Investigation: Oregon state lawmaker likely created a hostile workplace at state Capitol

An investigation into the behavior of Rep. Diego Hernandez found the East Portland lawmaker likely created a hostile work environment at the state Capitol for two women, according to an internal investigation into the representative’s behavior that was recently provided to OPB.

Both women had brief, consensual romantic relationships with Hernandez. Both women, according to the investigation, tried to end those relationships but found it wasn’t easy.

Rather, they felt Hernandez’s behaviors forced them into making a difficult choice: they could either resume a relationship with Hernandez or risk jeopardizing their careers.

For a third woman, investigators wrote it was reasonable the woman felt uncomfortable working around Hernandez after their romantic relationship ended. The investigators noted Hernandez sent two texts to the woman that could be reasonably interpreted as “controlling and abusive.”

For months, Hernandez, once the youngest serving Oregon legislator and considered a rising star by the Democratic Party, has been plagued by harassment allegations.

The investigation delves into the allegations of five women, identified only as ‘subject one’ through ‘subject five.’ The investigation was conducted by Sarah Ryan and Kira Johal, with the law firm Jackson Lewis P.C. The investigators could not substantiate claims made by two women who participated in the investigation. All of the women included in the report either work in the state Capitol or have conducted business with the legislature in their professional capacity.

Hernandez has consistently denied any wrongdoing. Instead, he said the allegations were a result of a targeted campaign against him from the Democratic leadership. It started, Hernandez said, after he took an unpopular vote dealing with public pensions.

“(House Speaker) Tina Kotek threatened to ruin my political and personal career,” Hernandez told Willamette Week in an October editorial endorsement interview.

Hernandez alleged Kotek warned him before he took the vote, telling him, “If you don’t vote for (this), I’m going to make sure you never win an election again and I’m going to make sure your career is over.”

Kotek denied the claims made by Hernandez.

“It’s completely false that I have manufactured these complaints to somehow ruin him, it’s just false,” Kotek told OPB Monday.

Later, on Monday afternoon, after the investigation became public, Hernandez sent a more detailed statement.

“Dating when you are young is hard. Some dating relationships do not end definitively, but rather slip away over time,” Hernandez’s email statement read. “There is often some confusion, mixed signals, and strained emotions. To anyone I made uncomfortable in my personal life, I sincerely apologize. My actions were motivated from honest affection and the best of intentions.”

Hernandez said he supports an “effective review of any credible allegations.”

Adding, “However, too often we have seen the conduct rules politicized, cases tried in the press, and punishment meted by leadership before investigations are complete.”

The outside investigators looking into the allegations against Hernandez were not tasked with determining whether the lawmaker violated the state Capitol rule that prohibits harassment. They were hired to determine the facts, which will now be presented to the House Committee on Conduct.

‘Subject one’ findings

• For the woman identified as ‘subject one,’ who had a brief romantic relationship with Hernandez, starting in January 2017 and lasting barely two months, investigators found she was “reasonably concerned that her work at the Capitol would be jeopardized given her lack of interest in continuing a romantic relationship with Rep. Hernandez.”
• The investigators found it was “more likely than not” that the lawmaker continued to pursue a romantic relationship with the woman after she made it clear she was no longer interested.
• The investigators note the woman felt pressure to resume a romantic relationship with him, which they found to be reasonable.

‘Subject two’ findings

• ‘Subject two’ and Hernandez were involved in a romantic relationship for more than one year. It ended in either late 2019 or early 2020; the report notes the former couple dispute when their relationship ended. The lawmaker admitted to investigators that he once threw a cell phone at a table where the woman was sitting.
• The investigators also made note the lawmaker wrote two text messages to the woman, which could “reasonably be interpreted as controlling and abusive.”
• The woman said after her relationship with Hernandez ended, she was no longer comfortable doing business at the state Capitol, at least when it came to interacting with Hernandez. “We find it more likely than not that Subject Two’s uncomfortableness working around Rep. Hernandez was reasonable,” the report states.

