Baer Hearing 010518

588
1 STATE OF NEW YORK COUNTY OF TOMPKINS

2 _______________________________________________
3 IN THE MATTER OF DISCIPLINARY CHARGES AGAINST
4 KAREN BAER
5 PURSUANT TO SECTION 75 OF THE CIVIL SERVICE LAW
6 OF THE STATE OF NEW YORK
7 _______________________________________________
8
9 HELD ON: January 5th, 2018 (continuation)
10 HELD AT: Tompkins County Health Department
Brown Road, Ithaca, New York
11
12 HELD BEFORE: MURRY SOLOMON, Hearing Officer
5264 Westhersfield Road
13 Jamesville, NY 13078
murrysolomon@gmail.com
14
15 FOR TOMPKINS COUNTY:
JOHN MCCANN, ESQ., HANCOCK ESTABROOK
16 1500 AXA Tower I, 100 Madison Street
Syracuse, New York 13202
17 jmccann@hancocklaw.com
18 FOR MS. BAER:
ZOE SALZMAN, ESQ.
19 ANDREW G. CELLI, JR., ESQ.
EMERY CELLI BRINCKERHOFF & ABADY, LLP
20 600 Fifth Avenue, 10th Floor
New York, NY 10020
21 zsalzman@ecbalaw.com
22
REPORTED BY: DELORES HAUBER
23 Shorthand Reporter
Notary Public
24
VERBATIM REPORTING & VIDEO

(800) 368 - 3302
589
1 (HEARING OFFICER EXHIBITS NUMBER 6

2 AND 7 WERE MARKED FOR IDENTIFICATION.)
3 HEARING OFFICER: What I've received
4 at the request of counsel for the accused
5 is Hearing Officer's Exhibit 6 which was in
6 fact a motion for, amongst other things, a
7 change of venue, a motion to dismiss
8 that's marked and entered into evidence as
9 Hearing Officer Exhibit 6.
10 Hearing Officer Exhibit 7 was my
11 response to that particular motion. Both
12 of those are entered into the record and
13 we're ready to begin.
14 MR. MCCANN: Yes. I would just note
15 for the hearing, Mr. Hearing Officer, that
16 you made your decision on that motion
17 before receiving a response from me, that's
18 why there is no document from our side on
19 that. The motion was denied.
20 HEARING OFFICER: Right. So the
21 record reflects, I wanted to, I didn't know
22 when you would send your answer exactly.
23 MR. MCCANN: I have no argument with
24 that at all. I just wanted to add that for
MICHAEL LANE by MR. MCCANN 590
1 the record why there was no document for

2 that.
3 HEARING OFFICER: Sure. So I wanted
4 to get my response out so we knew in
5 advance of this hearing. Mr. Lane is up
6 again for redirect examination as I
7 understand it. We won't re-swear him.
8 I'll just remind him that he remains under
9 oath.
10 MR. LANE: Yes.
11 REDIRECT EXAMINATION BY
12 MR. MCCANN:
13 Q Good morning, Mr. Lane.
14 A Good morning, Mr. McCann.
15 Q I'd like to direct your attention to --
16 MR. MCCANN: Mr. Hearing Officer, if
17 you could provide him with Respondent's
18 Exhibit G.
19 A The fan is a little noisy.
20 HEARING OFFICER: E being the
21 progressive disciplinary civil service
22 policy.
23 MR. MCCANN: Yes.
24 Q Mr. Lane, you were asked questions on
1 direct examination about this particular

2 document.
3 A Yes.
4 Q And I believe you indicated at the outset
5 of your testimony you had never seen this before.
6 Do you recall that testimony?
7 MR. CELLI: Objection.
8 A I do and that's correct, I hadn't.
9 HEARING OFFICER: Overruled. I'm
10 going to move the hearing along.
11 MR. CELLI: Absolutely.
12 Q I believe you went on to say that you
13 thought this reflected a policy of the county?
14 A I did.
15 Q Upon reviewing this document more fully
16 in the intervening time since the last day of
17 hearing, do you have a better sense of what this
18 document is?
20 HEARING OFFICER: Overruled.
21 A Yes, I do. Actually it's a printout of a
22 PowerPoint presentation which I understand is
23 being used at the, our Human Services department,
24 what used to be called our personnel department.
1 It has to do with progressive discipline. Very

2 often to let employees know what we strive to do
3 often. It's not, it's not something that is done
4 in every case. Particularly it's to advise blue
5 collar workers of what would happen if there was
6 a grievance or complaint.
7 Q Is this a formal policy of Tompkins
8 County?
10 HEARING OFFICER: Overruled.
11 A It's not a formal policy, but something
12 that is produced by the personnel department.
13 Q I'd like to direct your attention to a
14 portion of the PowerPoint that was not pointed
15 out to you during the course of direct
16 examination, in particular to slide 3 of the
17 PowerPoint.
18 A Yes, sir.
19 Q Would you read the last sentence of slide
20 e of the PowerPoint?
21 A Not all situations warrant progression.
22 Q And is that in a different type face than
23 the rest of the document?
24 A It appears to be bold face.
1 Q Is there a further reference in the next

2 slide to how different situations are treated
3 differently?
4 A Yes. At the end of the next slide it
5 says: "Though every situation is unique,
6 Tompkins County strives towards fairness and
7 consistency when implementing discipline. And I
8 think that's the case. Each case is unique.
9 Q Thank you. Mr. Lane, I would like to
10 direct your attention now to --
11 HEARING OFFICER: Excuse me for
12 interrupting. The reason I was, I think
13 you deserve a reason, Mr. Celli, as to why
14 I was overruling you. I just want to state
15 I think this is an important document from
16 your point of view and I wanted to be sure
17 I understand it, so I allowed those
18 questions on that particular document.
19 MR. CELLI: I appreciate the
20 explanation. I guess what I would say is
21 it's not really necessary. I understood
22 the ruling. Perhaps to move things along,
23 rather than having a colloquy every time,
24 if somebody wants to have a discussion with
1 the court, we can do that. I appreciate

2 that, but I understood your ruling and I
3 was prepared. I was making a record as I
4 have to of my objection.
5 HEARING OFFICER: Understood.
6 MR. MCCANN: What is the basis for
7 it?
8 MR. CELLI: There were leading
9 questions, there were mischaracterizations
10 of testimony. This is what happens when
11 you have a one month break between
12 somebody's direct examination.
13 MR. MCCANN: We have a transcript,
14 Mr. Celli. It's not a mischaracterization.
15 HEARING OFFICER: Let me interrupt.
16 Let's move it along. I understand both
17 sides. There is no reason to continue.
18 MR. CELLI: I agree.
19 (CHARGING PARTY EXHIBIT NUMBER 20 WAS
20 MARKED FOR IDENTIFICATION.)
21 MR. CELLI: Is this is a new document
22 in the case?
23 HEARING OFFICER: Off the record.
24 (OFF-THE-RECORD DISCUSSION.)
1 Q Mr. Lane, I show you a document marked

2 for identification as Charging Party Exhibit 20.
3 Can you identify that document?
4 A Yes, I can.
5 Q What is that?
6 A This is a letter from myself as chair of
7 the legislature and Daniel Klein, as the vice
8 chair, to Karen Baer dated June 17, 2016 marked
9 personal and confidential.
10 Q What was the purpose of that letter?
11 A It was to advise her that the
12 investigation that had been performed by Edward
13 Hooks as to her allegations had been made
14 available to the members of the Tompkins County
15 legislature and we're trying to bring the matter
16 to a conclusion. At that point Mr. Hooks' role
17 was completed. And we were telling Ms. Baer that
18 if she wanted to produce any other evidentiary
19 material, she should do that within 60 days. If
20 she didn't provide that information, we would go
21 ahead to make a determination based on the report
22 independently.
23 MR. MCCANN: I would offer Charging
24 Party Exhibit 20 into evidence.
1 MR. CELLI: No objection.

2 HEARING OFFICER: Received into
3 evidence.
4 Q Mr. Lane, if you will keep that in front
5 of you. There is a reference in the second
6 paragraph of this letter to e-mails that Miss
7 Baer had sent.
8 A Yes, sir. There is an e-mail, referenced
9 by e-mail dated May 13th, 2016 that took issue
10 with the investigation conducted by Mr. Hooks and
11 declined to do so. That was provided in other
12 materials.
14 Q Mr. Lane, I direct your attention now to
15 Respondent's Exhibit A.
17 you can provide him with that. There's
18 another document.
19 HEARING OFFICER: You said
20 Respondent's A?
21 MR. MCCANN: I did. Make sure it's
22 the same one as mine. Mr. Hearing Officer,
23 I need to take a look at the documents in
24 evidence.
1 HEARING OFFICER: Do you need a five

2 minute break or something?
3 MR. MCCANN: Two minutes would do it.
4 (RECESS TAKEN.)
7 Q Mr. Lane, I'm showing you a document that
8 I marked as Charging Party Exhibit 21. Can you
9 identify this document?
10 A This is an e-mail from Karen Baer dated
11 July 6, 2016 to members of the county
12 legislature, including me.
13 Q I direct your attention now to Charging
14 Party Exhibit 11.
16 you can provide that?
17 MR. CELLI: Number 11?
18 MR. MCCANN: Yes.
19 HEARING OFFICER: Charging Party 11
20 is placed before the witness.
21 Q Mr. Lane, Charging Party 11 is in
22 evidence. It's a letter that you sent to Karen
23 Baer regarding the ban the box efforts and
24 complaints she had made.
1 A Yes. She raised that, those issues in

2 her e-mail I just identified and this was a
3 response from me as chair to her saying that we
4 took very seriously the allegations she made and
5 asked her to provide whatever evidence she could
6 to support that, those claims of discrimination
7 or retaliation, and asking her to specifically
8 identify the evidence or other support she
9 believed she had for her allegations in the July
10 6th claims. It advised her if she did not
11 provide support for these claims, the legislature
12 will make a determination on the merits based on
13 the information known to the legislature.
14 Q And Charging Party 21, that is the e-mail
15 reference to Charging Party 11?
16 A Yes.
18 Party 21.
20 HEARING OFFICER: Admitted in,
21 Charging Party 21.
22 Q I'd like to direct your attention now to
23 Respondent's Exhibit H.
24 HEARING OFFICER: That's before the
1 witness.
2 A Okay.
3 Q Mr. Lane, this is in evidence. It's your
4 letter dated June 17, 2016 to Miss Baer to give
5 her the opportunity to submit additional
6 information in response to her concerns regarding
7 the Hooks' investigation within 60 day. Is
8 Respondent Exhibit H the document you received in
9 response to that letter?
10 A Yes. This is what we received via an
11 e-mail to me. This e-mail raised quite a number
12 of other allegations and we had been at the
13 legislature trying to determine from the Hooks'
14 report and a review by the full legislature of
15 the Hooks' report whether those allegations
16 originally made were valid. We also started to
17 look at ban the box matter as part of that part
18 of the investigation. But when we got this with
19 the additional allegations, it became very, very
20 clear that we needed to have even further
21 investigation done.
22 Q I direct your attention particularly
23 to --
24 HEARING OFFICER: Excuse me, just so
1 I'm clear, the further investigation became

2 then the Taylor investigation?
3 A Yes.
4 Q Now Ms. Baer raises a number of concerns
5 in this particular e-mail over the Hooks'
6 investigation. She introduces the paragraphs
7 with italics. She indicates that the
8 investigator misled her about his role in the
9 process. She goes on to say that the process was
10 unprofessional and the investigator failed to
11 follow standard due process protocols and a
12 number of other concerns over the Hooks'
13 investigation. In response to that e-mail from
14 Ms. Baer, did the legislature correspond again
15 with her?
16 A I believe I sent her a letter.
17 Q Direct your attention to Respondent
18 Exhibit I. Is Respondent Exhibit I the document
19 you sent to Ms. Baer in response to her August
20 26, 2016 e-mail?
21 A Yes, it is.
22 Q What was the purpose of Respondent's
23 Exhibit I?
24 A We wanted to make sure she knew that we
1 had completed our investigation and review of the

2 Hooks' report and that we also had begun looking
3 at the allegations presented in her letter, in
4 her e-mail of the 26th of August, which is what I
5 just described. And we were affording her an
6 opportunity to support her claims by presenting
7 any additional evidence within ten days. And if
8 there was evidence that led to any kind of a
9 different conclusion, we would be glad to receive
10 it.
11 HEARING OFFICER: Let me interrupt
12 just a second. The Hooks' report was
13 prompted by issues between Miss Pryor and
14 Ms. Baer, do I have that correct?
15 A Well, that was some of it, yes.
16 HEARING OFFICER: And then Mr.
17 Taylor's report was prompted by allegations
18 of being not put on about ten committees in
19 retaliation.
20 A Yes. Basically what was in this exhibit
21 of which was the August 26th e-mail.
22 HEARING OFFICER: Excuse me.
23 Q Just to make sure we're clear on this,
24 Mr. Lane, let me direct your attention back to
1 Respondent's Exhibit A.
2 A Yes.
3 Q In particular to -- I'm sorry, put that
4 one aside. If you would read the first paragraph
5 of your September 12th, 2016 letter to Ms. Baer,
6 Respondent's Exhibit I.
7 A In our June 17th, 2016 letter, we
8 informed you that Mr. Hooks' role in
9 investigating this matter is completed and
10 invited you to submit any evidentiary materials
11 you believe the legislature should review. Your
12 August 26, 2016 e-mail attacking Mr. Hooks'
13 investigation is misdirected and was anticipated
14 that the legislature would fully consider any and
15 all evidentiary materials you care to submit and
16 would itself evaluate the quality and
17 completeness of the investigation conducted by
18 Mr. Hooks in light of evidentiary materials
19 presented by you.
20 Q Would you read the second paragraph as
21 well?
22 A Your August 26, 2016 e-mail continues a
23 practice of making very serious allegations of
24 bias and misconduct without ever presenting the
1 evidentiary support you insist you have for your

2 claims. This is not acceptable. We reject your
3 premise that this is a flawed process or that
4 you're not being afford due process. The
5 legislature will make an independent review of
6 this matter and not consider itself bound by the
7 findings of fact or conclusions set forth in the
8 Hooks' report if conflicting evidence is
9 presented by you.
10 Q Did Ms. Baer provide any additional
11 evidence in response to your September 12, 2016
12 letter?
13 A No.
14 Q What action, if any, did the legislature
15 take following the September 12, 2016 letter to
16 Ms. Baer?
17 A When we did not receive anything
18 additional from her, we made a complete review of
19 the Hooks' report and the record. And when I say
20 complete review, that means all 14 legislators
21 actually reviewed all of it. And it was a
22 lengthy report, lengthy attachments and we did
23 that. I confirmed with the legislators that they
24 all read it. I did it myself so that we were
1 fully familiar with the report, the findings and

2 the proposed conclusions.
3 Q Did you review any and all information
4 presented by Ms. Baer to Mr. Hooks?
5 A Yes.
6 Q Why did you as the legislature consider
7 it necessary to conduct your own independent
8 review?
9 A Well, because of the August 26 e-mail and
10 other things that had been brought to our
11 attention that claiming the Hooks' process was
12 flawed. One allegation that troubled us a lot
13 was the fact that there was an allegation that he
14 fell asleep during at least one of the
15 interviews. Mr. Hooks is in a wheelchair. He is
16 a very distinguished lawyer in Tompkins County.
17 And we felt that if that had happened, we needed
18 to take a look at the entire process including
19 the entire record to make sure his conclusions
20 were accurate. And we did find in that that he
21 had given all the people he had interviewed the
22 opportunity to review their testimony as he had
23 written it down and make revisions and
24 corrections.
1 MR. CELLI: I'm going to object and

