The HRC investigation into president Alphonso David's role in the sexual misconduct scandal that forced Gov. Andrew Cuomo to resign earlier this month was criticized when asked by a reporter about the ethics of a firm leading the investigation that also has a preexisting relationship with HRC .

HRC and Sidley Austin LLP's Previous Relationship

The HRC, one of the largest LGBTQ advocacy organizations in the U.S., launched the investigation into David after employees called for his resignation based on multiple mentions in the extensive New York AG report detailing their investigations into allegations against then Governor Cuomo of sexual harassment and assault from at least 11 women. The report was neither an investigation nor accusation of David. HRC board chair Morgan Cox and HRC Foundation board chair Jodie Patterson announced that law firm Sidley Austin LLP would head up the review as an outside third-party charged with addressing the “very concerning” accusations facing David.

Since then, some have raised questions about Sidley Austin LLP's ability to conduct a true independent review of David due to the firm's relationship with the HRC during David's tenure. In particular, Washington Blade has reported extensively and tracked down multiple legal scholars for comment in addition to basic reporting. Sidley Austin LLP became a prominent legal partner of the HRC in October 2019, shortly after David joined the organization, maintaining what it describes as a “long standing pro-bono relationship” with the HRC.

“When any outside entity is retained to conduct an independent review, it has to be truly independent,” Georgetown Law School adjunct professor and ethics counsel Michael Frisch told the Washington Blade. “To me, if you're going to conduct an independent inquiry. Your bonafides to give independent advice in a report is always subject of concern, and one should be above reproach in those situations.”

Hofstra Univeristy law professor Brenner Fissell described Sidley Austin LLP's investigation as appearing “less than credible” despite it not triggering an ethical conflict of interest since the firm never represented David himself as a client. “If you had previously engaged such counsel, that makes it less independent … this is not good if you want to do a truly independent investigation,” Fissell added.

‘The Inner Circle'

Of course, raising questions about the suitability of Sidley Austin LLP is likely to continue to shine a spotlight on HRC leadership that were sparked by the calls for David's firing the day The AG Report was released, even before many of the facts were clarified by David, reporting by some of the most well-respected news organizations, and others around Cuomo. The report contains multiple mentions of David's contact and support of the team organizing efforts in Cuomo's office after allegations against Cuomo began to surface online in Dec. 2019.

The report found that David provided parts of the personnel file of former Cuomo aide Lindsay Boylan to top Cuomo aide Melissa DeRosa after Boylan went public with allegations of sexual harassment against the now-former governor. Information in that file was subsequently leaked to major news outlets in an effort to discredit Boylan though the parts of the file sent by David he says include nothing about her relationship with the Governor. DeRosa, one of Cuomo's strongest supporter and a key player in strategizing the office's response, herself resigned in the days prior to the governor stepping down.

The AG report also notes David's participation when asked to review an unpublished letter defending Cuomo and discrediting Boylan. He initially declined to sign the letter. But when pushed said he would sign “if needed.” He was not the only potential signatory with qualms and the letter was never sent. David's name once again appeared in connection to discussions of secretly recording a conversation between another Cuomo accuser referred to as Kaitlin and a former Cuomo employee.

If they're truly committed to demonstrating that they want to have an independent investigation, they would find someone else.
Brenner Fissell, Hofstra University Law Professor

The AG report described David as a member of “the inner circle of confidantes … with no official role in the Executive Chamber” involved in forming the response from Cuomo's office. “The common thread among all of these individuals was a proven, personal loyalty to the Governor,” read the report. “Their inclusion in the deliberations and the significant role they had in decision-making reflect how loyalty and personal ties were valued as much, if not more, than any official function or role in State government.”

The naming of David in the AG report sparked calls for his resignation from multiple HRC employees. Other employees and the HRC and HRC Foundation Board of Directors took a number of other positions that fall short of calling for his dismissal. Some acknowledge David's actions as significant and inappropriate, others do not. The two entities announced a new five-year contract for David shortly after the AG report's release.

David continues to deny any wrongdoing in relation to his interactions with Cuomo's office, asserting that his participation was misrepresented. He claimed that he only reviewed a more positive version of the unpublished letter and said his role in talks about recording a conversation with Kaitlin was as a counselor.

Timetable criticized; Open letter implies racism inspiring focus on David

Concerns about the probe's stunted timetable have been highlighted as well. Cox and Patterson stated that investigation into David would be limited to no more than 30 days. Speaking with the Washington Blade, Fissell described the HRC's declared deadline as “artificial” and that it could limit the investigator's findings.

“If they're truly committed to demonstrating that they want to have an independent investigation, they would find someone else,” said Fissell.

David has continued to defend himself publicly during the ongoing investigation, most recently in an open letter collecting supportive statements from his “colleagues and friends” that heralded his work for LGBTQ and BIPOC communities.

An open letter signed “Real HRC Staffers” obtained by the Washington Blade defends David and responds to those employees calling for his resignation, among those are barely disguised accusations of racism, . Among the statements in the open letter are claims that David is being scapegoated and “being made to answer for the behaviors of powerful white men.”

“It is disheartening to see how the leadership of a Black queer man is being criticized by and vilified in the media and within our own organization at a time of racial reckoning in America and globally,” read the letter. “Nothing about Alphonso's past or his current leadership leads us to believe that he would knowingly harm survivors of workplace harassment.”