The City Council is playing by its own rules in handling sexual harassment complaints — ducking a city audit and bypassing city law on its system for reporting allegations.

The Council frames its bid to retain authority over its sexual harassment prevention and response practices as a longstanding separation of powers issue dating to 2006. Lawmakers’ ongoing battle with the city on the audit issue comes as the Council moves to show it takes sexual harassment allegations seriously — airing complaints against two of its own.

On Monday, the Council’s Committee on Standards and Ethics voted to formally charge member Barry Grodenchik (D-Queens) with violating ethics rules, after an investigation of allegations that he sexually harassed a female staffer over a two-year period.

The committee also voted to start disciplinary proceedings against Councilmember Andy King (D-Bronx) following a preliminary inquiry of multiple allegations that include a complaint of sexual harassment.

Neither lawmaker responded to requests for comment. Grodenchik has said he never intended to make anyone feel uncomfortable.

Meanwhile, Council officials have been in a behind-the-scenes turf battle with the Equal Employment Practices Commission over its attempt to audit the Council’s sexual harassment practices, letters obtained by THE CITY show.

Resistance from Council

The EEPC, an independent office created in 1989 through revisions to the City Charter, last year launched a four-year mission to review the sexual harassment practices at all 141 agencies and offices under its jurisdiction. The commission has encountered significant pushback from the Council.

“While the Council shares the goals of EEPC and is fully dedicated to maintaining a workplace that is free from employment discrimination and harassment, we cannot submit to an audit,” Nicole Benjamin, the Council’s Chief Diversity and EEO Officer, wrote in a Feb. 26 letter.

“EEPC does not have jurisdiction over the Council under the Charter, which does not empower or grant EEPC authority over the Council to audit, review, evaluate and/or monitor the city’s legislative body.”

As a compromise, Benjamin said the Council is willing to work with the EEPC “on a volunteer basis” – which would not require the Council to adopt any of the audit recommendations, even though they’re typically binding.

A letter (text highlighted by THE CITY) sent to the Equal Employment Practices Commission by City Council Chief Diversity Officer Nicole Benjamin. Credit: New York City Council

But in a March 14 reply addressed to Council Speaker Corey Johnson, EEPC Commissioner Malini Cadambi Daniel accused the Council of misreading the charter, reviving an argument the two bodies previously fought in 2015.

“The Council falls squarely within the charter’s definition of an agency under the EEPC’s jurisdiction as its fifty-one (51) elected council members are city officers, and its expenses are paid from the city treasury,” wrote Cadambi Daniel.

She also sent Johnson a 2015 City Law Department memo that confirmed EEPC’s authority over the City Council, which had been challenged by the prior speaker when the commission tried to enforce its recommendations for changes to the Council’s hiring practices.

Cadambi Daniel is one of two commissioners appointed by the City Council, while two others are appointed by the mayor. The fifth commissioner – a chairperson position that has been empty since 2015, as THE CITY recently reported – is appointed jointly.

EEPC officials declined comment, citing the pending audit.

A Council spokesperson reiterated the legal argument for the EEPC’s lack of jurisdiction, and said the Council has arranged for an outside firm to audit its sexual harassment policies and procedures starting this month.

Law Requires Annual Reporting

Last year, the Council also excluded itself from a bill its members passed as part of the 2018 Stop Sexual Harassment in NYC Act. The measure require city agencies to report annually to the Department of Citywide Administrative Services on the number of and resolution of sexual harassment complaints.

On the same day the package of sexual harassment bills passed, the Council voted to amend its own administrative rules to require the speaker to publicly report those same annual sexual harassment numbers and dispositions — which Council officials say accomplishes the same result.

DCAS officials said data for the 2018 fiscal year was submitted by all the agencies, as well as the offices of the mayor, borough presidents, public advocate and comptroller — but not the City Council — raising questions from advocates.

“The Council, which introduced these laws and wants to prioritize eradicating harassment in New York City, should hold itself to the same and potentially higher standards than other agencies and private entities,” said Sarah Brafman, staff attorney at the workplace rights advocacy group A Better Balance. “To the extent these challenges allow the Council to circumvent their obligations, we think it’s not in the spirit of the law and they need to do better and hold themselves to a higher standard.”

Council officials said they exempted themselves from the bill because reporting to DCAS would be inappropriate given the separation of powers between the legislative and executive branch.

“We do hold ourselves to the same standards, which is why the Council passed rules that require the same level of commitment to combat sexual harassment as the laws we passed,” said Jen Fermino, a Council spokesperson. “The Council’s rule-making process has the force of law. Both require hearings and a full Council vote, and both can’t be undone without going through the legislative process.”

Introducing: Rule 2.75b

To comply with its own rules, the Council quietly posted a tally of complaints filed in 2018 to the Feb. 13 page of its online calendar of meetings, in a file bearing the nondescript title “Rule 2.75b complaint report.”

The one-page document, which hasn’t previously been reported on, shows there were six internal sexual harassment complaints received by the Council last year, of which four were substantiated.

It also shows another four complaints were filed by employees of the Council against workers at outside entities, for which an unspecified “action” was taken in each case.

Council officials declined to offer specifics about the cases or to identify employees against whom complaints were substantiated — information the de Blasio administration has also refused to provide, citing concerns about protecting the identity of victims.

The mayor’s office reported five or fewer complaints of sexual harassment in fiscal 2018, according to DCAS officials.

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