New York Phil appoints independent investigator
OrchestrasThe orchestra’s president Gary Ginstling has engaged Katya Jestin, of law firm Jenner & Block, to undertake an investigation into the culture of the New York Philharmonic. She has been asked ‘to look at everything and leave no stone unturned, including any new allegations as they are reported.’
The following message went out today to members of the organisation:
Dear New York Philharmonic Community,
The details revealed in the New York magazine article are horrifying to me personally, and, while not yet a year into my tenure as President and CEO of the New York Philharmonic, I am deeply concerned about not only the specifics but broader issues of institutional culture. Therefore, I have taken the following immediate steps:
At my direction, the Philharmonic has engaged Katya Jestin, co-managing partner of the law firm Jenner & Block, to launch an independent investigation into the culture of the New York Philharmonic in recent years. Katya has extensive experience handling sexual misconduct investigations and related matters involving extremely sensitive interviews. I am empowering Katya to look at everything and to leave no stone unturned, including any new allegations as they are reported. I pledge to share the recommendations with our board, our staff and our musicians as well as with the general public. More details on the process will be coming shortly.
For the time being, musicians Matthew Muckey and Liang Wang are not being assigned to any Philharmonic activity as we work through this process, and a decision about their future with the New York Philharmonic will be made in due course.
The New York Philharmonic is preparing to seek changes to its audition and tenure review policies and procedures to provide more transparency, oversight and equity to the process. We look forward to working with Local 802 and our musician colleagues on these changes.
Nothing is more important than the culture of our orchestra and the safety of our musicians and staff, and it is only through this process that we will build the kind of vibrant and inclusive culture we all want.
Thank you,
Gary
He’s inherited a real mess. This started in July, 2010, under Zarin Mehta who announced his retirement 2 months later. Next came Matthew VanBiesen in 2012 who took no publicly acknowledged action. Borda arrives in 2017, presumably learns of the assault, hires Judge Barbara Jones and promptly fires Wang and Muckey one year later. They get their jobs back out of arbitration in April 2020 and here we are. I wish Ginstling godspeed in resolving this.
Oh the other hand, any incoming CEO during contract negotiations would’ve / should’ve done due diligence and asked for all “pending litigation, recent litigation, and potential litigation” involving the organization he is about to take over, so that he’d know what shit storm he is about to step into.
And once he did become CEO, since this case was widely reported and certainly reported in the NYT, so the first thing he should’ve asked for was the full unredacted report by Barbara Jones.
Was he advised by general counsel to let sleeping dogs lie?
Well, look, he gets a not small salary, doesn’t he? He was plopped into the job by Deborah Borda, wasn’t he?
No need to cry for Gary Ginstling.
It seems to me that if he had the cojones he would say, ¡Ya no más!, the arbitration ended it and we, the NY Phil, need to move forward.
But maybe it’s independence he lacks. He has to do as he’s told.
So we have a resurrected “shit storm,” as you say, to satisfy someone who has never had a penis inside her, is supposed to have half left, has herself decided what happened in a room 14 years ago, and wants to play judge, jury and executioner.
Except that, this go-round, things will play out against a binding agreement.
What the hell is wrong with you?
Why was this person’s unbelievably inappropriate comment even published?
Wow – that’s super vulgar. And plain wrong.
What can this do? They had a lawyer’s report for a half million dollars first time through but the 802 beat it.
The point is there are clearly allegations beyond this one case that have been percolating and not gone to the surface. It’s likely the report will unearth a lot more bad behavior. It also is a way to fix the culture of the organization so this doesn’t happen again.
… likely the report will “unearth a lot more bad behavior.”
Yes, let’s “fix” the NY Phil’s “culture” (but not harm the NY Phil in the process).
“I, Katya Jestin, personally commit to the following:”
https://www.lcld.com/pledge/jestin-katya/
And your answer is___________?