2 move to strike the last part of that answer
3 only because it's hearsay.
4 HEARING OFFICER: I'll allow it. And
5 I understand and you understand that in an
6 administrative hearing I can do that.
7 Q Upon your own review of the Hooks'
8 record --
9 A Yes.
10 Q -- did you see witnesses were given an
11 opportunity to revise their --
12 A I did.
13 Q Revise their statements?
14 A I did.
15 Q And was Ms. Baer given an opportunity?
16 A Yes.
17 Q Did she in fact submit additional
18 information to Mr. Hooks providing what she
19 thought was a more accurate statement of what she
20 had told him during the course of the interview?
21 MR. CELLI: I'm going to object to
22 this, also. I don't know how this witness
23 can possibly know the answer to that
24 question. He can testify to what he
1 reviewed, but as to what Miss Baer thought

2 and whether she believed it was sufficient
3 and all those sorts of facts.
4 HEARING OFFICER: I thought the
5 question went to did Ms. Baer submit,
6 that's what I thought your question was.
7 MR. MCCANN: Yes.
8 HEARING OFFICER: And I think did Ms.
9 Baer submit anything to Mr. Hooks when he
10 inquired as to if people had anything
11 further to add?
12 A Yes, and that showed in the report.
13 HEARING OFFICER: I'm sorry.
14 A That showed in what I read.
15 HEARING OFFICER: I think the
16 question, as I understand it, would have
17 been do you know did Ms. Baer submit,
18 Mr. Hooks said if there is something
19 further, Ms. Baer or the other witnesses,
20 here is what I found. Please let me know
21 and the question is did she present
22 something further to Mr. Hooks.
23 A Yes.
24 HEARING OFFICER: Okay.
1 Q Did the legislature at some point meet to

2 deliberate over the Hooks' report and make a
3 determination?
4 A Yes, it did.
5 Q And when did that take place?
6 A It was after we had received the Hooks'
7 report and after all of the members had had a
8 chance to review it.
11 Q Mr. Lane, can you identify that document?
12 A Yes. It's the written record of the
13 executive session of January 17th, 2017 of the
14 Tompkins County Legislature adopting a motion
15 with respect to the matter of Ms. Baer's claims
16 and the Hooks' report.
17 Q Would you read the last full paragraph of
18 that document?
19 MR. MCCANN: Let me first offer
20 Charging Party Exhibit 22 into evidence.
22 Q Read the last full paragraph.
23 A I would point out also this action was
24 taken unanimously. The legislature has conducted
1 it's own full review of the investigation

2 appendix and investigation file compiled by
3 Mr. Hooks along with all additional information
4 provided by Ms. Baer in support of her claims and
5 after due deliberations the legislature adopts
6 the conclusions of the March 16, 2016 employee
7 investigation that Ms. Baer's claims of
8 discrimination, retaliation and hostile work
9 environment presented in her memorandum dated
10 November 20th, 2015 were not supported and
11 accordingly determines that these claims should
12 be dismissed in their entirety.
13 Q Mr. Lane, why did it take from September
14 12, 2016 to January 17, 2017 for the legislature
15 to reach a decision in this case?
16 A Well, any time you're dealing with a full
17 legislature having to take action, it takes time.
18 We are all part-time officials. We aren't there
19 every day in offices. We don't even have our own
20 offices except for the chair has its own office.
21 People had to come in and read the report. For
22 me it took more than two hours to read it. So
23 they had to schedule time from their other
24 business activities to do that. We wanted to
1 make sure that everyone had a chance to look at

2 it in its entirety. And we don't meet every day.
3 We only meet twice a month. And any action like
4 this requiring the full legislature to act would
5 have to be in executive session because it was a
6 personnel matter and would have to be, normally
7 we'd call a special meeting so it would be after
8 a regular meeting before we adjourned.
9 Q Were each of the legislators provided a
10 copy of the record of the Hooks' investigation?
11 A No. There was a master copy kept in a
12 secure location in the clerk of the legislature's
13 office. And when a legislator wished to review
14 it, scheduled time to do that, came in, took the
15 report and read it in chambers.
16 Q So the legislators would have to find
17 time to come in and do that?
18 A Yes, when the legislature was open.
19 Q To your knowledge, did all 14 legislators
20 take the time to review that report --
21 A Yes.
22 Q -- and the record?
23 A Yes. And to my knowledge I actually
24 asked them that question.

2 you could put in front of Mr. Lane two
3 different letters, Respondent's Exhibit M
4 and Charging Party Exhibit 12.
5 MR. CELLI: I'm sorry, Respondent's
6 M?
7 MR. MCCANN: M and 12.
8 HEARING OFFICER: What was the
9 Charging Party's?
10 MR. MCCANN: 12.
11 HEARING OFFICER: Placed before the
12 witness.
13 Q Mr. Lane, both of these letters are dated
14 January 23, 2017. They are both in evidence.
15 Respondent's Exhibit M is a January 23, 2017
16 letter to Ms. Baer from you advising her that the
17 legislature has completed its review of the
18 Hooks' report and you made a determination. The
19 Charging Party 12 Exhibit, January 23, 2017
20 letter to Ms. Baer, notifies her that the county
21 retained Attorney Timothy Taylor to conduct an
22 additional investigation?
23 A That's correct.
24 Q Why were those two letters issued the
1 same day?
2 A Well, because they both reflected action
3 that we were proceeding with at the legislature.
4 One was the adoption of the completion of the
5 Hooks' report, which I just described, and the
6 other was to begin the process and advise Ms.
7 Baer that we were investigating her additional
8 complaints from the e-mail of August 26.
9 Q So the Hooks' investigation was
10 completed?
11 A Yes.
12 Q The legislature made a decision on that
13 on January 17?
14 A Yes.
15 Q And then you went on to appoint Mr.
16 Taylor and advise Ms. Baer he was conducting an
17 investigation?
18 A Both letters were prepared in the
19 legislative office and I'm not there every day,
20 but I came in obviously on January 23rd and
21 signed both of them.
22 Q Was a decision by the legislature to
23 appoint Mr. Taylor also made on January 17th?
24 A Yes.
1 Q Directing your attention back now to --

2 HEARING OFFICER: You're done with
3 these documents?
4 MR. MCCANN: Yes, I am. The
5 September 12th letter, Respondent's Exhibit
6 I.
7 Q Mr. Lane, if you would, would you read
8 the third full paragraph of that letter starting
9 "we will afford you."
10 A We will afford you one more opportunity
11 to support your claims by presenting your
12 evidence within ten days of the date of this
13 letter, September 12th of '16. If you have a
14 good faith, reasonable basis for your claims, now
15 is your opportunity to present it. If you wish
16 to avail yourself of this opportunity, please
17 specifically identify the evidence or support you
18 believe you may have for your original November
19 20th, 2015 claims, your July 6, 2016 claims and
20 to the extent they may be different, the claims
21 raised in your August 26 e-mail.
22 Q Why was the July 6, 2016 claim, which
23 involved ban the box, included in this particular
24 paragraph in reference to this letter?
1 A Well, at that point we thought it could

2 be handled with our review of the Hooks report.
3 It was something that had to do with a matter of
4 sort of an ongoing process of having a
5 presentation of the ban the box issue out of the
6 personnel department. Didn't think it had raised
7 itself to the need of another investigation that
8 couldn't be handled the same time we looked at
9 the Hooks' report. But after we received that,
10 we later got the August 26, we also had to start
11 the August 26 investigation with Tim Taylor.
12 Q At the time of this particular letter,
13 September 12th, 2016, did you anticipate the
14 legislature was going to make a determination of
15 the ban the box issue itself?
16 A Yes.
17 Q If you read the last full paragraph,
18 actually the next paragraph, please be assured.
19 A Please be assured that if any of your
20 claims of bias or misconduct are supported by the
21 evidence you submit, the legislature will take
22 appropriate action to remedy the situation.
23 Q I direct your attention now to Charging
24 Party Exhibit 16.
1 A Yes.
2 Q Charging Party Exhibit 16 is an e-mail,
3 chain e-mail to you from Ms. Baer, May 18th, 2017
4 and your response of the same day.
5 A Yes.
6 Q And this is the e-mail by which Ms. Baer
7 notified you and some other legislators as well
8 as Mr. Mareane that she was resigning from the
9 Tompkins County Work Force Diversity Committee
10 effective immediately. And your response was:
11 "Hello, Karen. This is a surprise. Do you feel
12 you can let me know why?" Why did you ask her
13 that question?
14 A Well, because exactly what it says. I
15 was very surprised to hear this. Didn't know
16 there was an issue of her being on the WDIC or
17 wanting to leave the WDIC and wanted her to let
18 me know what was happening. This was happening,
19 this e-mail during the investigation the
20 legislature was having of her other issues that
21 were in the Hooks' report, for example, and I
22 wanted to know what was prompting this.
23 Q Did Miss Baer ever respond to your
24 question?
1 A No.
2 Q Why didn't you and the legislature take
3 any further action in response to Ms. Baer's
4 resignation from the Work Force Diversity and
5 Inclusion Committee?
6 A Well, she was a department head and, you
7 know, the activities of that department are
8 pretty well understood to work with agencies in
9 the community and individuals and also
10 departments in the legislature to try to improve
11 the issues of the Work Force Diversity and
12 Inclusion. So we expected her to be on there and
13 were surprised when she went off.
15 I can have just a minute or two I think I'm
16 through with Mr. Lane.
17 HEARING OFFICER: Sure.
18 MR. MCCANN: I have no further
19 questions. Thank you.
20 HEARING OFFICER: Counselor, recross.
21 MR. CELLI: Yes. I have some
22 questions to ask.
23
24
MICHAEL LANE by MR. CELLI 616
1 RECROSS EXAMINATION BY
2 MR. CELLI:
3 Q Good morning, Mr. Lane.
4 A Good morning.
5 Q Who is Steve Estes?
6 A Steve Estes is an employee of the
7 Tompkins County Department of Human Services.
8 Q He's the commissioner, right?
9 A No.
10 Q What is his title there?
11 A I can't tell you his exact title. He
12 works with, particularly civil service and other
13 personnel matters there. I don't have his exact
14 title.
15 Q Okay. Amy Guererri, she's the
16 commissioner?
18 Q And as the commissioner, she is the
19 person in charge of personnel policies with the
20 county, right?
21 A Yes, except those that are of course
22 adopted by the full legislature.
23 Q I want to go back to, we'll come back to
24 Miss Guererri and Mr. Estes, in a moment, but why
1 don't we have a look at what has been previously

2 marked as Respondent's Exhibit E.
3 A Okay.
4 Q You see on the front of Respondent's
5 Exhibit E Miss Guererri's name, Commissioner of
6 Personnel, and Mr. Estes' name, deputy
7 commissioner?
8 A Yes.
9 Q So those are the two top people at the
10 personnel department, right?
11 A Yes, they are.
12 Q And you know that this document that's
13 been marked as Respondent's Exhibit E would not
14 have been created with their names on it if they
15 hadn't approved it, right?
16 A Yes.
17 Q Let's go to the third page of the
18 document. You testified that this actually
19 represents, this document represents a PowerPoint
20 presentation?
21 A That's my understanding.
22 Q That was created by the personnel
23 department, right?
24 A I believe so, yes.
1 Q And the third page of the document --

2 HEARING OFFICER: Excuse me. The
3 civil service personnel department or your,
4 you mean civil service?
5 MR. CELLI: Tompkins County.
6 HEARING OFFICER: Civil service.
7 Q What's the department called, sir? I
8 want to get it right.
9 A It recently had its name changed from
10 department of personnel to department of human
11 services.
12 HEARING OFFICER: That's at the
13 county level?
14 A At the county level, right.
15 Q So this document reflects a PowerPoint
16 that was created by the Tompkins County personnel
17 department or human resources department,
18 whatever they call it now, correct?
19 A Yes.
20 Q And it was created in August of 2016,
21 right?
22 A Yes, it is human resources. I was on the
23 charter committee and we debated changing the
24 name several times. Sorry. But would you please
1 ask the question again?

2 Q Sure. The document was created on or
3 about August 9th of 2016, right?
4 A That's the date on the document. I
5 assume that is correct.
6 Q And if you look at the third page of the
7 document, it has a block at the top of the front
8 page, it says who has the right to progressive
9 discipline, right? Do you see that?
10 A I do.
11 Q And you understand as a lawyer and as a
12 chair of the legislature when somebody has a
13 right to something, that is something that they
14 are entitled to as a matter of law. You would
15 agree? General proposition.
16 A A person has a right to it, it may be the
17 right under the law. You're asking me as a
18 lawyer and I don't think I should respond as a
19 lawyer.
20 Q Well, you are a lawyer, aren't you?
21 A I am. I'm not a labor lawyer.
22 Q Fair enough. But you know what rights
23 are, don't you?
24 A Of course.
1 Q And on this particular chart what it says

2 is, it asks the question who has the right to
3 progressive discipline. So another way to say
4 that is who is entitled under the law to
5 progressive discipline in the county, correct?
6 A Yes. Except it follows the slides that
7 said not all situations warrant progression.
8 Q Well, we'll come back to that, but for
9 purposes of interpreting what this slide means,
10 what it means is that certain county employees
11 have a legal right to progressive discipline, you
12 would accept that?
13 MR. MCCANN: Objection. Calls for a
14 legal conclusion.
15 MR. CELLI: I'm calling for his
16 conclusion.
17 HEARING OFFICER: I'll allow it.
18 A It does and I'm not sure where this
19 language comes from. If it comes from a law or
20 what.
21 Q It's a yes or no question, Mr. Lane. I'm
22 entitled to a yes or no answer.
23 MR. MCCANN: If he can.
24 A To the extent it contradicts what was
1 said, I don't know how I should answer that.

2 We've already said, I already said and testified
3 that the previous slide said that not all
4 employees are entitled to that, but this is the
5 description of it.
6 HEARING OFFICER: But this
7 counselor's question is the rights under
8 here are articulated and as a matter of
9 rights it generally applies.
10 A I would agree with that, yes.
11 Q Thank you. And one of the classes of
12 employees who are entitled under law in Tompkins
13 County to progressive discipline as reflected in
14 this slide are competitive class employees,
15 right?
16 A Yes, in most situations.
17 Q And Ms. Baer is a competitive class
18 employee of Tompkins County?
19 A Yes.
20 Q So by simple logic you would agree that
21 Ms. Baer was entitled to protections of the
22 progressive discipline policy of Tompkins County?
23 A I would say possibly.
24 Q Let's talk about --
1 HEARING OFFICER: Let me interrupt.

