Oregon Capitol employees have a new system for reporting harassment complaints. But lawmakers say it's not working.
Kristyna Wentz-Graff / OPB
The state Capitol’s process for handling complaints of harassment and retaliation has always been prone to grumbling.
Ever since lawmakers instituted the current policy in 2019 — in the wake of a sexual harassment scandal that revealed the Legislature’s failures to address the issue — lawmakers and staff in Salem have complained the system can be unfair to victims and the accused alike. The Capitol has been unable to fill a job designed to field complaints and help complainants navigate the complex process. And committee votes over lawmaker conduct have sometimes fallen along partisan lines, suggesting party affiliation can play an overriding role in whether a person faces consequences for their actions.
Now it seems major changes might be coming to the process, known as Rule 27 in the Capitol.
Earlier this week the top two House Democrats, Speaker Dan Rayfield and Majority Leader Julie Fahey, issued a joint statement saying they’d seek to alter the policy for dealing with workplace complaints.
It is “clear this process must be significantly improved to provide better support for people who have experienced harassment,” the pair said. “Unfortunately, we’ve too often seen the Legislature’s Conduct Committee used for blatantly political purposes in ways that threaten to undermine good faith efforts to make the Capitol safer for everyone — most recently in a hearing this past month.”
The statement adds weight to increasing complaints about the Rule 27 process, suggesting lawmakers will work once again to overhaul the tricky matter of Capitol harassment policies when they convene next year.
For now though, Rayfield and Fahey are withholding their opinion of what such changes should look like.
“The Speaker and Majority Leader do have ideas for process improvements but will not presume next steps before there is a deliberative bipartisan process established to discuss and implement changes,” said Danny Moran, a spokesman for Rayfield.
Republicans are open to that discussion. House Minority Leader Vikki Breese-Iverson, R-Prineville, said in a statement she is “happy to see the Democrats acknowledge Rule 27 changes are needed and necessary.”
The statement from House Democrats came after two recent hearings that involved a complaint against Tina Kotek, the former House speaker and current Democratic nominee for governor.
Kotek was accused of creating a hostile work environment by a former lawmaker, Rep. Diego Hernandez, D-Portland, who said she’d threatened him politically over his vote on a bill in 2019. The House Conduct Committee, the body responsible for deciding whether such complaints have merit, split evenly along party lines in a 2-2 vote over whether Kotek had violated rules. The deadlock ended the matter.
Rayfield and Fahey’s comments about using the process for “blatantly political purposes” appeared not so much aimed at the partisan vote split as at Hernandez. The former lawmaker spent part of his lengthy testimony Oct. 19 taking issue with the treatment he received in 2021, when he stood accused of harassment by three former romantic partners. He ultimately resigned rather than face a vote of expulsion from his colleagues in the House.
“You can get booted out of the Legislature if you suck at relationships,” Hernandez said at one point in the hearing. “But if you’re toxic and a bully to your own colleagues … that’s within the rules.”
Some Democrats bristled at what they saw as Hernandez’s attempt to “relitigate” the complaints he’d faced the previous year.
“When this is an avenue for the relitigation of prior determinations of misconduct, my fear is that people who have complaints in the future will no longer have confidence to come forward,” state Rep. Jason Kropf, D-Bend, a member of the Conduct Committee, said during the hearing.
The Rule 27 process faces far more criticisms than that.
Under the policy, people who’ve experienced harassment, retaliation or a hostile work environment have several avenues for alerting Capitol officials about the behavior. They can choose to file a formal complaint, which leads to an investigation and public hearing. Or they can seek to resolve the matter in less public ways, or even just quietly make officials aware of the behavior in case it becomes a pattern.
The policy was hammered out in the wake of a 2018 scandal involving former state Sen. Jeff Kruse, R-Roseburg, whom an investigation determined had harassed colleagues, staff and lobbyists. In response, lawmakers turned to the Oregon Law Commission for recommendations for a better process.
The commission came up with a plan for removing human resources officials and legislative attorneys from handling harassment complaints, and instead lodging that responsibility with a new position: the legislative equity officer, or LEO.
But the Legislature has been unable to find someone to hold that position permanently. The last LEO resigned under a cloud last year and is currently suing the Legislature. The person before that was accused of keeping lax records and ignoring complaints. The office now sits empty, and lawmakers have agreed to pay up to $100,000 to a headhunting firm working to find a replacement.
“We can’t even locate somebody to hold the job, which is a major concern,” said state Rep. Raquel Moore-Green, a Salem Republican and House Conduct Committee member.
The lack of a LEO has given greater power to private employment attorneys the Legislature pays to investigate complaints. Now on top of those investigations, the attorneys have been tasked with accepting complaints and helping complainants navigate the process.
Hernandez’s complaint suggests the private law firms doing the work aren’t making it a priority. Complaints under Rule 27 are supposed to be resolved within 84 days. Hernandez’s took more than 600 days to get a hearing, a timeline that led some to suspect the matter was being buried to allow Kotek to dodge unflattering depictions of her leadership as she runs for governor.
Melissa Healy, the attorney at Stoel Rives who investigated the matter, said part of the delay was reaching five witnesses she interviewed, but would not specify what other factors came into play. She denied that political pressure was a factor.
Even so, lawmakers say the process was problematic.
“The timing of this investigation was not acceptable,” Kropf said. “We need to have a more timely process.”
Others argue the very fact that Kotek dodged accusations of creating a hostile workplace is a problem, saying arm-twisting over bills should not be allowed simply because the Capitol is viewed as a political arena rather than a more typical work environment.
“It is not acceptable that Rule 27 does not cover legislators if they are treated in a toxic, bullying manner,” said former state Rep. Brian Clem, D-Salem, who testified on behalf of Hernandez earlier this month. “They are humans, too.”
Some lawmakers have become so displeased with the Legislature’s harassment process that they’ve sought to distance themselves from it.
State Rep. Ron Noble, R-McMinnville, stepped down from his role co-chairing the Conduct Committee, which takes up Rule 27 complaints. His successor, state Rep. Daniel Bonham, R-The Dalles, now has said he’ll leave the committee because of his concerns with how Hernandez’s complaint against Kotek was handled.
“The existing framework of Rule 27 and the Conduct process, well-intentioned as they may have been, aren’t functionally effective,” Bonham wrote in an Oct. 14 letter announcing he would not take part in the hearings on Hernandez’s complaint. “Politics and power dynamics still rule the day. Until that changes we are doomed to repeat mistakes of the past and those with power and authority will always find a way to avoid the very scrutiny they wish to impose upon others.”
Precisely what steps lawmakers might take to address those and other concerns might not be clear until next year. Breese-Iverson, the House Republican leader, said Thursday that the Legislature must hire a new LEO. She also suggested that lawmakers’ salaries should be conditioned on receiving training on harassment rules, and that the Capitol could create an “inspector general”-style position with authority to investigate complaints.
The Legislature convenes in Salem on Jan. 17, 2023.