Online, Sept. 15: “Probable Cause”
Two Major Flaws
There has been a great deal of recent news coverage concerning the Legislature’s sexual harassment policy. We, as co-chairs of the Legislature’s Interim Ethics Committee, believe that there are at least two major flaws in the policy that need immediate attention. Quick background. What happens when a legislator, senator or representative, is accused of sexual harassment? The answer is a written process providing clear “rules of the road” for both the accuser and accused. A balance should be struck between the rights of both. The accuser should be assured that the complaint is heard in a fair and objective manner without political influence, that bad conduct will be quickly and forcefully addressed and that there will be no recriminations for making such a complaint. At the same time, the accused (the legislator) should be assured that his/her due process rights are observed. And, over all of this, is the public’s right to a transparent process.
Our sexual harassment policy is not meeting these goals. First, there are at least a couple of points in the process where the accuser’s complaint can get “stuck.” In an effort to assure that the sexual harassment policy did not become political, the policy divided the committee evenly between Republicans and Democrats. But what happens when the vote is evenly split? In that case, believe it or not, the process ends. There is no mechanism for a tie-breaker. And, even worse, there is no publication of that fact. So the process is effectively over without anyone knowing what happened.
That is not sustainable. Fortunately, it is easily solved. At the next Legislative Council meeting (this month) we will be proposing that there be a mechanism for a tie breaker—a lawyer trained in sexual harassment or a retired judge or justice.
The second problem is the confidentiality provision. Our current policy provides that once the complaint is filed, there is confidentiality applied to all of the parties and participants until probable cause is found to proceed to a hearing. No one is allowed to talk about what is happening. However, the accused public official, and only the public official can waive confidentiality. That is, in a word, outrageous. And, in a word more applicable to this discussion, it is unconstitutional.
Both of us worked hard on setting up the State Ethics Commission. Confidentiality was an issue. There was a discussion about imposing confidentiality on the parties. But we agreed that both the accuser and accused have a First Amendment right to talk to the press and public whenever they want. The confidentiality is applied to the staff and the State Ethics commissioners and not the parties. That same provision should be made to the Legislature’s sexual harassment policy. Unfortunately, while an easy fix, the confidentiality provisions are set by statute and so, they must be changed in the next legislative session. That is coming in January of 2023.
Rep. Daymon Ely and Sen. Linda Lopez