2 I think I know what is being said here is
3 Ms. Baer is a permanently appointed
4 competitive employee. This would, the
5 progressive discipline would apply to her.
6 You, on the other hand, as the county would
7 argue well, maybe not because there's an
8 exclusion. That's what, that's what I
9 understand.
10 A I think that's what I'm trying to say.
11 HEARING OFFICER: I think I
12 understand that.
13 MR. CELLI: I would like to mark as
14 Respondent's Exhibit R.
15 (RESPONDENT'S EXHIBIT R WAS MARKED
16 FOR IDENTIFICATION.)
17 Q I placed in front of you a document that
18 we marked for identification as Respondent's
19 Exhibit R. You see at the top of that, Mr. Lane,
20 it is identified as a document of the Tompkins
21 County personnel department, 125 East Court
22 Street, Ithaca, New York, correct?
23 A That's the letterhead on it, yes.
24 Q Do you have any doubt that this is a
1 document produced by the Tompkins County

2 personnel department?
3 A It could be. I have no real knowledge of
4 it.
5 Q You see that this is a document that also
6 discusses progressive discipline, right?
7 A Yes. I'm looking at the titles of the
8 paragraphs.
9 Q And one of the categories on this first
10 page is who has the right to progressive
11 discipline. It's the same question that was
12 asked in the previous exhibit, right?
13 A Yes.
14 Q And the first bullet point answering that
15 question is all competitive class employees have
16 the right to progressive discipline, do you see
17 that?
18 A Yes, that's what it says.
19 Q Do you recall receiving this document in
20 the course of your duties as a member of the
21 legislature?
22 A I don't recall it. I might have received
23 it, but I don't recall it.
24 Q Look at the last page, very last line.
1 It says: If you have any specific questions or

2 problems with which you need help, please call
3 274-5526 and ask for Amy Guererri, commissioner
4 of personnel, or Steven Estes and there is a
5 phone number there as well. Do you see that?
6 A Yes, I do.
7 Q And those are the two top people at the
8 Tompkins County personnel department, right?
9 A That's correct.
10 Q So you don't have any reason to believe
11 that there is anything in this document that does
12 not reflect county policy, do you?
13 A Not having read the whole thing or being
14 fully familiar with it, I have no reason to say
15 it's not the policy.
16 Q So have a look at the top of the second
17 page of this document.
18 A Yes.
19 Q Actually let's go back to the bottom of
20 the first page there is a question that says what
21 are the steps, do you see that?
22 A Yes.
23 Q And it references six specific items, do
24 you see that?
1 A Yes, I do.
2 Q And number one is investigate and
3 substantiate issues identified. Number two is
4 have problem-solving sessions and an open
5 dialogue with the employee. Number three is
6 conduct verbal counselling. Number four is
7 provide written counselling. Number five is
8 serve formal charges and impose a penalty. And
9 number six refers to the employee/union submits
10 the issue to arbitration. Those are the steps of
11 progressive discipline in Tompkins County,
12 correct?
13 A They certainly apply to the blue collar
14 workers and civil service, those are the kinds of
15 things that we would do with them.
16 Q Well, they apply to all competitive class
17 employees. That's what it says in the paragraph
18 above?
19 A That's what it says.
20 Q Including Ms. Baer, right? Including Ms.
21 Baer. She's a competitive class employee.
22 A To the extent that each case is unique.
23 I have to preface it with that.
24 Q We'll come to that. Let's just be really
1 clear.
2 A Well, it came to it. I just said it.
3 Q I mean I'm going to ask you some
4 questions about it. That's what I meant to say.
5 You're not aware of anybody ever having an open
6 problem-solving session and open dialogue with
7 Ms. Baer about her concerns?
8 A No, but that doesn't mean it didn't
9 happen. I just don't know of it.
10 Q I can only ask you what you know,
11 Mr. Lane.
12 A All right.
13 Q And let me actually rephrase that
14 question to get it right. You're not aware of
15 anybody having a problem-solving session and open
16 dialogue with Ms. Baer about concerns that the
17 county or the legislature had as an employer
18 concerning her conduct?
19 A No, I'm not.
20 Q And she didn't get any verbal counselling
21 before she was charged, did she, to your
22 knowledge.
23 A You're going to have to give me a time
24 frame what you're talking about.
1 Q Ever?
2 A I think she did.
3 Q About the topics of her so-called
4 insubordination, when did that happen? When was
5 she verbally counselled?
6 HEARING OFFICER: Are you talking
7 about --
8 A I'm going back to what would underlay her
9 allegations.
10 Q You're right. My question was not clear.
11 You understand, you signed charges in this case,
12 right?
13 A Yes.
14 Q There are three charges, right?
15 A Yes.
16 Q Ms. Baer never received any verbal
17 counselling about any of those charges prior to
18 the charges being issued, right?
19 A Not from the legislature.
20 Q Not from anybody?
21 A That I'm aware of.
22 Q And Ms. Baer never received any written
23 counselling about any of those three charges
24 prior to them being proffered as formal written
1 charges, right?
2 A Not from the legislature.
3 Q Or anyone, to your knowledge?
4 A Not that I'm aware of.
5 Q So have a look at the next page which
6 actually goes through each of those steps in
7 greater detail. I'm not going to go through all
8 of them. But the very first line on the second
9 page says: Depending on the severity of the
10 offense, some of the steps above may be skipped
11 and an employee can be placed on an unpaid
12 suspension and/or terminated immediately upon
13 service of disciplinary charges, right?
14 A Yes.
15 Q By the way, Ms. Baer was not placed on,
16 was not terminated immediately was she?
17 A She was placed on administrative leave.
18 Q Right. She wasn't terminated though,
19 right?
21 Q And she is being paid?
23 Q She wasn't terminated and she wasn't
24 placed on an unpaid suspension, correct?
1 A I believe she was unpaid initially.

2 Q Pursuant to the Civil Service Law?
3 A Yes.
4 Q And the kinds of cases where people get
5 terminated immediately are cases where they
6 engage in fraud, right, or a threat to health and
7 safety?
8 A I don't know. I don't have an answer to
9 that. I don't know that.
10 Q You would agree, Mr. Lane, that the
11 purpose of the Tompkins County's progressive
12 discipline policy is to provide fair notice to an
13 employee that something that she is doing could
14 cause her to lose her job, wouldn't you agree,
15 that's the general purpose?
16 A It's to treat employees fairly.
17 Q A little more specifically, you would
18 agree that it's to provide them notice, fair
19 notice that something they're doing could get
20 them fired?
21 A To the extent that this document talks
22 about process, yes.
23 Q Well, I'm really just asking you as the
24 charging person who signed the charges in this
1 case and as the former chair of the legislature,

2 put aside the documents, wouldn't you agree that
3 the general purpose of the progressive discipline
4 policy in the County of Tompkins is to provide
5 fair notice to employees that something they are
6 either doing or not doing could get them fired?
7 A She had been given a lot of notice by us
8 of opportunities to discuss --
9 Q I'm asking a very specific --
10 A -- this in two reports that we requested.
11 Q I'm asking about your understanding as
12 you sit here today under oath of the general
13 purpose of the policy of progressive discipline?
14 A The general purpose of the policy is to
15 treat employees fairly.
16 Q So you don't think that it's to give them
17 fair notice? You won't go that far with me.
18 MR. MCCANN: Objection.
19 MR. CELLI: He won't answer my
20 question.
21 MR. MCCANN: It's argumentative.
22 HEARING OFFICER: Let me try it.
23 MR. MCCANN: The policy speaks for
24 itself, Mr. Hearing Officer. He already
1 read that sentence. It obviously doesn't

2 say what he said.
3 MR. CELLI: I'm asking Mr. McCann --
4 MR. MCCANN: It's argumentative.
5 MR. CELLI: -- please don't coach the
6 witness in the chair. I'm entitled to a
7 yes or no answer to my question.
8 HEARING OFFICER: Let me ask, do you
9 know the answer to this question and the
10 question is: Is the progressive
11 disciplinary procedure intended to provide
12 the accused or anybody who is doing
13 something wrong with notice that they are
14 doing something wrong?
15 A Yes. We don't do anything in the dark,
16 yes, sir.
17 HEARING OFFICER: Yes. Progressive
18 discipline system, progressive disciplinary
19 procedure is to tell somebody in advance
20 that they are doing something wrong that
21 could make them the subject of discipline?
22 A If that procedure is put through, yes.
23 The answer is yes.
24 MR. CELLI: We would offer what we've
1 marked as Respondent's R into evidence.

2 MR. MCCANN: No objection.
3 HEARING OFFICER: Respondent's R is
4 in the evidence record.
5 MR. CELLI: Thank you.
6 HEARING OFFICER: What are we looking
7 at?
8 MR. CELLI: I'm going to ask the
9 witness have a look at Charging Party
10 Exhibit 11 which he was asked about by Mr.
11 McCann.
12 Q Mr. Lane, I would like to direct your
13 attention to the second to last paragraph. I
14 think you actually testified about this in your
15 redirect where the letter says please be advised,
16 this is a letter to Miss Baer, that in the event
17 you decide not to provide support for these
18 claims, the legislature will make a determination
19 on the merits of your claims based on the
20 information known to the legislature.
21 A Yes.
22 Q That's only fair, right, that you're
23 going to decide based on what you have, right?
24 A Yes. And this was notice to it.
1 Q Sure. But the letter doesn't say in this

2 case, just focusing on this letter for a moment,
3 Ms. Baer, if you decide not to provide any
4 support to these claims, you're going to lose
5 your job, does it?
6 A Does not say that.
7 Q That would be unfair, right?
8 A It doesn't say that.
9 Q I'm asking, I'm asking, wouldn't you
10 agree that it would be unfair to say to somebody
11 if you don't provide support for your claims,
12 you're going to get fired?
13 A These were serious claims. We wanted to
14 investigate them thoroughly because if they were
15 accurate, we would take immediate action about
16 them.
17 HEARING OFFICER: But he's asking you
18 about this letter specifically. It doesn't
19 say.
20 A It doesn't say that. I said it didn't
21 say that.
22 Q I was asking more generally. That's
23 okay. You can set that aside. Just to look at
24 this for one more second. Had you wanted to tell
1 Ms. Baer that she had to provide support for her

2 claims or she would be fired, you wouldn't have
3 written what is in the second to last paragraph,
4 right, you would have said that?
5 A I guess I can only say what I said in the
6 letter. I can't speculate on what I might have
7 said or didn't say.
8 Q Fair enough. Fair enough. You talked
9 about your having reviewed the Hooks' report.
10 Did you call Mr. Hooks and ask him whether he
11 fell sleep during the interviews of witnesses in
12 the case?
13 A Not personally.
14 MR. CELLI: This is going to take a
15 moment. Do you want to take two minutes?
16 HEARING OFFICER: Sure.
17 (RECESS TAKEN.)
18 Q Mr. Lane, you recall in your redirect
19 testimony that you sent Ms. Baer a letter on or
20 about September 12th, 2016 asking for her to
21 submit any additional information that she had,
22 correct?
23 A Yes.
24 Q Have a look at what we've marked as
1 Respondent's Exhibit A, second page is an e-mail

2 from Ms. Baer to you copied to Mr. Klein dated
3 October 10th, 2016. Do you see that?
4 A On page 2.
5 Q Bottom of the page of Respondent's A,
6 page 2 is an e-mail from Ms. Baer to you copied
7 to Mr. Klein on October 10th.
8 A Yes.
9 Q And that is an e-mail in which Ms. Baer
10 says: May I reasonably assume that I did not
11 have to provide my own evidence to show that I
12 have been excluded from the following county
13 initiatives, titles and discussions acutely
14 related to my area of expertise, and she goes on
15 to list ten different items there. Do you see
16 that?
17 A I do.
18 Q And the next e-mail, which is at the top
19 of page 2 of Exhibit A, is your response to her
20 October 10th e-mail and that is a response dated
21 October 14th, 2016.
22 A Yes.
23 Q Okay. And you say in that response in
24 the last paragraph, quote: If you wish to submit
1 claims based on other alleged exclusions from

2 county initiatives, titles or discussions, you
3 may of course do so. Please note here again you
4 will be asked to provide whatever evidence or
5 support you may have that any of these were a
6 form of discrimination or retaliation. Do you
7 see that?
8 A I do.
9 Q If you go to the first page of Exhibit A
10 you see Ms. Baer's October 23rd response to your
11 October 14th e-mail, correct?
12 A Yes.
13 Q And in that she asks, she attaches her
14 resumé?
15 A Yes.
16 Q And she asks you to take some time to
17 review the resumé and she discusses her hopes
18 for, she writes my hope is that at some point you
19 would turn your attention inward for the purposes
20 of exploring how and why someone with my
21 professional qualities was reasonably excluded
22 from a significant number of county opportunities
23 related to my areas of expertise. And she
24 provides further information there, right?
1 A That's what she said.

2 Q So you would agree that following your
3 September 12th letter, which we have seen marked
4 as Exhibit I, there was an exchange of
5 information between you and Ms. -- strike that.
6 There was information provided by Ms. Baer to you
7 in response to your request for further support?
8 MR. MCCANN: Objection.
9 Mischaracterizes the letter.
10 Q You can answer.
11 HEARING OFFICER: Yeah. I'll allow
12 the question.
13 MR. MCCANN: It asks for information.
14 MR. CELLI: This is not a time to
15 make speaking objections, Mr. McCann.
16 It's not appropriate. It's cross
17 examination.
18 MR. MCCANN: I'm giving the basis for
19 my objection. I know you don't like it,
20 but that's what I'm doing.
21 MR. CELLI: You're not allowed to do
22 it in front of the witness. You can do
23 that at a side bar.
24 MR. MCCANN: If you want to do a side
1 bar, we'll do a side bar.