” I pledge to share the recommendations”
But not the facts, the details, nor even a summary of the facts, but what makes the New York Magazine article so insightful and impactful was precisely the facts.
Without the facts, the Philharmonic was able to reintegrate 2 alleged rapists seamlessly back into the organization without any women members of the orchestra realizing, in 10 years, to what extent they were at risk of 2 co-workers accused of drugging a co-worker during work related afterhour socializing to the extent that the drugged victim had no memory of what happened.
Women of the Philharmonic, can you say with absolute certainly you never had an interaction in 10 years with either Muckey or Wang where either could’ve slipped something in your drink? You wouldn’t remember if they did, would you?
Screw your sharing “recommendations”, any experienced lawyer can write generic recommendations that will apply in 99% of the workplaces even without an investigation.
So what would you propose?
Nothing like that happened though, did it?
It is important to make a distinction between what was reported and “facts”. While not mutually exclusive, just because she said it does not make it true. The interview was not conducted under oath, and the “evidence” that supports her story all came from her, not from an independent investigation. We do not know if the tampon was used before or after sex, we don’t know how far inside her it was, etc. These are her words, which may be 100% true, or not. Even the hair sample containing traces of GHB is a red herring. There is a reason that would get tossed out of an actual court, but here, the reporter just sets that on the table and walks away, leaving the reader to draw their own incorrect conclusions.
Nothing would make me happier than for these guys to be nailed to a cross if it is found, through due process, that they did indeed commit these crimes. However, the standard of proof is much, much lower in the court of public opinion, though the consequences are sky high.
It’s OK to ask questions, people. Question *everything*, and stop shouting down people that are more interested in finding the truth, whatever that may be, then virtue signaling.
“Than” not “then”. Sorry.
It was reported to the police at the time and the state prosecutor thought that there was plenty of evidence to press charges and was very surprised that the local prosecutor didn’t do so.
Both players joined the orchestra in 2006, and I assume tenure was granted them 2 years later. Even if it stretched out an additional 2 years, they still would have had tenure by the time they were in Vail after the 2010 season had concluded. So they both had tenure before the Vail rape. Any “changes to its audition and tenure review policies and procedures to provide more transparency, oversight and equity to the process” would be moot, because tenure was already in place for Muckey and Wang.What is the point to now review and make tenure more transparent? What needs to be addressed is the protection afforded the musicians through Local 802 (and the AF of M in general) to overturn dismissals in cases like this. The NYP had fired them, and through the actions of Local 802, they were reinstated. That sent a strong signal to Muckey, Wang, anyone who had been previously been assaulted in the orchestra by another member (who now knew they might as well stay silent, because only the victim will suffer consequences), any “assaulters” still in the orchestra (yes, you CAN get away with it with no fear of reprisal), and certainly management. Talk about a toxic environment.
I think it was also to address the fact that two members including the victim did not get tenure after speaking out regarding the allegations. How to allow people to voice their concerns without fearing for their jobs is what part of the statement is referring to I assume.
Right, Musician of Sorts. Among the rape allegations, people are forgetting about the retaliation allegations which are awfully cut and dried, and which involve Alan Gilbert and whoever was on the tenure committee. That part might be much less sensational, but it is more easily verified.
I guess this changing were referred to what happened to the musician who was not tenured after the rape case not to the tenure pricedure that lead to the offender(s) hiring in the first place
Tenure in orchestras offers some level of protection (usually peer review) against dismissal for artistic inadequacy. It offers no protections whatever against dismissal for cause; ie misconduct. That’s a completely separate process.
Would be cheaper just to hire a couple of ‘sopranos’ to rough up and ‘disappear’ these two knuckleheads. Just saying.
Your suggestion for murder is quite hilarious. Hats off to you Norman for encouraging these nutters!
This is the logical next step in social media justice.
Anyone suggesting that on social media must be seriously IQ deficient.
