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‘Less than credible’: Investigation of HRC prez dismissed as conflict of interest

Sidley Austin LLP has pre-exisitng relationship with LGBTQ group

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hate crimes, gay news, Washington Blade

After a damning report on sexual misconduct allegations that forced Andrew Cuomo to resign as governor of New York and that ensnared the Human Rights Campaign president for having a potential role in the cover-up, the nation’s leading LGBTQ group has arranged for a law firm to conduct an independent review of its president’s role in the scandal — but legal experts see a conflict of interest looming over the process.

Sidley Austin LLP, the law firm chosen to conduct the review, has a self-described “long standing pro-bono relationship” with the Human Rights Campaign and was chief among its legal partners announced in October 2019 for a new direction to litigation in LGBTQ advocacy, which was an engagement David undertook when he took the helm as president.

In fact, Sidley issued a news statement hailing its participation in the agreement with the Human Rights Campaign and six other law firms, which Sidley described as an “alliance” designed to “help shape state and federal laws, regulations and policies and the application of constitutional principles.”

“We’re looking forward to working with the Human Rights Campaign on strategic litigation that will take on discriminatory measures targeting LGBTQ people,” Carter Phillips, partner at Sidley, is quoted as saying in the statement. “HRC is a long-standing pro bono client and this next stage of collaboration reinforces Sidley’s deep commitment to advocating for diversity and equality.”

As a result of the 2019 announcement, which was brokered soon after David took the helm of the Human Rights Campaign, some legal experts see a conflict of interest that undermines the perception of impartiality in Sidley’s ongoing review and could color any finding of no wrongdoing, which would arguably be in the interests of all parties involved in the review.

Brenner Fissell, a law professor who teaches legal ethics at Hofstra University in Long Island, N.Y., told the Blade the independent review Sidley is undertaking “appears less than credible.”

“This is not even a relationship where they engaged them once,” Fissell said. “Sidley in the press release calls HRC a long-standing pro bono client, and they’re also doing PR for them. I mean, they’re really inextricably connected, right?”

The imbroglio with the Human Rights Campaign president began when New York Attorney General Letitia James issued her report finding Cuomo violated the law by sexually harassing as many as 11 women on the job. David, who before taking over as Human Rights Campaign president was counselor to the governor of New York, was named nearly a dozen times in the report.

David has continued to deny wrongdoing. However, the findings indicate after his tenure as counselor to Cuomo, he kept the personnel file of an employee accusing the governor of sexual misconduct, then assisted in returning that file to Cuomo staffers seeking to leak it to the media in an attempt to discredit her. (A representative has disputed the characterization of material David kept as a personnel file, saying it was memorandum on an internal employment matter David kept because he, in part, worked on it.)

Further, the report finds David allegedly said he would help find individuals to sign their names to a draft op-ed that sought to discredit the survivor but went unpublished, although he wouldn’t sign the document himself. Also, the report indicates David was involved in the discussions about secretly calling and recording a call between a former staffer and another survivor in a separate effort to smear her.

In response, David said he agreed to help with only one version of the letter that was more positive in nature and his part of the discussion about recording a survivor was limited to his role as counselor.

Although the Human Rights Campaign board has stood by David and announced on the day after the report came out it has renewed his contract for another five years, last week it announced an independent investigation to resolve the matter. The investigation would be conducted by Sidley and last no longer than 30 days. David has publicly endorsed the review.

But the pre-existing close relationship between Sidley and the Human Rights Campaign has left some legal observers questioning the merits of the investigation.

Fissell said no ethical rules are in place for conducting independent investigations per se, especially because Sidley has never represented David before as a client. As a result, Fissell said there is likely no technical violation of ethics rules over conflict of interest in this scenario.

The only real framework for independent investigations that could be a model of the review for this situation, Fissell said, is found in the handbook for the U.S. Securities & Exchange Commission. Among the factors considered in such investigations, Fissell said, is whether outside counsel conducting the review had previously done work for a company or if management previously engaged such counsel.

“If you had previously engaged such counsel, that makes it less independent,” Fissell said. “So the answer to your question is, this is not good if you want to do a truly independent investigation.”

Fissell also questioned why 30 days was selected as the time limit for the investigation, which he said seems artificial and could limit findings.

Sidley didn’t respond to repeated email requests from the Blade for answers to a series of written questions on the independent investigation and its pre-existing relationship with the Human Rights Campaign, including whether or not Phillips, the attorney quoted in the news statement would participate in the ongoing review.

A Human Rights Campaign representative, however, responded to similar inquiries from the Blade with a series of bullet points essentially denying any conflict of interest and standing by the decision to charge Sidley with the investigation.

The representative in the bullet points said the Human Rights Campaign chose Sidley “because of its vast experience in internal investigations and reviews” and is “grateful that Sidley has always represented us on a pro bono basis, including in this matter.”

“Sidley has not represented HRC on any matter related to any of the issues in the current internal investigation that Sidley is conducting,” the representative said.

The Human Rights Campaign representative said Sidley is one of many firms that has worked for the LGBTQ organization, but has “never represented Alphonso David on any matter.” In conducting the investigation, the representative said Sidley reports to an independent Board of Directors for the Human Rights Campaign.