2 HEARING OFFICER: You want to take it
3 right now?
4 MR. CELLI: If you insist on that, we
5 can do that.
6 HEARING OFFICER: Let's do it right
7 now.
8 MR. MCCANN: Mischaracterizes the
9 testimony. It's a proper basis for an
10 objection.
11 MR. CELLI: If you want to do a side
12 bar, let's do a side bar. As long as you
13 don't do it in front of the witness.
14 (RECESS TAKEN.)
15 HEARING OFFICER: Just as a practical
16 matter, we'll have counsel ask the
17 question. I think you have a couple
18 questions left and I think as I understand
19 it fully Mr. McCann may have some
20 additional questions and then you may be
21 excused.
22 (PREVIOUS QUESTION READ BACK.)
23 A So the answer to that is yes, her resumé.
24 Q One last question: Did you review any
1 part of the transcript from the previous days'

2 hearings --
3 A I did not.
4 Q -- during the break period?
5 A No, I did not.
6 Q Not even your own testimony?
7 A Nope.
8 MR. CELLI: Okay. Thank you. I have
9 nothing further.
10 HEARING OFFICER: Mr. McCann.
11 REDIRECT EXAMINATION BY
12 MR. MCCANN:
13 Q Mr. Lane, I direct your attention back to
14 Respondent Exhibit R, second page.
15 A Yes.
16 Q First sentence reads: Depending on the
17 severity of the offense, some of the steps above
18 may be skipped.
19 A You're on the second page?
20 Q Yes. Top of the second page. Depending
21 on the severity of the offense, some of the steps
22 above may be skipped. The employee can be placed
23 on unpaid suspension and/or terminated
24 immediately upon service of disciplinary charges.
1 According to this policy, the county could have

2 terminated Ms. Baer immediately. Did the county
3 do that?
4 A No.
5 Q Instead, the county is going through this
6 process?
7 A Absolutely.
8 Q Providing Ms. Baer a full opportunity to
9 respond to charges. No immediate termination,
10 correct?
11 A Correct.
12 Q I'd like to direct your attention to the
13 charge in this case, Hearing Officer Exhibit 1.
14 A Yes.
15 Q And specifically Charge Number 2, second
16 page.
17 A Yes.
18 Q Charges you are insubordinate in refusing
19 to abide by a January 23, 2017 directive issued
20 by the Tompkins County legislature to cooperate
21 in an investigation of your claims of
22 discrimination and retaliation. Mr. Celli
23 directed your attention to a letter back in July
24 of 2016 and asked you whether in response to the
1 third paragraph she should be given the

2 opportunity to be told that if she didn't
3 cooperate in the investigation, that she would be
4 terminated. Your charge is not based upon the
5 July 22, 2016 letter, is it?
6 A No.
7 Q It's based upon the letter of January 23,
8 2017 Charging Party Exhibit 12 where you inform
9 Ms. Baer that you had appointed Mr. Taylor to
10 investigate her charges?
11 A Yes.
12 Q And you, as a chair of the legislature,
13 directed her to provide your full cooperation to
14 him, correct?
15 A Yes.
16 Q And there is no statement in this letter,
17 is there, as there was back in July on the ban
18 the box issue that if you choose not to
19 cooperate, we will just go ahead and make a
20 decision. You directed her to cooperate,
21 correct?
22 A Yes.
23 Q And that is the basis for your charge of
24 insubordination?
1 A Yes. And I'm totally amazed she did not

2 respond to Mr. Taylor.
3 Q Would you expect that a department head
4 to have to be told that the chair of the
5 legislature directs her to do something that
6 somehow she needs to understand that she is
7 supposed to do that?
8 A No, I would expect them to understand
9 that.
10 Q Do you think it takes progressive
11 discipline for a department head to know that if
12 a supervisor gives you a directive, that
13 department head needs to follow it?
14 A That's the order of what they would
15 expect that any department head would listen to
16 the direction of the county legislature.
17 Q Did you expect that she would cooperate
18 with Mr. Taylor's investigation?
19 A Certainly.
20 Q Would you have conducted an investigation
21 if you knew she was not even going to cooperate
22 in it?
23 A We would have investigated, yes, we would
24 have investigated.
1 Q Even though she was not cooperating, you

2 wanted an answer to those questions?
3 A Exactly. They were serious allegations.
4 MR. MCCANN: No further questions.
5 RECROSS EXAMINATION BY
6 MR. CELLI:
7 Q Mr. Lane, you understand that one of the
8 things that somebody does to cooperate with an
9 investigation is to talk to the investigator,
10 right?
11 A Yes.
12 Q And you knew that when you signed those
13 charges, that Ms. Baer had spoken to Mr. Taylor
14 at length on the phone, right?
15 A No.
16 Q You were not aware of that, you didn't
17 read that in Mr. Taylor's report?
18 A At length on the phone? I know he tried
19 several times to meet with her and that didn't
20 happen. He may have spoken with her on the
21 phone.
22 Q He did speak with her on the phone,
23 didn't he, to your knowledge?
24 A All right.
644
1 MR. CELLI: Nothing more.

2 MR. MCCANN: Nothing further.
3 HEARING OFFICER: Thank you, sir.
4 MR. MCCANN: I believe the next --
5 HEARING OFFICER: Ms. Baer?
6 MR. MCCANN: Yes.
7 HEARING OFFICER: Ready to begin?
8 MR. MCCANN: Few minutes.
9 (RECESS TAKEN.)
10 HEARING OFFICER: Mr. McCann, I
11 believe you have something you want to put
12 on the record.
13 MR. MCCANN: Yes. I intended to call
14 three rebuttal witnesses today in response
15 to testimony that was elicited on behalf of
16 the respondent on the first two days of the
17 hearing. The witnesses would have been
18 Marcia Lynch, Pat Pryor and Cathy Covert.
19 HEARING OFFICER: Would you identify
20 please those folks that you just listed.
21 MR. MCCANN: Marcia Lynch is the
22 public information officer who is
23 referenced in the Hooks' report involving
24 the Pat Pryor dispute with Karen Baer. Pat
645
1 Pryor was referenced directly in Ms. Baer's

2 testimony. There were some very serious
3 allegations made against Pat Pryor to
4 support her claims of a good faith basis
5 for her dispute with Pat Pryor and ultimate
6 complaint to the legislature. That
7 testimony went back to events as far back
8 as 2015. I had objected to it repeatedly
9 as not being relevant to the charges before
10 the hearing officer. My objections were
11 overruled. And on that basis upon
12 reviewing the events of the first two days
13 of hearing and transcripts, I have made a
14 decision on behalf of the county that it
15 would be appropriate to have Marcia Lynch
16 and Pat Pryor testify in response to the
17 testimony given by Karen Baer on these
18 events going back to 2015 again over my
19 objection based upon relevancy. I think
20 that's a separate issue than Cathy Covert.
21 As I understand, Mr. Hearing Officer, you
22 are going to make a ruling on that based on
23 the discussion we had in the hall.
24 HEARING OFFICER: Correct. Counsel.
646
1 MR. CELLI: Thank you, Mr. Solomon.

2 We object to the calling of the two
3 additional rebuttal witnesses, Miss Pryor
4 and the public information officer. That
5 testimony is irrelevant to any of the
6 charges in the case. It would be wasteful
7 and cumulative in any event. And also as a
8 matter of fairness and notice, I'm
9 directing the Hearing Officer to review the
10 transcript pages 513 and 514 where Mr.
11 McCann represented that he was seeking the
12 adjournment the last time solely for the
13 purpose of preparing a cross-examination of
14 Ms. Baer. There was no mention of any
15 additional witnesses.
16 My partner, Zoe Salzman, actually
17 sent a follow-up letter on December 12th to
18 Mr. McCann and Your Honor saying that the
19 hearing would conclude with the completion
20 of Mr. Lane's testimony and the cross
21 examination of our client and closing
22 arguments. There was no notification given
23 to us by Mr. McCann that he intended to
24 call anybody else. So we would strenuously
647
1 object to the inclusion of any additional

2 witnesses, certainly these two witnesses,
3 Miss Pryor and Miss Marshal.
4 MR. MCCANN: I would just add
5 briefly, she asked me to confirm that. I
6 did not confirm that.
7 HEARING OFFICER: I understand the
8 request. I understand the objection to the
9 request. I'm ruling is I'm going to
10 sustain the objection. My feeling was, and
11 my understanding was that at the conclusion
12 of the last session, Mr. McCann wanted an
13 adjournment. You objected to, the counsel
14 for Ms. Baer objected to the adjournment.
15 I nevertheless granted it, but it was with
16 the understanding, at least in my mind and
17 based upon a fair reading of the transcript
18 of that second day of hearing, that the
19 purpose of the extension of time was to,
20 first of all, give time to Mr. McCann to
21 look at and consider what he wanted to do
22 with respect to cross examination of the
23 accused. It was also my further
24 understanding that what Mr. McCann, because
648
1 of Mr. Lane's schedule he was not, could

2 not finish in the whatever day it was that
3 he testified. As a result, he would come
4 back and provide, and Mr. McCann would be
5 given the opportunity for further redirect.
6 We have completed the further redirect.
7 And I think what's left for this hearing is
8 the cross examination perhaps with further
9 redirect of Ms. Baer. Off the record.
11 HEARING OFFICER: I also believe that
12 I do not see the relevancy that would be,
13 the relevancy of the two proposed
14 additional witnesses as it would relate to
15 the charges. So with all of that, I do in
16 a long winded way sustain the objection.
17 Those witnesses will not be permitted to
18 testify in this hearing and we will
19 commence now with Ms. Baer's cross
20 examination.
21 MR. MCCANN: A couple of things, Mr.
22 Hearing Officer. Number one, I take
23 exception to your ruling. I think we're
24 entitled to rebuttal witnesses. And
649
1 secondly, I think I reserved I still need

2 to address further of Cathy Culvert and
3 make an offer of proof on that as I
4 indicated in the off-the-record discussion.
5 This involves the status of Jamila Simon as
6 a commissioner.
7 HEARING OFFICER: Okay. Put that on.
8 What is your understanding of that?
9 MR. MCCANN: My understanding based
10 on the conversation out in the hallway, you
11 will also be ruling that Miss Culvert would
12 not be allowed to testify as a rebuttal
13 witness and I would just like to make an
14 offer of proof on that.
16 MR. MCCANN: The offer of proof is
17 that Miss Culvert would testify for the
18 limited purpose as a clerk of the
19 legislature to provide documentary evidence
20 and testimony that Miss Simon was notified
21 of the meeting. If she sought
22 reappointment to the Human Rights
23 Commission, she would do so by November
24 15th, 2014. She was given an approximately
650
1 three weeks notice to do that. She never

2 sought reappointment.
3 HEARING OFFICER: She never what?
4 Excuse me.
5 MR. MCCANN: She never sought
6 reappointment and her term therefore
7 expired on December 31, 2014.
8 HEARING OFFICER: And this is the
9 person that you're talking about?
10 MR. MCCANN: Jamila Simon was a
11 witness for the respondent. Miss Culvert
12 is available here to testify and that's the
13 offer of proof that as to the relevancy of
14 that testimony.
15 MR. CELLI: And, Mr. Solomon, Miss
16 Simon was a third-party witness in the
17 case. She was actually subpoenaed to this
18 hearing. The notice of that subpoena was
19 given to Mr. McCann and he prepared I think
20 a very professional cross examination of
21 her. We do not represent Miss Simon. I
22 had no information at all about any of the
23 paperwork matters that are being discussed
24 here and it certainly has absolutely
651
1 nothing to do with the three charges

2 against my client, Ms. Baer. So we would
3 strongly object to the additional testimony
4 that's extremely far afield.
5 MR. MCCANN: Your Honor, this is
6 quintessential rebuttal testimony. I asked
7 those questions of Miss Simon and she said
8 she was still a member of the commission.
9 This is rebuttal testimony.
10 HEARING OFFICER: I'll sustain the
11 objection to this extent that there exists
12 presently a dispute as to whether Miss
13 Simon is a member of the Human Rights
14 Commission and of course the offer of proof
15 was going to be to show that she was in
16 fact not a member of the commission at the
17 time of her testimony, is that?
18 MR. MCCANN: At the time of the
19 events that she testified to.
20 HEARING OFFICER: Okay. I'm just
21 going to leave it at there's a dispute as
22 to her actual membership on that committee.
23 With that I'm prepared, I think we've
24 cleaned the slate up and we're prepared to
KAREN BAER by MR. MCCANN 652
1 continue with cross examination of Miss

2 Baer.
3 MR. MCCANN: Yes. Mr. Hearing
4 Officer, I believe during the
5 off-the-record discussion in the hallway
6 you indicated in light of your rulings you
7 would give me a few minutes to give some
8 further thought to my recross of Ms. Baer.
9 HEARING OFFICER: Sure. And of
10 course counsel has no objection to that?
11 MR. CELLI: Of course not.
12 (RECESS TAKEN.)
13 HEARING OFFICER: Back on the record.
14 And of course I would remind the witness,
15 she knows anyway, that she remains under
16 oath from the last time of testimony.
17 MR. MCCANN: Let's mark this as
21 CROSS EXAMINATION BY
22 MR. MCCANN:
23 Q Ms. Baer, I show you a document marked
24 for identification as Charging Party Exhibit 23.
1 It appears to be an e-mail exchange between you

2 and Pat Pryor; is that correct?
3 A Yes.
4 Q Dated March 11th, 2015.
5 A Yes.
6 Q And it appears that the e-mail exchange
7 starts with you responding to or commenting upon
8 an OpEd piece that Pat Pryor had done on
9 Transgender Deserve Protection from
10 Discrimination.
11 A Yes.
12 Q And that is attached to the e-mail?
13 A Uh huh.
14 Q And you indicate to Miss Pryor: "Thanks,
15 Pat, very nicely done. That's Karen, right?
16 A Yes.
17 Q And Pat responds to you the same day.
18 This is now at 12:25 p.m. Pat's statement
19 likewise to you: "Karen, your comments at the
20 women's luncheon yesterday were interesting,
21 timely and very well received. IMO. Great job.
22 Best Pat." IMO is an abbreviation for in my
23 opinion, do you understand that to be?
24 A Yes.
1 Q Is it fair to say that at the time of

2 this e-mail the two of you had shared a cordial
3 relationship?
4 A Yes.
5 Q No problems you know of?
6 A No.
7 MR. MCCANN: I'd offer Charging Party
8 Exhibit 23.
9 MS. SALZMAN: No objection.
10 HEARING OFFICER: It's received then.
13 Q Now, Ms. Baer, I direct your attention to
14 Charging Party Exhibit 24 for identification.
15 This is an e-mail, appears to be an e-mail from
16 Sarah Simmons to Marcia Lynch. Who is Sarah
17 Simmons?
18 A Sarah Simmons is the former outreach
19 coordinator at the Office of Human Rights.
20 Q What were her duties and
21 responsibilities?
22 A Her duties were to undertake all of the
23 office's outreach and education programs
24 including our annual events as well as outreach
1 and training and so on.