‘Subject four’ findings

• The investigators found it likely that Hernandez created an environment for ‘subject four’ that was “intimidating, hostile, and offensive during their intimate relationship and thereafter.”
• The investigators noted they found it likely the lawmaker distorted boundaries of his personal and professional position and made statements the woman “reasonably interpreted as threatening her professional position (which involved work with the Legislature) in late 2017 after the intimate relationship with Subject Four ended.”
• The investigators also noted Hernandez continued to pursue a personal relationship after the woman made it clear she wanted to keep it professional.

Background

In May 2020, the Legislature’s Committee on Conduct disclosed Hernandez was being investigated on allegations of harassing seven women. Five women eventually participated in the investigation. The same month, after discovering the number of women with allegations against Hernandez and due to concerns he would retaliate against them, House Speaker Tina Kotek urged Hernandez to resign and seek support.

But Hernandez didn’t resign. Instead, he won reelection while the investigation stretched on for months. Politics have swirled around the investigation the entire time, and at one point Hernandez’s behavior became part of the debate over who should be the next Speaker of the Oregon House. More recently, Hernandez was selected to serve in a leadership position with the Black, Indigenous and People of Color Caucus.

The state Capitol in Salem is a workplace full of power imbalances, where a good relationship with a legislator can often determine whether a staff member or a lobbyist succeeds or fails at their jobs. The Oregon state Legislature did not escape the nationwide reckoning over sexual harassment in 2019. The Legislature was forced to pay more than $1 million in a settlement to eight women who were harassed at the state Capitol in 2019. In an effort to improve the culture at the Capitol, lawmakers beefed up their policies and offered more robust training.

But the latest investigation into Hernandez’s behavior with women shows the new process is not without flaws.

For starters, the investigation stretched on for a very long time, at least eight months.

At one point, Hernandez said publicly he wasn’t sure why it was being delayed.

“I don’t know why it hasn’t come out, I can speculate as to why, maybe the elections,” Hernandez told Willamette Week in October.

The investigation notes it was delayed, in part, due to a two-month lag by Rep. Hernandez in providing documents.

For most of that time period, Hernandez has known who his accusers are. At least one woman voiced concerns to OPB he’s had time to influence the narrative about his accusers, by sharing his side of the story with his colleagues. The woman heard lawmakers dismiss the accusations against him as nothing more than “bad breakups.” Hernandez made a similar claim — saying his exes were being investigated based on second-and-third hand claims — during a newspaper endorsement interview. Even though the women in the investigation have not been publicly identified, many lawmakers have become aware of their identities over the period of the investigation.

At least two of the women did not go directly to the investigator, rather a ‘mandatory reporter’ heard their stories and alerted the legislative equity office. Under the current legislative process, that kicks off an investigation by the legislative equity office.

The equity office requested Hernandez not contact the women involved. This means they had to reveal the women’s identities to Hernandez. And even though the women didn’t ask for the investigation, they were once again faced with another difficult choice: either participate in hours of interviews with investigators in an effort for their experiences to be accurately portrayed or simply let Hernandez’s side of the story stand.

While looking into Hernandez’s behaviors, the investigators interviewed 30 people, some several times. They had access to court filings, texts, and emails from both Hernandez and accusers. They also spoke to Hernandez, who was represented by an attorney. On December 18, 2020, Hernandez declined to be interviewed a second time unless the investigators handed over what they described as confidential information. The investigators refused, according to the report. Eventually, after Hernandez was given an early copy of the report, he submitted to a second interview on Jan. 13, 2021, again with his attorney.

Hernandez also made it clear in his statement, he believes the system is flawed, saying the rule to prohibit workplace harassment “is meant to create a safe and welcoming environment at the Capitol,” his email statement reads.

Adding, “But in reality it’s a fear based system that traumatizes all sides in a unreasonably lengthy process that has no basis or intent in restorative, reconciliatory, or transformative justice.”

The Women’s Stories

‘Subject one’

For ‘subject one’, it was clear she had lost control of her relationship with Hernandez when he showed up outside her apartment. The woman told investigators she hid in her closet waiting for him to leave.

