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Gloria Allred: HRC prez may be liable if found to have aided in Cuomo cover-up

High-profile attorney says taking personnel file violates privacy rights

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Gloria Allred says taking a personnel file after leaving the workplace a violation of privacy rights.

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 โ€” 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. Cuomoโ€™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 Tuesday 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 employeeโ€™s personnel file through New Yorkโ€™s Freedom of Information Law. Further, Allred said New York law “does not expressly state that the entire contents of an employeeโ€™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 coworkerโ€™s personnel files because it likely contains confidential information and doing so may violate that employeeโ€™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 โ€” as part of that effort โ€” 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 โ€” 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.

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Over 100 LGBTQ-themed books in a Florida school district labeled with advisory warning

They warn: โ€œthis book has been identified by some community members as unsuitable for students.โ€

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Advisory Notice (via Twitter)

A southwest Florida district put parental โ€œadvisory noticeโ€ on over 100 books, many of which are race or LGBTQ-themed.ย 

A great number of books in Collier County Public Schools, either digital or physical, now have warning labels writing โ€œAdvisory notice to parents,โ€ according to an NBC report,

The label, tweeted by nonprofit free-speech-promoting group PEN American, states, โ€œThis Advisory Notice shall serve to inform you that this book has been identified by some community members as unsuitable for students. This book will also be identified in the Destiny system with the same notation. The decision as to whether this book is suitable or unsuitable shall be the decision of the parent(s) who has the right to oversee his/her childโ€™s education consistent with state law.โ€ย 

Stephana Ferrell, co-founder of the Florida Freedom to Read Project, which means to fight book banning, told NBC that she had a call from Elizabeth Alves, the associate superintendent of teaching and learning for Collier County Public Schools. In the call, Alves told her that the district added the labels starting in February.ย 

These measures, which Alves described as a โ€œcompromise,โ€ happened after the districtโ€™s legal representative talked with the Florida Citizens Alliance, a conservative group which initiated a โ€œPorn in Schools Reportโ€ project last year. The report included a list of books that โ€œpromote gender self-identification and same-sex marriageโ€ as well as titles that include โ€œindecent and offensive material,โ€ as the group explained. 

Chad Oliver, the Collier County Public Schools spokesperson, on the other hand offered a different story. 

Oliver sent an email to NBC News and said, “Based upon advice from the General Counsel, we placed advisory notices on books about which parents and community members had expressed concern and in accordance with the recently passed Parents’ Bill of Rights Law (HB 241).” 

The law referred by Oliver is also known as the โ€œDonโ€™t Say Gayโ€ law.

According to PEN America, there are 110 labeled books in total, and the list greatly overlaps with the one Florida Citizens Alliance inquired about with Collier County Public Schools.ย 

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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

โ€œIt is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,โ€ Maloney said. โ€œThis legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.โ€

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Biden administration shifts monkeypox vaccine approach amid shortage

Health experts sees new guidance as mixed bag

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The Biden administration has changed its guidance on monkeypox vaccines to enhance availability amid the shortage.

The Biden administration, amid criticism it was slow to act on the monkeypox outbreak and still not meeting the demand for vaccines as the number of cases continues to grow, has announced a shift in guidance for implementation of the shot in an effort to enhance availability.

As the estimated number of monkeypox cases in the United States reaches 8,900, top health officials announced the new move on Tuesday as part of a decision by Secretary of Health & Human Services Xavier Becerra to issue a determination under Section 564 of the Federal Food, Drug and Cosmetic Act to justify emergency use authorization of vaccines. The announcement follows up on the Biden administration’s announcement last week declaring the monkeypox outbreak a public health emergency.

Becerra said in a conference call with reporters the 564 determination and change in approach to vaccines would “boost and strengthen” the Biden administration’s response to monkeypox, which has overwhelmingly affected gay and bisexual men, and “safely accelerates and multiplies our supply of effective vaccines by up to fivefold.”

“Today’s action also reaffirms HHS and this administration’s commitment to using all available resources and capabilities to end the monkeypox outbreak and provide the best possible care to those suffering from the virus,” Becerra added.