2 Q Did the outreach include outreach to
3 different community interests such as the LGBT
4 interests?
5 A Yes. Her job was also to do press
6 releases and to work with community groups and
7 find collaborative opportunities for the office
8 and other agencies to do programming.
9 Q And who is Marcia Lynch?
10 A Marcia Lynch is the, her title, she does
11 the, she is the communications officer for the
12 county.
13 Q If I tell you she is the public
14 information officer, would you doubt that?
15 Sounds about right?
16 A Yes.
17 Q Have you seen this e-mail before today?
18 A Yes, I believe I --
19 Q You're copied on it, are you not?
20 A Yes. I directed Sarah to send it out,
21 yes.
22 Q Had you reviewed the press release which
23 is attached to the e-mail prior to the e-mail
24 going out?
1 A Yes, I had.
2 MR. MCCANN: I'd offer Charging Party
3 Exhibit 24.
5 HEARING OFFICER: Received.
6 Q Now Sarah's e-mail to Marcia Lynch
7 states: Marcia, we plan on sending this press
8 release and wanted to run it by you. Thanks,
9 Sarah."
10 A Uh huh.
11 Q And that was at 12:47 p.m. the same day
12 as your e-mail exchange with Pat Pryor. Your
13 e-mail to her was 11:46. Pat's e-mail was 12:25.
14 So within the next hour this press release goes
15 to Marcia Lynch. You recall, do you not, the
16 questions raised as to the accuracy of that press
17 release, correct?
18 A Yes.
19 Q And you understood that Marcia Lynch had
20 a concern over the press release?
21 A Yes, eventually I did hear.
22 Q Her concern was that the press release
23 indicated that Tompkins County as an entity
24 called upon the state to pass this GENDA
1 legislation. The concern that Marcia raised was

2 that the legislature hadn't actually passed the
3 resolution so that the article was not
4 technically correct; is that a fair statement?
5 A No.
6 Q What was wrong with the press release?
7 A I would say there was nothing wrong with
8 the press release.
9 Q Had the Tompkins County legislature
10 adopted a resolution supporting the statewide
11 initiative?
12 A Yes. It's called Local Law C which was a
13 local law which protected people in Tompkins
14 County against gender identity and expression.
15 Q Tompkins County had its own law?
16 A Absolutely, yes.
17 Q That's a different question when in fact
18 Tompkins County was supporting the statewide
19 legislation, was it not?
20 A Well, I do also recall a year earlier
21 helping Mike Lane draft a letter in support of
22 the state legislation for GENDA. So I knew that
23 the county did have, it was a priority for the
24 county. It was represented in their own local
1 law and their previous support for GENDA at the

2 state level.
3 Q Was Marcia aware of the letter Mr. Lane
4 drafted to your knowledge?
5 MS. SALZMAN: Objection.
6 A What was the question?
7 Q Was Marcia Lynch aware of the letter that
8 you believe Mr. Lane drafted?
10 A I can't say that.
11 Q To your knowledge?
12 A No.
14 A I don't know.
15 Q But you know Marcia Lynch had a concern
16 over whether or not this was accurate, correct?
17 A Yes, I do.
18 Q And you know that she tried to reach
19 Sarah and wasn't able to reach her, correct?
20 A Yes.
21 Q And you know that Marcia Lynch then tried
22 to call Mike Lane and could not reach him either,
23 correct?
24 A I don't know that.
1 Q Did you have a conversation with Marcia

2 Lynch where she told you that?
3 A If she did, I don't recall. My
4 conversation with Marcia was I believe over the
5 phone.
6 Q Yes.
7 A And it's possible she may have told me
8 that.
9 Q So she tries to reach the chair of the
10 legislature to get clearance on this. Can't
11 reach him after trying to reach Sarah so then she
12 reached out to Pat Pryor, correct?
13 A I don't know what the order of that was.
14 I just know that it was a span of probably five
15 minutes in total. I mean, a short period of time
16 it seemed.
17 Q And how do you know that?
18 A My memory is that between the time Marcia
19 called the office and the time that Miss Pryor
20 called the office was a matter of minutes.
21 Q How would you know that?
22 A Just my recollection.
23 Q You know that both calls went to
24 voicemail?
1 A It's possible. I don't know the record

2 of that. But there was a, I believe there was a
3 conversation over the phone between Sarah and
4 Marcia and there was a conversation between me
5 and Pat Pryor over the phone.
6 Q And you also talked to Marcia yourself?
7 A Yes, I did.
9 interrupting. What does all this have to
10 do with the charges? Just I'm trying to
11 figure it out where this comes in.
12 MR. MCCANN: It goes to the
13 allegation that Pat Pryor had any racial
14 animus or bias toward Karen Baer that she
15 concludes somehow based upon this
16 background, which I'll need to get into at
17 some length.
18 HEARING OFFICER: Okay. And that
19 then became ultimately part of the Hooks'
20 investigation?
21 MR. MCCANN: Yes.
24 HEARING OFFICER: Let me offer

2 MS. SALZMAN: I think I said no
3 objection. I don't know how many exhibits
4 are going to be introduced from this point.
5 We think it's irrelevant. So there is a
6 relevancy objection. We don't dispute the
7 authentication of the e-mails put before
8 the witness, but they have nothing to do
9 with the charges.
10 MR. MCCANN: That was my relevancy
11 objection for two days in December. My
12 objections were overruled. Now we're into
13 it.
14 HEARING OFFICER: I hear what you're
15 saying. Yep. Okay.
16 Q Ms. Baer, direct your attention to the
17 document marked for identification Charging Party
18 Exhibit 25. Have you seen that document before?
19 A It's possible, yes.
20 Q That's an e-mail that Pat Pryor sent to
21 Sarah?
22 A Yes, but I was not copied on it.
23 Q You were not copied on it. And that
24 bothered you, didn't it?
1 A No, because I had immediately a

2 conversation with Sarah about the e-mail so.
3 Q Didn't bother you at all that that e-mail
4 did not copy you?
5 MS. SALZMAN: Objection, asked and
6 answered.
7 A No.
8 Q The e-mail says simply: "Hi, Sarah."
9 This is at 2:13 p.m. "Marcia Lynch called me
10 about the press release. Please do not send it
11 until we can communicate. There are some things
12 that need to be changed. I just tried to call
13 you, but the office line is busy. Thanks, Pat."
14 A Uh huh.
15 Q Does anything about that e-mail trouble
16 you?
17 A No.
18 MS. SALZMAN: Objection. Asked and
19 answered. I also note this exhibit is not
20 in evidence and you're reading it. I don't
21 object to the authenticity of this exhibit
22 going into evidence. We object to the
23 relevancy. We'll have a standing objection
24 to that, but there were several objections
1 during the course of my examination of Ms.

2 Baer that you objected to me reading
3 documents that haven't been moved into
4 evidence. So if you want to move it into
5 evidence, please do.
6 MR. MCCANN: I will do that. It's in
7 evidence as part of the report of Mr.
8 Hooks, but I marked it as a separate
9 document for ease of reference. I'll offer
11 HEARING OFFICER: Just so everybody
12 understands, my knowledge of this case with
13 respect to the so-called Hooks' report is
14 Mr. Hooks conducted the report, the
15 legislature received it, the legislature
16 also received criticism as articulated by
17 Ms. Baer. The legislature, and tell me if
18 I misspeak, considered all of that.
19 Notwithstanding Miss Baer's concerns and
20 what she felt, they accepted the Hooks'
21 report. Am I good?
22 MS. SALZMAN: That's a fair
23 characterization of the evidence.
24 MR. MCCANN: Yeah. That should be
1 your own determination and agreed with the

2 findings and conclusions as Mr. Lane
3 testified.
4 HEARING OFFICER: Yeah.
5 MR. MCCANN: I don't know if there is
6 a question there, but I agree with your
7 statement.
8 HEARING OFFICER: No. I mean, I just
9 think I know what I know and as a result I
10 don't know how much of this is necessary,
11 sir. Your call certainly.
12 MR. MCCANN: I didn't think it was
13 necessary, but we went through it for two
14 days and I objected to the relevancy at
15 that time. I think the record is left with
16 the impression that somehow or another all
17 of this background led to a conclusion that
18 Pat Pryor was racially biased toward Karen
19 Baer.
20 MS. SALZMAN: To be clear about the
21 record --
22 HEARING OFFICER: But that wasn't the
23 finding in the report.
24 MR. MCCANN: It was not, but the
1 report is in evidence. It's accepted then

2 I don't understand why we went through,
3 again over my repeat objections, all this
4 history in December.
5 MS. SALZMAN: Just to be clear, from
6 our perspective, and the record clearly
7 reflects, we did not spend two days
8 discussing Pat Pryor. I don't believe we
9 introduced a single exhibit, we now have
10 three from the county, concerning Pat
11 Pryor. Ms. Baer testified briefly during
12 her direct examination about Miss Pryor by
13 way of background to get to the point of
14 the Taylor investigation in 2017.
15 HEARING OFFICER: And I know what the
16 end result was at least this far in terms
17 of the Hooks' report, what was considered,
18 what was accepted, what was rejected. I
19 wouldn't relitigate that so, you know, the
20 Hooks' report in my judgement stands as
21 something that was accepted by the
22 legislature. And in that report I think he
23 concluded that Miss Pryor was not a racist,
24 so do we have to show that again?
1 MR. MCCANN: Can we get a stipulation

2 on that?
3 MS. SALZMAN: We can certainly
4 stipulate that Mr. Hooks found Ms. Baer's
5 claims to be unfounded. That is the
6 record.
7 HEARING OFFICER: That is the record.
8 MR. MCCANN: As I understand the
9 claim on behalf of Miss Baer at this point
10 is that she had a good faith basis for her
11 allegations against Pat Pryor and because
12 that good faith basis did not result in a
13 positive decision by Mr. Hooks, somehow or
14 another that justified her decision not to
15 cooperate with the investigation by Mr.
16 Taylor. So if you line those things up
17 together and the foundation for the entire
18 house of cards whether or not she had a
19 good faith basis for her initial complaint.
20 HEARING OFFICER: Well, my
21 understanding was Ms. Baer didn't feel she
22 got a fair shake from Mr. Hooks in his
23 investigation and in his report. So when
24 Mr. Taylor entered the scene, she was going
1 to be very cautious about how she reacted.

2 That's the way I understand it.
3 MR. MCCANN: If that's all they have
4 put forth at the first days of the hearing
5 I would agree with you, Mr. Hearing
6 Officer, but they went well beyond that
7 several times on the record indicating the
8 reason for getting into this history was to
9 demonstrate her state of mind.
10 HEARING OFFICER: Ms. Baer's state of
11 mind?
12 MR. MCCANN: Yes.
13 HEARING OFFICER: That she was
14 informed --
15 MR. MCCANN: That would be the
16 question I'll go to.
17 HEARING OFFICER: Okay. Let's
18 continue on then.
19 MS. SALZMAN: We have our continued
20 objection.
21 HEARING OFFICER: Without raising it
22 all the time, I know you'll raise it
23 continually and overrule you continually.
24 MS. SALZMAN: I understand.
1 MR. MCCANN: I believe I offered

2 Charging Party 25. I don't recall if it
3 was.
4 HEARING OFFICER: I don't think it
5 was objected.
6 MS. SALZMAN: With the same relevancy
7 objection.
9 Q The press release was then redrafted,
10 correct?
11 A Yes.
14 Q And, Ms. Baer, once again this is a
15 document already into evidence as part of the
16 Hooks' report put into evidence by your counsel,
17 but I marked it separately for ease of reference
18 because the Hooks' report is not paginated and
19 it's very difficult to go through and find
20 particular pages. On that basis at this point
21 I'm offering Charging Party 26 so I won't run
22 into any problems referring to it.
23 MS. SALZMAN: No objection except the
24 continued standing objection.

2 Q This is an e-mail from Sarah back to
3 Marcia. Here is an updated draft I think will do
4 the trick. Let me know. And you're copied on
5 this e-mail, correct?
6 A Yes, I am.
7 Q And you participated in the revision of
8 this press release, didn't you?
9 A I directed Sarah to take into
10 consideration Miss Pryor's complaint about the
11 press release.
12 Q It was actually Marcia Lynch that brought
13 it up, wasn't it?
14 A Yes, first and then Miss Pryor brought it
15 up. But even though I had, you know, I was
16 pretty sure that the county supported GENDA. I
17 just thought for the sake of peace, we could
18 leave it out. It didn't really change the press
19 release to a significant degree.
20 Q You actually added a quote to this press
21 release, correct, bottom of the second paragraph?
22 A Yes. I believe that was approved by Miss
23 Lynch as well.
24 Q Now between the time of the original
1 e-mail from Sarah to Marcia with the initial

2 press release and then this e-mail and press
3 release revised, you had a conversation with Pat
4 Pryor, correct?
5 A It's possible. I don't know whether it
6 was between or after this. I can't know for
7 sure.
8 Q In that conversation you took issue with
9 Pat Pryor getting involved in this question of
10 the press release, correct?
11 A Are you talking about the telephone
12 conversation?
13 Q Yes.
14 A Yes, I did.
15 Q Why?
16 A Well, we had a standing protocol in the
17 office for how we got press releases approved.
18 And it was kind of unusual that when we did send
19 it to Marcia Lynch that instead of Marcia Lynch
20 getting back to us first, that we heard, that we
21 heard from Miss Pryor.
22 Q Marcia Lynch contacted you first, tried
23 to contact you, correct?
24 A Yeah, it's possible. Yes.
1 Q Again, not able to reach Sarah, not able

2 to reach Mike Lane, she contacted, after trying,
3 the chair of the legislature contacted the chair
4 of the Human Right Commission? That's who Pat
5 Pryor was, correct?
6 A Yes.
7 MS. SALZMAN: Objection to the form
8 of the question.
9 A They were also very good friends.
10 Q That's her position?
11 A Yeah, that's okay.
12 HEARING OFFICER: Who's friends, Pat
13 Pryor and who?
14 A Marcia Lynch are very good friends.
15 Q She didn't have to be friends to contact
16 the chair, did she?
17 MS. SALZMAN: Objection,
18 argumentative.
19 HEARING OFFICER: I'll let the
20 question stand.
21 A The chair has never been involved in
22 press releases from the office --
23 MS. SALZMAN: Excuse me, Mr. McCann.
24 Let the witness finish answering.
1 MR. MCCANN: I think she had, Zoe.

2 Q Finish your answer.
3 A Well, it was kind of unusual that the
4 chair of the commission would be involved in the
5 approval of a press release, but it wasn't really
6 that big a deal.
7 Q Well, the chair wasn't approving the
8 press release. The chair was involved in Marcia
9 Lynch's request of concern that the press release
10 was incorrect on that one issue, correct?
11 MS. SALZMAN: Objection. You're
12 asking for Marcia Lynch's state of mind.
14 A What is the question again?
15 Q It was Marcia Lynch, not Pat Pryor, that
16 had the issue with the press release, correct?
17 A Oh, I think they both voiced, Marcia
18 Lynch to Sarah and Pat Pryor to me, that they had
19 an issue with the press release.
20 Q They thought it was technically
21 incorrect?
22 A Yes.
23 Q Now going back to my question, the fact
24 that they were friends should not preclude Marcia
1 Lynch from contacting the chair of the Human

2 Rights Commission, correct?
4 answered.
5 HEARING OFFICER: I don't know if it
6 was answered yet.
7 MS. SALZMAN: It was.
8 A I thought that the professional protocol
9 would be for the person in the administration to
10 let my office know first that there was a problem
11 with the press release. That's how it usually
12 happens.
13 Q Sure. That's what Marcia did. Couldn't
14 contact Sarah. Press release needed to go out.
15 Tried to find some direction from the chair of
16 the legislature and chair of the Human Rights
17 Commission?
18 A That may be true --
19 MS. SALZMAN: Objection to the form
20 of the question. It's argumentative.
21 MR. MCCANN: I'm just repeating the
22 testimony.
23 HEARING OFFICER: Now I've heard
24 quite a bit. How much more --
1 MR. MCCANN: If I didn't have to keep

2 repeating the same things over and over
3 again.
4 HEARING OFFICER: How much further do
5 we have to go on press release?
6 MR. MCCANN: A little further.
8 Q You were upset with Pat Pryor that she
9 took it upon herself at Marcia's request to try
10 to get the correction made to the press release,
11 correct?
12 A No.
13 Q What were you upset about?
15 HEARING OFFICER: What were you upset
16 about with Pat Pryor?
17 MR. MCCANN: Yes.
18 A I would say that I didn't get upset until
19 she called me and made derogatory remarks to me
20 and demeaned my professional capacity. That's
21 kind of when I got mad.
22 Q And what did she say?
23 A First of all, she complained about the
24 press release. And that I needed to learn -- it
1 was very clear. She told me I needed to learn

2 how things were done in Tompkins County.
3 Q Expressing to you that things are more
4 informal here?
6 A She was speaking in an angry voice at me
7 and saying that I need to learn how to do things
8 in Tompkins County and that I had a lot to learn
9 and that was the gist of her comments.
10 Q That was because you had taken exception
11 with the fact she contacted Sarah with her
12 e-mail, correct?
13 MS. SALZMAN: Objection. Are you
14 asking for her to opine on what Pat Pryor's
15 intention was?
16 MR. MCCANN: Can I ask three
17 questions in a row without an objection?
18 MS. SALZMAN: If you ask one --
19 MR. CELLI: Ask a good question.
20 MR. MCCANN: Nothing wrong with that
21 question.
22 HEARING OFFICER: I'll allow the
23 question.
24 MR. MCCANN: It's cross examination.
1 MS. SALZMAN: Absolutely. Ask her

2 questions she has knowledge about.
3 MR. MCCANN: Can I have the question
4 repeated please?
5 A Was I upset about.
6 MS. SALZMAN: Maybe Mr. McCann can
7 re-ask or rephrase the question.
8 MR. MCCANN: There is nothing wrong
9 with the question.
10 Q Isn't it true that you were upset that
11 Pat Pryor had contacted Sarah about the press
12 release?
13 A No.
14 Q That wasn't a problem with your
15 protocols?
16 A It certainly wasn't enough to make me
17 angry. I mean, it was, by that point I wasn't
18 angry at all.
19 HEARING OFFICER: Was 26 admitted,
20 Charging Party admitted?
21 MR. MCCANN: It was.
22 HEARING OFFICER: If not, let the
23 record show 26 is admitted.
24 MR. MCCANN: Thank you.

