Leaders of the Oregon Legislature have a blunt response to accusations by the state labor commissioner that they’ve permitted a culture of sexual harassment to fester in the Capitol:
They say policing the Legislature isn't his job.
In the most detailed retort yet to a civil rights complaint filed earlier this month by Labor Commissioner Brad Avakian, the Legislature adamantly denies charges that leaders failed to act appropriately when faced with sexual harassment complaints about a former state senator.
But the 35-page response goes further than mere denial. It argues Avakian is constitutionally barred from levying penalties on the Legislature in the first place. And it says an investigation by Avakian’s Bureau of Labor and Industries risks divulging the identities of harassment victims who reported misconduct, and thus could deter victims from coming forward in the future.
In all, the response filed with BOLI on Friday afternoon amounts to a lengthy rebuff of a complaint that has brought concerns about harassment in the Capitol back to the forefront.
The document spurred a response from BOLI early Friday evening, suggesting it was a distraction.
"We encourage all involved in the investigation to remain focused on the allegations of those who may have been harmed rather than attempting to characterize facts and the law in a manner that simply diverts responsibility," the statement read in part.
Filed on Aug. 1, Avakian’s “commissioner’s complaint” named the entire Oregon Legislative Assembly as a respondent. But it singled out Oregon’s top Democratic legislators — House Speaker Tina Kotek and Senate President Peter Courtney — alleging they didn't take adequate action when they learned of harassment by former state Sen. Jeff Kruse, R-Roseburg.
Complaints about Kruse became public in late 2017, though legislators first raised concerns about unwanted touching by the senator in March 2016. An investigation released in February substantiated claims of Kruse's repeated harassment and inappropriate touching of fellow legislators, interns and others. He subsequently resigned.
The complaint also folded in other allegations of harassment, and suggested key Capitol staffers had warned victims of harassment not to speak out about their experiences, a claim which officials have denied.
Kotek and Courtney have separately disputed the allegations but hadn't offered a detailed response. That was filed today, by a private attorney representing the Legislature in the matter.
The response makes four key contentions:
First, lawyers for the Legislature say Avakian doesn’t have the authority over the Legislative Assembly he believes he does.
“BOLI has no constitutional authority to discipline or remove members of the Assembly or to amend the Assembly's internal policies,” they write in the response. “... With no authority to devise a remedy, or to punish the members of the Legislative Assembly, BOLI has no constitutional authority or standing to bring these claims.”
The response says the Oregon Constitution gives the Legislature sole authority to discipline its own members. While it’s possible BOLI could discipline legislators for their conduct on an individual basis, the document suggests the agency has no authority to levy penalties on the body as a whole.
By way of example, it says the Oregon Health Authority in 2016 sought to fine the Legislature for violations when a lawmaker repeatedly smoked cigarettes in the Capitol.
“This proved ineffective and constitutionally outside of OHA's authority as this would impinge on the performance of his duties as a legislator,” the response says.
BOLI didn't necessarily agree with the suggestion that it doesn't have authority over the Legislature.
"In its answer, the legislature claims 'BOLI has no constitutional authority to discipline or remove members of the Assembly or to amend the Assembly’s internal policies,'" the bureau said. "BOLI has never asserted either of these things. Further, issues related to BOLI’s authority to provide certain remedies is an issue to be addressed at hearing later. At this time, the bureau is only conducting an investigation."
The second major claim in the response is that Avakian's complaint risks revealing the identities of victims who came forward. The complaint, it says, has created "fear and doubt on the part of those who report information, or who have reluctantly participated in investigations with the understanding that their privacy would be protected. The lack of trust introduced by the Commissioner's Complaint could cause a chilling effect on those who are experiencing harassment, or on reporting sources."
Keeping victims' identities safe is a key reason the Legislature says it has objected to far-ranging subpoenas from BOLI, requesting names and documents related to harassment for a period of almost eight years.
The response also hints at legislators' confusion and anger at what they perceive as an about-face from Avakian. Until August, they say, the labor commissioner had repeatedly voiced support for efforts to overhaul the Capitol's harassment policies.
For instance, the response says Avakian wrote to legislators in November 2017 that “the Legislature, which manages the building, appears to be actively working to improve conditions and the Capitol work environment.”
The response notes BOLI has helped to respond to harassment concerns, but that Avakian has now abandoned a collaborative process.
“BOLI's change of course in this matter undermines BOLI's credibility with employers acting in good faith and who partner with BOLI to improve the employers' workplace behavior and culture,” the document reads.
Lastly, the response says Avakian got a lot of his facts wrong, picking apart more than 15 sections of Avakian's complaint that it says are inaccurate or untrue.
Much of what the Legislature doesn’t say is inaccurate, it denies.
“Respondents categorically deny that they have ever subjected anyone to a hostile work environment or denied full and equal accommodations, advantages, facilities, or privileges to any individual,” the response reads.
The document further denies that key staffers, legislative counsel Dexter Johnson and human resources head Lore Christopher, advised victims not to tell anyone about their complaints, as Avakian alleged. Instead, it suggests Capitol officials encouraged employees to “use their best efforts to move forward with positive and productive working relationships.”
BOLI's response to the document indicated those arguments would be considered as the investigation moves forward.
"If the legislature believes the information brought forth by its female student interns and staffers is not true," the statement read, "it will have the chance to rebut those allegations in the investigation."
