Expert: ‘Something Majorly Wrong’ if NJ Must Hire Accused Rapist
TRENTON — A Seton Hall Law School professor who is an expert in employment law said he doesn’t know of any laws preventing top aides to Gov. Phil Murphy from telling him about allegations of rape involving a senior transition and administration official – and that, in fact, a chief executive officer should be told.
“I mean, the reputational consequences for the organization are extreme,” Charles Sullivan said Tuesday in testimony before the Legislative Select Oversight Committee that had been looking into how Murphy’s team handled Katie Brennan’s allegations against Al Alvarez.
Sullivan acknowledged that he isn’t familiar with all of the state’s policies and procedures, which Murphy’s chief counsel and chief of staff have cited as the reason Murphy wasn’t told of Brennan’s assertions until 10 months after they found out. During that period, the state hired Alvarez, decided it didn't have the authority to investigate the matter and let Alvarez remain employed for nearly seven months after being told to leave.
“But I do know that if that were true, that nobody could deal with this problem, then there’s something majorly wrong with the structure because obviously the employer has an obligation to deal with the problem, regardless of what its internal policies and procedures are,” Sullivan said.
Sullivan said he knows of no legal impediment to informing Murphy. He said there was no legal restriction that would have kept the administration from hiring Alvarez, even though criminal charges weren’t filed. And he said the person deciding whether to hire Alvarez should have been informed.
“Doesn’t that person have a quintessential need to know?” Sullivan said.
And he said hiring someone, despite credible allegations of rape, opens the employer up to liability.
“Two kinds, I think. First of all, depending on whether the accuser is in sufficient contact with the accused to contaminate her work environment. That suggests liability under LAD (the Law Against Discrimination) and Title VII (of the Civil Rights Act of 1964),” Sullivan said. “Secondly with respect to potential other women who might be then subject to similar conduct, we’d have a negligent hiring tort.”
“It’s absolutely liable if it doesn’t take reasonable efforts to achieve an appropriate work environment,” he said. “Which means that if it has reason to think that a work environment for a particular woman is contaminated, it has to take reasonable steps to resolve that problem.”
Sullivan said it doesn’t matter if an alleged rape happened before the people were employed by the state, if the two are in sufficiently close contact.
“With this kind of allegation of sexual assault, I don’t think any woman would be unreasonable in not wanting to have any contact with her rapist. And therefore I think any assignment of individuals that would bring them into contact, even occasionally, would contaminate the work environment for a reasonable woman,” Sullivan said.
Assemblywoman Eliana Pintor Marin, D-Essex, who co-chairs the committee, said Sullivan’s testimony “really clarified the dos and the don’ts of what could have happens and what should have happened.”
“The most bizarre thing that we kind of heard earlier today was just that how wrong it was just not to tell him what was going on,” Pintor Marin said.
The committee also heard from Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, who has attended all the oversight panel’s hearings and noted that everyone from the Murphy administration testified that they believed Brennan’s allegations.
“The question that is reigning most important to me is: If you believed Katie Brennan, then didn’t you believe that New Jersey deserved someone better than her perpetrator in our government? Didn’t Katie Brennan deserve someone better than her perpetrator as a colleague?” Teffenhart said.
Teffenhart said the Justice Department reports that for every 1,000 sexual assaults, 230 are reported to police, nine are referred to a prosecutor and less than five perpetrators are incarcerated.
“Background checks don’t work if we’re not holding perpetrators accountable through the criminal justice system,” Teffenhart said.
Teffenhart said anonymous reports should be taken seriously. She said it should be unacceptable for investigators not to interview witnesses told at the time about the assault, as happened in Brennan’s case. She said success should be redefined beyond just conviction rates.
And Teffenhart noted that the Middlesex County Prosecutor’s Office, which was asked to review the decision by Hudson County prosecutors not to bring charges against Alvarez, didn’t follow the recent updates to how sexual assault cases are to be handled, such as contacting Brennan to discuss that it affirmed the decision not to pursue charges.
“And yet still a very new directive wasn’t followed in relation to a very high-profile case. And what does that say about how we treat survivors in New Jersey, and what does that mean for every other survivor that will never be discussed in a room like this or in a courtroom or not be one of the nine that make it to a prosecutor’s desk,” Teffenhart said. “That’s the kind of stuff that makes you want to flip a table.”
Senate Majority Leader Loretta Weinberg, D-Bergen, who co-chairs the committee, said it was “rather outrageous” that the Middlesex County Prosecutor’s Office didn’t follow the new directive and that there should be some consequences for that.
“Those rules are regulations had just been promulgated a couple of weeks before,” Weinberg said. “It was not like six years before, they were lying in some dust-covered book some place. They got a lot of press because of what’s going on right here.”
“All the policies and procedures in the world mean nothing if the people who are supposed to be carrying them out didn’t,” she said.
The committee has now heard nearly 42 hours of testimony from 15 witnesses in eight hearings over nearly three months. Weinberg said the panel will review the day’s testimony before deciding if it will hold another hearing.
Pintor Marin had hoped the committee would wind up its work by the end of February because she also chairs the Assembly Budget Committee. That panel will begin a packed two months of hearings shortly after Gov. Phil Murphy proposes the fiscal 2020 budget next week.
“Once we get all the information that we heard today – really digest it, we talk to each other, we come up with some real ideas – it might go a little longer than what I thought it was going to be,” Pintor Marin said.