Oregon’s top lawmakers said the state’s labor commissioner had “personal or political” motives when he launched an investigation into sexual harassment in the Capitol earlier this year.
In a court filing earlier this month, the state’s Legislative Assembly also accused Labor Commissioner Brad Avakian of flouting professional conduct rules by serving lawmakers and officials with subpoenas at the state Capitol, and that Avakian’s actions have been “reckless,” along with “highly unusual and improper.”
“I think it’s a commissioner that’s just frankly out of control,” Edwin Harnden, the Portland attorney representing the Legislature, told OPB.
The court filing shows the already sharp rhetoric surrounding the unprecedented case is only becoming more pointed.
On Aug. 1, Avakian surprised state officials by lodging a complaint against the Legislature and its leadership. The document largely concerned allegations of sexual harassment that emerged last year against former state Sen. Jeff Kruse, a Roseburg Republican who was found to have acted inappropriately toward other legislators, interns and lobbyists.
Avakian accused top Democratic lawmakers of allowing a culture of harassment to continue largely unchecked, and alleged lawyers and a human resources official employed in the Capitol had misled victims about their recourse, among other things. Avakian directed his own Bureau of Labor and Industries, known as BOLI, to investigate the matter.
The Legislature has not played along.
Lawmakers responded to the complaint by denying many points, and noting they have already taken steps to address fallout from the substantiated allegations against Kruse. They also argue Avakian and BOLI have no power under the state's Constitution to investigate or penalize lawmakers. On those grounds, officials have so far refused to comply with subpoenas seeking a wide array of information spanning several years.
In October, Avakian asked a judge to get involved, filing a request seeking fines of $1,000 each day officials fail to comply with the subpoenas. The Legislature's official response to that request, filed Nov. 2, is its most pointed reaction to Avakian's actions to date.
In the aftermath of the complaint, top Democratic lawmakers like House Speaker Tina Kotek and Senate President Peter Courtney declined to speculate on Avakian’s motives. But the court document insinuates that personal ambition is at play.
“The only remaining conclusion that the Respondents are left with is that this is an effort by Commissioner Avakian to seek a political or personal pursuit of his own,” the recent filing said.
Christine Lewis, a BOLI spokesperson, declined to answer questions about that and other claims, saying the bureau would let its formal retort in court speak for itself. That document wasn’t publicly available Tuesday afternoon.
The Legislature has asked a judge to toss Avakian’s case on the grounds that BOLI has no jurisdiction over the Legislature, that the subpoenas “have not been issued for a lawful purpose,” and that complying with them could risk revealing the identities of harassment victims in the Capitol.
BOLI has insisted it won’t reveal victims’ names, and has secured a protection order from one of its own administrative law judges barring the public release of identities. The Legislature said that’s not good enough.
“A protective order does not continue past the conclusion of an investigation,” its filing reads. “Respondents have no reason to trust that Commissioner Avakian will protect individuals' confidential information.”
The Legislature also said Avakian sent process servers to the state Capitol to deliver subpoenas, “despite being acutely aware that the individuals being served with subpoenas were already represented by counsel.”
Harnden told OPB the incident amounted to attempted trickery.
“He had somebody literally wandering around the halls trying to find some of the people they wanted to serve with subpoenas,” he said. Moreover, those subpoenas came attached to instructions telling the people to call BOLI to discuss the matter, Harnden said. He said that should never happen when BOLI knows a person has a lawyer.
“Avakian’s a lawyer and he knows you can’t do that,” Harnden said. “It’s just kind of a game.”
Attorneys for BOLI and the Legislature are scheduled to argue their cases Nov. 19 before Multnomah County Judicial Officer Christopher Marshall.
If Marshall agrees with the Legislature, BOLI would be unable to subpoena the lawmakers, throwing its investigation into uncertainty. If the judge agrees with BOLI, some of the state’s top officials could be fined tens of thousands of dollars.
The parties are also arguing over where the case should be heard, if it moves forward. Avakian filed the matter in Multnomah County, saying that BOLI's investigation is based in Portland. The Legislature said Marion County — the home of the Capitol — is more appropriate.
Hernden noted Tuesday that prior to Avakian’s complaint, BOLI had been working with the Legislature on looking at the state’s policies for dealing with sexual harassment.
“They should go back to the process that was working,” he said. “The subpoenas shouldn’t have been issued, and BOLI should have continued on the track that was successful.”