SALEM, Ore. — Oregon’s Legislature on Friday battled the state labor commissioner’s attempt to investigate sexual harassment in the Capitol, saying he lacks jurisdiction and that it would violate the privacy of those who have come forward with complaints.
The Legislature’s 35-page response to Labor Commissioner Brad Avakian sets up a confrontation between the legislative and executive branches of state government.
“The Commissioner’s Complaint is an attempt to violate the Constitution’s strong protection of the separation of powers,” insisted the Legislature’s outside attorney, Edwin Harnden, in response to Avakian’s complaint.
On Aug. 1, Avakian created shock waves in the Capitol when he accused two fellow Democrats — Senate President Peter Courtney and House Speaker Tina Kotek — of allowing a sexually hostile environment and of being slow to protect women from Republican Sen. Jeff Kruse.
His complaint was filed on behalf of two female interns for Kruse who had complained of unwanted touching and comments, and on behalf of two employees. None was identified.
Kruse resigned this year after an outside investigation found he had inappropriately touched women in the Capitol and as the #MeToo movement against sexual misconduct swept politics, entertainment and other industries.
Avakian’s legislative director, Christine Lewis, said late Friday that questions over the authority of the Bureau of Labor and Industry to investigate would be addressed at a hearing later.
“BOLI’s investigation is open, with investigators looking into not only the specific allegations of a hostile environment at the Capitol, but also the systems in place … for maintaining the Capitol in a safe and healthy manner,” Lewis said in an emailed statement.
In a telephone interview, Harnden said the labor bureau, which is part of the executive branch, does not have jurisdiction over the Legislature’s rules and policies over the discipline of members.
Oregon Attorney General Ellen Rosenblum is distancing itself from the dispute, said her spokeswoman, Kristine Edmunson.
“We have chosen not to provide legal advice to either the Legislature or to BOLI in this matter due to at least an appearance of a conflict. We represent both in other matters, at least when one is not suing the other,” Edmunson said.
Since the #MeToo movement caught fire, legislatures in about one-fifth of America’s states added provisions that allow for the external investigation of complaints. That takes them out of the hands of lawmakers who might have a vested and even personal interest in the outcome.
In California, outside experts will be tasked with substantiating claims under a new legislative sexual misconduct policy that is expected to take effect in early 2019.
In New Mexico, a new sexual harassment policy enacted just before the start of the 2018 legislative session requires the involvement of an outside counsel when accusations are made against lawmakers.
Kotek and Courtney had already asked the Oregon Law Commission to review policies on harassment and recommend ways to improve them by year’s end.
They both “categorically deny” Avakian’s accusations that they permitted a “generally hostile environment based upon sex,” Harnden wrote in the Legislature’s response to Avakian.
Harnden said the Legislature is already working to tighten policies against harassment, and that the Bureau of Labor and Industry was a part of it.
“It was a great collaborative effort that was going on,” Harnden told The Associated Press. “It was the best of all worlds … then the BOLI commissioner made the decision to move all of it to a legal process. So instead of collaboration to a solution, they decided to make it a litigation process.”
Subpoenas related to Avakian’s complaint have requested names and information about all employees, student interns, or lobbyists and all documents relating to allegations of harassment for almost an eight-year period, Harnden said.
Complaints about inappropriate behavior can only occur when they’re brought forward by employees “who feel safe and protected,” Harnden argued.
Some of those who participated in investigations of assembly members’ and staffers’ inappropriate behavior did so reluctantly and only under “the understanding that their privacy would be protected,” Harnden wrote.
That information is private, likely to raise concerns of confidentiality. Their disclosure would create a chilling effect on others to come forward, Harnden said.