Well it’s 802. Would be so unfortunate if something unusual happened to these obviously upstanding people,
See what I mean, Norman?
I think it’s time to dust off my copy of Arthur Miller’s “The Crucible.” As usual, and as in the play, hysterical women are leading the charge. Maybe the VPO knew exactly what they were doing when they refused to accept women throughout most of its history.
I’ll give you credit, Mr. Blessing: I haven’t heard someone express such antediluvian views in public for some time.
Wait until you hear about my other antediluvian views, such as that there are only two sexes and that so-called “trans women” are simply rebranded male transvestites.
This should be read … https://www.vulture.com/article/new-york-philharmonic-sexual-assault-scandal.html?fbclid=IwAR2RPlaE7oqxRDgxM8PXZ5-AbWRhOsqfYU74Cf9bk9dZuW6yvrcentofLJk&mibextid=xfxF2i
Does this mean Alec Baldwin goes too?
Probably. It’s too bad — he’s been a great announcer for them for years.
His “come hither” manner of speaking on the airwaves has always struck me as totally inappropriate for a classical music announcer……
Come hither? We are living in truly crazy times when it comes to anything involving sex.
It’s the New Victorianism, which historians predicted was going to happen after the 60s.
Other than firing everyone and closing shop, this seems to be a sensible way to proceed. It is not an answer, surely, but facts and transparency are necessary to address the current situation and to move into the future.
Society is in a much different place than it was ten or fifteen years ago. Hopefully the Philharmonic and Local 802 will emerge stronger and more resilient and serve as an example for other organizations. Their situation is not unique.
Any society that changes that much so quickly should be questioned as to its stability.
One interesting question in all of this is whether Mssr Muckey ever willingly or deliberately engaged in Romance with a Caucasian female… One with even distant, informal, or speculative knowledge might recall a near flawless pattern of Asian females in his orbit…
Aha, the Trumpian “not my type so I couldn’t have raped her” argument. I was wondering when that was going to hit the comment sections. I heard this chestnut back when they got sacked.
“What am I investigating? Whatever I can find!”
What an exciting development for the musicians, this is like the appointment of a special counsel. By the end, everyone will be accused of something. Good thing they all agreed to that fantastic new reduced burden of proof!
I can’t wait to watch this unfold.
The arbitrator who reinstated Muckey and Wang deserves a great deal of the blame for this fiasco. It was easily foreseeable that reinstating them would prove catastrophic for both them and the orchestra if details of the allegations against them became public, and they were certain to become public eventually, but he did it anyway. It would have been within his power to provide other remedies, but he chose to set the stage for a disaster instead.
I’ve practiced law for many years. Arbitration is a great racket for lawyers, but terrible for clients. This is a classic demonstration of why that is the case.
Indeed. Arbitration lawyers (members of the AAA) have to be agreed upon by both sides.
The lawyers have to look impartial so over time, they will end up siding with either side (management vs labor) about 50% of the time.
In this situation, it would appear that the arbitrating lawyer decided to side with labor under the auspices of Local 802.
Tim, as a former employment law attorney who has worked in another field for 15 years ago, I couldn’t agree more. The Federal Arbitration Act is hell for everyone but our colleagues at the Bar.
To the employment lawyers: can the binding arbitration agreement be reopened? Also, isn’t there double jeopardy? Please advise.
Of course, the new independent investigation is welcome. But why isn’t the NY Phil willing to publicly release the findings of the first investigation – the one that was used to justify the dismissals in the first place. Lawyers for the two continue to claim that neither did anything wrong. If true, then they must welcome any opportunity to share results of the original inquiry that should logically support that disposition. They can’t have it both ways. The arbitration outcome may be binding, but that should not preclude public disclosure of the underlying facts. Transparent accountability is the only way to credibly move past these most unfortunate of circumstances. If there was any wrongdoing, the NY Phil should not enable or be complicit in covering it up.