3 MR. MCCANN: Charging Party 27 for
4 identification once again a document
5 already in evidence as part of the Hooks'
6 report. I'd offer it as a separate
7 document.
8 MS. SALZMAN: Same standing objection
9 to relevancy and if I guess duplicative of
10 exhibits, but other than that.
11 HEARING OFFICER: I'll admit it.
12 Q Ms. Baer, Charging Party Exhibit 27 is an
13 e-mail exchange between you and Pat Pryor,
14 correct?
15 A Yes, as far as I can tell.
16 Q Have you seen this before?
17 A I have, but I'm not quite confident about
18 e-mails that are coming from the county server so
19 I just want to be able to look it through to see
20 whether or not anything is missing or that I
21 recall anything missing or anything added.
22 Q Take your time. Sure.
23 HEARING OFFICER: While the witness
24 is looking, can we caucus please?
1 (RECESS TAKEN.)
2 HEARING OFFICER: Let me go on the
3 record and let everybody know what my
4 thinking is. So when I say as to finishing
5 off with the questions to this witness
6 about Pat Pryor, counsel for the county
7 feels that he has to address the Pat Pryor
8 matter inasmuch as it came up on direct
9 examination and it did come up on direct
10 examination, but in my recollection of it
11 it came up in a limited way. My further
12 understanding of this particular case is
13 not so much related in the charges to Miss
14 Pryor. What the charges are in two of the
15 specifications are that this witness, the
16 accused, resigned from two committees and
17 now became the subject of discipline
18 Pursuant to Section 75 of the Civil Service
19 Law. That I don't think anybody argues has
20 anything to do with the Pat Pryor. Next of
21 all the question is this witness, the
22 accused, Ms. Baer did not respond to
23 repeated phone calls from Mr. Taylor about
24 a subsequent investigation where Ms. Baer
1 alleged that her non invitation to

2 participate in certain committees where she
3 could have been a contributing member was
4 in retaliation for her filing the
5 complaint. This too has very limited, if
6 any, effect with respect to Pat Pryor.
7 What have I left out? I left out now I
8 come to the part about whether, as alleged
9 in one of the charges, Ms. Baer, the Office
10 of Human Rights is dysfunctional. This too
11 has, as far as I can see, no relation
12 really to the matter with Pat Pryor, but
13 merely arises out of a conclusion that Mr.
14 Taylor formed. Therefore, after all of
15 that being said, I would ask counsel for
16 the county to no longer continue on the Pat
17 Pryor matter and move forward.
18 MR. MCCANN: Is that a ruling, Mr.
19 Hearing Officer?
20 HEARING OFFICER: Yes.
21 MR. MCCANN: I take exception to your
22 ruling on this basis. Everything you just
23 said is pretty much what I stated as
24 objections to the testimony going in
1 originally about Pat Pryor. It's not

2 relevant to any of the charges before you.
3 Nevertheless, over my objection, counsel
4 for the respondent for Karen Baer got into
5 it and made, elicited testimony from Miss
6 Baer about the Pat Pryor situation and made
7 some very serious accusations about Pat
8 Pryor. My reason for getting into this now
9 is, A, to clear the record again that was
10 created over my objection on relevancy to
11 the charges. And also to establish in
12 response to counsel for the Respondent's
13 reasons for advancing it that this shows
14 Ms. Baer's good faith state of mind for the
15 basis for all of this. That a fair review
16 of this Pat Pryor situation, various
17 e-mails and other documentation I'm going
18 to go through will demonstrate that Ms.
19 Baer, if anything, was acting very much in
20 bad faith in her dealings with Pat Pryor.
21 And I think the record could not be clear
22 on that if not allowed to get into it.
23 These documents are part of the Hooks'
24 report, but I would like the opportunity to
1 ask Ms. Baer questions about these

2 documents. I'd like in particular to
3 establish that there is no basis whatsoever
4 for an accusation that Pat Pryor had any
5 racial bias or animus toward Ms. Baer. And
6 I can't, the door was opened. I'm just
7 trying to close it. If you close it with
8 the ruling, Mr. Hearing Officer, I'll
9 accept that ruling, but again my position
10 was it was irrelevant. It got in over my
11 objection.
12 HEARING OFFICER: Let me state my
13 ruling stands, but let me also state that
14 there is no persuasive evidence before this
15 hearing officer that would persuade him
16 that if Miss Pryor is a racist. None.
17 MR. MCCANN: Then I'll continue, Mr.
18 Hearing Officer.
19 HEARING OFFICER: In fact I think
20 that is also contained in the Hooks'
21 report, that being that Miss Pryor is not a
22 racist.
23 MS. SALZMAN: From the Respondent's
24 position, Your Honor, as we've said all
1 along, this hearing is not for the purpose

2 of litigating whether Miss Pryor is in fact
3 a racist or whatever her views may be on
4 race. We have stipulated from the
5 beginning that we are not here to litigate
6 that issue.
7 HEARING OFFICER: Thank you. Let's
8 move on and continue.
11 MR. MCCANN: Ms. Baer, I show you a
12 document that I've had marked as Charging
13 Party Exhibit 28. Again this is evidence
14 as part of the Hooks' report. I would
15 offer Charging Party Exhibit 28 as a
16 separate document.
17 MS. SALZMAN: We object. It's still
18 back in 2015. It involves discussion of
19 Ms. Baer's dispute with Pat Pryor.
20 Pursuant to Your Honor's ruling, counsel
21 was directed to move on from this topic.
22 MR. MCCANN: The subject of this
23 e-mail is a call from Peter Stein. This
24 addresses a different question.
1 HEARING OFFICER: Okay. I'll allow

2 it.
3 Q Ms. Baer, this is an e-mail from you to
4 Joe Mareane dated May 6, 2015. Subject, call
5 from Peter Stein. Indicates you just got a call
6 from Peter Stein asked me for lunch next week.
7 The second paragraph states I don't feel as
8 though I can turn down a legislator for a lunch
9 invitation, but I sense there is something
10 unethical about this whole dynamic. My question
11 to you, Ms. Baer, is why did you consider an
12 invitation by the chair of the Health and Human
13 Services committee, a committee of the
14 legislature, from an individual who is a
15 legislator to talk about relationships within
16 your office to be unethical?
17 A Well, first of all, I don't directly
18 report to legislators. I report to Joe Mareane.
19 What I felt uncomfortable about is repeated
20 requests by Mr. Stein to go to lunch with him to
21 talk about Miss Pryor. And I refused to talk
22 about Miss Pryor at those lunches which meant
23 that he asked me over and over again. I knew
24 that Pat Pryor and Mr. Stein were very good
1 friends. And I refused to talk about her in a

2 derogatory fashion in his presence so it led to
3 him continually asking me out to lunch to find
4 out what was going on. And I felt as though I
5 was put in a position where, a professional
6 position where I was being made to discuss things
7 that I didn't really feel comfortable discussing.
8 Q You thought it was inappropriate for the
9 chair of that committee to have a conversation
10 with you as chair of the Office of Human Rights?
11 A Well, it wasn't a regular topic that you,
12 that I would discuss with the chair of the HHS
13 committee in relation to the commissioner. And
14 it was also at this time when I was getting
15 reports that Peter Stein and Pat Pryor were
16 having discussions about me. So I just felt very
17 uncomfortable in that whole situation and I
18 didn't want to aggravate the situation, but I
19 wanted to be respectful to the chair of my
20 committee.
21 Q Who was?
22 A Peter Stein at the time.
23 Q The chair of your committee?
24 A He is the chair of the Health and Human
1 Services committee.
2 Q Did you report to that committee?
3 A My office does, yes.
4 Q You were the director of that office?
5 A Yes.
6 Q You were the one that reported to Peter
7 Stein?
8 A No. I wouldn't call it a reportage. I
9 was to keep that committee up to date on the
10 activities of the office and to ensure that
11 legislative policies were being followed. We had
12 that kind of relationship.
13 Q You understood that Peter Stein was
14 simply trying to find a way to reach an amicable
15 resolution between you and Pat Pryor, correct?
16 A You'd have to ask him that question.
17 Q I asked you what your understanding was.
18 A My understanding was that I did. I did
19 agree to go to lunch with him on a number of
20 occasions. I did avoid speaking about Pat Pryor
21 and tried to focus on policy and office programs.
22 I can't say for sure what his motivation was.
23 Q I asked what your understanding was.
1 answered. She just said she can't say what

2 his motivation was.
4 question again.
5 Q What was your understanding?
6 A I don't know.
7 Q Didn't he tell you he simply wanted to
8 work out something between you and Pat?
9 A It's possible.
10 Q And you thought that was unethical?
12 A No.
13 HEARING OFFICER: Did you want to
14 admit Charging Party 28?
15 MR. MCCANN: I think it was already
16 offered and then objected on the basis of
17 relevancy and standing objection.
18 HEARING OFFICER: I'll allow it into
19 evidence.
22 MR. MCCANN: I offer Charging Party
23 29. Once again it's in evidence, but for
24 ease of reference I mark it.
1 HEARING OFFICER: I didn't hear the

2 rest of that.
4 Party 29. Once again it's a document in
5 evidence, but I'm marking it separately for
6 ease of reference.
7 MS. SALZMAN: Same objection. This
8 document again is about the dispute with
9 Pat Pryor.
10 HEARING OFFICER: Is this continuing
11 with Pat Pryor?
12 MR. MCCANN: There is a further
13 reference in here that is a little bit
14 different. I'd just like to make a record
15 of it.
16 HEARING OFFICER: But the main thrust
17 of this is not about Pat Pryor, right?
18 MR. MCCANN: It's, let me just ask a
19 couple questions, Your Honor, and I think
20 it will be evident.
22 Q Ms. Baer, this is an e-mail from you to
23 Joe Mareane?
24 A Yes.
1 Q You now copied the county attorney

2 Jonathan Wood?
3 A Yes.
4 Q Why did you copy the county attorney on
5 this particular e-mail?
6 A That's a good question. Usually with my
7 e-mails my interest was keeping people informed
8 that might have to deal with situations so that
9 they are aware of what is going on. So it was
10 probably just a heads-up kind of copy.
11 Q You inform Mr. Mareane, as well as Mr.
12 Wood, you did not think that the Pat Pryor issue,
13 that the race issue was central to your dispute
14 with Pat Pryor, correct?
15 A Well, it certainly wasn't what started
16 the spark.
17 Q That's your statement?
18 A Yes.
19 Q I don't think the race issue was central?
20 HEARING OFFICER: Are we getting back
21 into the Pat Pryor?
22 MR. MCCANN: Last question.
23 A I also want to be very careful --
24 Q No. That's my question. Beyond that I
1 may have more questions.

2 A Okay.
3 HEARING OFFICER: What was the
4 question?
5 Q That's her statement, I don't think the
6 race issue is central?
7 A My response to that was it wasn't the
8 spark, but it certainly turned into the flame,
9 yes.
10 Q Race did?
11 A No. What I was trying to convey is that
12 there possibly could be a number of things that,
13 that I considered to be very simple and petty and
14 not really important, but ultimately race became,
15 the division of race among the commissioners
16 became a significant issue.
17 Q The fact that people were aligned in
18 different directions?
19 A Yes.
20 Q But you stated this time to Mr. Mareane
21 and to the county attorney, Jonathan Wood, that
22 you didn't think race was a central issue
23 vis-à-vis Pat Pryor, correct?
1 answered.
2 MR. MCCANN: Maybe it was. Maybe it
3 wasn't.
4 A I thought I answered it.
5 Q The answer is yes?
6 A The answer is --
7 Q Calls for a yes or no answer.
8 HEARING OFFICER: At that point in
9 time.
10 A At that point in time I could already see
11 racial implications, but yeah, it wasn't the
12 center at that point of the controversy.
13 Q What racial implications are you
14 referring to?
15 A Well, what you talked about. The
16 division in the commission along racial lines.
17 Q Just the fact that they were aligned
18 differently?
19 A Uh huh.
22 MR. MCCANN: This once again is a
23 document that's part of the Hooks' report.
24 I mark it separately for ease of reference
1 as Charging Party Exhibit 30 and I would

2 offer it into evidence as a separate
3 document.
5 Q Ms. Baer, have you seen this document
6 before?
7 A Yes, I believe so, yes. At some point.
8 Q You testified on direct examination that
9 one of your claims of retaliation by Mr. Mareane
10 was that he had retroactively applied a hiring
11 freeze to your department?
12 A Yes.
13 Q This document is dated July 20, 2015,
14 correct?
15 A That's what it says.
16 Q And you were looking to make an offer to
17 fill a position in your office a month later,
18 August 2015; is that right?
19 HEARING OFFICER: Are you admitting
20 30? I don't recall Exhibit 30 being
21 admitted, but I'll admit it.
22 MR. MCCANN: I thought Miss Salzman
23 said no objection.
1 HEARING OFFICER: Now you're headed

2 towards the allegation pertaining to
3 staffing in the office?
4 MR. MCCANN: Yes.
5 A After a closer look I don't know whether
6 I received this. I thought this was the e-mail
7 that went to the department heads. Now I'm
8 seeing the hiring freeze. But it looks more like
9 it's to Jim Dennis from Joe Mareane.
10 Q My question is whether you had ever seen
11 that before and I expect you had as part of the
12 Hooks' report.
13 A It's possible. I didn't see any of the,
14 when I received the Hooks' report I personally
15 didn't receive any of the attachments or
16 exhibits. They did go directly to your attorney.
17 Q And your attorney provided them to you,
18 correct?
19 A Right.
20 Q And you read them, correct?
21 A Eventually, yes, I did.
22 Q Read them before your testimony in
23 December?
24 A Yes, I believe so.
1 Q I'll direct your attention now --

4 MR. MCCANN: First I'm marking
5 Charging Party Exhibit 31 for
6 identification. Once again the document is
7 from the Hooks' report in evidence. I
8 marked it separately for ease of reference
9 and would offer it at this point.
11 HEARING OFFICER: Received into
12 evidence.
13 Q Miss Baer, I direct your attention to
14 Charging Party Exhibit 31. This is an e-mail
15 from you to Joe Mareane dated August 21, 2015,
16 correct?
17 A Yes.
18 Q The subject line is making an offer
19 stage.
20 A Yes.
21 Q And in that e-mail you're asking Mr.
22 Mareane to approve the hiring of a paralegal for
23 your office, correct?
24 A It appears so, yes.
1 Q And in fact you state in this e-mail we

2 would like permission to make him an offer, do
3 you see that?
4 A Yes.
5 Q And that's permission you're asking of
6 Mr. Mareane?
7 A Yes.
8 Q You testified on direct examination that
9 you had the understanding that the hiring freeze
10 did not apply to you, do you recall that
11 testimony?
12 A Yes. My testimony was that I thought I
13 had predated the hiring freeze, my application
14 for filling the position.
15 Q If the hiring freeze did not apply to
16 you, you would not need to go to Mr. Mareane for
17 permission, would you?
18 A Oh, it's technically a, you know, notice
19 letter. I certainly, once this was the second or
20 third time I had gone through a process of
21 hiring. And as a rule I gave the heads-up to the
22 personnel department and my boss about the status
23 of when we wanted to make an offer.
24 Q Were you required to get permission from
1 the county administrator for every hire you make?