Michael Frisch, an ethics counsel and adjunct professor at Georgetown Law School, told the Blade a law firm being charged with conducting an investigation for an entity after having a previous relationship with it is “always potentially a problem.”

“When any outside entity is retained to conduct an independent review, it has to be truly independent,” Frisch said. “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.”

Frisch, asked if the potential for a conflict is present in Sidley’s investigation of the Human Rights Campaign president, said he couldn’t directly opine on that without knowing all the details about the situation.

“You analyze any conflict of interest from the point of view of is there a substantial risk that the lawyers’ advice will be colored by some interest, other than the client who’s getting the advice,” Frisch said. “The magic language in the rule is substantial risk of material limitation, that’s essentially the test. Every client is entitled to independent advice.”

Asked if a law firm like Sidley could take any internal steps to mitigate the appearance of conflict of interest while continuing to conduct an independent investigation, Frisch said those options, such as walls or ethical screens, aren’t in play here.

“Those kinds of mechanisms to defeat conflicts don’t sound like they’re applicable in this kind of situation because it doesn’t really sound like client-client conflicts,” Frisch said. “A report is not like litigation in that there are parties and opposing counsel and things of that nature that you would have obligations to.”

Frisch concluded: “So that’s where I kind of get back to the key is is it a truly independent report, and if the drafters of the report are compromised by other interests, that always leaves the report open to criticism on that basis.”

A representative for David, who previously pushed back on conclusions of wrongdoing by David based on the report, didn’t respond to a request for comment for this article. Meanwhile, David’s mention in the AG report continues to leave the nation’s leading LGBTQ group in turmoil. Amid reports staffers have called on David to resign, lesbian tennis legend Martina Navratilova — who has previously come under fire for views against transgender women in sports — publicly called for David’s resignation in a podcast interview with the progressive news outlet Raw Story.

Last week, David posted to his Twitter account an open letter from “colleagues and friends” in support of him. Days later, the Blade was forwarded an open letter from “Real HRC Staffers” addressing a separate “communication” that went out from other employees calling for David’s resignation. The open letter asserts David is being unfairly maligned and calls for signatures in support of his presidency.

“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,” the letter said. “Worse, is to witness the scapegoating of Alphonso and others who are now being made to answer for the behaviors of powerful white men.”

Fissell, meanwhile, told the Blade the Human Rights Campaign would be better suited going elsewhere for a law firm to conduct the investigation if it wanted real answers about its president in the Cuomo affair.

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

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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.

“It is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. “This 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.”

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 and children — where single digit monkeypox cases have been reported — 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 emulate 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 — real world studies are needed — 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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CDC echoes call for MSM to limit sex partners in monkeypox guidance

Controversial guidance also issued by WHO

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CDC is calling on men who have sex with men to limit their sexual partners.

The Centers for Disease Control & Prevention is now echoing the controversial call for men who have sex with men to limit their sexual partners amid the monkeypox outbreak.

The agency made the call as part of new comprehensive monkeypox guidance issued on Friday, which lists “limit your number of sex partners to reduce your likelihood of exposure” as among several ways to reduce risk, with vaccination at the top of the list.

Vaccination is an important tool in preventing the spread of monkeypox,” the guidance says. “But given the current limited supply of vaccine, consider temporarily changing some behaviors that may increase your risk of being exposed. These temporary changes will help slow the spread of monkeypox until vaccine supply is adequate.”

The call to limit partners was previously made by the World Health Organization and has been controversial as observers say it may stigmatize sex among gay and bisexual men, who are disproportionately affected by monkeypox.

Demetre Daskalakis, deputy director of the White House task force on monkeypox, outlined the new guidance on Friday in a conference call with reporters.

Asked by the Washington Blade whether the Biden administration agrees with WHO about the need for men who have sex with men to limit their sexual partners, Daskalakis alluded to the multi-faceted aspects of the CDC guidance.

“It mentions that folks should consider reducing multiple partners and anonymous new partners as one strategy to prevent exposure to monkeypox,” Daskalakis said. “So I think really, there’s a broad range, and I think one of the things that’s really important about the CDC guidance is it’s designed to really meet people where they are and see what we can do to have individuals to create their own prevention plans, understanding that there’s not one answer for preventing monkeypox, that it requires a lot of domains to really achieve the goal of preventing new infections.”

Vaccinations for monkeypox are a key component of the CDC guidance, even though the limited availability has not kept up with the growing demand for the shots as the outbreak continues. Daskalakis conceded on the call there is “supply and demand mismatch” for vaccines, but maintained the Department of Health & Human Services announcement declaring monkeypox a public health crisis would be a tool to address the shortage.

A key concern among reporters on the call was the Biden administration not emphasizing the disease is almost exclusively at this point affecting gay and bisexual men, as well as concerns about stigma and misinformation about monkeypox.

Daskalakis, drawing on his experience as a medical expert during the HIV/AIDS crisis, emphasized stigma should play no part in messaging.

“I know from my own experience in public health and personally that stigma is actually what drives so much of infection and really creates false starts and false information that really gets people to go down paths that end up really vilifying people’s lives and behavior,” Daskalakis said. “And so, coming from the experience, both professionally and personally, it is my mission, to not allow stigma to be a part of this or any response that I work on.”

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