This involves privacy and law, they can’t just release the full investigation with all people’s name on it and other details of it. This open them up for more law suites. This at the end of the day is employee and employer dispute and public can demand knowledge but it’s privileged information.
There are several reasons why the findings are not made public:
1. Some people will only tell their stories of harassment and assault if it’s kept confidential. I think it’s pretty understandable why some may not want their trauma splashed across the pages of newspapers — they want to tell the investigator what happened to them, but they also want to move on with their life. People may also fear retaliation.
2. While names might be withheld in the report, given how few employees the NYP has, it will likely be easy to figure out who is who, and making the report public could open the NYP up to defamation lawsuits. The report will likely publish everything it finds, even if the veracity of some of the allegations are hard to substantiate (because reports like this aren’t trying to prove each allegation).
3. The report serves has excellent evidence for any employee who wants to file a lawsuit against the NYP for operating a hostile workplace environment.
If he really wants to empower people, he can let Kizer out of that NDA…
The NDA is with the Philharmonic, and yes they should release her from it. Though she’s been talking so I’m not sure if they’re enforcing it.
I doubt that Muckey and Wang will ever play with the NYP again. This may be an unprecedented situation where management, the musicians, and union leadership are united in wanting to see players exited from the orchestra.
The question is if the orchestra will try to get them to willingly leave by offering payouts, or if they’ll fire the musicians and likely face wrongful termination lawsuits.
And while the lawsuits may have solid legal merits, they’ll never go as far as depositions because Muckey and Wang would be eviscerated — they would be asked, under oath, about every bad dead from their lives, and that would all become public. It would be repetitional self-immolation. They and the orchestra would settle out of court.
As for the investigation, what will really count is what new investigatory and disciplinary policies will management and the union agree to in order to make employees feel safe to report harassment and abuse, and then exit employees when there’s a preponderance of evidence validating the accusations. And as I’ve said many times, this will require the union to give up a little power to management.
What if you are wrong? I believe we have heard from the accuser and her now wife. I understand neither accused party has remained silent at least partly (or wholly) for legal reasons; would their truth be the same as the accuser?
If there is one thing #MeToo has taught us, it should be that rush to judgement doesn’t protect the accused.
They are INNOCENT until PROVEN GUILTY no matter how many times the accuser or supporters wish to explain their guilt.
And I’m simply not convinced that the accuser is entirely believable.
Rule Number One in Corporate America (and maybe even unionized orchestras) – If they don’t want you there they will find a way to get rid of you or make you so miserable you will quit.
“They are INNOCENT until PROVEN GUILTY no matter how many times the accuser or supporters wish to explain their guilt.”
In criminal court, yes. This is not a matter of criminal prosecution. So the private employer may do what it likes, so long as that is consistent with employment law and contract obligations.
Our two-bit opinions as outsiders mean squat.
So you didn’t read the Vulture article…
They were already proven guilty. The 2018 investigation found a preponderance of evidence validating the accusations against them. They only got to keep their jobs because of arbitrary reasoning by the arbitrator.
And why are you standing up for them and dying on this hill when their peers in the orchestra and even union leadership think they’re guilty and want them gone?
As the Vulture article makes clear, they have received the benefit of the doubt over and over again. And it seems to be an open secret within the orchestra that they are scumbags.
What many of these brain dead, #metoo idiots are forgetting is this: Women CAN and DO lie about these things.
This is a good and necessary start. I suspect many of the good ol’ boys who closed ranks around Muckey in 2014 have since retired, but something needs to be done to break up that protective culture, too. And it’s good they include a review of audition and tenure policies and procedures here.
The 2020 arbitrator ruling notwithstanding, you would think there would be a mechanism to cut ties with Wang and Muckey for bringing the institution into disrepute.
That mechanism would be a morality clause in a contract that protects an employer from any misbehavior of an employee that may be harmful to the employers image.
Surely contracts with the Phil contain this type of clause.
