Tina Kotek did not break workplace rules with hardball tactics in Oregon Legislature, report suggests

A former state representative’s claims that Tina Kotek threatened professional consequences if he would not back a key bill are supported by evidence, an investigator has concluded.

But according to a long-delayed draft investigative report, provided to OPB Friday, then-House Speaker Kotek’s conduct in that conversation with former state Rep. Diego Hernandez did not run afoul of rules against creating a hostile workplace. And Kotek’s call for Hernandez to resign nearly a year later, as he faced accusations of harassment, likely did not constitute workplace retaliation, the investigation found.

The draft report, which is subject to change, largely jibes with Kotek’s insistence that she did nothing wrong in 2019 when trying to convince Hernandez to support a high-stakes bill on public employee pensions.

The findings suggest that Kotek, the Democratic nominee for governor, could be cleared of violating workplace rules when the matter goes before the House Conduct Committee, a step required under legislative process.

“This report is long overdue, but I’m satisfied by the clear conclusion that these were baseless accusations,” Kotek said in a statement Friday.

Hernandez’s complaint dates back to May 2019, when Kotek was attempting to pass a bill curbing pension benefits. Hernandez and other Democrats were uncomfortable with the measure, Senate Bill 1049, which was opposed by unions. Some in the party, including Hernandez, refused to support it.

In his complaint, Hernandez says that Kotek’s attempts to influence him crossed the line. He says that she vowed to end his political career and to kill or hamper priority legislation — including a bill supplying driver cards to undocumented residents — if he would not fall in line.

To support those allegations, Hernandez offered contemporaneous text messages with several Democrats where he spoke of Kotek issuing threats.

For instance, Hernandez texted other lawmakers of color on the day of the vote that he planned to stop attending meetings with Democrats “because of all the threats I got and how I was treated by my leadership.”

That prompted a response from state Rep. Tawna Sanchez, D-Portland, who expressed concern that lawmakers of color might face pressure that others do not. “Are we as POC threatened differently than others,” she wrote, “or is it just a threatening system?”

Hernandez’s complaint also suggested an eyewitness: Republican State Sen. Dallas Heard, who has told OPB that he witnessed Kotek and Hernandez having a heated discussion and that Kotek even threatened to kill one of his bills over Hernandez’s vote.

The investigator in the case, private attorney Melissa Healy, appears to have disregarded many people with whom Hernandez shared his account of being threatened. The investigation included just five interviewees — including Heard, Hernandez and Kotek — even though many more lawmakers crop up in Hernandez’s complaint.

“I determined that it was not necessary to interview those individuals for several reasons, including that they did not witness the interaction between Hernandez and Kotek and because there is no reason to question the emotional impact that the conversation had on Hernandez,” Healy wrote in her draft report.

The report says Kotek acknowledged telling Hernandez “it would be difficult for [her] to support him personally in the future” if he voted against the pension bill. And it found credence to Hernandez’s claim that Kotek threatened to jeopardize at least one of his bills, though she denied saying she’d kill the driver card bill.

Hernandez’s complaint from January 2021 says the entire affair left him “down and depressed for weeks,” and amounted to a hostile work environment, which under legislative rules involves “engaging in behavior that is unwelcome and is so severe or pervasive that it either affects a person’s ability to function in the workplace or denies a person the benefits of the workplace.”

But Healy concluded that the interaction amounted to politics, and did not constitute a breach of workplace rules

“To the extent there are disputes about what transpired on May 30, the evidence more closely supports Hernandez’s version of the events,” Healy wrote. “That said, even assuming Hernandez’s recollection is correct the evidence does not suggest that the conversation was anything more than what Kotek characterized as a ‘contentious political conversation on a tough day in my role as Speaker.’ All factors considered, it appears that both parties were using their leverage to negotiate on bills they cared about.”

Healy came to a similar conclusion on the possibility that Kotek retaliated against Hernandez by calling on him to resign nearly a year after the pension bill vote. At the time, Hernandez was facing mounting pressure over harassment complaints by former romantic partners – pressure he has claimed Kotek helped to organize against him.

“I believe Rep. Hernandez should resign from the Legislature and focus completely on getting the support he needs,” Kotek said in a statement at the time.

Healy found no evidence that this sentiment was grounded in Hernandez’s vote on SB 1049. She wrote that Kotek was made aware in 2017 that one of Hernandez’s former romantic partners was uncomfortable working around him, something she spoke with Hernandez about at the time.

“She knew that she had spoken to Hernandez a year and half earlier about avoiding contact with another former romantic partner,” the draft report says. “This evidence suggests that Kotek had many potential reasons to question Hernandez’s behavior and say he should resign independent of his vote on SB 1049.”

One lingering uncertainty about the draft report: Why it took so long.

The nine-page document is the culmination of a process that has taken more than a year and a half – far longer than any similar investigation in recent legislative history and well beyond the 84 days in which such investigations are supposed to conclude.

The long timeline led to speculation by Hernandez and others that the document was being slow-walked as Kotek ran for governor. After saying she had concluded interviews in April, Healy began ignoring requests by Hernandez for updates. She did not respond to repeated inquiries into the matter from OPB.

In the report, Healy wrote that part of the delay was that Hernandez did not sign his formal complaint until June 2021, five months after he filed it. She also wrote that some of her five witnesses were slow to respond, but also cited “unrelated factors including workflow, staffing, and coverage issues that occur in the ordinary course of business.”

“Neither the investigation, nor the timing or delivery of this report, has been in any way influenced by the elections cycle, nor has there been any suggestion that the report should be delayed or expedited on that basis,” Healy wrote.

With a draft report complete, Hernandez and Kotek have until Oct. 3 to suggest changes or take issues with Healy’s investigation. A final report will be submitted to the House Conduct Committee, which will weigh whether Kotek broke workplace rules. That exercise might be politically thorny.

The committee is equally composed of Republicans and Democrats, but its Democratic co-chair, Sanchez, appears in Hernandez’s complaint as a potential witness. And every Democrat on the committee, including Sanchez, has endorsed Kotek’s gubernatorial bid.

Republicans, meanwhile, are hoping Kotek doesn’t win the governor’s office this year. Nearly all have endorsed the GOP candidate in the race, former House Minority Leader Christine Drazan.