Gloria Allred. (Photo by kathclick via Bigstock)
High-profile attorney Gloria Allred, responding to questions about the Human Rights Campaign president’s links to the Andrew Cuomo scandal, said taking an employee’s personnel file after leaving a place of employment would be a violation of privacy rights — and Alphonso David could be individually liable if a court found he aided in disseminating that information to the media.
“Mr. David may be individually liable under New York law if a court determines that he did in fact ‘aid and abet’ Gov. Cuomo in retaliating against Ms. Boylan by providing Gov. Cuomo’s aides with a copy of her personnel file to leak to the media,” Allred said.
Allred, the Los Angeles-based women’s rights attorney known for taking high-profile cases and the lawyer for three of the women accusing Cuomo of sexual harassment, made the assertions Aug. 10 via email in response to inquiries from the Washington Blade on David’s presence in the New York attorney general’s damning report, which found Cuomo violated the law by sexually harassing as many as 11 women in his office.
Asked by the Blade whether she’s aware of any New York State or federal law, policy, regulation, rule or ethics guidance against taking personnel files and whether David’s actions as described in the report would violate that, Allred said she’s not aware of any such law or rule for a departing public entity employee, but didn’t stop there.
“I would argue that doing so may be violative of the privacy rights of the employees whose personnel file was taken,” Allred said.
Allred conceded public sector employees generally may have fewer privacy protections than a private sector employee, pointing out the public may request a public sector employee’s personnel file through New York’s Freedom of Information Law. Further, Allred said New York law “does not expressly state that the entire contents of an employee’s personnel file is ‘confidential.’”
Nonetheless, Allred said personnel files typically contain confidential information under New York law, including personal identifying information like social security numbers, home addresses, telephone numbers, personal electronic mail addresses, internet passwords, confidential medical information/history protected by HIPAA.
Disciplinary records, Allred added, may also be included in this category of confidential information “depending on a number of factors.”
“Thus, I would argue that a departing employee should not keep copies of a coworker’s personnel files because it likely contains confidential information and doing so may violate that employee’s privacy rights,” Allred concluded.
According to the New York attorney general’s report, Cuomo aides sought to distribute unflattering material from the personnel file for Lindsey Boylan, who made sexual harassment accusations against him, in an attempt to discredit her. One aide — as part of that effort — reached out to David in December 2020, after David had left the governor’s office as counsel and was serving as Human Rights Campaign president, and asked for the “full file” for Boylan, the report says.
David, according to the report, took material from a separate, unrelated employment incident unflattering to Boylan, and arranged for the material to be given to Cuomo. The report doesn’t explicitly say David participated in efforts to distribute that material to the media, which was revealed to be an incident of alleged racial discrimination. David has denied all wrongdoing.
Allred, however, said Boylan can argue that she experienced illegal retaliation in violation of New York State law because she believes the AG office sent her personnel file to the media — and David could be in trouble if a court found he helped with that effort. Allred concluded David may be “individually liable” if a court found he was engaged in efforts to leak personnel material to the media.
The Human Rights Campaign, which announced on the day after the report was released that David’s contract as president has been renewed for five years, has stood by him, but announced it has hired the law firm Sidney Austin LLP to conduct an independent investigation of the matter that will take no longer than 30 days.
A representative for David, asked by the Washington Blade to respond to Allred’s assertions, denied the underpinnings on which they were made, saying the Human Rights Campaign president didn’t take a “personnel file.”
“David did not take any employee’s ‘personnel file’ as suggested,” the representative said. “This claim arises from blatant misinformation concerning Mr. David’s role in the Cuomo investigation. Mr. David did keep a copy of a memorandum concerning a matter he worked on because it was, in part, his work product (which is entirely permissible and standard practice for many).”
The legal representative added “to be absolutely clear,” as David has said before, he was required to produce the memo pursuant to rule 1.16 of the rules governing legal counsel.
“He did not provide any documents to the media concerning any Cuomo accuser,” the representative said. “This insinuation is categorically false and is not supported by any finding in the Attorney General’s investigation.”
Allred, asked to respond to those refutations, made clear she never said David undertook those actions in responding to the Blade’s question on his actions as described in the New York attorney general report.
“I never stated that Mr. David provided any documents to the media concerning any Cuomo accuser, nor did I ever state that Mr. David took any employee personnel file or records,” Allred said.
The situation with David continues to leave the Human Rights Campaign in turmoil After a tense staff meeting last week, another meeting with David, the board and staff took place over the phone on Tuesday that was emotional and confrontational, sources familiar with the meeting told the Blade.
David spoke at the beginning, reiterated his denial of wrongdoing, was emotional, but mostly stepped aside so others could talk, sources said. Michael Vazquez, an HRC staffer who has worked on faith organizing for the LGBTQ group, announced he is leaving, citing a culture of bullying and harassment, sources said.
A representative for the Human Rights Campaign, asked to comment on the meeting, confirmed it took place, but said it was a regularly scheduled staff meeting.
It’s unclear whether the situation will have any major impact on the ability of the nation’s leading LGBTQ group to conduct its mission, or whether its fundraising efforts have suffered, which could lead to layoffs for an organization already experiencing high turnover.
The HRC representative referred the Blade to an earlier statement on the matter when asked about changes in fundraising or plans for layoffs.
“This investigation will in no way hinder the organizations’ continued pursuit of the critical work necessary to bring equity and liberation to the LGBTQ+ community,” the representative said.
Allred, in addition to representing women in sexual assault cases, has been an advocate for LGBTQ rights and represented a same-sex couple in California that won marriage rights in the state in 2008 before they were taken away by Proposition 8 and later restored by the U.S. Supreme Court.
