Facing possible expulsion from the state Legislature amid accusations of harassment, embattled Democratic lawmaker Diego Hernandez is firing back in a lawsuit claiming he wasn’t given a fair chance to defend himself.
In the lawsuit, filed Friday in Marion County, Hernandez offers extensive communication records that were not presented during legislative hearings examining his behavior.
Hernandez is suing the Oregon state Legislature, along with certain individuals, such as House Speaker Tina Kotek, for $1 million in damages, plus attorney fees, noting the process has inflicted “emotional distress in the form of anguish, embarrassment, loss of reputation, fear, worry, grief, anger, confusion, frustration, loss of sleep, and interference with usual life activities” on the East Portland lawmaker. The process, Hernandez’s lawsuit claims, allowed his reputation to be diminished without giving him a chance to meaningfully respond to the allegations against him.
After a week of legislative hearings, where Hernandez’s lawyer, five women with allegations against the lawmaker and independent investigators hired to look into the case testified to members of the House Conduct Committee, lawmakers determined Hernandez violated the legislative rule prohibiting sexual harassment in the Legislature. More specifically, they found 18 instances where Hernandez was responsible for actions that were either considered sexual harassment or created a hostile workplace. Members of the committee found the lawmaker pressured two women to rekindle romantic relationships or risk jeopardizing their professional careers, which included work interacting with the Legislature.
Hernandez’s lawsuit includes several text messages with the women who were part of the investigation. In one case, where Hernandez had been accused of pressuring the woman identified as ‘subject four’ to rekindle a relationship, there is a text message where he notes he is going to back away. But the woman responds, “I’m not asking you to back away at all.”
The full House is scheduled to vote on whether Hernandez should be expelled from the body. It would take 40 members, or two-thirds of lawmakers to agree and a vote could come as soon as Tuesday.
The lawsuit is seeking an injunction to prevent the House of Representatives from proceeding with expulsion or any other sanctions.
Hernandez’s lawsuit claims the legislative rule, known as Rule 27, which prohibits harassment in the Legislature violated his due process and that he was facing expulsion from his position “without provided due process of the law.” The lawsuit notes he is also at risk of being stripped of “approximately $5,000 per month in compensation and benefits due to his position as a member of the House of Representatives and a $151 per diem stipend while the House of Representatives is in session.”
His lawsuit claims the investigation also had several procedural problems, including; it was delayed by nearly 200 days for improper reasons, investigators did not tell Hernandez why it was being delayed, they failed to give him proper time to respond to the allegations, prevented him from providing evidence at the conduct committee hearings and prevented him from questioning witnesses or providing a rebuttal. He also noted that Legislative Equity Officer Jackie Sandmeyer is married to a former Kotek aide, which he believes should have been disclosed since Kotek is one of the people who made a mandatory report to Sandmeyer’s office. Kotek also called on Hernandez to resign. Hernandez has also previously claimed Kotek was retaliating against him after he took an unpopular vote against her will.
Hernandez’s suit claims any attempt by him to offer evidence to bolster his case was cast as “retaliation” and that the rule was being applied de-facto to him. The rule prohibiting harassment in the state Legislature was recently updated to include a broader swath of people, including lobbyists. Hernandez is arguing that at the time the relationships occurred, the women would not have been protected under the rule and therefore he can’t be found guilty of violating it.
His lawsuit also noted he would likely be the first lawmaker ever expelled from the state Legislature and that he is Latino. He argued there are many Caucasian members who have created far “more severe acts” than Hernandez but expulsion has never been proposed for a white lawmaker.
The investigation
A nine-month-long investigation into Rep. Hernandez’s behavior, first reported by OPB, details the lawmakers’ relationship with women who said he created a hostile work environment at the state Capitol. For two of the women, they had a brief, consensual romantic relationships with Hernandez. For a third woman, investigators and lawmakers found Hernandez sent texts and acted in a way that could be reasonably interpreted as “controlling and abusive.”
All of the women involved had jobs that involved the state Capitol in some way, either as lobbyists or political positions. Members of the House Conduct Committee determined they reasonably feared Hernandez would use his position of power as an elected official to hurt their careers if they didn’t rekindle a relationship with him.
Hernandez’s response to ‘subject one’ findings
- For the woman identified as ‘subject one’ in the investigation, who had a brief romantic relationship with Hernandez, starting in January 2017 and lasting barely two months, investigators and lawmakers 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” and would risk jeopardizing her job if she did not.
- The woman spoke of a text she received from Hernandez after months of unwanted advances from the lawmakers, noting to lawmakers in testimony, “he openly criticized my work performance at the conference that weekend and accused me of drinking too much. He offered that he was sharing this with me and no one else, but that he and I should meet in-person to sort out how to work together better moving forward. … I felt like this was an attack on my credibility from someone who had influence and power over my job …”
- Hernandez provided text message exchanges he believes shows their relationship had evolved into being a friendly one. He also provided a text in full that made ‘subject one’ feel like her job could be threatened, when he pointed out she seemed “somewhat inebriated” and it was “somewhat uncomfortable” at a political event. The lawsuit notes “the claim that she feared for her job is contradicted with evidence … where Rep. Hernandez clearly states ‘she’s the right person for the job,’ For Rep. Hernandez, this was about a working relationship and constructive feedback,” the lawsuit states.
Hernandez’s response to ‘subject two’ findings
- ‘Subject two’ and Hernandez were involved in a romantic relationship for more than one year. The lawmaker admitted to investigators that he once threw a cell phone at a table where the woman was sitting.
- Lawmakers and investigators found after her relationship with Hernandez ended, it was reasonable the woman was no longer comfortable doing business at the state Capitol, at least when it came to interacting with Hernandez.
- In Hernandez’s lawsuit, he admits throwing a phone, an act he regrets. But he provides text exchanges with ‘subject two’ where she is seemingly the one trying to rekindle a relationship with him, writing, ‘I miss you like crazy.’ The lawsuit states Hernandez never responded and that 10 days later, the woman sent an email to his current girlfriend detailing that she sleeps with Hernandez weekly and recently went to Mexico with him to meet his family. The lawsuit states, “We hope it is clear by now to the committee that the conflict between them wasn’t about her safety as was presented to the media and this committee last May but instead how Rep. Hernandez broke her heart.”
- The lawsuit continues, “The report finding says she was uncomfortable around him after their relationship ended. Rep. Hernandez is also uncomfortable around her too. We don’t see how the committee could have an accurate picture of the situation without these details, yet they were not included in the report.”
Hernandez’s response to ‘subject four’ findings
- Lawmakers found Hernandez created a hostile workplace environment for ‘subject four’.
- The woman testified to lawmakers that Hernandez pressured her into a physical encounter in mid-2017, and she later felt pressure to resume an intimate relationship with him even though she didn’t want to, which was also noted and detailed in the investigation.
- Hernandez’s lawsuit states he and ‘subject four’ had known each other for a long time. He was known as ‘Uncle Diego’ by her children and Hernandez was surprised when ‘subject four’ asked her out. The texts and exchanges also show that at one point Hernandez said he was going to back away from her and she responded by saying she wasn’t asking him to do that.
- In the lawsuit, Hernandez said he felt it was strange she felt obligated to rekindle a relationship when they did not have any shared work at the Capitol.
A spokesman for House Speaker Tina Kotek’s office declined to comment on the lawsuit, saying the Oregon Department of Justice had advised them not to make any comments on pending litigation.