Court reinstates job of state executive with ‘history of … sexually inappropriate acts’ – Times Union

ALBANY An appellate court issued a decision Thursday overturning the termination of a former high-ranking state official who was fired from his jobfollowing the release of an inspector general's report that found he had "a history of improper and sexually inappropriate acts" targeting female colleagues.

James "Jay" Kiyonaga was initially terminated from his job as executive deputy commissioner at the Office for People with Developmental Disabilities in May 2018, where he was the second-in-command. A spokeswoman for OPWDD at the time said Kiyonaga was fired due to the findings of the inspector general's office.

But his court case centered on a petition he filed challenging his subsequent termination from a second, fall-back civil service position he held as financial director at the Justice Center for the Protection of People with Special Needs, where much of the alleged misconduct had occurred.

As a result of the appellate division's decision, Kiyonaga is expected to be reinstated to his civil service position with the Justice Center, including back pay and benefits. He was being paid more than $130,000 a year in that job.

"We are pleased with the courts decision protecting the due process rights of state employees like Mr. Kiyonaga," said Michael Hawrylchak, an attorney for Kiyonaga.

The convoluted employment battle unfolded for more than two years beginning in 2018 after Kiyonaga invoked his right to return to his Justice Center position, where he was suspended and eventually terminated by Denise M. Miranda, the director of that office.

In February 2020, a hearing officer dismissed all nine charges that had been filed against Kiyonaga related to his alleged misconduct, much of it involving remarks or his behavior involving female employees. But five months later, Miranda overruled the hearing officer on one of the charges and terminated Kiyonaga after determining he was guilty of official misconduct for an alleged remark to a female colleague.

But the appellate division ruled the state erred because when that charge was served on Kiyonaga it accused him of making the inappropriate remark at an after-hours social gathering outside the workplace. The female employee, however, testified that he made the remark in the workplace.

There were other issues with the state's case. Court records indicate the nine charges filed against Kiyonaga all charging him with official misconduct lacked details such as the identity of the alleged victims and witnesses or the dates and times of the purported misconduct.

The appellate ruling also noted that Miranda had overruled the hearing officer's dismissal of the charges without hearing any testimony in the case, which they characterized as "an abuse of discretion." They also found that Kiyonaga's right to due process was violated.

It's unclear whether the state can appeal the decision or seek to reinstate any disciplinary charges against Kiyonaga, which is unlikely given the statute of limitations governing disciplinary proceedings involving state employees.

The Justice Center is reviewing the decision and evaluating its legal options.

The Justice Center has zero tolerance for any type of workplace harassment," said Christine Buttigieg, a spokeswoman for the office. "Because this matter is ongoing, the agency cannot comment further."

A letter outlining the findings of the investigation by the inspector general's office was sent to Miranda in May 2018.

"My investigation, which involved numerous witnesses who testified under oath, revealed Kiyonaga's history of improper and sexually inappropriate acts towards and comments to fellow staff members and subordinates at the Justice Center," then-Inspector General Catherine Leahy-Scott wrote in the letter. "The specific acts and pattern of conduct described to my office under oath ranging from inappropriate sexual comments and comments about employee's sexual preferences to an unwanted sexual physical contact with an employee are reprehensible and indefensible."

Leahy-Scott, who is now a judge, also said that during the inspector general's investigation "a number of Justice Center employees testified to my office of other inappropriate acts by Kiyonaga in the workplace and at off-site social gatherings with staff members, including sexual comments to and about female employees and unwanted advances towards female staff members."

The Times Union had reported earlier that month that Kiyonaga had been the subject of complaints filed by women at various state agencies through the years, including the Justice Center, the Budget Division and the Division of Criminal Justice Services.

That same month, a U.S. Equal Employment Opportunity Commission complaint was filed by Patricia Gunning, a former high-level attorney at the Justice Center, who cited a "complete failure of the governor's office and the state to deal with this serial sexual harasser and discriminator."

"By September 2017, Mr. Kiyonaga's 15 years in state employ had a consistent pattern," Gunning's complaint stated. "He fostered a boys' club atmosphere in the agencies where he worked. He favored women he found attractive. He retaliated against women who complained."

Gunning's complaint alleged Kiyonaga engaged in repeated sexual harassment, favored or promoted women who "were a willing recipient of his sexual advances," and "distorted Justice Center policy to accommodate his romantic liaison."

The EEOC complaint enabled Gunning to subsequently file a federal lawsuit against Kiyonaga and the Justice Center. That case is pending.

In an interview Thursday afternoon, Gunning said that the decision by the appellate division does not vindicate Kiyonaga and that his termination was "reversed on a technicality."

"In my reading of the transcripts, it appears that it was poorly handled by the Justice Center and now these women are faced with the possibility of him returning to their workplace," Gunning said. "Its not that hes been exonerated on the merits."

In 2012, several female employees at DCJS filed a complaint about inappropriate and sexually charged conversations that took place in Kiyonaga's 10th-floor office. Wanda Troche, a former affirmative action officer for the agency, told the Times Union four years ago that her investigation was overtaken by the agency's human resources director andfirst deputy commissioner.

Troche said she later was told that a sealed envelope apparently documenting something about the case she wasn't told what it contained -- was placed in Kiyonaga's personnel file.

Troche, who retired from the agency in 2015, said the incident was part of a pattern in which the agency's human resources director intervened in matters involving high-level appointees such as Kiyonaga, who transferred to another state agency not long after the incident.

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Court reinstates job of state executive with 'history of ... sexually inappropriate acts' - Times Union