Hernandez denied he appeared at the woman’s residence, a claim the investigators didn’t believe, noting it was “more likely than not” Hernandez showed up outside the woman’s apartment.

Months after the woman tried to end her brief relationship with Hernandez, which lasted not quite two months, she was still getting boxes of gifts at her door, including a box of gifts labeled ‘singles swag.’ Flowers were left on her car windshield outside the Capitol, she told investigators.

Throughout May 2017, Hernandez reached out to the woman repeatedly; asking her to get a drink or go to dinner, go on a walk or asking if she was heading to happy hour. The woman declined repeatedly, reiterating she was not interested in a relationship, according to the report.

The behavior — the texts, the repeated attempts at contact — continued into the summer and fall of 2017, according to the investigation.

At the time, Hernandez’s influence at the state Capitol, where ‘subject one’ worked and was also trying to further her career, was growing. ‘Subject one’ told investigators she continued to try to politely extricate herself from interacting with him.

In October 2017, Hernandez and ‘subject one’ were at the same political conference. After the conference, Hernandez texted to see if ‘subject one’ would chat with him, adding the weekend felt uncomfortable, according to the investigation. On October 23, 2017, Hernandez told ‘subject one’ he was feeling pushed aside by her because she would not take the time to talk to him.

In the same text, the investigation notes, he criticized her work performance.

‘Subject one’ continued to feel anxiety that her professional career was at risk and Hernandez, who seemingly had the power in the dynamic, would use his position in the state Legislature to damage her credibility.

About eight months after ‘subject one’ believed their relationship was over, the woman confided to another elected official she was concerned about the ongoing contact with Hernandez, according to the investigation. ‘Subject one’ relayed she was worried Hernandez would use his position in the state Legislature to jeopardize her professional standing. She also felt the lawmaker was using his position in the Legislature to pressure her to meet with him.

Finally, after the woman told another elected official what was happening, Hernandez began to leave ‘subject one’ alone, according to the investigation.

After evaluating the texts, the emails and conducting interviews, investigators found it was reasonable that ‘subject one’ was concerned her work at the Capitol could be jeopardized because she was not interested in continuing an intimate relationship with Rep. Hernandez.

Investigators also found ‘subject one’ reasonably felt pressure to resume an intimate relationship with the Democratic lawmaker.

‘Subject Four’

The woman, known as ‘subject four,’ conducted business at the Capitol, which was crucial to her professional standing. The woman also had a brief, intimate relationship with the lawmaker, according to the investigation. The investigators found it was “more likely than not” that Hernandez created an environment that was “found to be intimidating, hostile, and offensive during their intimate relationship and thereafter,” according to the report.

The investigators also found it likely that Hernandez distorted personal and professional boundaries with the woman known as ‘subject four’ and that it was reasonable the woman interpreted the lawmakers’ statements to her as threatening her professional career, according to the investigation.

Like ‘subject one,’ the woman known as ‘subject four’ eventually tried to keep the relationship purely professional.

For both women, the investigators point out Hernandez did not “explicitly connect” the nature of his relationships to the women’s work at the Capitol.

‘Subject four’ ended the relationship in early October 2017 after she had a disagreement with Hernandez over the endorsement of a local political candidate, according to the investigation. The woman said Hernandez became increasingly hostile and was “intimidating and pressuring her” to support a candidate he wanted her to support, according to the report.

‘Subject four’ described the interactions as the “beginning of the end of their intimate relationship.” Hernandez, however, denied they had a relationship and told investigators there “was no relationship to end.”

Investigators note they didn’t believe Hernandez, noting: “We find it more likely than not that (Hernandez and ‘subject four’) had a relationship that was ended by Subject Four.”

Hernandez continued to reach out to the woman about personal matters, despite her efforts to keep the relationship professional, according to the report.

In November 2017, Hernandez texted the woman in a way she felt made it clear he would use his professional status to damage her career. The investigators do not include what the text said in the report, but note they “find it more likely than not that Subject Four reasonably felt Rep. Hernandez was using his professional weight to threaten Subject Four’s ability to conduct business at the Capitol.”