2 A Yes, but the permission is granted
3 through an authorization which takes place before
4 you even canvas or publish the job description.
5 That happens way before you make an offer.
6 Q And you also always do it in a memo to
7 Mr. Mareane asking permission for hiring?
8 A I always do both. I fill out the
9 authorization forms that need to be approved by
10 the county administrator. Then we go through the
11 process. And if we have a successful candidate,
12 then I give notice to personnel and the
13 administration that I'm ready to make an offer.
14 Q At the time you wrote this memo, you knew
15 there was a hiring freeze, correct?
16 A I don't know. I'd have to see, I learned
17 of the hiring freeze through a memo to the
18 department heads. I would have to see the date
19 on that in order to confirm that.
20 Q Is it fair to say that based on the dates
21 of exhibits, Charging Party 30 and Charging Party
22 31, that the hiring freeze preceded your memo to
23 Mr. Mareane?
1 A No.
2 Q July 20 did not precede August 21?
4 Argumentative. He is arguing with the
5 witness now. She said she doesn't recall
6 the date.
7 MR. MCCANN: That's not what she
8 said.
9 HEARING OFFICER: Yeah, that's what I
10 recall she didn't recall.
11 MS. SALZMAN: She doesn't recall the
12 exact date.
13 A And I don't recall getting this before
14 getting the department head notice.
15 Q My question was simply did this memo
16 precede your memo with Mr. Mareane --
17 HEARING OFFICER: This memo 31.
18 A It certainly does in date, but it's not
19 addressed to me.
20 Q I understand that, but the hiring freeze
21 was in effect in July, correct?
23 answered.
24 HEARING OFFICER: If you recall.
1 Q According to this document.

2 A I'd have to look at a document for the
3 dates.
4 Q Charging Party Exhibit 30 at the bottom
5 of the page references the hiring freeze will
6 take place through the end of 2015. It set out
7 an exception for uniform positions in the
8 sheriff's office?
9 A I think so.
10 MS. SALZMAN: Are you asking her to
11 read the document?
12 MR. MCCANN: Wait for her to find her
13 place and I'll finish asking my question,
14 Zoe.
15 MS. SALZMAN: I'm sorry, I thought
16 that was a question.
17 Q And a further exception for the 9/11
18 center position, do you see that?
19 A Do you mean on the Jim Dennis memo or are
20 you talking about number 30?
21 Q Yes. Bottom of page 1, memo from Joe
22 Mareane.
23 A Yes, I see that.
24 Q There is no exception set forth for the
1 Department of Human Rights, is there?

2 A No.
3 Q Mr. Mareane ultimately gave permission
4 for you to hire that paralegal, correct?
5 A Yes.
6 Q He did that approximately three weeks
7 after your August e-mail to him?
8 A I'd have to see the document to confirm
9 that, but it was sometime late September, early
10 October.
11 Q And your paralegal started October 1,
12 correct?
13 A I can't say for sure.
14 Q Sounds about right?
15 A October 15th sounds more likely. Mid
16 October.
17 Q So Mr. Mareane, notwithstanding the
18 hiring freeze, granted your request to hire a
19 paralegal, correct?
20 A Yes, he did. Just a few days before he
21 lifted the freeze, yes, and I appreciated that.
22 Q Why then did you consider this to be an
23 example of retaliation against you by
24 Mr. Mareane?
1 A I think I stated clearly in my direct

2 testimony why that is.
3 Q Please help me out.
4 A I felt the freeze was applied to my
5 office retroactively. And that ultimately I was
6 granted to fill one vacancy a few days before the
7 freeze lifted for all departments. But when it
8 came to my second vacancy to be filled, the
9 freeze remained on my office weeks after the
10 freeze was lifted for all other county
11 departments.
12 Q What position are you referring to?
13 A The outreach and education position.
14 Q Had you put in a request for that?
15 A At the same time as the paralegal aide.
16 Q Had you interviewed for that?
17 A No. I'm not quite sure what stage it
18 was. I was told to hold off on doing anything
19 for the second position.
20 Q So you didn't do the interviews?
21 A Not for the second position.
22 Q And you didn't do a memo to Mr. Mareane
23 asking for his permission to fill the second
24 position?
1 A No, he had directed me not to hire a

2 second position.
3 Q Because of the hiring freeze?
4 A No. Until the first of the year which
5 was two months after the hiring freeze was
6 lifted.
7 Q That was the arrangement you reached with
8 him, correct?
9 A Yes.
10 Q That was the deal you reached with him,
11 correct?
12 A Yes.
13 Q Why did you consider that to be
14 retaliatory?
15 A Because on its face it doesn't seem fair.
16 Q You would agree to hire the paralegal in
17 advance of the hiring freeze in the part-time
18 position to be delayed until the first of the
19 year --
20 MS. SALZMAN: Objection to form.
21 Q -- you consider that to be retaliation?
22 A Yes.
23 Q In addition, in your direct testimony you
24 stated that a further basis for a retaliation
1 claim against Mr. Mareane was that he had

2 withdrawn his support for a local
3 antidiscrimination law?
4 A Yes.
5 Q Is that a claim you are making or made at
6 the time?
7 A Yes.
10 MR. MCCANN: I had marked as Charging
11 Party Exhibit 32 another document from the
12 Hooks' report again for ease of reference
13 as a separate document and I'd offer
14 Charging Party Exhibit 32.
17 Q Ms. Baer, this is a memo from you to Mr.
18 Mareane, correct?
19 A Yes. It appears to be.
20 Q Subject line Tompkins County
21 antidiscrimination law draft?
22 A Yes.
23 Q And you start off the memo by indicating
24 that last year budget time, would that be the
1 fall of 2014?
2 A Yes, approximately.
3 Q You had informed the legislature of a
4 plan to get a draft of a local law to Mr. Mareane
5 by July 1, 2015?
6 A Yes.
7 Q And this is June 30, 2015, so you met
8 your own deadline?
9 A By one day.
10 Q And then in the second paragraph of this
11 memo you state to Mr. Mareane, I'm providing it
12 to you now in order to get some initial feedback
13 before having anymore public discussion. Had you
14 given Mr. Mareane this document before June 30th?
15 A This memo?
16 Q Well, the memo included the draft of the
17 law, correct?
18 A Right.
19 Q Had you given him the draft of the law
20 before June 30th?
21 A No.
22 Q You are asking him for some initial
23 feedback?
24 A Yeah, from the draft.
1 Q A first impression by Mr. Mareane,

2 correct?
3 A Sure.
4 Q He had never seen this before, correct?
5 A No.
6 Q It didn't exist before, correct?
7 A Well, no. Been working on it so.
8 Q Mr. Mareane, after he got the memo from
9 you, he got right back to you, didn't he?
10 A I believe so.
13 MR. MCCANN: Having this document
14 once again marked separately for ease of
15 reference I would offer Charging Part
16 Exhibit 33.
19 Q This is an e-mail dated July 2, 2015 from
20 Mr. Mareane to you copying James Douglas,
21 Jonathan Wood and Paula Younger. Jonathan Wood
22 we have identified as the county attorney. Miss
23 Younger already testified here today -- not
24 today, in this hearing. Who is James Douglas?
1 A James Douglas was the paralegal aide at

2 the Office of Human Rights at this time.
3 Q And Mr. Mareane's e-mail to you is
4 "Karen, thanks for preparing this draft. I hope
5 to convene a meeting with you, Jonathan, Paula
6 and me to go over the details and implications of
7 this, particularly in light of funding
8 constraints. When will you be back from
9 vacation, Joe." Did you receive that e-mail on
10 or about July 2, 2015?
11 A I believe so.
12 Q And did you ultimately meet those
13 individuals to go over the draft?
14 A Yes.
15 Q As it happens, because of vacations, as I
16 understand it, there was some difficulty getting
17 everybody's schedules together and it wasn't
18 until August that you met?
19 A Correct.
20 Q As I understand it, that was kind of a
21 mutual attempt to get schedules together; is that
22 correct?
23 A Yes.
24 Q No delay on anybody's part that you know
1 of? No intentional delay?

2 A Not that I'm aware. Not on my part.
3 Q And you met on August 18th, 2015,
4 correct?
5 A It's possible. It was August. I know
6 that.
7 Q And in that meeting Mr. Mareane and Mr.
8 Wood conveyed concerns to you over the local law,
9 correct?
10 A Yes.
11 Q And part of their concerns was, as Mr.
12 Mareane indicated in his initial e-mail to you,
13 two days after your transmittal of the local law
14 to him concerns about funding and you understood
15 that to be that your draft local law envisioned
16 creating a three-person board to adjudicate
17 complaints of discrimination, correct?
18 A Is that a question?
19 Q Yes, that's a question.
20 A That the local law included a?
21 Q A three-person board.
22 A Yes, that was the proposed.
23 Q That would require some hires, correct?
24 A No.
1 Q Who would be on the board?

2 A Three volunteers.
3 Q Three volunteers to conduct hearings?
4 A Yes.
5 Q Without compensation?
6 A Yes. The federal model.
8 interrupting, Counsel. I just want to know
9 what particular charge or specification
10 this is going to?
11 MR. MCCANN: It's going to her
12 testimony on direct examination that a
13 basis for her claim of retaliation against
14 Mr. Mareane was that he had withdrawn his
15 support for the local law.
17 Q The law also indicated that the three-
18 person board could appoint a hearing officer?
19 A Correct.
20 Q Would the hearing officer also be a
21 volunteer?
22 A Not necessarily, no.
23 Q And part of the reason they raise the
24 concerns with you is they understood that the
1 county now would be doing, perform the same

2 function to a great extent that the state was
3 already providing, correct?
4 A You'll have to ask them, but that was
5 part of what they communicated to me, yes.
6 Q And they also communicated to you that
7 their preference would be potentially to have the
8 memorandum of understanding with the state
9 reinitiated so that the county could serve the
10 role it had in the past of acting as an
11 investigative agency for the New York State
12 Division of Human Rights, correct?
13 A Yes.
14 Q And that was the very first meeting you
15 had over this local law, correct?
16 A Yes.
17 Q My question then is how do you conclude
18 that Mr. Mareane withdrew support for a law that
19 he had never seen and you had never discussed
20 before the day on which he raised, along with
21 Mr. Wood, those questions to you?
23 Mischaracterizes the direct testimony.
24 HEARING OFFICER: I'm sorry.
1 MS. SALZMAN: Objection. It

2 mischaracterizes the witness's testimony.
3 HEARING OFFICER: I'll have you
4 restate the question.
5 MR. MCCANN: Can I have it read back?
6 (PREVIOUS QUESTION READ BACK.)
8 question.
9 A I'm trying to.
10 HEARING OFFICER: Understand it?
11 A Yeah. First of all, Mr. Mareane had read
12 the draft before we had a meeting. And it wasn't
13 that, their complaints weren't based on certain
14 particular parts of the law. The complaint that
15 I got from the meeting was that there was no,
16 that the need for the law was not viable. That
17 they didn't think the community needed the local
18 law and so that's what was different. It wasn't
19 just that they had issues with particular parts
20 of the law during that meeting. It was that they
21 said the system isn't broken so we don't need to
22 fix it. So it was a general lack of support for
23 additional protections under the law.
24 Q My question is what support did he
1 withdraw?
2 A Well, you know, from the beginning when I
3 came here to Tompkins County it was understood
4 and I had received, you know, complaints from
5 people who interviewed me that the local law
6 needed to be redressed. And I was asked by
7 various stakeholders to look at the local law to
8 see how it could be redrafted so that local
9 enforcement powers could be realized again in
10 Tompkins County.
11 Q As it had in the past, correct?
12 A As it had in the past.
13 Q And how did Mr. Mareane convey his
14 support to you for this local law?
15 A Well, you know, he knew I was working on
16 it. I gave him updates from time to time and he
17 knew I was working on it. And I reported about
18 the progress at budget meetings saying that we
19 were working on it and what our deadline was. So
20 I just had a general sense that the community and
21 the legislature was headed in the direction of
22 trying to find a way to provide more protections
23 for people in Tompkins County who have
24 discrimination complaints and this was just one
1 avenue. The other avenue of course was

2 reestablishing the MOU with the State Division of
3 Human Rights.
4 Q My question is how did Mr. Mareane convey
5 his support to you for this local law?
6 A You know, I just have to say if he didn't
7 want me to work on it, if he didn't, if he was
8 opposed to the general idea which he expressed in
9 the meeting, I just wish he had expressed that to
10 me earlier. Otherwise I wouldn't have spent a
11 lot of time trying to draft something that I
12 thought the community needed.
13 HEARING OFFICER: Let's take a time
14 out. I'd like to confer with counselors
15 and just take a breather for ten minutes.
16 (RECESS TAKEN.)
19 MR. MCCANN: This one is again a
20 document already in evidence marked
21 separately for ease of reference marking it
22 as Charging Party Exhibit 34.
23 HEARING OFFICER: It's received.
1 Q Ms. Baer, I'm not going to belabor this,

2 but this is an e-mail exchange between you and
3 Mr. Mareane, correct?
4 A Yes.
5 Q He indicates at the outset of the chain
6 on October 13 that he was awaiting some
7 additional options from you for a local law?
8 A Yes.
9 Q And then October 20th you asked him a
10 reminder of what we talked about on August 18 and
11 then he responded on November 2. I'm sorry.
12 Then you responded again on November 2 and rather
13 than providing the additional options, you asked
14 Mr. Mareane to let you know what the concerns
15 were?
16 A Right.
17 Q Again, I'm trying to shorten it a little
18 bit. Mr. Mareane then sent you a memo, correct?
19 A I believe so.
20 Q Actually it's an e-mail.
23 MR. MCCANN: Marking for ease of
24 reference Charging Party Exhibit 34.
1 HEARING OFFICER: I've got 35.