From the NYT:
“Alan S. Lewis, a lawyer representing Mr. Wang, accused the Philharmonic of … “not affording him the dignity and fairness he deserves.” He said in a statement that when the Philharmonic investigated the matter in 2018 it “did not accuse Liang Wang of any misconduct arising from it” and that the “only person accused of misconduct in connection with that matter” was Mr. Muckey.”
It always struck me, why didn’t Wang turn on Muckey early on? He still can. There is no honor among thieves. Every bit of physical evidence points to Muckey, not one points to Wang. All Wang has to do is to blame everything on Muckey and claim complete innocence, that the reason he waited so long to speak out was because he felt intimidated by Muckey, etc, etc. That is the first tactic among criminal defense lawyers, deflect and shift the blame to the co-defendant, pin everything on him.
Because Wang is more involved than let on? Because Muckey “has all the receipts” (to use the parlance of today’s generation) and can show Wang’s complicity if Wang snitched on him? Or because of real bro loyalty?
Maybe because neither of them did anything criminal.
Shhh!
It’s pretty easy for Want to claim the 2018 investigation somehow exonerates him when no one else has seen it. Clearly he did something that compelled management to fire him.
You can attempt to control male sexuality if you like; I mean, that’s what’s been happening for nearly a decade now. Don’t, for heaven’s sake, think that won’t have negative consequences for male/female relationships now and in the future.
The far more intelligent approach would be to teach women some discretion about how they work with, speak to and interact with men. This saves much misery, report-writing, command-and-control and censuring. Yes, we know the Left loves all this, but do take my point.
I was wondering where Sue Sonata Form was lurking, apparently just got out of prison and access to the internet:
Why,
1) Women players should wear burqas, they should be heard not seen.
2) Wait a minute, there shouldn’t be women players on stage at all, why aren’t in the kitchen barefoot and pregnant?
3) Oh guess what, when you don’t control male sexuality and left where women are not around to tempt them: male prisons (of which Sue Sonata is an habitué) and male navies, or as Churchill famously remarked, all “rum, sodomy, and the lash”
A burqa can be very practical, because you become invisible. When we had some protest groups at the gate here, I climbed over the fence in a burqa and could get in entirely undetected from the male gaze.
Sally
Sure thing! Signing up for my burka.
Sue Sonata Form, the allegation is one of drugged rape. How can someone dispositively prevent that from happening? Wearing a chastity belt in a locked motel room when not on stage?
Excuse you?
I offer an apology if it seems I am spreading rumors. But I remember the former 1st French hornist finding himself in trouble near the end of his career. Something about during an overseas tour, his poor treatment of a (female?) colleague in his section.
Yeah, you are kind of spreading rumors. Not cool nor excusable to throw unsubstantiated fuel on a fire. This is not the Catholic Church, merely asking for absolution does not mean it is granted.
Maybe now Ms. Jestin will help reveal whether it is rumour or not.
https://slippedisc.com/2017/09/breaking-new-york-phil-deletes-its-principal-horn/
Hi Phil.
Yup. Continued misogynistic problems in the brass section.
Barbara Jones is the gold standard and she found the pair of cretins liable and found a lot of mysongyny in the orchestra. So now they are going to pay big bucks to do it all over again? This should have been acted upon years ago. They buried this story and now it’s going to get uglier than it would have if they had acted then.
Reimagine these two guys as black and then ask yourself if they would be retried in the court of public opinion by these same activist journalists and their mob, after the Vail District Attorney said there was no case here to prosecute. As much as the NY Phil (and now the union) wanted to throw them under the bus, they simply couldn’t. They are under attack for what they represent within the official narrative. Brings to mind the Duke Lacrosse team scandal. Facts of the case just ain’t cooperating with the Long March!
Right. Because Black people in America have long gotten the kid-glove treament and every benefit of the doubt in the criminal justice system.
And are you familiar with Bill Cosby, Diddy, and R. Kelly?