In the summer of 2018, the woman rekindled her personal relationship with Hernandez, noting she felt pressured to and was still uncomfortable doing so but she was fearful Hernadez would withhold legislative help, according to the report.

In September 2018, the woman again told the lawmaker she only wanted a professional relationship. The woman stated Hernandez ignored her efforts to talk about establishing clear boundaries while maintaining a working relationship.

In November, the two of them stopped having contact with one another. Throughout 2019 and 2020, the woman continued to do business at the Capitol, the report states. And she continued to avoid Hernandez while doing so.

‘Subject Two’

The situation with ‘subject two’ differs from Rep. Hernandez’s other accusers in that they were engaged in a consensual, intimate relationship for a much longer time period, a year and a half. The woman also had regular business to conduct at the Capitol. ‘Subject two’ also did not go to investigators of her own volition. Rather a mandatory reporter, someone obligated under law to share their concerns with investigators, alerted the equity office.

The woman, ‘subject two’ as she is known, alleged Rep. Hernandez was physically and verbally threatening during their relationship. The lawmaker denies these claims, although he admitted to throwing his cell phone at a table where she was sitting.

The investigators found that the lawmaker sent text messages that could reasonably be interpreted as “controlling and abusive.” They also found that it was likely reasonable the woman felt uncomfortable working around Hernandez.

‘Subject Three’ and ‘Subject Five’

Another woman, known as ‘subject three’ alleged Hernandez was physically aggressive toward her at a political event, described in the report as: “sputtering, yelling, and invading her personal space” and refusing to leave her alone. Hernandez denied the allegations and eyewitness testimony was conflicting and the investigators were unable to substantiate the woman’s experience.

The final woman in the report, ‘subject five’ worked for Hernandez. She said Hernandez retaliated against her after she complained he was having a romantic, flirtatious relationship with another female staffer whom she suspected was promoted due to the relationship. Hernandez denied the romantic, intimate relationship with the staff member and denied retaliating against “subject five.”

The investigators found it was “more likely than not” that Hernandez did not engage in an intimate relationship with a member of his staff nor retaliate against ‘subject five,’ the woman who complained.

Hernandez’s response

Hernandez has denied any wrongdoing.

“What would you do if you were innocent? … What would you do? If you knew you were innocent and you had these false allegations …” Hernandez told a reporter at Willamette Week during an editorial interview in October of 2020.

Later, in the same interview Hernandez said, he was being “Karen’ed” by House Speaker Kotek and another lawmaker, using a pejorative term for white women who abuse their privilege.

Hernandez also said he was being forced out by an “organized campaign” and said it had to do with his decision not to vote for legislation to remove some money from the state’s public pension fund.

In May 2020, Hernandez also made it clear he planned to file a lawsuit against the Legislature and House leaders.

At the time, his attorney told The Portland Tribune:

“A white, powerful speaker is attempting to destroy a man of color’s character because he refused to help her reduce working-class people’s retirements. We have centuries of history in which men of color have been disproportionately affected by unfair and/or falsified allegations of gender-based misconduct.”

In his more detailed statement, sent Monday after the report was public, Hernandez said “after an exhaustive nine-month investigation, and hundreds of thousands of taxpayer dollars, I now, at long last, know all the details of the allegations against me.”

When OPB asked Hernandez to confirm that throughout the course of the investigation, he was responding to questions but unaware of the allegations, he said, “that will be in the rebuttal presented to the committee.”

Next steps

The Legislature’s Committee on Conduct will now consider the report’s findings and decide whether Hernandez violated what is known as “Rule 27.”

The rule states lawmakers are expected to conduct themselves in a way that is “free of harassment and to discourage all harassment in the workplace.”

Sexual harassment that creates a hostile work environment is also prohibited under the rule. That includes “unwelcome conduct (that) has the purpose or effect of unreasonably interfering with a person’s job performance or creates a work environment that a reasonable person would find intimidating, hostile or offensive.”

The investigators were not tasked with saying in their report whether they feel Hernandez violated the rule.

That will be up to Hernandez’s fellow lawmakers to decide.