in the First Department and called for state-wide reforms in the appellate courts.  "The Commission believes that such a system-wide reform of the hiring process would ultimately enhance public confidence in the courts and advance such laudable goals as a qualified, diverse and transparently selected workforce," the commission said.  Presiding Justice Luis Gonzalez became the focus of a probe after the New York Post reported in March 2011 that the judge had simultaneously claimed two primary residences, including a rent-stabilized apartment in the Bronx, benefiting from both the tax advantages of home ownership and the advantages of rent stabilization.  Additionally, it was alleged that Gonzalez allowed his executive assistant to maintain a private law practice, provided positions for his ex-wife and relatives of First Department employees and set up a former New York City Council member in a no-show job.  In a report dated March 30 and posted publicly on April 2, the commission said the allegations were not established.  On the mortgage matter, the commission found no evidence that Gonzalez made misrepresentations on documents or that he was ever in violation of residency requirements.  Records show that in 2008, he accurately reported his house in Brooklyn as his primary residence. At that time, he obtained a tax break under the New York State School Tax (STAR) program, to which he was entitled. The mortgage and taxes were managed by Union Federal Mortgage Corp., which continued to claim the STAR deduction even after Gonzalez changed his primary residence to the Bronx.  The commission said that Gonzalez "credibly testified" that he was not aware of the tax credit until alerted to it by the New York Post, and promptly refunded $560.  Another allegation centered on Gonzalez's executive assistant, Susan Hernandez.  The Post reported that Ms. Hernandez was apparently working with Roura & Melamed in Manhattan while employed by the court. With few restrictions, full-time court lawyers cannot practice.  But the investigation showed that while Ms. Hernandez had a solo practice before taking the state job in 2010 and shared space with Roura & Melamed, "there is no credible information" to conclude that she engaged in private practice while working as a court attorney.

Similarly, the investigation concluded that there was no truth to allegations that the judge had provided a no-show job to former New York City Councilwoman Maria Baez.  That allegation, which came from a judge who was not identified in the report, apparently resulted from an "erroneous" assumption, the commission said.  According to the report, Baez was hired as a $64,834-a-year court analyst by Gonzalez's assistant in 2010, several months after she lost her election to the council post she had held for seven years.  For family and health reasons, Baez was transferred by the Office of Court Administration to a public safety position in White Plains, records show.  An associate justice of the Appellate Division told the commission in September that Baez was a no-show, but the judge apparently did not realize she was working in Westchester County.  "Maria Baez did not have a 'no -show' job at the Appellate Division or anywhere else in the court system," the commission said.  Ben R. Rubinowitz of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, who represented Gonzalez along with Paul Shechtman of Zuckerman Spaeder, said the probe resulted from "baseless rumor" and insinuation.  "It was really unfortunate that this investigation was based on sources of information that jumped to erroneous conclusions without knowing the true facts," Rubinowitz said.  Rubinowitz said neither he nor Gonzalez know which of the judge's colleagues made the accusation about the alleged no-show job.  "We don't know who it is, but it is troubling that a rumor such as that would come from an associate judge," Rubinowitz said.

'Closed' Hiring Process

While the commission found no evidence of misconduct with relation to any of the allegations it investigated, it strongly criticized the hiring practices used by Gonzalez for filling positions in the First Department.  The commission said that under Gonzalez, and apparently several of his predecessors, hiring was a "closed process" in which vacancies were posted only within the court and in non-public areas.  But the committee said Gonzalez went further by dismantling hiring committees that had been in place under predecessors and moving the process from the court clerk's office to his own chambers.  "A system in which the vast majority of administrative jobs are 'posted' only in internal, non-public rooms of the courthouse, is inherently exclusive, in that it requires an acquaintance, friend, relative or some other connection to the court" even to be aware of a possible opening, the commission said in its report.  It said the "in-house" hiring method results in a system of favoritism and nepotism, undermining "the judicial obligation to make appointments based on merit" and excluding "a vast pool of qualified individuals" who do not have a connection to the court.  The report states that in 2010, 25 administrative positions were filled, six of them with direct family links to people working in Gonzalez's chambers. They include the judge's former wife, a nephew of his executive assistant, a nephew of his prior executive assistant, his secretary's brother and a son and cousin of his driver.

According to the report, Vivian Gonzalez, the judge's ex-wife, worked as a paralegal but in the title of "associate appellate court clerk," a higher grade than her supervisor and at a higher salary, $64,834, than most other paralegals. Ms. Gonzalez, as well as the driver's son and cousin, were among those later laid off following the 2011 budget cuts.  Gonzalez claimed that his hiring practices mirrored those of many prior First Department presiding judges, and in the three other departments of the Appellate Division. He provided a list of about 50 former employees who were hired under different administrations over the last 30 years and "whose relationships with judges and other employees of the court suggest nepotism or favoritism," the commission said.  The commission concluded that hiring practices in the other three departments are not as uniform and transparent as they should be. But it also noted that while there may be similarities between the way hiring is done in the First Department and the other departments, there are also significant differences. It noted that at least two of the departments have "employment opportunities" posted on their websites and at least one has a detailed hiring protocol.  Although the commission did not identify those departments, a review of websites shows that the Third Department in Albany and the Fourth Department in Rochester prominently post job openings on their public websites and the Second Department announces vacancies on the Office of Court Administration's site.  Additionally, Gonzalez's predecessor in the First Department, now Chief Judge Jonathan Lippman, routinely advertised openings outside the court system, in the Law Journal and other sources.  Further, the Second Department has an exhaustive 99-page hiring manual stating policies adopted when A. Gail Prudenti became presiding justice in 2002.  The commission is calling for a high-level examination of hiring in the four Appellate Division departments and the development of guidelines that would include public advertising of job openings, the vetting of applicants by senior staff, and the recusal of employees from the hiring process when the applicant is within four degrees of relationship to the employee or his or her spouse. That would bar employees and officials from involvement in employment decisions involving such relatives as first cousins, grand nieces and nephews and great-great grandchildren.  Prudenti, who is now chief administrative judge, said she has spoken to the four presiding justices about the commission report and scheduled a meeting for April 3 to discuss hiring procedures.  "Each one of the presiding justices agrees that hiring practices and protocols have to be reviewed," she said. "We will have a discussion on what protocols will be put in place."  Rubinowitz said Gonzalez will attend the meeting in Manhattan and is fully supportive of efforts to reform and standardize hiring procedures in the departments.  "The judge waived confidentiality in this report and one of the reasons he did this was to ensure, if he could, a way to make the courts better," Rubinowitz said. "This will allow for uniformity in the court system as far as hiring practices go and the judge fully respects and accepts the recommendations of the commission."  Robert H. Tembeckjian, the commission's administrator and counsel, said the panel last issued a stand-alone report and recommendations on "a substantive matter involving the courts" in 1977, when it criticized ticket-fixing practices in town and village courts.  Tembeckjian said the panel routinely includes recommendations in its annual report. But he said the Gonzalez report is the first separate report the agency has released in 35 years.  John Caher can be contacted at jcaher@alm.com.

CLICK HERE TO SEE RELATED STORY, "Presiding Judge Fights Back Against OCA and Tembeckjian Thugs"