The new vaccine approach, which may may be considered minor to non-medical observers, would change injections of the JYNNEOS vaccine from the subcutaneous route (delivery of the vaccine under the fat layer underneath the skin) to the intradermal route (delivery of the vaccine into the layer of skin just underneath the top layer). In theory, that would allow for greater accessibility of monkeypox vaccines as it increases the number of doses from each vial of vaccine.

The change was made amid criticism the Biden administration failed to meet the demand for vaccines during the outbreak and geographic inequity as certain metropolitan areas of the country have more access to vaccines than other places.

As The New York Times reported last week, the Biden administration has faced criticism for not moving quickly enough in acquiring and distributing vaccines, including bulk stocks already owned by the U.S. government manufactured in Denmark by Bavaria Nordic now being given to other clients.

“The government is now distributing about 1.1 million doses, less than a third of the 3.5 million that health officials now estimate are needed to fight the outbreak,” the Times reported. “It does not expect the next delivery, of half a million doses, until October. Most of the other 5.5 million doses the United States has ordered are not scheduled to be delivered until next year, according to the federal health agency.”

Biden officials, nonetheless, touted the numbers of vaccines and tests in response to monkeypox as a positive, acknowledging the 1.1 million vaccines being made available as well as delivery of more than 620,000 of those doses, deployment more than 15,000 courses of the monkeypox treatment and increasing the country’s capacity to administer tests on a weekly basis to around 80,000. Meanwhile, officials also promoted the change in approach in vaccines as means to allow greater accessibility to the shots.

Rochelle Walensky, director of the Centers for Disease Control & Prevention, promoted during the conference call the use of intradermal injections and said they’re “often used for TB skin tests and have been used for other types of vaccines.”

Although Walensky conceded some health care providers “may not be as familiar with intradermal administration” as they are with subcutaneous injection, she said CDC would make additional guidance materials available, including a clinician alert message to the Association of State & Territorial Health Officials, outreach to key clinician partners and an education resource video. The change in guidance, Walensky said, is for vaccine implementation in adults, but children โ€” where single digit monkeypox cases have been reported โ€” would continue to receive vaccination in the traditional subcutaneous approach.

But health experts aren’t responding with overwhelming praise to the decision to change the guidance on vaccine implementation from subcutaneous injections to intradermal injections, expressing concerns the new approach may be insufficient.

Jennifer Kates, director of global health & HIV policy at the Kaiser Family Foundation, was among those saying the change in guidance on vaccine approach was a mixed bag and told the Blade more data is needed to evaluate the effectiveness.

“As we saw with COVID, using these authorities in the context of public health emergencies is an important strategy,” Kates said. “In this case, this step will significantly expand access to vaccines for those most at risk. However, there remain questions about the effectiveness of this approach โ€” real world studies are needed โ€” and challenges to translating vaccines into vaccinations.”

Peter Marks, director of the Center for Biologics Evaluation & Research (CBER) at the Food & Drug Administration, was asked during the conference call with reporters to respond to concerns the change in guidance was insufficient and downplayed the novelty of implementing the vaccines through the intradermal route as “not at all new.”

“In fact, the reason why the Bavaria part of this equation comes from the fact that in Germany, this vaccine was given intradermally originally, in an effort to replicate the original version of the smallpox vaccine,” Marks said. “It’s been given to thousands of people intradermally, so this isn’t the first time it’s been done.”

Walkensky said the intradermal vaccine approach has been implemented amid policies among localities to implement a one-dose approach to the JYNNEOS vaccine through the subcutaneous route. (The D.C. government is one of the jurisdictions that had enacted a one-dose approach amid a vaccine shortage.) There is not data, Walkensky said, to support that approach and “in fact, if anything, there are data saying that that is not protective enough.”

“So by using this alternative strategy of intradermal dosing, not only do we have more doses, but we actually allow people to get two doses in a way that shows immunologic response that’s superimposable from the subcutaneous dosing,” Walkensky said. “So we have more doses, and in fact, we have the ability to doubly vaccinate people so that they get the protection that they need.”

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