2 MR. MCCANN: I'm sorry, 35.
5 Q Ms. Baer, in this e-mail Mr. Mareane sets
6 forth the concerns that were brought in the
7 August 18th meeting over the draft local law that
8 you had prepared, correct?
9 A Yes.
10 Q And did you understand the concerns to be
11 presented both by him and Jonathan Wood as county
12 attorney?
13 A What is the question?
14 Q Did you understand the concerns that were
15 presented in August to have been presented by
16 both Mr. Mareane and Mr. Wood as county attorney?
17 A For the most part.
18 Q I direct your attention to the third
19 paragraph. It starts the core question, do you
20 see that?
21 A Yes.
22 Q He states "the core question raised is
23 whether the county should create a system that
24 duplicates all that already exists at a state
1 level, particularly as it relates to the shifting

2 of the responsibility for the investigation,
3 adjudication and enforcement from the state to
4 the county." That's not materially different
5 than what you thought the core question was,
6 true?
7 A My core question? What are you referring
8 to as my core question?
9 Q Let me direct your attention back to
10 Charging Party 32, your memo to Mr. Mareane, June
11 30, 2015. First sentence of the third paragraph
12 "my overarching objective has been for this local
13 law to be substantially equivalent to state and
14 federal standards and to include identical
15 protections." So on one hand you were drafting
16 something where your overarching objective was to
17 provide a duplication. Mr. Mareane is responding
18 the core question is whether there should have
19 been a duplication, correct?
20 A That's reasonable, yes.
21 Q He concludes by stating in his November
22 7, 2015 e-mail to you: "After laying out the
23 concerns that had been discussed in August, I
24 hope this helps clarify our earlier meeting and
1 assist with the request of development of

2 additional options. Thanks, Joe." Did you ever
3 provide those requested additional options to
4 Mr. Mareane?
5 A Yes.
6 Q What form did those options take?
7 A A smaller. More, we decided to take
8 parts of the comprehensive law and just focus on
9 certain protections. And so I provided Joe and
10 the legislature with instead of a comprehensive
11 law of ban the box, legislation and source of
12 income protection legislation. Took them out of
13 the comprehensive law in order, because as I
14 recall, one of the major complaints in the
15 meeting was that the law was too long and too
16 complicated in addition to these concerns. So
17 that's how we addressed these concerns is to
18 maybe think a little bit smaller and cut up the
19 law in a way where we could address what we think
20 were the most pertinent protections that Tompkins
21 County citizens would enjoy.
22 Q And you're also pursuing the notion of
23 having another work sharing agreement with the
24 state?
1 A Yes.
2 Q That's something everybody was in favor
3 of, correct?
4 A Well, yes. And I was in favor of it,
5 too. And this has always been a two track kind
6 of process, strategy.
7 Q How was it that you concluded that Mr.
8 Mareane had an unlawful intent to retaliate
9 against you based upon the concerns he raised
10 over the local law you drafted?
11 A Well, they were to me starkly different
12 sitting in that room and listening to those
13 concerns.
14 Q Starkly different than what?
15 A Than how he articulated for example in my
16 performance review that he expected me to explore
17 these types of strategies. And no, he didn't say
18 that either of us knew what that was going to
19 look like at the time.
20 Q Exactly.
21 A But, you know, my sense was that I would
22 submit a proposal and we would work together to
23 try to figure out what Tompkins County needs and
24 what it doesn't need. I didn't expect an overall
1 kind of do we, do we really need to think about

2 this at all.
3 Q Think about it as identical to the state,
4 correct?
5 A Yes.
6 Q Fair to say that was a misunderstanding
7 between you and Mr. Mareane?
8 A No. It felt like retaliation to me
9 clearly.
10 Q Why?
11 A Because of the timing.
12 Q Because of the timing?
13 A Yes.
14 Q Why is that?
15 A Because this was right when all of the
16 other things were happening and I felt completely
17 unsupported by the administration. And this was
18 just one example of where I felt that support was
19 being withdrawn from my initiatives.
20 Q But yet he never saw the local law to
21 withdraw support for that local law?
22 A That's true.
23 Q At the time he was dictated by the fact
24 that your memo transmitting that was June 30th,
1 2015, correct?
2 A Yeah. He also asked me not to talk about
3 it publicly. He told me not to share the law
4 with other people. And so it felt like a
5 withdrawal of support.
6 Q While it was under review by the county
7 attorney and county administrator?
8 A That's possible.
9 Q I direct your attention to Charging Party
10 Exhibit 3. Is it fair, Charging Party Exhibit 3
11 once again is your June 9, 2017 letter to Mr.
12 Taylor in response to his letter to you. Would
13 you read the last sentence of your letter please?
14 A "These reasons of course are why I have
15 not responded to your calls and will continue to
16 do so in the future. I will eventually tell my
17 story, but on my own terms and in my own time."
18 Q Did you think Mr. Taylor was going to
19 call you again even though you told him you're
20 not going to respond to him?
21 A No, because his letter to me sounded like
22 he was pretty much done.
23 Q His letter to you did?
24 A Yes.
1 Q The one that is asking you, giving you

2 one more opportunity to participate?
3 A The one I'm responding to I believe
4 there's --
5 HEARING OFFICER: What is the date of
6 that?
7 A June 9th.
8 HEARING OFFICER: That is just prior
9 to his report. He asks you, if I recall
10 correctly, do you have anything to add?
11 A Right. I think his is dated June 6th,
12 three days later.
13 HEARING OFFICER: This is three days
14 later.
15 A Than his letter.
16 HEARING OFFICER: Right. You're
17 talking about --
18 MR. MCCANN: Charging Party 2.
19 HEARING OFFICER: And that is before
20 the witness. He's coming to the conclusion
21 of his report at that point.
22 A Right. That is the word that I recall
23 being in here somewhere.
24 Q Would you read the last sentence of Mr.
1 Taylor's letter to you please?

2 A I urge you to take advantage of this
3 opportunity to meet with me and contribute to my
4 investigation.
5 Q And you took that as an indication by Mr.
6 Taylor that he was not going to hear anything
7 more from you?
8 A Well, it kind of begs the question since
9 I hadn't received the written process, which I
10 made clear to him that I would like before I
11 actually was interviewed, there was a lot of
12 questions raised by his --
13 HEARING OFFICER: And that
14 conversation was back onto a phone
15 conversation I think you said about 40
16 minutes in January or February.
17 A Yeah. This letter kind of encapsulates
18 everything that was said in that conversation.
19 Q Why didn't you return his calls?
20 A I was waiting for a written process. I
21 was waiting for him to fulfill my request. He
22 said he was intending on doing it.
23 Q Couldn't you pick up the phone and say,
24 Mr. Taylor, send me that written process and I'll
1 be there?
2 A I prefer to do things in writing.
3 Q Why didn't you send him a letter?
4 A I did.
5 Q In response to all of his phone calls to
6 you over the course of several months telling
7 your assistant I'm going to be in Ithaca again,
8 I'd like to talk to Ms. Baer. Why didn't you
9 respond to all of those phone calls, if you want
10 to do things in writing, and tell him I need a
11 written process as a condition of meeting with
12 you?
13 A I think I was clear with him about that
14 over the phone. I also, you know, I've never
15 received a written process over the telephone so
16 it was curious to me why he continued to call me
17 and not e-mail me or send me something or say
18 he's going to send me something. At this point I
19 felt like I had participated in this process. I
20 had sent him all the prima facie evidence, what I
21 would consider prima facie evidence.
22 Q What did you send him?
23 A I assumed he had my resumé from Mr. Lane.
24 I assumed he knew that I was a person of a
1 protected category. I assumed he had the list of

2 the members of the committees and the
3 opportunities that I was not provided, you know,
4 that I didn't participate in and who did
5 participate in. And those are all prima facie,
6 that's prima facie evidence and all he had to do
7 is kind of assess that information. Look at my
8 resumé. Was she really qualified to sit on this
9 committee. Is this really her area of expertise.
10 I assumed that he was going to be taking that
11 information and conducting an investigation.
12 Q Ms. Baer, you thought based solely on
13 your resumé, identification of people on the
14 committees that he could conclude in your favor
15 you'd been a victim of discrimination and
16 retaliation with nothing else from you?
18 Mischaracterizes the testimony.
20 question.
21 A I think an interview would have been
22 appropriate as well.
23 MR. MCCANN: Thank you. No further
24 questions.
722
1 A But he should have provided me with a

2 written.
3 HEARING OFFICER: An interview with
4 you?
5 A Yes. I wanted protection before that
6 happened and I didn't get those.
7 MR. MCCANN: Thank you. No further
8 questions.
9 MR. CELLI: Just a moment.
10 (RECESS TAKEN.)
11 MS. SALZMAN: We have no questions on
12 redirect.
13 HEARING OFFICER: Housekeeping.
15 HEARING OFFICER: For the record I'm
16 aware of the fact that the parties have
17 diligently prepared their closing
18 statements, however I'm going to waive
19 those, have them waive that and instead
20 send me by hardcopy, and they can do it by
21 e-mail, on March 1 their position briefs.
22 They would send the direct copies to me of
23 course with copies to each other.
24 It's my further understanding that
723
1 the transcript would be available in about

2 two weeks. In other words, mid January to
3 the third week in January, somewhere in
4 there. And then, as I say, I'll have you
5 submit your post hearing submissions to me
6 on March 1st which I think you said is a
7 Thursday, correct?
8 MS. SALZMAN: Correct. Can we be
9 heard just briefly on the issue of closing
10 arguments. We of course respect and
11 understand your ruling.
12 HEARING OFFICER: Of course you do.
13 MS. SALZMAN: But just for the record
14 we had asked early on in this case to have
15 an opportunity to deliver a closing
16 argument. I personally spent some
17 substantial time preparing that closing
18 argument and for us and for our client we
19 would appreciate the opportunity to deliver
20 the closing arguments at the end of what
21 has now been a three-day hearing with a
22 substantial gap of the taking of evidence.
23 But we respect your ruling. I don't mean
24 to be obnoxious and impose on your time,
724
1 which we certainly respect, but it

2 certainly would be our preference to give
3 them if we could.
4 MR. MCCANN: I believe we discussed
5 that in an off-the-record discussion and
6 the decision was we're not going to do
7 closing arguments.
8 MS. SALZMAN: That is the hearing
9 officer's ruling and I'm just stating for
10 the record my position.
11 MR. MCCANN: Can we do this off the
12 record because I have concerns --
14 MR. MCCANN: -- about what's going on
15 here.
16 (RECESS TAKEN.)
17 HEARING OFFICER: I want to go on the
18 record as to why I made the ruling I did so
19 everybody understands. I appreciate, I
20 understand that Ms. Salzman, did I say that
21 right?
22 MS. SALZMAN: Yes.
23 HEARING OFFICER: Put considerable
24 work into a post hearing closing argument.
725
1 Normally, however, my experience has been

2 you do one or the other. You either do a
3 closing argument verbally or you do a post
4 hearing submission. Given the length and
5 the voluminous exhibits, I'd prefer of
6 course to have that in writing to me.
7 That's why I did it that way. Plus we had
8 of course a pretty extensive, you may
9 recall, opening statement by counsel on
10 behalf of the accused, so that's why I
11 decided to go with precluding closing
12 arguments and go directly to written post
13 hearing submissions. Thank you for your
14 understanding of the matter and I have
15 nothing further.
16 Anything further, Counselors.
17 MR. CELLI: I don't believe so.
18 MS. SALZMAN: No.
19 MR. MCCANN: Nothing further.
20 HEARING OFFICER: With that we'll
21 call the hearing completed subject to, of
22 course, the post hearing and of course you
23 know that you can put your closing
24 statement in that written submission.
726
1 MS. SALZMAN: Thank you, Your Honor.

2
3 * * *
4
5
6
7
8
9
10
11
12
13 C E R T I F I C A T I O N
14
15 I hereby certify that the proceedings and
16 evidence are contained fully and accurately in the
17 notes taken by me on the above cause and that this
18 is a correct transcript of the same to the best of
19 my ability.
20
21
22 ________________________________
23 DELORES D. HAUBER
24
727
1 I N D E X
2
3 Witness Examination By Pages
4 Michael Lane Mr. McCann 600-615,
639-642
5 Mr. Celli 616-639,
642-643
6 Karen Baer Mr. McCann 652-721
7
8
9 E X H I B I T S
10 Number Description MKD ADM
HO-6 motion 589 589
11 HO-7 answer 589 589
12 R-R progressive discipline policy 622 631
13 CP-20 6/17/16 letter to Baer 595 596
CP-21 7/6/16 e-mail from Baer 597 598
14 CP-22 1/17/17 executive session min 607 607
CP-23 3/11/15 e-mail chain 652 654
15 CP-24 e-mail from Simmons to Lynch 654 655
CP-25 e-mail Pat to Sarah 660 668
16 CP-26 e-mail from Sarah to Marcia 668 668
CP-27 e-mail 676 677
17 CP-28 5/6/15 e-mail 682 686
CP-29 e-mail to Mareane and Wood 686
18 CP-30 7/20/15 e-mail 690 691
CP-31 8/21/15 e-mail to Mareane 692 693
19 CP-32 memo to Mareane 701 701
CP-33 7/2/15 e-mail from Mareane 703 703
20 CP-34 e-mail chain with Mareane 710 710
CP-35 e-mail from Mareane 711 711
21
22
23
24

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588

1 STATE OF NEW YORK COUNTY OF TOMPKINS

VERBATIM REPORTING & VIDEO

1 (HEARING OFFICER EXHIBITS NUMBER 6

1 the record why there was no document for

1 direct examination about this particular

1 It has to do with progressive discipline. Very

1 Q Is there a further reference in the next

1 the court, we can do that. I appreciate

1 Q Mr. Lane, I show you a document marked

1 MR. CELLI: No objection.

1 HEARING OFFICER: Do you need a five

1 A Yes. She raised that, those issues in

1 I'm clear, the further investigation became

1 had completed our investigation and review of the

1 evidentiary support you insist you have for your

1 fully familiar with the report, the findings and

1 MR. CELLI: I'm going to object and

1 reviewed, but as to what Miss Baer thought

1 Q Did the legislature at some point meet to

1 it's own full review of the investigation

1 make sure that everyone had a chance to look at

1 MR. MCCANN: Mr. Hearing Officer, if

1 Q Directing your attention back now to --

1 A Well, at that point we thought it could

1 don't we have a look at what has been previously

1 Q And the third page of the document --

1 ask the question again?

1 Q And on this particular chart what it says

1 said, I don't know how I should answer that.

1 HEARING OFFICER: Let me interrupt.

1 document produced by the Tompkins County

1 It says: If you have any specific questions or

1 A I believe she was unpaid initially.

1 case and as the former chair of the legislature,

1 read that sentence. It obviously doesn't

1 marked as Respondent's R into evidence.

1 Q Sure. But the letter doesn't say in this

1 Ms. Baer that she had to provide support for her

1 Respondent's Exhibit A, second page is an e-mail

1 claims based on other alleged exclusions from

1 A That's what she said.

1 bar, we'll do a side bar.

1 part of the transcript from the previous days'

1 According to this policy, the county could have

1 third paragraph she should be given the

1 A Yes. And I'm totally amazed she did not

1 Q Even though she was not cooperating, you

1 MR. CELLI: Nothing more.

1 Pryor was referenced directly in Ms. Baer's

1 MR. CELLI: Thank you, Mr. Solomon.

1 object to the inclusion of any additional

1 of Mr. Lane's schedule he was not, could

1 secondly, I think I reserved I still need

1 three weeks notice to do that. She never

1 nothing to do with the three charges

1 continue with cross examination of Miss

1 It appears to be an e-mail exchange between you

1 Q Is it fair to say that at the time of

1 and training and so on.

1 legislation. The concern that Marcia raised was

1 law and their previous support for GENDA at the

1 Q Did you have a conversation with Marcia

1 A It's possible. I don't know the record